Sunday, November 01, 2015

Review: The Inalienable Right to Stand Your Ground

Joshua Prince, Esq. and Allen Thompson, Esq., have written an important article about natural law and the right of self defense in the St. Thomas Law Review.  A tip of the hat to Dave Hardy for a link to the article (pdf).   The article is well written and impeccably footnoted.  I found many references of which I was unaware, including an excellent history of how the idea of "retreat" as a necessity became included in some state's law, relatively recently.  Here is the introduction:
In 1776, Thomas Jefferson stated what American political and legal thinkers took to be “self-evident”: “that all men . . . are endowed . . . with certain unalienable Rights.”4 Among those rights were the right to “Life, Liberty and the pursuit of Happiness.”5 English and American common law historically allowed an individual to use reciprocal force to fend off an imminent attack.6 It was not until the Victorian Era and then, most  forcefully, the Progressive Era, that the right to Self-Defense was limited by the so-called Duty to Retreat.7 Around the same time, the United States Supreme Court, in South v. Maryland,8 held that the police owe citizens no duty of protection.9
In March of 2010, the Department of Justice’s Bureau of Statistics released its Criminal Victimization in the United States, 2008 Statistical Tables.10 With updated statistical tables from May of 2011,11 the report reflects that, for violent crimes, the police only respond within five minutes about twenty-eight percent of the time; within six to ten minutes around thirty percent of the time; and within eleven minutes to one hour only one-third of the time.12 Of course, these numbers only include those incidents where the police actually responded. In relation to those violent crimes responded to, police made an arrest less than twelve percent of the time.13 Even then, an arrest does not necessarily result in charging or a conviction.14

This Article seeks to open a dialogue about an individual’s inalienable Right to Self-Defense and the interplay between that Right and Stand Your Ground doctrines. In Section II, this Article will present an overview of what, precisely, a Stand Your Ground statute actually encompasses and permits, as many misconceptions have arisen as to the effect of a Stand Your Ground law.15 Due to the position many political groups have taken,16 as well as inaccurate news reporting by the media, there is a mistaken belief that Stand Your Ground laws allow a shooter to become “judge, jury, and executioner.”17
In Section III, the Article will seek to explain that, contrary to the contention that there is a “fundamental duty to avoid conflict,”18 the right to defend oneself—self-preservation—is a Natural Right, not granted to the individual by the state.19 In that vein, the state cannot abrogate the right of an individual to defend himself, which the Duty to Retreat requires.20 Since the legal interpretation dovetails from the Natural Rights analysis, Section III will then explain when and why the Duty to Retreat entered American jurisprudence.21 The Duty, rather than being a “fundamental principle of the law,”22 was actually a misreading or misunderstanding of the common law, all too readily expounded upon by the Progressives in the early Twentieth Century.23
In our conclusion, we ask whether a state Stand Your Ground statute is even required to extinguish the Duty to Retreat, given the inalienable right of the individual to defend himself.24 Correspondingly, the question must be asked as to whether a state is even authorized to abrogate the right to self-defense and require an individual to retreat. For if the right to self-preservation is a fundamental, deeply rooted, and inalienable right, the state’s ability to infringe upon it is “off the table.”25

It is refreshing to see real scholarship brought to bear on the issue of the history and development of self defense law.   Prince and Thompson trace the legal history of self defense through St. Thomas Aquinas, John Locke, William Blackstone, pre-independence colonials and American courts to the present day.

While American legal theory and practice rest heavily on the philosophy of John Locke, David Hardy notes that Locke's predecessor, Thomas Hobbs, only believed in one inalienable right.  That one inalienable right was the right to self defense.

"Progressive" philosophy attacked the theory of natural rights.  It is not coincidence that the "duty to retreat" modifications to the right to self defense in state laws were instituted at the beginning of the progressive era.  The attacks are not intellectually compelling; they rest primarily on the idea that all power derives from the state, and only the state "grants" rights, which may be rescinded at the whim of the state.  Even Thomas Hobbs, who advocated an absolute monarchy, did not grant the state the ability to rescind the natural right of self defense.

I highly recommend the article by Prince and Thomas.  While only available in PDF format, it is worth the time for any student of history, the law, or American legal theory, to download it and read it.

Link to article (pdf).

©2015 by Dean Weingarten: Permission to share is granted when this notice is included.
Link to Gun Watch


michael plumb said...

Minor typo - in the post, I think the word "no" got clipped from this sentence:

"Around the same time, the United States Supreme Court, in South v. Maryland,8 held that the police owe citizens duty of protection.9"

Anonymous said...

In a later ruling by the court and much more recently the court ruled that the duty of the police was not to protect and defend but to investigate crime and make arrests. If I were a trained journalist, I might have written this article because I have read this in our history. many people disagree with my take on self defense. I went much further in my study of the issue. I studied just what police authority actually exists beyond that of what most people think it is and how police are incorrectly trained according to that authority. Police are in fact brainwashed to believe that everyone with a gun is there to kill cops. If I answer my front door with a gun in my hand the first thing the police want to do is shoot me or demand that I put the gun down, they do not have the authority to do any of that. I have as much right to carry a gun in my own home as they do to carry a gun on the street. On top of that I have as much right to carry a gun on the street as they do. Police powers are far greater limited than mine. Police are trained to be afraid of their own shadow, I'm just afraid of the police because they are trigger happy. I truly believe they are trained to be gutless cowards and there is nothing more dangerous than a coward. You have no idea of how a coward will react.

Dean Weingarten said...

Fixed the typo. Thanks for the heads up. It was actually a "cut and paste" error.