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Copyright (c) 2008 Syracuse Law Review
Syracuse Law Review

SYMPOSIUM: DISTRICT OF COLUMBIA V. HELLER: THE NATURAL RIGHT OF SELF-DEFENSE:
HELLER'S LESSON FOR THE WORLD

2008

Syracuse Law Review

59 Syracuse L. Rev. 235

Author

David B. Kopel+

Excerpt



Introduction
 
One of the most important elements of the District of Columbia v. Heller decision is the natural law. 1 Analysis of natural law in Heller shows why Justice Stevens' dissent is clearly incorrect, and illuminates a crucial weakness in Justice Breyer's dissent. The constitutional recognition of the natural law right of self-defense has important implications for American law, and for foreign and international law.


I. The Natural Law in Right of Armed Defense

A. In the Heller Case
 
Heller reaffirms a point made in the 1876 Cruikshank case. 2 The right to arms (unlike, say, the right to grand jury indictment) is not a right which is granted by the Constitution. It is a pre-existing natural right which is recognized and protected by the Constitution:


 
It has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it "shall not be infringed." As we said in United States v. Cruikshank, "this is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second Amendment declares that it shall not be infringed... ." 3
 
As Heller pointed out, the 1689 English Declaration of Right (informally known as the English Bill of Rights) was a "predecessor to our Second Amendment." 4 According to the Declaration: "the subjects which are Protestants may have ...
 
 
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