REFLECTIONS ON LETHAL SELF-DEFENSE AND THE SECOND AMENDMENT

When gun control advocates ask why civilians need to own firearms, the question momentarily puzzles many gun owners. For them, at least one reason seems exceedingly obvious. They merely point to daily reports of crime and violence in the popular press and on the television news to establish why they need firearms: for self-defense and protection. Pressed further, they might note the recent headline-making experiences of Kyle Rittenhouse during the protests and rioting in Kenosha, Wisconsin. Chased by a mob, Rittenhouse (aged 17 but armed with an AR-15 style rifle) attempted to flee, but tripped and fell. Set upon by one assailant attempting to seize his rifle, and by another kicking him, and a third beating him with a skateboard, Rittenhouse used his rifle to defend himself. In warding off his attackers and protecting himself from further harm, Rittenhouse killed two protestors and wounded a third.

While certainly regretting the loss of life and the injuries sustained in this chaotic encounter, most gun owners would find little fault in Rittenhouse’s actions. Under attack, and fearing grievous harm, Rittenhouse used a firearm to defend himself – an action the Second Amendment implicitly recognizes, and one that often provides a rationale for an individual’s initial purchase of a firearm. Further, U.S. law explicitly allows civilians to engage in violence – up to and including the use of lethal force – when defending their own life or the endangered lives of others. Thus, many gun-rights supporters were bewildered when Rittenhouse was arrested and charged with (among other crimes) two counts of intentional homicide and one of attempted intentional homicide.

They shouldn’t have been.

American jurisprudence has always had an ambivalent relationship with the Second Amendment in general and with civilian use of force in particular. Two conflicting legal traditions have shaped American thinking about self-defense and the justifiable use of force. On one side is English common law, with its assumption that only the king and his delegated representatives can legitimately employ physical force against law-breaking wrongdoers. This English tradition imposes a “duty to retreat” (DTR) on individuals, even when they are physically attacked by assailants. Accordingly, only when no retreat is possible and no other option is open – only when one’s “back is to the wall” – is an individual justified in responding to violence with violence. Later assimilated into American legal thinking, a “duty to retreat” obligation is a requirement in over a dozen American states.

This orientation – that the legitimate use of force is only a prerogative of the state or its authorized representatives – appears to inform the attitude of individuals such as Michael Bloomberg, the billionaire gun control proponent and financier. Commenting on the Texas church shooting where an armed church member shot and killed a rampaging gunman, Bloomberg has argued, “... it’s the job of law enforcement to have guns and to decide when to shoot.”

Opposed to DTR, a second legal tradition has its roots in the American frontier experience. This orientation, encapsulated in current “stand-your-ground” (SYG) statutes, reflects the unique situations pioneers faced as they moved westward across the continent. Settling in wild areas having neither established courts nor reliable policing, these individuals had only their own skills and resources to ward off assailants and to protect their families from harm. This individualistic orientation to personal protection also shaped American ideas about legitimate self-defense.

For instance, the eminent American jurist and Supreme Court Justice, Oliver Wendell Holmes, regarded duty-to-retreat as inconsistent with human nature, and endorsed a stand-your-ground orientation. As he famously put it, “… in this Court, at least, it is not a condition of [legal] immunity that [an assailed individual] should pause to consider whether a reasonable man might not think it possible to fly with safety or to disable his assailant rather than to kill him. Detached reflection cannot be demanded in the presence of an uplifted knife.”

Duty to Retreat: Some Background

Despite the Second Amendment’s implicit recognition that individuals have a natural right to self-defense, several notable arguments support the limitations that a DTR orientation places on this right. First, advocates for DTR emphasize that this orientation does not prohibit lethal self-defense; it merely demands that such an act be an absolute last resort. As another eminent American jurist – Joseph H. Beale, Jr., a distinguished and influential Harvard Law School professor – noted: “No killing [in self-defense] can be justified upon any ground when the assailed can defend himself by the peaceful method of withdrawing to a place of safety.” While recognizing that some individuals might consider withdrawal as dishonorable and cowardly, Beale argued that human life took precedence over a mistaken sense of honor. 

