Self-defense is considered a justification defense in certain criminal acts. This may apply to both deadly and non-deadly encounters.
In the past, in order for a person to use self-defense as justification, they had to prove that they had followed the duty to retreat rule, but had no other choice but to defend themselves. The duty to retreat rule was eliminated as states began to pass stand your ground laws.
According to stand your ground laws, there is no duty to retreat. More than half of the states in this country have enacted some version of these laws and several others have implemented stand your ground practices.
Those who support stand your ground laws point no further than the Second Amendment as their constitutional right to defend themselves and justify stand your ground laws. In order to understand how this amendment applies, we first need to understand its history and how its legal interpretation has evolved.
The Second Amendment
The Bill of Rights was ratified in 1791. This original document included the first 10 amendments to the Constitution. The Second Amendment is one that has created decades of debates on what the true intent of the framers of the Constitution was when they wrote it. The Second Amendment reads:
“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
There are two theories of thought to what the Second Amendment means. The first is referred to as the individual right theory. Under this theory, it is believed that the amendment’s intent was to create an individual constitutional right for citizens to “keep and bear arms” and bans lawmakers from prohibiting citizens from possessing firearms. Those who believe in the individual right theory say that the amendment forbids lawmakers from creating any type of restrictive regulation to gun ownership, asserting that the Second Amendment makes any attempt at that type of legislation unconstitutional.
People who disagree with that interpretation cite “a well-regulated Militia” when making their argument. They believe that the framer’s intention was only to prohibit lawmakers from taking away a citizen’s right to defend themselves. This is referred to as the collective rights theory as the interpretation of the amendment holds that it does not apply to individual rights, but instead applies to society as a whole and, according to the argument, gives lawmakers the right to implement firearm regulations.
United States v. Miller
One of the first Supreme Court cases which tested the individual versus collective rights theories was the 1939 case of United States v. Miller.
In 1934, Congress passed the National Firearms Act (NFA). This was the first federal law that put any regulations on firearms. The NFA placed a $200 tax on sawed-off shotguns and machine guns.
In June 1938, two men were charged with violating the NFA by transporting an unregistered, double-barrel sawed-off 12-gauge shotgun from Oklahoma to Arkansas. The NFA tax had never been paid on the gun. During their trial, the defendants argued that the NFA violated their Second Amendment right to bear arms. The district court agreed and dismissed the case. Federal authorities appealed the dismissal to the Supreme Court.
The Supreme Court overturned the district court’s decision, using the collective rights theory as the argument for their decision. The court wrote that the Second Amendment does not guarantee the right to own a sawed-off shotgun and that there is no reasonable relationship between a well-regulated militia and possession of a sawed-off shotgun. For almost seven decades, the decision of United States v. Miller – and the collective rights theory interpretation – stood as the rule of law in the U.S. criminal justice system. Then the Supreme Court agreed to hear the case of the District of Columbia v. Heller.
District of Columbia v. Heller
In 2008, it was illegal to carry an unregistered gun in Washington D.C. For the most part, there was also a ban on handgun registrations except in cases where the chief of police issued one-year handgun licenses. For those that did have licensed handguns, the law said that all firearms were to be unloaded and disassembled or bound by a trigger lock. The only exception was if the weapon was at a location where legal recreational activity was allowed.
The respondent in the case was a special police officer with the D.C. police department. He was authorized to carry a handgun when he was on duty and had applied for a special license in order to keep a personal handgun. His application was not approved, so he sued the district, seeking an injunction against the district’s statute that banned personal handgun registrations. In his lawsuit, he argued that this law violated his Second Amendment right to keep an unlicensed firearm in his own home. The district court dismissed the suit.
However, the U.S. Court of Appeals for the District of Columbia Circuit reversed the district court ruling and agreed with the respondent that the Second Amendment protects a citizen’s right to keep a firearm in their home. They further wrote that the D.C. law which banned unlicensed firearms was a violation of that right.
The district appealed to the Supreme Court. In its decision, the court agreed that the ban on licensing handguns and the law’s requirement that all guns must be nonfunctional with a trigger lock or disassembled was a violation of the Second Amendment.
The court also wrote that word “militia” does not just apply to those serving in the military. At the time the framers wrote the amendment, the term referred to any man who was capable of being called to serve. They added that to interpret “militia” to only those who are in the government’s service would be in grave contradiction to the protections the authors of the amendment intended.
The ruling in this case meant that after 70 years of collective rights theory, the rule of law for the Second Amendment was now individual right theory.
Stand Your Ground Laws
Before there were stand your ground laws, there was the castle doctrine. The castle doctrine says that a person can protect their home with deadly force. This doctrine started out as common law – meaning that there were no formal statutes that dictated the specifics of the law.
Over time, states began incorporating the castle doctrine officially into their criminal codes.
The problem with the castle doctrine is that it only applies to threats to a person when they are in their own home. It doesn’t apply to situations when a potential victim in out in public and they need to protect themselves. It was this legal need that the stand your ground laws emerged from.
In 2005, Florida was the first state to pass the law and many others soon followed. Stand your ground laws allow a person to protect themselves no matter where they are if they are threatened by another party or parties.
The question that many stand your ground law proponents ask now is whether or not a change in the way the Second Amendment is legally interpreted, going back to collective rights theory, what impact would that change have to stand your ground laws.
About the author
Kurt Darrell is a freelance writer based in Atlanta, Georgia. He’s just a guy who wants to research about things and write content about it. He is also working on his personal cannabis blog and his life and wellness blog that he will be publishing soon.