The inalienable right to stand your ground.

• Author: Prince, Joshua

"Homicide is enjoined, when it is necessary for the defence of one's person or house.... [I]t is the great natural law of self preservation, which ... cannot be repealed, or superseded, or suspended by any human institution." James Wilson (3)

"When seconds count, the police are only minutes or hours away, if they come at all." Unknown Author

1. 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)

2. WHAT IS A STAND YOUR GROUND STATUTE?

   Generally, a Stand Your Ground statute eliminates the duty to retreat. (26) Despite the fact that certain media outlets, politicians, and political activist groups have predicted a new "Wild West" atmosphere in states that have Stand Your Ground statutes, (27) the actual statutes are written quite narrowly. For example, the much-maligned Florida Stand Your Ground statute (28) expressly forbids the use of deadly force in the normal course of self-defense. (29) The law defines the limited circumstances in which a person is justified in the use of deadly force and does not have a duty to retreat. (30) Those limited circumstances are then statutorily defined: When "he or she reasonably believes that ... such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony." (31)

   Likewise, Pennsylvania's Stand Your Ground statute (32) eliminates the Duty to Retreat where the actor is not engaged in criminal conduct, is not in possession of an illegal firearm, is legally allowed to be where he is attacked, and the actor believes the use of force is necessary to protect himself or another against death, serious bodily injury, kidnapping, or rape, and the attacker uses a deadly weapon. (33)

   Without reciting here the statutory provisions of each of the twenty-three so-called "Stand Your Ground" states, (34) a Stand Your Ground statute merely eliminates the Duty to Retreat where one is confronted, through no fault of his own, with a potentially deadly situation. (35) Stand Your Ground does not--and we would not argue that it should--justify the use of deadly force where it is clear that much more limited force was appropriate. (36) Stand Your Ground does not, in other words, authorize one to bring a gun to a fistfight, so to speak. (37) Rather, it merely codifies the standard that was in use throughout English and American common law until the Progressive Era of the early Twentieth Century. (38)

3. SELF-DEFENSE AS A NATURAL RIGHT

   The idea of a Natural Law, independent of any civil code, existing apart from the physical realm, but applying to the world nonetheless, can be traced back to Sophocles' Antigone. (39) Natural law defines how a particular species of being is supposed to act. (40) For humans, this translates very closely to a universal moral code. (41)

   "[T]he first precept of [natural] law is that good is to be done and pursued, and evil is to be avoided. All the other precepts of the law of nature are based on this...." (42) Because all humans are created equally in the state of nature, the law of nature applies equally amongst them. (43) In the western Judeo-Christian tradition, this is because God made man in His image, making an affront on another an affront on God. (44) Regardless of the origin of the equality, Natural Law does not distinguish among station, rank, title, or nobility, which makes it quite amenable and equitable to even the modern reader. (45)

   Rather than being a mere anachronism, suitable to the discussions of tenured philosophy and political science professors, Natural Law is the foundation of what we consider to be our fundamental rights and freedoms in America. Thomas Jefferson restates the essence of Natural Law in his venerated passage from the Declaration of Independence: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness." (46) In the Report of the Committee of Correspondence to the Boston Town Meeting in November, 1772, none other than Samuel Adams reported on the "Natural Rights of the Colonists as Men." (47) Not only did individuals retain their Natural Rights, "[a]ll positive and civil laws should conform, as far as possible, to the law[s] of natural reason and equity." (48)

   Invariably, commentators of Natural Law cited self-defense as the first law of nature. (49) In his defense of Michael Corbet, who had been impressed by one Lieutenant Panton, John Adams stated that "[s]elf-preservation is the first law of nature ... [It is] not only our inalienable right but our clearest duty, by the law of nature." (50) His cousin Samuel agreed that "the duty of self-preservation [is] commonly called the first law of nature." (51) James Wilson, signer of the Declaration of Independence, Continental Congressman, delegate to the Constitutional Convention of 1787, (52) law professor, and one of the original six justices of the United States Supreme Court appointed by George Washington, knew that "the great natural law of self preservation ... cannot be repealed, or superseded, or suspended by any human institution." (53) Indeed, men "cannot, by any compact, deprive or divest their posterity" of the "certain inherent [natural] rights." (54)

   This correlates directly with Natural Law, for according to Locke, while one can dispose of his possessions and property as he pleases, he has a duty not to destroy himself. (55) According to the Founding generation and its view on the Natural Right of self-preservation, the duty extended so far as to require one to fight back. (56) This is certainly not indicative of a long- standing duty to retreat; if anything, it tends to show that so-called Stand Your Ground laws are superfluous, at best. One wonders what the Adams cousins would think about those laws that criminalize what they--or the rest of the Founding generation, for that matter--considered to be inalienable, permanent rights, unable to be repealed or limited by the government.

   Therefore, the question becomes: how does the Founding generation's understanding and codification of our Natural Rights influence and affect our post-modern society and Stand Your Ground laws? Even in 1690, John Locke understood that the idea of an amorphous, unwritten law that dictated a universal course of conduct to all individuals--regardless of where they stood on the social ladder--could be controversial, misunderstood, and rather inconvenient to the powers that be. (57) In his Second Treatise on Civil Government, Locke admitted that "I doubt not but this will seem a...