CNSNews | July 20, 2009
By Adam Brickley

Washington (CNSNews.com) – When Sen. Tom Coburn (R-Okla.) asked Wednesday whether citizens have a right to self-defense, Supreme Court nominee Sonia Sotomayor told the Senate Judiciary Committee, “I don’t know.”
 
Coburn had asked, “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?”
 
In reply, Sotomayor said that, “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.” She then went on to explain that self-defense rights are usually defined by state law.”
 
Unsatisfied, Coburn continued, “But do you have an opinion, of whether or not in this country I personally, as an individual citizen, have a right to self-defense?”
 
Sotomayor responded, “I – as I said, I don’t know.”
 
Later in the exchange, Coburn said, “I wasn’t asking about the legal question. I’m asking your personal opinion.”
 
“But that is an abstract question with no particular meaning to me,” Sotomayor relied.
 
William van Alstyne, a professor at the William and Mary School of Law, said that Sotomayor was technically justified in her answer. “It’s actually a more subtle and elusive question than most people would even reasonably understand,” he said.
 
Van Alstyne told CNSNews.com that the issue has not come directly before the Supreme Court, and states do indeed have different laws regarding when a person has a right to use deadly force (some say there is a “duty to retreat” if retreat is a safe alternative to deadly force, others say there is not).
 
However, van Alstyne also said that the court has made rulings that indicate a basic right to defend one’s life.
 
“Interestingly enough,” van Alstyne said, “I think you may find it, as I would, in the court’s abortion cases.”

He asserted that, “even under Roe v. Wade and all of the other decisions, once the fetus has hit the seventh or, at latest, eighth month, it is deemed quote ‘viable.’”
 
Continuing this line of reasoning, he stated that, “the woman may, nevertheless, get a physician’s willing help to off the fetus – the viable offspring – if it’s necessary to do so either to save her own life or merely to keep her physical health unimpaired.”
 
“The Roe court,” van Alstyne claimed, “and the current court, in the majority opinion has taken the position that your right to ‘protect your own life’ as a woman gives you an entitlement to kill the viable human being that you carry.”
 
“That’s an approximate decision,” he concluded, “that’s at least relevant in the discussion you and I are holding.”
 
As for his own personal opinion, van Alstyne said that, “for the most part, in my own view, the dicta of the court, the history of the treatment of self-preservation, and of constitutional reasoning and text, inevitably lead to the sensible conclusion that indeed there is a fundamental right to save your life by killing another if those are the alternatives confronting one.”
 
Van Alstyne also expressed the idea that the right to self-defense is so basic as to be implied by the very nature of the Constitution itself.
 
“If you go back to the philosophic grounds of the Constitution, a social compact, the theory is that we yield power to others, namely a democratic majority, because it’s necessary so that we don’t live according to a law of the jungle – but if government is unable to protect us from the threat of others to kill, why then we never gave to government the power to deprive us of our natural right of human self defense.”
 
“So,” van Alstyne concluded, “it is always implicit in the social compact that indeed, if it’s necessary to save our lives those of our family, why then we revert to that natural right, and it is protected by the Constitution.”