Hilzoy thinks she can, but her arguments amount only to extravagant assertions that everyone, everywhere, and at all times, in peace and in war, tra la! has the same judicial rights and the same access to US courts as a US civilian accused of a domestic crime in peacetime residing in the United States.

who has habeas rights? And where do they extend? The court’s answer to the first question (who?) is, basically: everyone has them. (Meaning: if you are detained by the US government, in circumstances in which habeas rights would normally obtain, your lack of citizenship is no obstacle.)

Shooting at US forces in Afghanistan or conspiring in Karachi to arrange attacks on the civilian populations of US cities are the kinds of circumstances in which people normally enjoy the protections of US citizenship and the protection of US courts? Apparently that’s what Hilzoy, a graduate of Princeton, thinks.

Hilzoy:

if we accept the government’s argument, we would concede that it can legally do what it has tried to do in fact: to create a legal black hole in which it can act outside the law and the Constitution. We cannot do that.

This is, to my mind, the most important holding in the opinion. It defends the separation of powers against an attempt by the Executive to free itself from the constraint of law. That is immensely important.

From Hilzoy’s perspective, there is no legal distinction whatsoever between the United States and foreign soil, no issues of distance, remoteness, or lack of US sovereignty matter. There is no difference between US citizens and aliens, and there is no difference between peace and war.

One expects Hilzoy (and perhaps Justice Kennedy, too) to leap in front of the muzzle of some frontline marine’s rifle, crying out: “Don’t you shoot that chap in the turban (the one firing the AK47)! He’s entitled to counsel, a fair trial, and a full course of appeals before he can be punished. Don’t you go violating his rights, you brute.

In JOHNSON v. EISENTRAGER, 339 U.S. 763 (1950), the Supreme Court ruled:

1. A nonresident enemy alien has no access to our courts in wartime.

2. nonresident enemy aliens, captured and imprisoned abroad, have no right to a writ of habeas corpus in a court of the United States.

3. The Constitution does not confer a right of personal security or an immunity from military trial and punishment upon an alien enemy engaged in the hostile service of a government at war with the United States.

observing:

We are here confronted with a decision whose basic premise is that these prisoners are entitled, as a constitutional right, to sue in some court of the United States for a writ of habeas corpus. To support that assumption we must hold that a prisoner of our military authorities is constitutionally entitled to the writ, even though he (a) is an enemy alien; (b) has never been or resided in the United States; (c) was captured outside of our territory and there held in military custody as a prisoner of war; (d) was tried and convicted by a Military Commission sitting outside the United States; (e) for offenses against laws of war committed outside the United States; (f) and is at all times imprisoned outside the United States.

We have pointed out that the privilege of litigation has been extended to aliens, whether friendly or enemy, only because permitting their presence in the country implied [339 U.S. 763, 778] protection. No such basis can be invoked here, for these prisoners at no relevant time were within any territory over which the United States is sovereign, and the scenes of their offense, their capture, their trial and their punishment were all beyond the territorial jurisdiction of any court of the United States. …

To grant the [339 U.S. 763, 779] writ to these prisoners might mean that our army must transport them across the seas for hearing. This would require allocation of shipping space, guarding personnel, billeting and rations. It might also require transportation for whatever witnesses the prisoners desired to call as well as transportation for those necessary to defend legality of the sentence. The writ, since it is held to be a matter of right, would be equally available to enemies during active hostilities as in the present twilight between war and peace. Such trials would hamper the war effort and bring aid and comfort to the enemy. They would diminish the prestige of our commanders, not only with enemies but with wavering neutrals. It would be difficult to devise more effective fettering of a field commander than to allow the very enemies he is ordered to reduce to submission to call him to account in his own civil courts and divert his efforts and attention from the military offensive abroad to the legal defensive at home. Nor is it unlikely that the result of such enemy litigiousness would be a conflict between judicial and military opinion highly comforting to enemies of the United States.

Moreover, we could expect no reciprocity for placing the litigation weapon in unrestrained enemy hands. The right of judicial refuge from military action, which it is proposed to bestow on the enemy, can purchase no equivalent for benefit of our citizen soldiers.

