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]

Link to article (pdf).

©2015 by Dean Weingarten: Permission to share is granted when this notice is included.
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54 COMMENTS

  2. Dury to retreat is morally repugnant. There is only a duty not to attackbothers violently, and a related right to be secure in (and to ensure) one’s own person/life, wherever on is.

    • Unfortunately, I believe we may start seeing some people attacking gun owners out of “self-preservation”.

      “He had a gun, he could’ve ‘just snapped” and shot someone.”

      Nevermind that the person was doing nothing wrong.

      • For how many decades have we been training and drilling LEOs in ‘see a gun without a uniform, kill him/her’?

        And there’s no public hand-wringing from the badged ones when they kill an innocent “civilian”, usually just proud proclamations that it’s the victim’s own fault, or at best, that its the price you pay for being served and protected.

        The hand-wringing comes out when an undercover officer is murdered in the course of his duties by a fellow officer, because that fellow officer saw the plainclothes in possession of a firearm. They sometimes wish out loud that they had some sort of military style ‘friend or foe’ ID system in place so they could shoot armed taxpayers without worrying about inadvertently shooting armed LEOs.

        • This mentality that GUN=criminal is all to prevalent in our society and in too many police organizations. I used to watch COPS a lot when I was younger and you still see the realty video shows with police dash cams. How many times do you see the cops walk up to a vehicle, glance inside or do a warrantless search when one of them spots a firearm and yells, “GUN!” at which point every LEO within earshot draws his weapon and starts looking for someone to shoot before ever establishing whether or not the person being detained is an actual threat?

          In almost every case it is simply assumed that if there’s a gun present the guy must be guilty of something and is inherently dangerous.

    • “Duty to retreat” lol.. What if you’re overweight and have asthma or something? There is no retreating, they would immediately catch up to you even if you had a head start by pushing them to the ground or something and then you would just be more tired and out of breath, therefor less effective at defending yourself

  4. A law abiding citizen in a public place, or private for that matter, should never be expected to give ground or retreat against an aggressor. And such a citizen should never have to fear financial ruin for defending himself from an aggressor.

    Instead of universal health care we should have universal law abiding citizens rights. The .gov should foot any bills acrued because of such an incident. Or pass legislation barring law suits and enacting very strict punishments for DA’s and others in the legal system for attempting to rail road an law abiding citizen standing his ground.

    • It is my considered opinion that if you are found to have legally used your weapon the state should estimate how much it would have cost for the trial and conviction and incarceration of said Bad Guy for the minimum time he could have stayed incarcerated (we know they always get the minimum before being released – overcrowding, you know) and award 50% of that to the shooter as a “Good Citizen” reward. Or at the very least give him/her that much credit against future taxes owed to the jurisdiction.

    • Exactly… I’m overweight so I wouldn’t be able to outrun someone unless they were significantly overweight or had a leg injury. Attempting to run when you’re no good at it would just tire you out and expose your back to an attacker.

      This progressive idea that you have a duty to retreat is pretty disgusting

  6. There are more than a few idiots that claim the 5th and 14th amendments ban killing in self defense because doing so denies the criminal the right to a trial. Yet they do not then claim that police cannot kill a violent criminal who is shooting at them rather than surrendering when it is obvious that death is the only other alternative outcome.
    My wife was packing her CCP while waiting for trick or treaters. She had the right to take any action necessary should a treater turn out to be a trick.
    BLM folks lie about SYG laws being racist. They ignore the fact that members of the black community benefit the most from SYG laws because the vast majority of violent crime occurs in their neighborhoods, committed by people in their neighborhoods, not by white people. In fact, a white person is orders of magnitude more likely to be killed by a young black man than a black man is to be killed by a white man.

    • Not to mention, studies done in Florida show that black self-defenders, by percentage, evoke stand-your-ground laws more often than whites AND are legally successful more often.

