SENATOR TOM COBURN: Thank you. Let me follow up with one other question. As a citizen of this country, do you believe innately in my ability to have self-defense of myself—personal self-defense? Do I have a right to personal self- defense?
JUDGE SONIA SOTOMAYOR: I’m trying to think if I remember a case where the Supreme Court has addressed that particular question. Is there a constitutional right to self-defense? And I can’t think of one. I could be wrong, but I can’t think of one. Generally, as I understand, most criminal law statutes are passed by states. And I’m also trying to think if there’s any federal law that includes a self-defense provision or not. I just can’t. What I was attempting to explain is that the issue of self- defense is usually defined in criminal statutes by the state’s laws. And I would think, although I haven’t studied the—all of the state’s laws, I’m intimately familiar with New York.
COBURN: But do you have an opinion, or can you give me your opinion, of whether or not in this country I personally, as an individual citizen, have a right to self-defense?
SOTOMAYOR: I—as I said, I don’t know.
COBURN: I’m talking about your…
SOTOMAYOR: I don’t know if that legal question has been ever presented.
COBURN: I wasn’t asking about the legal question. I’m asking about your personal opinion.
SOTOMAYOR: But that is sort of an abstract question with no particular meaning to me outside of…
COBURN: Well, I think that’s what American people want to hear, Your Honor, is they want to know. Do they have a right to personal self-defense? Do—does the Second Amendment mean something under the 14th Amendment? Does what the Constitution—how they take the Constitution, not how our bright legal minds but what they think is important, is it OK to defend yourself in your home if you’re under attack? In other words, the general theory is do I have that right? And I understand if you don’t want to answer that because it might influence your position that you might have in a case, and that’s a fine answer with me. But I—those are the kind of things people would like for us to answer and would like to know, not how you would rule or what you’re going to rule, but—and specifically what you think about, but just yes or no. Do we have that right?
SOTOMAYOR: I know it’s difficult to deal with someone as a—like a judge who’s so sort of—whose thinking is so cornered by law.
COBURN: I know. It’s hard.
SOTOMAYOR: Could I…
COBURN: Kind of like a doctor. I can’t quit using doctor terms.
SOTOMAYOR: Exactly. That’s exactly right, but let me try to address what you’re saying in the context that I can, OK, which is what I have experience with, all right, which is New York criminal law, because I was a former prosecutor. And I’m talking in very broad terms. But, under New York law, if you’re being threatened with eminent [sic.] death or very serious injury, you can use force to repel that, and that would be legal. The question that would come up, and does come up before juries and judges, is how eminent is the threat. If the threat was in this room, “I’m going to come get you,” and you go home and get—or I go home. I don’t want to suggest I am, by the way. Please, I’m not—I don’t want anybody to misunderstand what I’m trying to say. (LAUGHTER) If I go home, get a gun, come back and shoot you, that may not be legal under New York law because you would have alternative ways to defend…
COBURN: You’ll have lots of ’splainin’ to do.
SOTOMAYOR: I’d be in a lot of trouble then. But I couldn’t do that under a definition of self-defense. And so, that’s what I was trying to explain in terms of why, in looking at this as a judge, I’m thinking about how that question comes up and how the answer can differ so radically, given the hypothetical facts before you.
COBURN: Yes. You know…
SOTOMAYOR: Or not the…
COBURN: The problem is is we think—we doctors think like doctors. Hard to get out of the doctor skin. Judges thing like judges. Lawyers think like lawyers. And what American people want to see is inside and what your gut says. And part of that’s why we’re having this hearing.
For all her waffling about eminence, Judge Sotomayor was ill advised to withhold her concession of a constitutional right to self-defense. If the doctrine of substantive due process, as used by the Supreme Court to protect a wide range of unenumerated rights over a long period of time, supports the right to abortion and the right to privacy doctrines, it must with far greater reason support a right to self defense. The Supreme Court that protects “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life” in Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 851 (1992), cannot shie away from protecting the far more basic right to preserve one’s existence from wrongful physical threats. This point is due to Nicholas J. Johnson in “Self Defense?”, Journal of Law, Economics & Policy, 2006. Thus Nelson Lund develops its implications in his pithy synopsis of “A Constitutional Right to Self Defense?”:
As a practical matter, it is probably going to be much more important, and much more difficult, to agree on the scope of the right to self defense.
- Against whom may I defend myself, and with how much force?
How certain do I have to be that I will be attacked before I respond with preemptive violence, and how imminent must the threat be?
- May I defend myself only against lethal threats or also against threats of serious injury?
- May I use force to defend my honor, which I may value more highly than my life?
- May a woman use lethal force to defend herself against any rape, or only those in which she faces an imminent threat of death or maiming?
- Do I have a duty to retreat, or may I stand my ground against a criminal attack?
- After I kill someone, how much proof will I need that I exercised my right of self defense within whatever limits the law prescribes?
- Does the right of self-defense include the right to join with one’s fellow citizens in order to resist with force the usurpations of a government turned tyrannical, as some have inferred from the Second Amendment?
Depending on how such questions are answered, the right of self defense could be anything from an important element in republican freedom to a useless memento of natural liberty.
In the light of reason, Judge Sotomayor’s recognition of abortion rights as settled precedent and endorsement of a constitutional right to privacy should cause and compel her to recognize and endorse a constitutional right to self-defense. As a practical matter, her shoo-in as a Supreme Court Justice will vouchsafe a permanent preemption of impartial reason by the richness of her experiences.