# For you Constitutional Originalists - where is the Right to Self Defense? **URL:** \ **Category:** Great Debates\ **Created:** [November 14, 2011, 11:05pm UTC](https://boards.straightdope.com/t/for-you-constitutional-originalists-where-is-the-right-to-self-defense/602947 "2011-11-14T23:05:56Z")\ **Posts on this page:** 16\ **Page:** 4
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 16, 2011, 11:16pm UTC](https://boards.straightdope.com/t/for-you-constitutional-originalists-where-is-the-right-to-self-defense/602947/61 "2011-11-16T23:16:39Z")
> [@Really\_Not\_All\_That\_Bright](#): > > The Supreme Court is theoretically limited to considering the merits of arguments presented by the parties, but hey, he convinced a majority. Cite to that rule, please? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 16, 2011, 11:34pm UTC](https://boards.straightdope.com/t/for-you-constitutional-originalists-where-is-the-right-to-self-defense/602947/62 "2011-11-16T23:34:58Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Because Scalia was doing what he always complains about liberal jurists doing: making things up. > > Neither Heller nor the _amici_ argued that there was a right to self defense; Scalia came up with that independently. The Supreme Court is theoretically limited to considering the merits of arguments presented by the parties, but hey, he convinced a majority. > [@Bricker](#): > > Cite to that rule, please? Wow. I should have quoted your whole post, because the irony of your jab that Scalia was making things up, followed instantly by your statement that the Supreme Court is theoretically limited to considering the merits of arguments presented by the parties, is too funny for words. In fact, the court not only can rely upon a thoery not advanced by the parties, but it MUST, if that is the correct resolution of the issue: > [@Helvering v. Gowran](#): > > In the review of judicial proceedings the rule is settled that if the decision below is correct, it must be affirmed, although the lower court relied upon a wrong ground or gave a wrong reason. Where the hell did you get the idea that a reviewing court could only consider arguments of the parties? ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [November 17, 2011, 12:10am UTC](https://boards.straightdope.com/t/for-you-constitutional-originalists-where-is-the-right-to-self-defense/602947/63 "2011-11-17T00:10:53Z")
It follows logically from the prohibition on advisory opinions and requirement for an actual controversy; the court can only consider the issues before it. As far as I can tell, Helvering applies where the reasoning the lower court relied on is wrong, and not necessarily where the correct reasoning was not before the court at all. Anyway, Scalia didn’t just rely on an argument that wasn’t before him; in a sense, he granted relief that had not been requested. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 17, 2011, 12:23am UTC](https://boards.straightdope.com/t/for-you-constitutional-originalists-where-is-the-right-to-self-defense/602947/64 "2011-11-17T00:23:36Z")
> [@Really\_Not\_All\_That\_Bright](#): > > It follows logically from the prohibition on advisory opinions and requirement for an actual controversy; the court can only consider the issues before it. Your confusion seems to be between “issues” and “arguments.” Correct that the court can only consider issues raised below. Incorrect that the court can only consider arguments raised below. > [@](#): > > As far as I can tell, Helvering applies where the reasoning the lower court relied on is wrong, and not necessarily where the correct reasoning was not before the court at all. Don’t start digging yourself a bigger hole. > [@](#): > > Anyway, Scalia didn’t just rely on an argument that wasn’t before him; in a sense, he granted relief that had not been requested. No, he didn’t. What relief did he grant that wasn’t requested by one of the parties? ---
