The Dobbs Fraud by SCOTUS's Fake Originalists (Part XII)

SCOTUS's defense of self-defense: the right to choose to kill

Invoking common sense as much as the Constitution, very many people happily expressly link the Second Amendment to a maxim: “Guns don’t kill people, people kill people.” That truism is so popular it has its own Wikipedia page, and versions appeared in popular bumper stickers. It even earned its own book. According to Wikipedia, that “slogan and connected understanding dates back to at least the 1910s, and it became widely popular among gun advocates in the second half of the 20th century, so much so that some have labeled it a cliché.”

That cliché was at the heart of two 2022 SCOTUS decisions that were born only one day apart. The decision (and multiple opinions) in Dobbs v. Jackson Women’s Health Org., 597 U.S. 215 (2022) were delivered on June 24. The decision (and multiple opinions) in N.Y. State Rifle & Pistol Ass'n v. Bruen, 597 U.S. 1 (2022) were delivered on June 23.

SCOTUS’s so-called originalists were responsible for delivering both majority opinions. For Bruen, Justice Thomas delivered the majority opinion. He was joined by Chief Justice Roberts and Justices Alito, Gorsuch, Kavanaugh and Barrett. For Dobbs, Justice Alito delivered the majority opinion. He was joined by the rest of the usual suspects: Justices Thomas, Gorsuch, Kavanaugh and Barrett.

Bruen is extremely relevant to a vital limitation on the scope of Dobbs. States legislators now are pretending that Dobbs somehow authorized them to outlaw and even criminalize the termination of a pregnancy even when it is medically necessary (to protect a woman’s health or even her life). The same justices responsible for Dobbs formed the majority in Bruen. Their decisions were separated by one day. Bruen was first and it emphasized the one natural right that the Founders considered the first right: the right of self-preservation.

The most fundamental law of nature and copious Anglo-American history is the right to fight for one’s own life. The Bruen majority and the precedent they invoked proved that point compellingly. The first paragraph of the majority opinion in Bruen used the expression self-defense three times. The majority opinion used (primarily) the expression self-defense and also the expressions defense or defence some 60 times. The concurring opinions used (primarily) the expression self-defense and also the expression defense another 18 times. The dissenting opinion used (primarily) the expression self-defense and also the expressions defense or defence another 24 times.

The dissenting opinion in Bruen also emphasized the same precedent on which the majority in Bruen relied, District of Columbia v. Heller, 554 U.S. 570 (2008):

In [Heller] the Court concluded that the Second Amendment protects the right to [ ] self-defense. Heller found that the Amendment codified a preexisting right and that this right was regarded at the time of the Amendment’s adoption as rooted in “‘the natural right of [ ] self-preservation.’” [ ] “[T]he inherent right of self-defense,” Heller explained, is “central to the Second Amendment right.”

Heller was, in fact, far more emphatic and well-supported. It also extremely strongly confirms a woman’s constitutional right to terminate her own pregnancy to protect her own health or life.

“By the time of the founding, the right” of self-preservation was “fundamental for English subjects.” “Blackstone” (whose works, SCOTUS has said, “constituted the preeminent authority on English law for the founding generation”) in 1765 cited the relevant “provision of the [English] Bill of Rights [of 1689] as one of the fundamental rights of Englishmen.” Blackstone’s “description” emphasized “the natural right” of “self-preservation” and “the right” of “self-preservation and defence.” Moreover, “the most important early American edition of Blackstone’s Commentaries (by the law professor and former Antifederalist St. George Tucker) made clear” in 1803 that “Americans understood” the “right of self-preservation.”

In their own “review of founding-era sources,” the Heller majority found “nine state constitutional provisions written in the 18th century or the first two decades of the 19th, which enshrined a right of citizens” to use deadly force against other actual people “in defense of themselves” or “in defense of himself.”

“Justice James Wilson” (one of the real original SCOTUS justices) similarly “interpreted the Pennsylvania Constitution’s” relevant “right” as “a recognition of the natural right of defense” of “one’s person or house” which “he called the law of “self preservation.” Wilson explained this “constitutional right” was “one of our many renewals of the Saxon regulations.” Such right necessarily was inherently related to and derived from strong assertions of the sovereignty of the people (including by Wilson). See Part VI, Part VII. Such right necessarily is inherently related to rights enumerated in Amendment IV: “The right of the people to be secure in their persons” and “houses.”

Another source quoted in Heller emphasized that people “were bound” (not merely permitted) to use deadly force, including “for the preservation” of “their own persons.” Another source emphasized “[t]he right of every individual to” use deadly force “for his defence” in recognition “of the natural right” of “self-preservation.”

“Thus the right of self-defence [is] guaranteed by the [Ohio] constitution.” “That was also the interpretation of those state constitutional provisions adopted by pre-Civil War state courts.”

In fact, the Preamble to a crucial May 1776 Resolution of the Continental Congress emphasized that such right was the first and foremost cause justifying not only independence from, but also war against, Britain. King George and Parliament had “excluded the inhabitants of these United Colonies from the protection of his crown” and “the whole force of” Britain, “aided by foreign mercenaries, is to be exerted for the destruction of the good people of these colonies,” so “all the powers of government” are to be “exerted, under the authority of the people of the colonies, for the preservation of internal peace, virtue, and good order, as well as for the defence of their lives, liberties, and properties, against the hostile invasions and cruel depredations of their enemies.”

Our Constitution’s Preamble also expressly emphasized that “We the People” have the right to defend and protect ourselves and the duty to defend and protect our Constitution, so we created the Constitution and federal government, in significant part, to “provide for the common defence” and “secure the Blessings of Liberty to ourselves.”