So how does Justice Kennedy arrive at a different conclusion?

at least three factors are relevant in determining the Suspension Clause’s reach: (1) the detainees’ citizenship and status and the adequacy of the process through which that status was determined; (2) the nature of the sites where apprehension and then detention took place; and (3) the practical obstacles inherent in resolving the prisoner’s entitlement to the writ. Application of this framework reveals, first, that petitioners’ status is in dispute: They are not American citizens, but deny they are enemy combatants; and although they have been afforded some process in CSRT proceedings, there has been no Eisentrager–style trial by military commission for violations of the laws of war. Second, while the sites of petitioners’ apprehension and detention weigh against finding they have Suspension Clause rights, there are critical differences between Eisentrager’s German prison, circa 1950, and the Guantanamo Naval Station in 2008, given the Government’s absolute and indefinite control over the naval station. Third, although the Court is sensitive to the financial and administrative costs of holding the Suspension Clause applicable in a case of military detention abroad, these factors are not dispositive because the Government
presents no credible arguments that the military mission at Guantanamo would be compromised if habeas courts had jurisdiction. The situation in Eisentrager was far different, given the historical context and nature of the military’s mission in post-War Germany.

The only readily comprehensible distinctions Justice Kennedy makes are Bush has shilly-shallied around too long. There should have been more timely military trials and the Guantanamo Naval Station is somehow more under “the absolute and definite control” of the US Government than a prison operated by the US Army in Germany in 1950 was, while WWII involved a different historical context and mission, i.e. was the “Good War.”

(1) perhaps has some merit. (2) simply amounts to a rationalization.

Justice Kennedy’s arguments are weak, and they are clearly self-interested. What this is really all about, as in Rasul, is plain Judicial Branch imperialism and overreaching, the refusal to accept limits to jurisdiction or the supremacy of the Executive in time of war.

Justice Kennedy has produced a very irresponsible opinion, which will surely result in the release of some dangerous and fanatical enemies of the United States, very probably leading to further loss of American lives. Members of today’s American intelligentsia, even those sitting on the Supreme Court, are commonly incapable of seeing what was obvious even to the Ancient Romans, who closed the Temple of Janus in time of war to symbolize the fact that inter arma enim silent leges.

Justice Anthony Kennedy opined, awarding Habeas corpus protection to illegal combatant non-citizens captured overseas bearing arms against the United States in violation of the laws and customs of war.

Justice Kennedy’s ruling will undoubtedly open a Pandora’s box of legal argument and judicial obfuscation which will effectively paralyze the Bush Administration’s hesitant and overly scrupulous efforts to bring mass murderers operating entirely outside the law to justice.

Five of eight members of the Supreme Court have demonstrated themselves to be self-important nincompoops determined to assert judiciary authority over the executive and to strike poses, while demonstrating a truly horrifying obliviousness to legal and historical precedent and common sense.

All this is, of course, the fault of the Bush Administration, which carelessly also overlooked all precedent, and then tried to invent new forms of military justice conformable to the whims, notions, and fantastical scruples invented by its opponents in the establishment media. President Bush and the rest of the civilian administration should simply have avoided injecting themselves into the matter, and thereby allowing entry to lawyers and courts, at all. The administration should have relinquished all authority connected with prisoners captured overseas to the military authorities.

Those military authorities should have authorized local commanders quickly and on the spot by drumhead courtmartial to establish the status of these kinds of prisoners as illegal combatants required to be condemned to death by military custom and law, and those local commanders should have been instructed upon such determination to hang them.

Andrew C. McCarthy identifies the key flaw in the most popular Pro-McCain argument.

I have not supported Sen. McCain. I admire his perseverance and love of country. Still, I don’t think he is a committed conservative, and his penchant for demonizing all opposition is, to me, extremely off-putting. Protestations to the contrary notwithstanding, there’s nothing delusional about that.

In fact, as between the two of us, it’s McCain’s supporters who are deluding themselves. I take them at their word, for example, that a hallmark of the senator’s politics is his tenacity on matters of principle. Consequently, I am skeptical of his assurances that he would appoint conservative judges who will apply rather than create law. Why? Because he has a recent, determined history of beseeching federal courts to disregard the First Amendment in furtherance of a dubious campaign-finance scheme in which he believes passionately. Conservative judges would (and have) rejected this scheme, just as they would (and have) rejected another signature McCain position: the extension of Geneva Convention protections for jihadists.

Now, the appointment of conservative judges is a crucial issue — one McCain posits as central to why we should prefer him to Obama and Clinton. Thus supporters breezily wave off such concerns, maintaining that McCain both promises there will be no issue-based litmus tests for judicial nominees and has conservatives of impeccable legal credentials advising him.