**Author:** ![David42](https://avatars.discourse-cdn.com/v4/letter/d/5f9b8f/32.png) [@David42](https://boards.straightdope.com/u/David42)\ **Post date:** [November 17, 2011, 12:58am UTC](https://boards.straightdope.com/t/for-you-constitutional-originalists-where-is-the-right-to-self-defense/602947/65 "2011-11-17T00:58:00Z")
> [@Bricker](#): > > Your confusion seems to be between “issues” and “arguments.” > > Correct that the court can only consider issues raised below. > Incorrect that the court can only consider arguments raised below. Gotta nit-pick. There are some exceptions to the general rule that the court can only consider issues raised below. For instance, a challenge to the lower court’s jurisdiction can be raised at any time, including on appeal. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [November 17, 2011, 4:59am UTC](https://boards.straightdope.com/t/for-you-constitutional-originalists-where-is-the-right-to-self-defense/602947/66 "2011-11-17T04:59:21Z")
> [@Bricker](#): > > No, he didn’t. What relief did he grant that wasn’t requested by one of the parties? Here’s what Heller asked for (plus declaratory relief consistent with the injunction) in his complaint: > [@](#): > > An order permanently enjoining defendants, their officers, agents, servants, employees, and all persons in active concert or participation with them who receive actual notice of the injunction, from enforcing D.C. Code § 7-2502.02(a)(4), barring registration of handguns; permanently enjoining defendants from enforcing D.C. Code § 7-2507.02 in such a manner as to bar the possession of functional firearms within the home or on possessed land; and permanently enjoining defendants from enforcing D.C. Code §§ 22-4504 and 4515 in such a manner as to forbid the carrying of a firearm within one’s home or possessed land without a license. There’s nothing in there about self defense. And yet Scalia finds that the Second Amendment protects a right to self defense. > [@](#): > > In sum, we hold that the District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [November 17, 2011, 5:15am UTC](https://boards.straightdope.com/t/for-you-constitutional-originalists-where-is-the-right-to-self-defense/602947/67 "2011-11-17T05:15:31Z")
> [@Bricker](#): > > Don’t start digging yourself a bigger hole. It stands to reason that if relief is granted based on a _new argument_, on remand the losing party is entitled to present new evidence to address the new argument. Indeed, Helvering includes that very proposition: > [@](#): > > If the Court of Appeals had accepted the theory, it would have been open to the taxpayer to urge, in view of the new issue presented, that he should have the opportunity to establish before the Board additional facts which would affect the result… ---
**Author:** ![David42](https://avatars.discourse-cdn.com/v4/letter/d/5f9b8f/32.png) [@David42](https://boards.straightdope.com/u/David42)\ **Post date:** [November 17, 2011, 5:33am UTC](https://boards.straightdope.com/t/for-you-constitutional-originalists-where-is-the-right-to-self-defense/602947/68 "2011-11-17T05:33:34Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Here’s what Heller asked for (plus declaratory relief consistent with the injunction) in his complaint: > > There’s nothing in there about self defense. And yet Scalia finds that the Second Amendment protects a right to self defense. The second amendment and the right to self-defense is the _reason_ Heller was entitled to the requested relief. The requested relief was an injunction against the ban on handguns. ---
**Author:** ![Naxos](https://avatars.discourse-cdn.com/v4/letter/n/50afbb/32.png) [@Naxos](https://boards.straightdope.com/u/Naxos)\ **Post date:** [November 17, 2011, 5:36am UTC](https://boards.straightdope.com/t/for-you-constitutional-originalists-where-is-the-right-to-self-defense/602947/69 "2011-11-17T05:36:55Z")
> [@Linden\_Arden](#): > > in the US Constitution, of course. > > Clearly, there is a right to keep and bear arms. No debate there. By the way, that’s a “Constitutional Originalist” interpretation, or belief, as in religious belief. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [November 17, 2011, 5:45am UTC](https://boards.straightdope.com/t/for-you-constitutional-originalists-where-is-the-right-to-self-defense/602947/70 "2011-11-17T05:45:25Z")
