The State of the Castle

• Author: Jayshree Bihari,Euel Elliott,Denise Paquette Boots
• Published date: 01 December 2009
• Date: 01 December 2009
• DOI: http://doi.org/10.1177/0734016809332095
• Subject Matter: Articles

515

Criminal Justice Review

Volume 34 Number 4

December 2009 515-535

© 2009 Georgia State University

Research Foundation, Inc.

10.1177/0734016809332095

http://cjr.sagepub.com

hosted at

http://online.sagepub.com

Authors’ Note: The authors wish to thank Drs. Tom Kovandzic, John Worrall, Gary Kleck, Robert Morris,

Brian Berry, and the anonymous reviewers for their meaningful commentary and suggestions on this work.

Correspondence concerning this article should be addressed to Denise Paquette Boots, University of Texas at

Dallas, Program in Criminology, 800 W. Campbell Road GR 31, Richardson, TX 75080; e-mail: deniseboots@

utdallas.edu.

The State of the Castle

An Overview of Recent Trends

in State Castle Doctrine Legislation

and Public Policy

Denise Paquette Boots

Jayshree Bihari

Euel Elliott

University of Texas at Dallas

Second Amendment issues regarding the right to bear arms in the home have come into focus

recently with the U.S. Supreme Court landmark decision in District of Columbia v. Heller.

Despite strong antigun sentiment in the wake of high-profile shootings, sweeping new castle

doctrine legislation has passed in 23 states in the last 4 years. These laws effectively expand

individuals’ right to defend their home and possessions with lethal force without the necessity

to retreat. To date, there is little criminological research that examines the evolution of the

modern castle doctrine legislation in the United States. The present article addresses this gap

in the literature by offering a historical perspective on the legal etiology of the castle doctrine

relating to self-defense and then analyzes existing and pending castle doctrine legislation

through December 2008. A discussion of the legal and criminological implications of these

statutes on public policy is offered.

Keywords: castle doctrine; Second Amendment; gun rights; crime control; gun laws

Second Amendment issues have recently moved to the forefront of American jurispru-

dence and public policy debates with the landmark decision by the United States

Supreme Court on June 26, 2008, in District of Columbia v. Heller (2008). In this highly

awaited ruling, the Supreme Court upheld the March 2007 holding of the Court of Appeals

(see Parker v. District of Columbia, 2007) and (a) reinforced an individual’s right to pos-

sess firearms as a preexisting and fundamental right confirmed by the historical background

of early America, (b) struck down the District of Columbia’s requirements to keep firearms

inoperable in the home, and (c) held that the District’s absolute ban of firearms in the home

was unconstitutional provided individuals are not disqualified from possessing such weap-

ons (e.g., mental illness or felony conviction). In delivering the majority opinion (5-4),

Justice Scalia stated the following:

516 Criminal Justice Review

The inherent right of self-defense has been central to the Second Amendment right. The hand-

gun ban amounts to a prohibition of an entire class of “arms” that is overwhelmingly chosen

by American society for that lawful purpose. The prohibition extends, moreover, to the home,

where the need for defense of self, family, and property is most acute. Under any standards of

scrutiny that we have applied to enumerated constitutional rights, banning from the home “the

most preferred firearm in the nation to keep and use for protection of one’s home and family”

would fail constitutional muster. (District of Columbia v. Heller, 2008, pp. 97-98)

The Court did qualify these rights, however, stating that they are not unlimited in scope

but rather are subject to reasonable and longstanding prohibitions by state and local jurisdic-

tions. Similar to other constitutional rights, these limitations may restrict the possession of

firearms by the mentally ill, felons, and in places that are in the interest of public safety.

Certainly, the prominence of self-defense in the home is highlighted in this ruling. The

public policy impact of the decision was felt immediately; within a day of Heller being

handed down, the National Rifle Association (NRA) had filed suits challenging gun bans

in five U.S. cities saying they violated rights related to home self-defense (National Rifle

Association Institute for Legislative Action, 2008). Without question, District of Columbia

v. Heller (2008) has stirred the long-standing debate related to gun ownership, the right to

self-defense, and public policy.

As District of Columbia v. Heller (2008) wound its way through the judicial system to the

highest court in the land, the NRA was simultaneously successfully lobbying for new castle

doctrine legislation in statehouses across the country. This modern castle doctrine legislation,

also known as stand your ground laws, effectively redefines and expands the locations and

situations when an individual may use force to defend their person or property without having

any duty to retreat. Simply put, the castle doctrine is based on the rationale that one has a right

to defend their home, their family, or another person in their home when confronted with force

by an intruder (Michael, 2006). From 2005 through December 2008, 23 states passed new castle

doctrine legislation.1 These laws currently enjoy widespread public support, with 88% of likely

voters in an August 2008 ATI-News/Zogby poll agreeing with a private citizen’s right to use

lethal self-defense in their home without having to retreat (Knight, 2008). With the Supreme

Court offering its first substantive and comprehensive interpretation of individual Second

Amendment rights in the District of Columbia v. Heller (2008) decision in almost 70 years

(United States v. Miller, 1939), it appea rs likely that the number of states passing these initiatives

will only increase as activists and powerful lobbies, such as the NRA, mobilize nationally to solidify

gun and self-defense rights in jurisdictions that historically have not had them.

Despite the significant ramifications that any expansion of gun rights raises on a public

policy level, to date there is a lack of criminological research that has focused solely on the

evolution of castle doctrine statutes to present day in the United States. The current study

addresses this gap in the literature by first offering a historical and legal perspective on the

etiology of the castle doctrine. This work then analyzes current and pending castle doctrine

legislation from 2005 through 2008. Finally, this work presents a discussion of the various

political, legal, and criminological implications of these laws.

It should be noted that although castle doctrine laws are not synonymous with gun

legislation, the introduction of these new policies has served as a catalyst to mobilize both