Academic journal article St. Thomas Law Review

The Inalienable Right to Stand Your Ground

Academic journal article St. Thomas Law Review

The Inalienable Right to Stand Your Ground

Article excerpt

"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 cannot be repealed, or superseded, or suspended by any human institution."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


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)


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. …

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