> [@David42](#): > > The second amendment and the right to self-defense is the _reason_ Heller was entitled to the requested relief. The requested relief was an injunction against the ban on handguns. As I’ve pointed out in some detail, Heller did not point to his right to self defense as a reason for his entitlement to relief. He pointed to the language of the Second Amendment, and that was all. Read his briefs. They go on and on for pages about the rather comical notion that the first clause of the second amendment is a “preamble”, and that’s about it. ---
**Author:** ![emarkp](https://avatars.discourse-cdn.com/v4/letter/e/3be4f8/32.png) [@emarkp](https://boards.straightdope.com/u/emarkp)\ **Post date:** [November 17, 2011, 3:22pm UTC](https://boards.straightdope.com/t/for-you-constitutional-originalists-where-is-the-right-to-self-defense/602947/71 "2011-11-17T15:22:04Z")
Uh, the constitution doesn’t grant rights. It secures them. The right to self-defense is self-evident. ---
**Author:** ![David42](https://avatars.discourse-cdn.com/v4/letter/d/5f9b8f/32.png) [@David42](https://boards.straightdope.com/u/David42)\ **Post date:** [November 17, 2011, 4:12pm UTC](https://boards.straightdope.com/t/for-you-constitutional-originalists-where-is-the-right-to-self-defense/602947/72 "2011-11-17T16:12:21Z")
> [@Really\_Not\_All\_That\_Bright](#): > > As I’ve pointed out in some detail, Heller did not point to his right to self defense as a reason for his entitlement to relief. He pointed to the language of the Second Amendment, and that was all. Read his briefs. They go on and on for pages about the rather comical notion that the first clause of the second amendment is a “preamble”, and that’s about it. You don’t seem able to distinguish that Heller’s issue was over whether or not he can keep his gun despite the ban. The court is free to look at other reasons, and as Bricker pointed out, has to look at other reasons if the reasons given are wrong. Self-defense is the argument, not the issue. A party does not have to raise all possible arguments. Very often the court does not agree with either sides argument completely, yet it still decides one way or the other. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [November 17, 2011, 4:16pm UTC](https://boards.straightdope.com/t/for-you-constitutional-originalists-where-is-the-right-to-self-defense/602947/73 "2011-11-17T16:16:26Z")
No, self defense is the issue. There is nothing inherently tying guns to self defense; one can have the right to keep weapons, a right to self-defense, neither, or both. [QUOTE=emarkp] Uh, the constitution doesn’t grant rights. It secures them. The right to self-defense is self-evident. [/QUOTE] Your first sentence is a polite fiction, and your third doesn’t make sense, but in any event I’m not sure who you are addressing here. ---
**Author:** ![David42](https://avatars.discourse-cdn.com/v4/letter/d/5f9b8f/32.png) [@David42](https://boards.straightdope.com/u/David42)\ **Post date:** [November 17, 2011, 11:25pm UTC](https://boards.straightdope.com/t/for-you-constitutional-originalists-where-is-the-right-to-self-defense/602947/74 "2011-11-17T23:25:24Z")
> [@Really\_Not\_All\_That\_Bright](#): > > No, self defense is the issue. There is nothing inherently tying guns to self defense; one can have the right to keep weapons, a right to self-defense, neither, or both. > > Your first sentence is a polite fiction, and your third doesn’t make sense, but in any event I’m not sure who you are addressing here. self-defense is YOUR issue in Heller. Heller claimed that the ban on handguns violated his right to a weapon. THAT was the issue in Heller. In addressing the issue, Scalia reasoned that Heller has a right to his gun because he has a right to self defense. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [November 17, 2011, 11:33pm UTC](https://boards.straightdope.com/t/for-you-constitutional-originalists-where-is-the-right-to-self-defense/602947/75 "2011-11-17T23:33:04Z")
I accept your concession. ---
**Author:** ![David42](https://avatars.discourse-cdn.com/v4/letter/d/5f9b8f/32.png) [@David42](https://boards.straightdope.com/u/David42)\ **Post date:** [November 17, 2011, 11:37pm UTC](https://boards.straightdope.com/t/for-you-constitutional-originalists-where-is-the-right-to-self-defense/602947/76 "2011-11-17T23:37:32Z")
> [@Really\_Not\_All\_That\_Bright](#): > > I accept your concession. Whatever. [Previous page](https://boards.straightdope.com/t/for-you-constitutional-originalists-where-is-the-right-to-self-defense/602947.md?page=3)