Joshua Prince, Esq. and Allen Thompson, Esq. have written an important article about natural law and the right of self defense for the St. Thomas Law Review. The article – The Inalienable Right to Stand your Ground – is well written and impeccably footnoted [removed from text below, click here for a pdf]. It’s refreshing to see real scholarship brought to bear on the issue of the history and development of self defense law. Prince and Thompson trace the legal history of self defense through St. Thomas Aquinas, John Locke, William Blackstone, pre-independence colonials and American courts all the way to the present day. I found many references of which I was unaware, including an excellent history of how the idea of “retreat” as a necessity became included in some state’s law, relatively recently. Here’s the 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.” Among those rights were the right to “Life, Liberty and the pursuit of Happiness.” English and American common law historically allowed an individual to use reciprocal force to fend off an imminent attack. 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 . . .
Due to the position many political groups have taken, 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.”
The Article will seek to explain that, contrary to the contention that there is a “fundamental duty to avoid conflict,” 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. 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.The Duty, rather than being a “fundamental principle of the law,” was actually a misreading or misunderstanding of the common law, all too readily expounded upon by the Progressives in the early Twentieth Century.
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.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.”
“Progressive” philosophy attacked the theory of natural rights. It’s no coincidence that the “duty to retreat” modifications to the right to self defense in state laws were instituted at the beginning of the progressive era. The attacks are not intellectually compelling; they rest primarily on the idea that all power derives from the state, and only the state “grants” rights, which may be rescinded at the whim of the state. Even Thomas Hobbs, who advocated an absolute monarchy, did not grant the state the ability to rescind the natural right of self defense. [h/t Dave Hardy]
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