stand your ground. yes? no?

[X_Digger]

15. Duty to retreat was a failed 60 year experiment.

For the first 150 years of our judicial system, there was no duty to retreat in most jurisdictions.

From Blackstone's Commentaries:

In the next place, such homicide, as is committed for the prevention of any forcible and atrocious crime, is justifiable by the law of nature; and also by the law of England, as it stood so early as the time of Bracton, and as it since declared by statue 24 Hen VIII. c. 5. If any person attempt to burn it, and shall be killed in such an attempt, the slayer shall be acquitted and discharged. This reaches not to any crime unaccompanied with force, as picking of pockets, or to the breaking open of any house in the time of day, unless it carries with it an attempt of robbery also.

Justice Harlan addressed it in 1895 in Beard v US:

The weight of modern authority, in our judgment, establishes the doctrine that when a person, being without fault and in a place where he has a right to be, is violently assaulted, he may, without retreating, repel force by force, and if, in the reasonable exercise of his right of self-defense, his assailant is killed, he is justifiable

Harlan then went on to cite modern (to him) texts on the matter.

"Where an attack is made with murderous intent, there being sufficient overt act, the person attacked is under no duty to fly. He may stand his ground, and, if need be, kill his adversary. And it is the same where the attack is with a deadly weapon, for in this case a person attacked may well assume that the other intends murder, whether he does in fact or not."

Whart. Crim.Law, § 1019, 7th rev. ed. Phila. 1874

Harlan used language that should be familiar to anyone who has looked at the modern SYG statutes:

The defendant was where he had the right to be, when the deceased advanced upon him in a threatening manner and with a deadly weapon, and if the accused did not provoke the assault, and had at the time reasonable grounds to believe, and in good faith believed, that the deceased intended to take his life, or do him great bodily harm, he was not obliged to retreat nor to consider whether he could safely retreat, but was entitled to stand his ground and meet any attack made upon him with a deadly weapon in such way and with such force as, under all the circumstances, he at the moment, honestly believed, and had reasonable grounds to believe, were necessary to save his own life or to protect himself from great bodily injury.

Oliver Wendell Holmes mentioned it in Brown v US in 1885:

Many respectable writers agree that, if a man reasonably believes that he is in immediate danger of death or grievous bodily harm from his assailant, he may stand his ground, and that, if he kills him, he has not succeeded the bounds of lawful self-defense. That has been the decision of this Court. Beard v. United States, 158 U. S. 550, 158 U. S. 559. Detached reflection cannot be demanded in the presence of an uplifted knife.