But for me to conclude McCain would surely appoint conservative judges, I also have to believe campaign-finance and the Geneva Convention weren’t all that big a deal to him after all — a possibility that runs counter to everything McCain’s fans tell us about his fidelity to principle.

Read the whole thing.

McCarthy is perfectly right.

Throughout his Senate career, John McCain has demonstrated an eagerness for the good opinion of the media representatives of the establishment elect. He has been steadfastly acritical of simple-minded policies nostrums and violently hostile to theory. Why would anyone suppose that John McCain would suddenly break with the New York Times’ editorial page and start appointing controversial judges likely to roll back what the Times considers progress, including some of his own landmark legislation?

Glenn Reynolds offers, in the New York Post, his view of the Supreme Court’s options in the DC Gun Ban case.

It can find that the Second Amendment doesn’t really do anything – that it’s merely a relic of an older era. But that’s a rather dangerous approach: What other parts of the Constitution might be considered relics? And can a judicial approach that leaves a tenth of the Bill of Rights meaningless possibly be sound?

It can find that the Second Amendment doesn’t grant individual rights, but only protects the right of states to arm their militias (or “state armies,” as some gun-control advocates put it). This would make the DC case go away, but at some cost: If states have a constitutional right, as against the federal government, to arm their militias as they see fit, then states that don’t like federal gun-control laws could just enroll every law-abiding citizen in the state militia and authorize those citizens to possess machine guns, tanks and other military gear.

Other consequences of “state armies” seem even more drastic. As Tom Lehrer put it:

We’ll try to stay serene and calm /

When Alabama gets the bomb.

Finally, the court can find – in accordance with the views of law professors as diverse as Harvard’s Laurence Tribe and, well, me – that the Second Amendment supports an individual right on the part of law-abiding citizens to possess firearms of the sort that are in ordinary use. As with other rights, such as freedom of speech, this is subject to reasonable regulation that stops well short of a ban.

This last would be the least radical approach, as it’s consistent with public opinion (most Americans think the Second Amendment gives them a right to own a gun) and with the 40-plus states whose own constitutions already provide for a right to arms. It would probably be the easiest to implement, too, as federal courts could (to a degree at least) look to state law for some guidance on how to implement it.

Finding otherwise would be ticklish for the court in another way. In recent decades, the Supreme Court has found many rights that aren’t specifically spelled out in the Constitution – rights to things like abortion, contraception or sodomy. If the court now follows up by denying a right that does seem to be spelled out, it would put its own legitimacy in the public eye at grave risk.

Houston Chronicle:

WASHINGTON — The Supreme Court will discuss gun control today in a private conference that soon could explode publicly.

Behind closed doors, the nine justices will consider taking a case that challenges the District of Columbia’s stringent handgun ban. Their ultimate decision will shape how far other cities and states can go with their own gun restrictions.

“If the court decides to take this up, it’s very likely it will end up being the most important Second Amendment case in history,” said Dennis Henigan, the legal director for the Brady Campaign to Prevent Gun Violence.

Henigan predicted “it’s more likely than not” that the necessary four justices will vote to consider the case. The court will announce its decision Tuesday, and oral arguments could be heard next year.

Lawyers are swarming.

Texas, Florida and 11 other states weighed in on behalf of gun owners who are challenging D.C.’s strict gun laws. New York and three other states want the gun restrictions upheld. Pediatricians filed a brief supporting the ban. A Northern California gun dealer, Russell Nordyke, filed a brief opposing it. ..

The Second Amendment says, “A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed.”

Gun-control advocates say this means that the government can limit firearms ownership as part of its power to regulate the militia. Gun ownership is cast as a collective right, with the government organizing armed citizens to protect homeland security.

“The Second Amendment permits reasonable regulation of firearms to protect public safety and does not guarantee individuals the absolute right to own the weapons of their choice,” New York and the three other states declared in an amicus brief.

Gun-control critics contend that the well-regulated militia is beside the point, and say the Constitution protects an individual’s right to possess guns.

Last March, a divided appellate court panel sided with the individual-rights interpretation and threw out the D.C. ban.

The ruling clashed with other appellate courts, creating the kind of appellate-circuit split that the Supreme Court likes to resolve. The ruling obviously stung D.C. officials, but it perplexed gun-control advocates.

If D.C. officials tried to salvage their gun-control law by appealing to the Supreme Court — as they then did — they could give the court’s conservative majority a chance to undermine gun-control laws nationwide.

