For the last couple of weeks, some of my liberal friends have been on a tirade against Stand Your Ground (SYG) laws. They are following the lead of the liberal press, about which more in a moment, and although my friends are thoughtful people the press normally is not. Thus we've seen some stunningly bad arguments fielded, which can be supported in the sense that you can send me a link to an article that makes the claim. It is only that the claims don't hold up.
Of course the leading wrong claim is the idea that the Zimmerman verdict had something to do with Florida's SYG law, when in fact the defense didn't reference the law and explicitly waived the pre-trial SYG hearing to which they were entitled if they'd care to make a claim under the law.
Equally wrong is the idea that the law is "new," a pure innovation of conservative gun rights advocates. Nothing could be farther from the truth. When friends suggest to me that Georgia should "repeal" the SYG law, I point out that this would accomplish exactly nothing, because our SYG statute merely codified what has always been the law in Georgia, as determined in
over two hundred years of case law precedent (also known as common law). Even the
Atlanta Journal-Constitution has to admit to this tradition since
the Georgia State Supreme Court decided in its favor in 1898, three years after the US Supreme Court did likewise in an unrelated case (
Beard v. the United States, which we will come back to momentarily, but for now note that this was not the last time SCOTUS endorsed it). The only thing that repealing the 2006 statute would accomplish would be to make the law harder to understand, as citizens would have to learn how to read case law instead of just looking up the legal standard in the Official Code of Georgia, Annotated.
All these laws about self defense are very old, as should not be surprising, and they all have roots in English law. The roots of those states that impose a duty to retreat are in
the laws relating to the English peasantry, whose members were not allowed to defend themselves lawfully if they had other options.
The real root of "Stand Your Ground" isn't in self defense at all, but in the right of the citizen -- like that of the feudal English nobility -- to uphold the common peace and lawful order. It is related to the power to make a citizen's arrest. The real idea here is that you don't have to retreat from unlawful violence, but may meet it and stop it. You can't stop crime if you have to run from it. You can't protect a woman being raped, or a man being robbed, if you are required to retreat as soon as the criminal turns the force against you. You have the right to stop the crime that is hurting them. You likewise have the right to do so if you are the one being raped or robbed. A citizen has that power to confront the wicked and defend the law, as a knight had it. It is your duty as much as it is your right to do what you can to uphold the common peace and lawful order.
You may not be punished at law for doing your duty. That's what really underlies all of this, the same ascent of rights from the feudal bargain that also underlies
almost all of the rest of the rights that the Founders secured for us, which were first secured to the knighthood at Runnymede and have since been extended to all free men.
Those of you who have been reading Cassandra's site for a very long time may remember
this early conversation, eight years ago this month.
Q: What philosophical thesis do you think it most important to disseminate?
A: That a free man must give more attention to his duty than his rights; and that the most important duty, and the most important right, is to uphold the common peace. We must unlearn the notion that enforcing the law is the goverment's job, or that it is first and foremost "police work." The opposite is true, and has always been true in the West: it is the duty of the free citizen. The police are hired to assist us by being easy to call to our aid, and by patrolling to keep an eye on areas not often traveled by honest citizens. But it is our duty first.
The law is actually quite clear on this point: the police have what is called a "general" duty to provide protection for the community, but are never liable for a failure to render aid to a citizen in a specific case. There was a USSC case about that this week, which simply reasserted the old principle. The individual, however, certainly can be brought before the court if he simply ignored a crime or tragedy in progress. The case could be civil, or it could be criminal under several statutes: failure to render aid is an offense in cases of traffic accidents, for example; one could be charged as an accessory after the fact in some cases, and there are other ways in which you are liable as well.
The more citizens who take seriously the notion of being part of the law, themselves, the smaller the area in which criminals can operate. The more of us who become engaged in the performance of that duty, the more capable we will be of restraining the goverment's liberty-threatening expansion, which is always at its most dangerous when it claims to be protecting us. If we would be free men, we must protect ourselves.
By coincidence, this is also a national security issue. I've been talking a lot about 4th Generation Warfare at 4th Rail and elsewhere. One of the key problems of 4gen war is that the enemy blurs the line between civilian and military to the point that it can even vanish -- as in Iraq, where the citizens are now the primary target of the enemy, and must therefore become capable of recognizing and responding to the enemy because they will be the only force in readiness available to protect the common peace. This was true on 9/11, too, when the citizens on the one airplane realized that they alone could rise up to smite the terrorists. Because terrorists choose to strike when police and soldiers are not around, all of us must be ready to do our duty to the common peace at a moment's notice, to the best of our ability. The more we are able to do so, the stronger our nation will be against 4gen threats of any kind -- and the less we'll need Patriot! Acts, intrusive counterintelligence agencies, FBI spies in our own society, and the like.
Q: What philosophical thesis do you think it most important to combat?
Grim: Obviously, the converse: the notion that only government officials should be armed or trained in arms. A common argument against that is that this road has so often led to genocide or democide, and that is true. But even in cases when it does not, it leads to an unfree citizenry -- either because they end up surrendering their privacy to the point of surrendering liberty (see Mark Steyn's recent article on Britain considering a ban on the wearing of hoods or hats in public, because it interferes with government cameras ability to spy out criminals), or because they become incapable of defending their liberty even when they would.
If decent people can and will stand up and fight, each and every one, neither criminal organizations nor terrorists nor enemy armies pose any threat to our liberty -- and our government poses much less of one. If we can't, or won't, all of these threats magnify out of measure.
I might answer those questions differently now, but not because I've changed my mind on these points. It's only that I pay more attention to metaphysics than I used to, and less to political philosophy. Nevertheless, it remains a critical field. There are a thousand years of gains here to be defended. Stand your ground.
--
Having said all of that, Cassandra sends me this article
from Dr. Stanley Fish, writing in the New York Times. Dr. Fish is actually on to something, which is that he recognizes the view of manhood and duty in play. The problem is simply that he thinks it is a construct of Westerns like
Shane. What he doesn't realize is how much
Shane was an outgrowth of an earlier heroic tradition: except for a few accidents of weaponry and costume, it reads exactly like large swathes of the
Prose Lancelot or
Le Morte Darthur.
But that there is at play a view of manhood and its duties is exactly correct. In the ruling
Beard v. the United States, the Supreme Court ruled that "no true man" could be obligated by law to retreat when his wife was under attack by armed intruders on his own property. That's exactly right. No true man can be obligated to retreat from a criminal who is raping a woman, should the criminal turn a weapon on him instead. The law should not be constructed so that any conscientious and dutiful man must violate it. That is not a reasonable or a rational standard for the law, even if you are hotly opposed to the idea of men as heroes.