      The facts show that the people who probably need the stand-your-ground principle the most are deriving the largest benefit from it…and it respects both human life and individual freedom. The hoary specter of stand-your-ground as a conduit for racism exists only in the fevered (and deeply racist) imagination of progressives.

  7. “Duty to retreat” is mostly a boon to personal injury lawyers and to injured thugs or the heirs of dead thugs. Other than that, it serves very little in the way of social utility.

    • Contrary to popular belief, progressives aren’t so much for utility as they are for their agenda- which is to give the state ultimate power over your life.

      • “It’s not ‘Progressive’ as in ‘Progress’ but ‘Progressive’ as in ‘Cancer’.”
        ~SteveInCO

    • “… [Duty to retreat] serves very little in the way of social utility.”

      Duty to Retreat doctrine serves the political class — it emboldens criminals and increases the likelihood that they can strike again which … wait for it … increases social chaos and cries for more government to do something about increasing crime.

      Yep. Anything that increases the “need” for more government is a good thing if you are a member of the political class or the masses who worship the political class.

    • “”Duty to retreat” is mostly a boon to personal injury lawyers….”

      Which, truth to be told, is just a special case of the general “Every facet of contemporary America is not just mostly, but solely, a boon to one lawyer or another.”

  8. Sheesh and I thoight stand your ground meant you had yo stsy put while the criminal violated you. They shouldn’t have to exert any energy during the comission of a crime ugh

    • “They shouldn’t have to exert energy…”

      Exactly! That’s the whole reason they brought a weapon – in the hopes that everyone would freeze in fear and they could just waltz in and out with whatever they wanted. I do love to see how much energy they exert un-assing the AO whenever they are faced with an intended victim who draws his own weapon and fires in self defense – priceless.

  9. I note that the discussion, once again, is blustering about the righteousness of SYG. The salient principle is overlooked, yet quietly noted in the excerpt printed: ” ‘Progressive’ philosophy attacked the theory of natural rights…. (the argument) rest(s) 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.”

    The progressive theory was totally unmasked and advertised in an interview with the late, great sir Mario’s grandson on some liberal network show where the grandson (a lawyer) declared that the conservative notion of God-given rights was foolish, because everyone accepts that the constitution was created by the central government, from whence all rights flow.

    The banner of state sovereignty over the populace is the proximate cause of all statist (evil) thinking and action. The enemy is here, and this is where we should attack him (to paraphrase).

      • If t’were “nuff said”, would we even have this blog?

        Slogans are useless against the onslaught of the evil leftists and fellow travelers who believe from the start the constitution is wrong in so many ways, especially that whole “sovereign citizen” thing.

        We need to understand the source of the threat if we are ever to reach “nuff said”.

  10. A thought occurred to me earlier. Many 2A supporters cite the RKBA as a hedge against tyranny and crime. But who in their heart of hearts is willing to fire on the state, even in self defense or preservation of freedom? Such an individual would be roundly slandered by all sides and held as an example and warning to the next. Our most vocal and strong will be isolated and taken down, publicly vilified. Their example not only as a warning, but justification for further right erosion. The rest will grumble, loud and anonymous, but will acquiesce. We respect them more than they respect us. They will use our respect of police as a weapon and we will ultimately be disarmed rather than break that respect. Bravado counts for little in the real world.

    • +1

      @mark really gets it.

      We have see numerous strings of discussion regarding a civil war initiated by government attempts to forcefully (and otherwise) disarm the populace. Some call the idea foolish, some call it timely. But let us consider for a moment….

      We do not live in the mid-1800s. And that is something we seem not to take into account. In the mid-1800s, the US was actually not a, or even the, significant nation on the globe. Much happened inside our borders that neither affected, nor interested the rest of the world. Indeed, the nation could have collapsed, and likely would not alter the geo-political landscape by much. Think about it…only England seemed to have much interest, and that was really restricted to the cotton trade of the Confederacy. But what about now?