On the one hand, the movement of legal scholarship in recent decades towards acknowledgment of the real meaning of the Second Amendment based on the historical content of the political theory of the period and numerous statements by the framers argues that Supreme Court consideration would necessarily recall the Second Amendment fully from exile, and produce nationwide enforcement of an individual right to keep and bear arms.

But, on the other hand, realism notes that the consequence of overturning every form of state and local gun prohibition, and very possibly the National Firearms Act of 1934 which effectively prohibited private possession of fully-automatic weapons are bound to seem highly unpalatable to most justices. Moreover, these days, intensely combative, ideologically charged decisions have a strong tendency to result in 5-4 decisions, turning upon the (commonly European-informed) private moral intuitions of Justice Anthony Kennedy.

On the whole, given the opportunity of having the fate of an important but widely disputed, Constitutional right decided, potentially for many decades, effectively by Justice Kennedy alone, I’d rather wait for a different Court.

“At first people thought he had just fallen over from leaning too far to the right.”

–Jay Leno on Chief Justice John Roberts’ seizure.

Nice compliment.

via Anne Schoeder.

Charles Schumer promises the democrat base that Bush will get no more Supreme Court nominees through the Senate confirmation process, and apologizes for democrats supposedly being somehow deceived by Judges Roberts and Alito. And here I thought they just didn’t have the votes to block those nominees’ confirmations.

New York Sen. Charles E. Schumer, a powerful member of the Democratic leadership, said Friday the Senate should not confirm another U.S. Supreme Court nominee under President Bush “except in extraordinary circumstances.”

“We should reverse the presumption of confirmation,” Schumer told the American Constitution Society convention in Washington. “The Supreme Court is dangerously out of balance. We cannot afford to see Justice Stevens replaced by another Roberts, or Justice Ginsburg by another Alito.”

Schumer’s assertion comes as Democrats and liberal advocacy groups are increasingly complaining that the Supreme Court with Bush’s nominees – Chief Justice John Roberts and Associate Justice Samuel A. Alito – has moved quicker than expected to overturn legal precedents.

Senators were too quick to accept the nominees’ word that they would respect legal precedents, and “too easily impressed with the charm of Roberts and the erudition of Alito,” Schumer said.

“There is no doubt that we were hoodwinked,” said Schumer, who sits on the Senate Judiciary Committee and heads the Democratic Senatorial Campaign Committee.

A White House spokeswoman, Dana Perino, said Schumer’s comments show “a tremendous disrespect for the Constitution” by suggesting that the Senate not confirm nominees.

“This is the kind of blind obstruction that people have come to expect from Sen. Schumer,” Perino said. “He has an alarming habit of attacking people whose character and position make them unwilling or unable to respond. That is the sign of a bully. If the past is any indication, I would bet that we would see a Democratic senatorial fundraising appeal in the next few days.”

Schumer voted against confirming Roberts and Alito. In Friday’s speech, he said his “greatest regret” in the last Congress was not doing more to scuttle Alito.

“Alito shouldn’t have been confirmed,” Schumer said. “I should have done a better job. My colleagues said we didn’t have the votes, but I think we should have twisted more arms and done more.”

Gary Shapiro, in the New York Sun, discusses Barack Obama’s collaboration with Harvard Law School’s ultra-liberal Constitutional Law Professor Larry Tribe in the production of a 1989 Law Review article employing scientific metaphors to justify bizarre and over-reaching interpretations of the Constitution.

You thought liberal Supreme Court justices’ interpretations of the Constitution were bad enough now? Just imagine new Obama-appointed justices following Larry Tribe’s suggestion of applying a little Heisenberg to Constitutional jurisprudence.

Is Barack Obama a space cadet? The man who would become senator of Illinois and a top Democratic presidential contender was credited for editorial or research assistance in a page-one footnote of what may be the zaniest-titled article ever published by the Harvard Law Review: “The Curvature of Constitutional Space: What Lawyers Can Learn From Modern Physics,” authored by noted legal scholar Laurence Tribe.

The 39-page densely argued treatise — think “The Paper Chase” meets “Star Trek” — argues that constitutional jurisprudence should be updated in a similar way that Einstein’s theory of relativity replaced Newtonian mechanics, a view that would release judges from the original intent of the Founders of America. Published in 1989, with help of the much younger and politically greener Mr. Obama (a few others are also thanked in that footnote), the article is sprawling with references to cultural anthropologist Clifford Geertz and physicists Stephen Hawking and Werner Heisenberg.