Sir William Blackstone, an eminent British jurist, advanced a second argument supporting a DTR orientation. He strongly favored the English common law tradition that regarded all homicides, even those in self-defense, as public wrongs. As a public wrong, even if an assailed individual showed that no other course was open and that using lethal self-defense was an absolute necessity – i.e., the person abided by the DTR requirements – English courts still did not find the individual “innocent.” Rather, the court judged the accused guilty of “excusable homicide,” typically with no penalty attached. Blackstone argued that this approach to self-protection insured that no one could ever confuse the right to defend oneself with the right to kill.

Related to this reasoning, a third argument, arising from political philosophy, upholds a DTR requirement.

Although a violent dispute between two individuals is obviously personal, Max Weber, the renowned German sociologist, asserted that such violence nevertheless has fundamental political implications. If the state is to function effectively as a state, he claimed that it must obtain (and maintain) a monopoly on the legitimate use of violence. Here, “legitimacy” means that citizens willingly accept state authority and consider its actions (e.g., the use of force) as right and proper. Without a monopoly on legitimate violence – if citizens perceive other players as properly using violence to attain outcomes – then the state effectively becomes just one of multiple groups vying for power. Thus, DTR requirements underscore the state’s position as the only legitimate administrator of violence, even in violent individual clashes. As a practical matter, DTR requirements not only reinforce the state’s monopoly on legitimate violence, they also tend to lower homicide rates by moving private violence from the streets to the courts.

Stand Your Ground: Some Background

Regardless of the arguments supporting a DTR orientation, American court decisions eroded this common law inheritance from England, reshaping the self-defense concept into a form more suitable to American attitudes and temperament. In the United States, nineteenth century courts often judged that attacked individuals who did not contribute or provoke the assault in any way could hold their ground, not retreat; and use lethal force if necessary to rebuff the attacker. Richard M. Brown, a noted historian of violence in America, attributed this change in orientation to influential East Coast legal analysis and to various Western states’ court rulings. According to Brown, these rulings deliberately transformed “an English law that … upheld cowardice to an American law suited to the bravery of the ‘true man.’”

Two early state Supreme Court cases highlight this transformation. The first is Erwin v. State of Ohio. In 1876, a long-standing family dispute over the use of a farming shed resulted in James Erwin shooting and killing his son-in-law, a sharecropper on Erwin’s land. On the fateful day, while working in the shed, Edwin saw his son-in-law approach and warned him not to enter. The son-in-law, shouldering an ax, nevertheless advanced on Erwin in a threatening manner. Erwin then drew his pistol and shot him.

Convicted of second-degree murder, Erwin appealed his conviction to the state Supreme Court, contending that the county judge had incorrectly advised the jury that Erwin had a duty to retreat. The Ohio Supreme Court reversed the conviction. Judge George McIlvaine noted that the law does not allow taking a life to deter a simple trespass, but that the law is more lenient in situations where an ax-wielding assailant threatens severe bodily injury, and where the killer has done nothing to provoke the clash. McIlvaine concluded that, since Erwin had not acted provocatively, as a “true man,” he was not duty-bound to flee from his assailant.

The following year in Indiana, a second state Supreme Court case, Runyan v. State of Indiana, also overturned a duty-to-retreat conviction. This case involved John Runyan and Charles Pressnall. Runyan, a known Democrat living in a heavily Republican county, got into a heated political dispute with Pressnall, a staunch Republican. After trading insults, Pressnall began to beat Runyan with his fists. Drawing a pistol from his coat, Runyan shot Pressnall, killing him. At trial, the jury found Runyan guilty, having been instructed that Runyan had a legal duty to retreat. Convicted of manslaughter and sentenced to eight years in state prison, Runyan appealed to the Indiana Supreme Court.

In overturning the conviction, Judge William Niblack noted that self-defense rests on the law of nature, which societal law cannot supersede. He asserted that Runyan, a victim of felonious assault, had no obligation to retreat, reasoning that the duty to retreat seemed no more than a justification for cowardice. As he put it, “the tendency of the American mind seems to be very strongly against the enforcement of any rule which requires a person to flee when assailed.” Later cases in other states built on this foundation justifying a SYG orientation – Bartlett v. State of Missouri (1902); Gardner v. State of Minnesota (1905); Miller v. State of Wisconsin (1909); Meyer v. State of Washington (1917) – culminating with Justice Oliver Wendell Holmes’ notable repudiation of DTR in the 1921 Supreme Court case, Brown v. the United States.