All the foregoing accentuate crucial truths about the Second Amendment. It clearly is not merely about keeping and bearing arms. It is at least as much about using arms. But it also is not primarily or even necessarily about guns or any other type of arms. The Second Amendment primarily and necessarily secures the most fundamental right of self-preservation. Our own right of self-preservation necessarily is the reason We the People have the power to delegate to our representatives in federal government the power to use violence to defend and protect us and our Constitution.

It is a self-evident truth (evident from the text of the Preamble and the Second and Tenth Amendments) that the power to use any military force or to conscript citizens for military service, as well as all police power and any power to punish any crime, derives from (and could be delegated to our representatives in government only because of) a right that was emphasized by the Preamble and the Second Amendment—our individual and collective right of self-preservation.

It also is a self-evident truth that much in the Constitution pertains to the right of the people (and the power they delegated to government) to take human life for purposes of self-preservation. That includes not only the Preamble and the Second Amendment, but also Articles I and II (regarding war, the army, navy and state militias) and the Eighth Amendment regarding punishments (which obviously include capital punishment).

Despite all the foregoing (and much more), the Dobbs majority depended on a particular deception that Bruen proved.

[Each woman’s asserted] right [to choose to terminate her own pregnancy] is also critically different from any other right that this Court has held to fall within the Fourteenth Amendment’s protection of “liberty.” . . . [Such choice] is fundamentally different [ ] because it destroys what [some judges] called “fetal life” and what [the state legislature at issue] describes as an “unborn human being.”

Bruen proves that throughout America and throughout much Anglo-American history (and even to this very day), an obvious and well-known enumerated right consists of nothing less than the right of one person to choose to take the “life” of another actual “human being.”

Perhaps the Dobbs majority did not outright lie in this instance because they qualified their references to “life” and “human being.” But such qualifications were too clever by half. Throughout a huge part of America and throughout a huge part of our history no provision of the constitution was understood to explicitly or implicitly protect all “life” even for every existing “human being.” See, e.g., Part V.

Meanwhile, back in Bruen, SCOTUS held “that the Second and Fourteenth Amendments protect an individual’s right” to “self-defense” even “outside the home.” The same justices responsible for Dobbs knew exactly what they were saying and doing with Bruen: the Second and Fourteenth Amendments protect each person’s right to choose to kill another actual person.

Even the majority opinion emphasized that they knew they were protecting the right to use “deadly weapons.” They emphasized their “interpretation of the Second Amendment” was based upon an “overwhelming weight” of “evidence regarding the right” to “self-defense.” Clearly and irrefutably, the whole point of carrying a “deadly weapon” for “self-defense” is to ensure the ability to exercise the right to choose to kill another actual person.

“To summarize: The historical evidence from antebellum America” demonstrates that “public carry” of deadly weapons was permitted. “Under the common law, individuals” clearly could “carry deadly weapons.” Clearly, “public policy” allowed “deadly weapons” to “be carried as means of self-defense” which “fully cover[ed] all the wants of society.” Even “military-style weapons” are “appropriate for open and manly use in self-defense.” Deadly weapons are carried for deadly “defence” not only “of themselves” and “their families” but even “their property.”

The dissenting justices ensured the majority justices knew what they were doing with Bruen. They emphasized that “the United States” obviously “suffers a disproportionately high rate of firearm-related deaths and injuries.” Relevant to children, “gun violence has now become the leading cause of death in children and adolescents.” “Another study found that a woman is five times more likely to be killed by an abusive partner if that partner has access to a gun.”

Regarding law enforcement, “most [police] officers who are killed in the line of duty are killed by firearms” and “States with the highest rates of gun ownership report four times as many fatal shootings of civilians by police officers compared to States with the lowest rates of gun ownership.”

Newspapers report mass shootings occurring at an entertainment district in Philadelphia, Pennsylvania (3 dead and 11 injured); an elementary school in Uvalde, Texas (21 dead); a supermarket in Buffalo, New York (10 dead and 3 injured); a series of spas in Atlanta, Georgia (8 dead); a busy street in an entertainment district of Dayton, Ohio (9 dead and 17 injured); a nightclub in Orlando, Florida (50 dead and 53 injured); a church in Charleston, South Carolina (9 dead); a movie theater in Aurora, Colorado (12 dead and 50 injured); an elementary school in Newtown, Connecticut (26 dead); and many, many more.

Naturally, “studies” show that “states that rank among the highest in gun ownership also rank among the highest in gun deaths.” “Of those deaths, 22,018 (or about 61%) were suicides, 13,463 (37%) were homicides, and 489 (1%) were unintentional injuries.” “On top of that, firearms caused an average of 85,694 emergency room visits for nonfatal injuries each year between 2009 and 2017.” “Worse yet, gun violence appears to be on the rise. By 2020, the number of firearm-related deaths had risen to 45,222,” or “by about 25% since 2015. That means that, in 2020, an average of about 124 people died from gun violence every day.” “In 2021, an average of 44 people each month were shot and either killed or wounded in road rage incidents, double the annual average between 2016 and 2019.”

Bruen and Heller necessarily limited the gross overreach of the Dobbs majority and the state legislators they empowered and encouraged. Bruen and Heller necessarily confirmed that women have the right to terminate their own pregnancies for self-preservation. Neither SCOTUS justices nor state legislators ever did or ever can prove that the people gave any public servant the power to deprive women of the right to protect themselves from death or serious injury by terminating a pregnancy.

Bruen and Heller also necessarily proved that the Dobbs majority (and state legislators) did not do what they did and are not doing what they are doing to protect a public interest that is compelling and narrowly tailored not to infringe unnecessarily on each woman’s (or man’s) freedom of conscience in making the choice about life at issue in Dobbs. To put it plainly, the right that SCOTUS protected in Bruen and Heller clearly and necessarily was the right to choose to kill a person’s own child, as well as other family, friends, neighbors and their children.