      A civil war in this country would result in near extinction of international trade, and our total dependency on imports would quickly result in not only the weakening of the socio-economic structure, but probably ensure we never recover as a significant political or economic entity. The world is better armed that 1861, the world has more belligerent actors, a growing number of nations have global reach. And the list goes on.

      Bottom line, we could not conduct a civil war in a vacuum and dream to rise again as a perfected nation with all the wealth and political strength we would seek to restore.

      • If I may: consider that in however long you think that people have evolved, the same basic rules apply. If you have something and somebody else wants it, they may try to take it by force. How then does a person respond? With one of two options: respond with more force, or yield. Animals who yield tend to self select themselved out of the gene pool. Trying to expand the process to it’s fullest is a good idea, it gives insight into possible consequences of actions, but never forget the smallest part of the picture: someone saying “no, that is mine, and you cannot have it because I say so.” At such a time, the larger results of actions are irrevalent to the decision making process.

        • You are (probably unintentionally) making my point…we don’t have a vision of the outcome of insurrection, and a failed nation may not be what people think they will accomplish. If the notion is simply resist and kill as many of the enemy as possible, then outcomes don’t matter. Better dead than Red has a certain attraction. My appeal is for folks here to think about what really happens when a nation as large and integral to the international system as ours falls into complete chaos and collapse. Have heard no one discussing what happens after the war is “won” (probably a unique American trait).

          War is not what people think it is, and civil war is light years beyond most people’s comprehension. After all us 2A heroes are dead or jailed, what becomes of our families? No discussion yet has broached that little item.

        • John Ross provides an interesting road map to the revolution, even if it’s full of the sort of coincidences and lucky breaks that you only find in fiction. (for instance, the rebel leader’s step-uncle is in a position to get appointed to the Presidential Commission to Identify and Arrest the Rebel Leader, which leads to the Commission finding him exactly when he decides he wants to be found)

    • I believe you are wrong. The tide has already turned, though you obviously have not noticed it. We don’t need an attitude like that, anyway. We will expect nothing from you, and you shall have nothing from us.

      • the tide turns, sir, when the majority supporting personal protection under the second amendment reaches 75-80pct. else, we will see endless switches between prevailing opinions (56% favorability is margin of error territory)

    • “If ye love wealth better than liberty, the tranquility of servitude better than the animating contest of freedom, go home from us in peace. We ask not your counsels or arms. Crouch down and lick the hands which feed you. May your chains set lightly upon you, and may posterity forget that ye were our countrymen.” – Samuel Adams – Speech at the Philadelphia State House, August 1, 1776

      The “Bravado” of a single man may or may not result in the desired outcomes – it depends entirely on how many others he can exhort to back his play. I point historically to Adolf Hitler, among others.

  11. I was reading up on this recently and ran across a number of references concerning “going to the wall” as a duty, and suspect that is where the “duty to retreat” developed from, but in my reading they are not at all the same thing. “Going to the wall” meant not escalating and avoiding using violence, but it recognized that a man can decide he has no choice but to stand and fight, and then he is not only allowed but was considered duty-bound to do so, as not resisting evil was seen as tolerating or allowing it. The “duty to retreat” seems to require a person to retreat even if it means risking his own life, which is foolish; the moment your life is at risk you are “against the wall”, and when against the wall, you fight.

    I’m not sure SYG laws get it entirely right, but they’re definitely better than the coward’s way of telling others that they must retreat regardless.

    I look forward to reading this!

    • The SYG laws that have been put in public forums are quite clear. In essance, if a person is legally located, going about legally recognized activity, that person has no duty to remove when faced with the threat of death, or grievous bodily harm. “Castle Doctrine” laws are essentially the same, but address the sanctity and security of a persons abode. Only the anti-life crowd believe the laws are flawed.

