Legal Commentary

Deadly Force in Self-Defense Constitutionally Protected, Nondeadly Force Unprotected?

By Eugene Volokh

From People v. Srnec (Mich. Ct. App. Jan. 26, 2010) (italics added):

Defendant next argues that the trial court erred in denying his motion for a new trial and to dismiss because the Second Amendment safeguarding the right to bear arms affords every citizen a right of self-defense against unlawful arrest or seizure. Defendant claims that MCL 750.81d unconstitutionally deprives every citizen of this right because it allows officers to seize the citizen, regardless of the lawfulness of the seizure, and then penalizes the citizen for resisting through the use of self-defense. We disagree.

Under the plain language of the Second Amendment of the United States Constitution and Const 1963 art 1 § 6, the right to keep and bear arms involves the right to use firearms in self-defense. See District of Columbia v Heller. Defendant claims he has a constitutional right to use firearms to resist an unlawful arrest or seizure. Defendant?s argument fails because the Second Amendment does not give any citizen a constitutional right to use deadly force to resist an unlawful arrest or seizure. The right to bear arms does not safeguard an individual?s right to self-defense short of deadly force. In People v Dillard, 115 Mich App 640, 645 (1982), this Court noted that ?the [common law] right to resist an unlawful arrest can never include the right to use deadly force where the only danger perceived is loss of liberty.?

The right to use self-defense to resist unlawful arrest has only been afforded protection at the common law and is not a constitutional right.

Now the result might be right: I think it?s plausible to conclude that the right to keep and bear arms in self-defense presupposes a certain sort of right to self-defense (see PDF pp. 16?17 of this article), but how this plays out as to self-defense against unlawful arrest is a complicated question. (Even if you don?t think the right to keep and bear arms in self-defense provides any constitutional basis for a right to self-defense, 21 state constitutions expressly secure a right to defend life, liberty, and property, so the issue would still arise in those states.)

But can it really be the case that the right safeguards only the right to use deadly force, but not the right to use nonlethal force? Even if ?arms? is read as being limited to firearms, firearms can be used in ways that are nearly certain to be nonlethal ? if, for instance, one only brandishes them. Why would one interpret the constitutional provision as securing a right to deadly self-defense but not a right to nondeadly self-defense?

Note, though, that the defendant in this case used ?arms? in a different sense than that used in ?keep and bear arms?: His resisting arrest consisted of ?continu[ing] to thrash and struggle and buck his arms out.?

Full post as published by The Volokh Conspiracy on April 22, 2010 (boomark / email).