Second Amendment: Some Implications

The conflict between DTR and SYG is not just important for its legal ramifications. In imposing strong limitations on an individual’s right to use firearms for self-protection, a duty-to-retreat orientation is an implicit form of gun control, and represents an infringement on Second Amendment rights. While the court battles that moved the country from a DTR to a SYG orientation did not explicitly reference Second Amendment considerations, such considerations are clearly relevant. For example, the 2008 Heller decision, in confirming that the Second Amendment protected an individual right to keep and bear arms, also confirmed that the government has the power to place reasonable constraints on that right. Are the constraints imposed by DTR requirements reasonable?

If we accept the previously discussed arguments of political theorists – that states necessarily must have a monopoly on violence to remain effective – then the answer to the question appears to be “yes.” When acting for the general good, the state can legitimately define the circumstances under which an individual may use lethal force in self-defense. The problem here is that, in accepting this monopoly of violence perspective, citizens implicitly cede to the state not just control of the use of firearms and similar weapons, but potentially control of all types of violent actions undertaken in self-defense. Indeed, many gun rights advocates point to Great Britain as a cautionary tale in this regard. Despite an early history of commoners successfully battling the Crown for the right to keep and bear arms for hunting and self-defense, modern Britons have accepted increasingly stringent government limitations placed on self-protection, including prohibitions on not just the use of firearms but also on knives, bats, canes, sprays and other means of self-defense. Indeed, carrying anything with the deliberate intention of using it for self-defense is against British law. Given traditional American suspicions of an over-reaching and tyrannical government, concerns that a DTR orientation might similarly erode Second Amendment safeguards may also explain this country’s preference for a SYG legal orientation.

The contrast between the two conflicting self-defense philosophies also appears relevant to the limitations concealed carry regulations place on the Second Amendment. While a DTR philosophy may justify such restrictions as both supporting the common good and maintaining the state’s monopoly on violence, they seem less acceptable within a SYG framework. For law-abiding citizens unwilling to submit to concealed carry requirements (for whatever reasons), such requirements handicap these individuals in their ability to employ a pistol or revolver – the most effective tools of self-defense. Similarly, with SYG’s implicit championing of every person’s natural and inalienable self-defense rights, even prohibitions against firearm ownership by non-law-abiding citizens – e.g., those convicted of violent felonies – appear at least philosophically questionable. Given their life choices and living environments, many of these individuals are more likely to need firearms for self-defense than the typical law-abiding citizen.

Another implication involves a notable trade-off particularly relevant to law enforcement. While a SYG self-defense orientation is more in line with many Americans’ view of the Second Amendment, this closer convergence comes at a cost. By sanctioning violent self-defense, SYG obscures for unthinking individuals that violence against a police officer is qualitatively different than violence against an average individual; that attacks on law officers are not merely assaults against another person who just happens to be a cop. Such attacks are attacks on the social order itself. By weakening the state’s monopoly on violence that DTR reinforces, SYG makes violence against law officers appear less intolerable. Thus, in upholding the spirit of the Second Amendment, SYG inadvertently diminishes the recognition that attacks against police are profoundly inexcusable aggressions against society.

More generally, the legal distinctions between SYG and DTR are practically meaningful only when these concepts alone shape the justice system’s response to the use of lethal self-defense. If other considerations come into play – e.g., the political implications of indicting (or not indicting) an individual for murder – then such considerations may distort otherwise reasonable expectations regarding justice’s likely course. The intentional homicide charges filed against Kyle Rittenhouse are an example of this possibility. Given the available video evidence, and even the prosecutor’s own summary descriptions of the lethal incidents in the charging documents, Rittenhouse’s indictment seems clearly inappropriate, and apparently reflects matters that overshadow issues of simple self-defense. As a fallen individual fleeing a mob of pursuers who grappled for his firearm and struck him with a skateboard, Rittenhouse’s decision to shoot his assailants in self-protection appears plainly justified – whether the standard applied is SYG or DTR. But as with other things involving the Second Amendment, political considerations often undermine conclusions that appear transparently evident.

Donald J. Campbell, Ph. D.
November, 2020