  12. I’m not trying to be pessimistic, merely offer a question in realism. Many of the gun rights supporters I see are older, graying and soft in the belly, wielding expensive toys that belay a prosperous lifestyle. We’re comfortable, and as long as we have football and Disney, we won’t do much except argue. Any armed rebellion would quickly involve international forces fighting against us, but thats a different post. Bottom line our only hope is that .gov will peacefully back down and maintain our rights staus quo. But Molan Labe meets comforts and pensions, which do you think wins out?

    • Very astute observation, not to
      Mention the same group tends to avoid defending other rights that are critically important or maintaining what’s left of our freedom.

      • Couldn’t agree more. As a libertarian I think about all rights and as such see common ground with both the gay marriage movement and freedom of religion. Essentially recognition of the limits of the government to decide individual matters. Defense of my rights defends everyone’s rights. Loss of your freedom inhibits mine as well. But to what extent will we fight to defend those beliefs? Do we have the stomach to be responsible for those rights?

  13. Human chemistry, as most living entities, has a survival mechanism built in. Most of us know this in humans as the fight or flight response. Can the State subjugate my physiology? Is this physiology not the same as what we describe as an inalienable Right?

    • “Can the State subjugate my physiology?”

      How may examples are needed? The fact that a small nation conquered so many European nations (whose populations vastly outnumbered the aggressors) indicates the even more basic instinct of a living organism is to survive/live far outweighs the flight response.

      • “The fact that a small nation conquered so many European nations (whose populations vastly outnumbered the aggressors) indicates the even more basic instinct of a living organism is to survive/live far outweighs the flight response.”

        You’re discrediting the massive barrier between Europe and North America, the Atlantic Ocean.

        We were already on our side of that barrier, Europe had to muster men, arms, transportation and the associated logistics that go along with that endeavor.

        They could easily just say “Screw ’em. We’re here, those piss-ants are over there…”

        • Actually, the majority opinion in 1939 was exactly as you state. Roosevelt was very limited in what he could do to assist the democracies in Europe. Even after Pearl Harbor, we could not engage in direct conflict with Germany…until Germany declared war on the US.

          My point was that people are living organisms, and clinging to life in the extreme is a normal response. As I noted, the populations of Europe vastly outnumbered the German forces, yet they did not rise up as nations and attack the occupying troops. Even in the concentration and POW camps, there were only a very few (2-3?) mass escape attempts (escape, not attack). People will endure just about anything in order to live one more hour, in hopes of a miracle that ends the nightmare. Even our own extraordinary medical science is designed to prolong life in the face of overwhelming odds of success.

          It is wonderful to imagine being heros, being warriors, thwarting evil and ridding the world of tyrants everywhere. The reality is people do, in large numbers, value breathing above just about anything else.

    • Subjugate your physiology?
      Yep, always and forever, with the sole exclusion of whenever you want to kill an unborn child.

  14. > “American common law historically allowed an individual to use reciprocal force to fend off an imminent attack”

    I don’t like the way this sounds. It’s almost as if taking a gun to a knife fight oversteps the “reciprocal force”.

    • that is an oldie but goodie notion. already been used at trial and in the media. the original intent of the phrase was if someone uses force, you are justified to use force in return. if someone punches you in the nose, you are not justified stabbing that person to death. if someone uses deadly force (by whatever means), you are justified in using deadly force in response. just as the old “eye for an eye” was not justification to hit back, it was a limit on responses to a slight. taking an eye and an arm was not justification for loss of only an eye. if someone throws a brick at you, and you are hit on the leg, reciprocal force would not justify running the thrower down with your car.

      but, hey, attorneys are paid to make whatever they can of the law.

  15. Great comments. folks! EVERYONE who reads TTAG needs to read the Article the Post focuses on and the 30+ comments above this one and understand what is being said thoroughly!
    The Progressive Agenda not only seeks to disarm you, it seeks to deny and nullify ALL your Natural, Unalienable Rights and exercise of free choice.

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