The State of the Castle

Published date01 December 2009
Date01 December 2009
Subject MatterArticles
Criminal Justice Review
Volume 34 Number 4
December 2009 515-535
© 2009 Georgia State University
Research Foundation, Inc.
hosted at
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@
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

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT