Friday, August 23, 2019

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Vernellia Randall
Founder and Editor
Professor Emerita of Law
The University of Dayton School of Law

Article Index

I. Introduction

The doctrine of self-defense provides that one may protect himself against an imminent attack. However, this right is not absolute. The limitations require that the force applied in defense be necessary and proportional. One may meet force with force, but may not exceed the amount of force required to repel the threat, nor can he be the original aggressor who brought on the situation. We value life. We want everyone to avoid taking *2 life when it is possible to do so. Therefore, a central requirement of self-defense is that the individual retreat before applying deadly force. However, we made an exception to this requirement where the home, which is considered the castle, was concerned. When a person is in his home, he is not required to retreat further. This is logical because when in the home, a person has already retreated as far as he can from the perils of society. By limiting the exception to the necessity to retreat to the castle, the self-defense doctrine was easy to enforce without difficulty in distinction. The retreat line is moving and expanding beyond the castle and into the streets. The retreat element is losing its significance and is being abrogated by a “stand your ground anywhere you have a right to be” doctrine.

Since 2005, thirty states have considered altering their laws on self-defense to replace the retreat element with a right to “stand your ground.” Thirteen of these states have radically liberalized their self-defense statutes, and seven other states have legislation pending. Four states have adopted some but not all of the proposed changes. Four states have considered the changes, but tabled the legislation. Two states considered such a change, *3 but rejected the radical proposal. This article traces this movement to its origin, the National Rifle Association (the NRA), and discusses the abuses, particularly upon racial minorities, that will be promoted by statutes that deconstruct the historic limits upon the privilege to use deadly force. While it is certain that these statutes will negatively affect a broader segment of society, consideration of the potential impact on other groups is beyond the scope of this article.

Section II will present a history of the privilege of self-defense from its common law origins to its most recent American transmogrification. Section III will focus upon the NRA inspired self-defense statutes. Section IV addresses the projected negative impact that the enactment of liberalized self-defense statutes will have upon racial minorities. The article concludes with the notion that refusing to move the retreat line is the better course.

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