In 1990 Mr. Obama became the first black president of the Harvard Law Review. The long-ago article could indicate his views on the Constitution, which, if he is elected, could come into play in such matters as his choice of nominees to the Supreme Court. …

Mr. Tribe employs this analogy to argue for a more expansive view of what constitutes governmental action. He examines legal cases involving child abuse, suburban white flight from suburbs, and abortion, asking what the state’s role was in shaping the legal environment.

A Yale-trained lawyer who earned his Ph.D. in mathematics at New York University, Elisha Kobre, said Mr. Tribe is “making a reasonable — but debatable — legal point that courts should intervene not only when government directly infringes individual rights but also when people are adversely affected by existing social structures that he asserts have been created or perpetuated by the government.” Mr. Kobre added that while Mr. Tribe’s physics analogy did not particularly add to or enlighten a point that others have made before, it was nice to see a lawyer managing to incorporate ideas of science into legal theory. …

If Mr. Obama captures the White House, he might not curve space but may settle for setting aside a high-altitude seat on the Supreme Court for his former teacher, Mr. Tribe, who is the Carl M. Loeb University Professor at Harvard.

Whether James Madison and the other Founders would have had such a benign view of Mr. Tribe’s theory is another matter, though.

Read the whole thing.

The Financial Times reports

the White House on Tuesday confirmed that Gordon England, deputy defence secretary, sent a memorandum to senior defence officials and military officers last week, telling them that Common article III of the Geneva Convention — which prohibits inhumane treatment of prisoners and requires certain basic legal rights at trial — would apply to all detainees held in US military custody.

The Administration is knuckling under to the Supreme Court’s preposterous application of Geneva Convention status in Hamdan.

The sanctimonious do-gooder element is burbling with joy. Dave Hoffman aptly compared Hamdan with Brown, and he’s perfectly correct.

As in Brown, the Hamdan decision takes a leap of faith in the legitimacy of particular justices’ self-righteous moral intuitions as a basis for overruling objective law, counting on the sentimentality of the general public to affirm politically over time the Court’s decision.

There is a difference, though. The Brown decision was made at a time when state segregation represented a strange anachronism, when the laws under scrutiny were nearly universally despised, when the legal fruit was already overripe and ready to drop off the vine of its own accord.

The principle of reciprocity in the laws and usages of war has considerably greater vitality and reason behind it than Jim Crow ever did. The entire point of the Geneva Convention is to encourage humane treatment of prisoners of war on the basis of reciprocity. Signing the Convention is a promise that, if you do not abuse our soldiers who fall into your hands, we will also spare yours.

Justice Stevens’ generosity in the awarding of honorable status, rights, and protections to illegal combatants really represents a fraudulent check written at the expense of American fighting men.

When Justice Stevens effeminately promises that illegal combatants, terrorists, murderers, and brigands will all be treated as honorable adversaries, attempting to preclude the American fighting man, exposed to the hazard of falling alive into the hands of a merciless and barbarous enemy, from punishing violations of the customs and usages of war, he goes far beyond his own legitimate perogative. The decision to spare this enemy’s life, or that, belongs to the man who bested him, not to some theorist and scribbler sitting in a marble building in the District of Columbia.

In WWII, my father served in the USMC on Guadalcanal. He told me that the Japanese had people able to speak English, and in the long tropical nights, the Japanese forces would amuse themselves by imitating the pleas for assistance of a wounded American lying helpless between the fighting lines. Naive young Marines often had to be restrained physically from climbing out their foxholes and dashing off into the night to the rescue of their miserable and suffering fellow Marine. Every now and then, an individual hero would break free, and go out there. They always found him the next day, crucified with Japanese bayonets to a palm tree, his reproductive organs cut off and stuffed insultingly in his mouth. The Marines on Guadalcanal consequently took no Japanese prisoners, except for the purpose of short and forcible interrogation.

In today’s absurd world, bourgeois lawyers, safe in the United States and far from the fighting (who know nothing of war) would interpose their own opinions and emotions between the just revenge of American fighting men and a cowardly and dishonorable enemy.

The answer to Justice Stevens is simple. US forces will need to be certain to take no illegal combatants alive.

Mark Steyn heaps plenty of well-deserved ridicule on Justice Stevens’ Hamdan ruling.

