“We do not realize how large a part of our law is open to reconsideration upon a slight change in the habit of the public mind.”
Paine wisely advised that we should look to the origin of things to get an understanding of them. With this article, this author attempted to get an understanding of why the NRA was proposing these statutes. Conspicuously, in some states, there is no legislative record of the floor debates to explain why. In the process, I was forced to get to the origin, Sir William Blackstone; and in so doing, I learned that the NRA was correct, at least in one sense. The problem lies in the nomenclature of criminal law. In modern criminal law, we categorize every case in which a person kills to protect himself as a self-defense case. Originally, there was a distinction: there were cases of prevention of forcible crimes or cases of self-defense. In cases involving the prevention of any forcible atrocious crime, no retreat was required, and if a killing occurred while defending against such an incursion, no criminal liability attached. However, this was not considered self-defense. True self-defense occurred in cases of simple assaults. In those cases retreat was required, so that if one killed an attacker before retreating, he was liable for the death.
With the passage of these so-called “Castle Doctrine” statutes, the NRA seeks to grant immunity from prosecution, civil or criminal, in all cases of “self-defense” killings. The stated goal is to protect innocent people from the criminals. However, a paradox is created. These laws are passed to protect the law-abiding people from criminals. Yet innocent people may end up being killed because of the new laws, while nothing will happen to the killers. No one will be punished. There once was a time when we punished all homicides. Soon, we will punish none. Thus begins a transmogrification of the law.
With this article, I propose that, where enacted, these new laws should be repealed and where pending, they should be tabled. These “stand your ground” statutes have passed quickly and quietly in state legislative bodies across the United States. Most were passed without any notice of the great change that the law will bring. There are deadly consequences to their passage. More violence is not the panacea for violence. I propose that we take note of these bills and pause long enough to discuss and consider what could happen upon their passage. If we do this, we might achieve our true goal - avoiding homicides. As there is nothing new under the sun, I end with the words of Prof. Beale:
If the law is to be carried out it must protect the state against homicides. The interests of the state alone are to be regarded in justifying crime; and those interests require that one man should live rather than that another should stand his ground in a private conflict.
Associate Professor, Faulkner University, Thomas Goode Jones School of Law. B.A. Hendrix College, 1986; J.D. Temple University, 1991.