O’Loughlin explores the ethical and practical complexities of self-defense, questioning state restrictions and duty-to-retreat doctrines.
It’s no wonder that self-defense developed and remained a legal precedent even after the institution of modern policing. In times before the police were a telephone call away, it was in the natural interest of property owners to defend their lives and titles against invaders. Common Law courts as far back as Rome protected the right to “repel force by force.” Self-defense has maintained an overall positive consensus the world over, enshrined in everything from international law, provincial penal codes, and the popular ethos. Think of the archetypal action movie hero, who saves the day only after the villains run amok, in what writers dub “the call to action.” Look at any of the countless courses offered in self-defense specifically catering to women or minorities who face disproportionate levels of violence. For centuries now, self-defense has been in vogue.
However, since the age of organized state policing, as early as 1838 with the Boston Police Department, detractors of self-defense have become a vocal lot. Upon a cursory inspection, their points make sense: with formal protection being provided by a centralized entity like the state, the ability of those who seemingly abuse the guise of self-defense to enact harsh retaliation should be mitigated; in the words of many a TV Five-O, “leave it to the police.” This perspective has reared its head not just in discourse, but in doctrine.
Look across the United States, a land where our protections of life and property are immortalized in our founding documents, and you’ll still find compromises and restrictions to self-defense. Take, for instance, the duty to retreat doctrine as it exists in states like New York, Massachusetts, and New Jersey: as opposed to a stand one’s ground or castle doctrine, the duty to retreat obligates citizens to attempt to escape from the threat of violence in public places, rather than engage in defensive measures. Certain states have different conditions under which a citizen can stand their ground. In all instances, states protect self-defense in one’s domicile, but in regards to self-defense in workplaces and vehicles, this depends on state jurisdiction.
The thinking behind these duty to retreat doctrines perhaps comes from a noble source: the belief that a violent response toward violent aggression will only generate more violence, and risk injuring other civilians in the process. In a shootout between an aggressor and a civilian, the number of bystander casualties may increase. It should once a gain fall on the Thin Blue Line, they say, with their competency and training, to handle the threat succinctly and safely.
The first failure of this line of argumentation is that it presumes the competency of the police, a humorous assertion to say the least. Just because authority dresses itself up in a blue uniform and utility belt doesn’t mean it is infallible. Second, it makes the consequentialist claim that stopping the shooter later will cause fewer deaths in the crossfire when this is not always the case. The Uvalde Police Department displayed remarkable discipline when they waited outside Robb Elementary School for an hour as an active shooter massacred nineteen children and two teachers. It seems hard to defend the inaction of waiting for the authorities when time is of the essence.
Finally, let’s take the argument against full self-defense as it stands: if we accept the premise that self-defense is simply a social convention, something that can be made obsolete by a seemingly more preferable option, then the limitations levied on self-defense can be justified. By recognizing self-defense as a right, any and all limitations become unethical. A right is not something we are granted from on high, rather something we have intrinsic to our nature as humans. Because we humans have conflicting desires over scarce resources, the only way to a void conflict is by permitting those who first acquire t hem to exclude others. The ability to exclude others from these resources is called the right to property; it functions as the core component of libertarianism. In the case of both my body and my property, I am the rightful owner; I have the right to exclude others from using that which I own. If someone is to trample on my desired use of my property, I have the right to respond in kind.
In t his way, self-defense is derivative of the right to property. Therefore, the relativist argument above fails by placing the c art before the horse; self-defense is actually the precedent for all defense, not the other way around. Security works by those with property voluntarily exchanging some of it to protect more of it. Through this lens, we can determine that coercively placing restrictions on where or when self-defense can take place violates property rights.
From this conclusion, the tyranny of state interference with self-defense becomes all the more egregious. The state limits our ability to choose our preferred expression of defense, whether that be through a firm of our own choosing or through ourselves. The repercussions of the perversion of such a fundamental right are severe and, in many cases, can be the difference between life and death.