There are several ways to fight a war. On the one hand, you can put on a uniform, climb into a tank, rumble across a field and fire on the other fellows’ tank. On the other, you can find a 12-year-old girl, persuade her to try on your new suicide-bomber belt and send her waddling off into the nearest pizza parlor.

The Geneva Conventions were designed to encourage the former and discourage the latter. The thinking behind them was that, if one had to have wars, it’s best if they’re fought by soldiers and armies. In return for having a rank and serial number and dressing the part, you’ll be treated as a lawful combatant should you fall into the hands of the other side. There’ll always be a bit of skulking around in street garb among civilian populations, but the idea was to ensure that it would not be rewarded –that there would, in fact, be a downside for going that route.

The U.S. Supreme Court has now blown a hole in the animating principle behind the Geneva Conventions by choosing to elevate an enemy that disdains the laws of war in order to facilitate the bombing of civilian targets and the beheading of individuals. The argument made by Justice John Paul Stevens is an Alice-In-Jihadland ruling that stands the Conventions on their head in order to give words the precise opposite of their plain meaning and intent. The same kind of inspired jurisprudence conjuring trick that detected in the emanations of the penumbra how the Framers of the U..S Constitution cannily anticipated a need for partial-birth abortion and gay marriage has now effectively found a right to jihad — or, if you’re a female suicide bomber about to board an Israeli bus, a woman’s right to Jews.

Cicero in response to Hamdan v. Rumsfeld:

IV. atqui, si tempus est ullum iure hominis necandi, quae multa sunt, certe illud est non modo iustum verum etiam necessarium, cum vi vis inlata defenditur… insidiatori vero et latroni quae potest inferri iniusta nex?

quid comitatus nostri, quid gladii volunt? quos habere certe non liceret, si uti illis nullo pacto liceret. est igitur haec, iudices, non scripta, sed nata lex, quam non didicimus, accepimus, legimus, verum ex natura ipsa adripuimus, hausimus, expressimus, ad quam non docti sed facti, non instituti sed imbuti sumus, ut, si vita nostra in aliquas insidias, si in vim et in tela aut latronum aut inimicorum incidisset, omnis honesta ratio esset expediendae salutis. silent enim leges inter arma nec se exspectari iubent, cum ei qui exspectare velit ante iniusta poena luenda sit quam iusta repetenda.

etsi persapienter et quodam modo tacite dat ipsa lex potestatem defendendi, quae non hominem occidi, sed esse cum telo hominis occidendi causa vetat, ut, cum causa, non telum quaereretur, qui sui defendendi causa telo esset usus, non hominis occidendi causa habuisse telum iudicaretur. quapropter hoc maneat in causa, iudices; non enim dubito quin probaturus sim vobis defensionem meam, si id memineritis quod oblivisci non potestis insidiatorem interfici iure posse.

(Translation, JDZ:)

IV. But if there is any occasion on which it is proper to slay a man, and there are many, surely that occasion is not only just, but even necessary, when violence is offered, and must be repelled by violence… And what death can be unjust when inflicted on a secret plotter and outlaw?

Why do we have an army, why do we own swords? Surely it would not be justifiable for us to have them at all, if it were never justifiable to use them. There is, therefore, a law, O judges, not written, but born with us, which we have not learnt, nor received by tradition, nor read, but which we have taken in and imbibed from Nature herself; a law which we were never taught, but for which we were made, which we were never trained in, but which is ingrained in ourselves: namely, that if our life is in danger from plots, or from open violence, or from the weapons of brigands or enemies, every means of securing our safety is honorable. For the laws are silent in the midst of the clash of arms, and do not expect themselves to be waited upon, when he who waited would be obliged to bear an unjust injury rather than exact a just punishment.

The law very wisely, and tacitly, gives a man the right to defend himself, and it does not merely prohibit homicide, but forbids anyone carrying a weapon for the purpose of murder. It is the intended purpose, not the carrying of the weapon, which constitutes the offense. The man who used a weapon to defend himself would not be deemed to have armed himself with the intention of committing murder. Let this principle then be remembered by you in this trial, O judges; for I do not doubt that I shall make good my defense before you, if you only remember, that which it is impossible to forget: that a plotter against oneself may be lawfully slain.

-Marcus Tullius Cicero, PRO T. ANNIO MILONE ORATIO, [In Defense of Titus Annius Milo], X:IV.