Contemporary Second Amendment law, which originated with the famous Heller decision (2008) and reached a new peak with Bruen (2022), relies on an implicit political theory. This article uncovers and critiques that theory. I argue that the Supreme Court’s Second Amendment jurisprudence positions interpersonal self-defense, and more generally individual response to crime, at the heart of the meaning of American citizenship. The paradigmatic citizen for whom state institutions should be designed is a self-defender, because, per the Court’s interpretive methodology, this is what the American people want. This line of cases thus attempts one of the most challenging feats of modern political philosophy: squaring popular sovereignty with natural rights, and particularly the right to use violence in self-defense. Curiously, however, the philosopher who first and most influentially established how self-defense and popular sovereignty bear on each other, Thomas Hobbes, is absent from Second Amendment analyses. The article explains why this absence is unfortunate and then rectifies it.
Ruling that self-defense is a necessary component of the good state puts the Second Amendment in Hobbesian terrain. However, while Hellerian Second Amendment law might appear to vindicate Hobbes’s protoliberal bases for justice, with the necessary adjustments for a constitutional democracy, Hobbes does very different things with the same ingredients. Hobbes would recognize the conclusions that the Supreme Court reaches as exactly those that we ought to overcome. The Second Amendment’s self-defense is hierarchical and moralistic: it is a just infliction of violence and an individual right to designate fellow citizens as criminals. Hobbes’s self-defense is egalitarian and materialistic: it is a matter of self-preservation. Hence, for Hobbes, self-defense is neither a moral nor a social achievement. It will always have a place in public life, but that does not make the presence of self-defense a desirable one. Self-defense is base, as we are when we are left alone; we contract to no longer be left alone. Rather than come naturally and be discarded if they don’t, Hobbes thought that peace and sociability require work.
The article focuses on four critiques of the Supreme Court’s Second Amendment that Hobbes helps to flesh out. First, Hobbes conceptualized self-defense as directed toward safety, whereas the Supreme Court adopts the Lockean view, which links self-defense to autonomy and hence allows private appeals to morality to cut through political associations and assert themselves by force. Second, Hobbes held an egalitarian understanding of political subjectivity, and ascribed corresponding representation and protection responsibilities to state institutions. The Heller-Bruen line of cases, in contrast, favors a patriarchal order of hierarchy and self-sufficiency. Third, Hobbes viewed self-defense as natural but unfortunate, a right that we have but that should not dictate our everyday lives. The phenomenon of mass shootings epitomizes the dangerous repercussions of a contrasting cultural script, according to which the ultimate American citizen is a self-defender. Fourth, Hobbes linked self-defense and popular sovereignty to cultivate a flourishing public life, but the Hellerian Court translates this relationship into constitutional fetishism. For the Second Amendment Supreme Court, self-defense serves not to bring about a social contract but to break one up.
© 2023 BYU J. Reuben Clark Law School
On the Place of Self-Defense in Public Life: A Hobbesian Critique of the Supreme Court’s Second Amendment,
37 BYU J. Pub. L.
Available at: https://digitalcommons.law.byu.edu/jpl/vol37/iss2/6