No Duty To Retreat (Updated and corrected)

The Colonial Minuteman: Proud symbol of the right to lethal self-defense against abusive government agents.

A year ago, the State of Michigan enacted a law stipulating that individuals can properly use deadly force to defend themselves or others when confronted by an assailant threatening imminent death, bodily harm, or sexual assault. The measure specifies that this right is to be recognized and protected anywhere its exercise proves to be necessary -- not merely in the sanctuary of an individual's home, but "anywhere [the citizen] has the legal right to be with no duty to retreat...."

Those seeking a suitable brief summation of what it means to be a free man or woman can find a pretty decent one in the phrase, "no duty to retreat."

To the best of my knowledge, Michigan and Louisiana are the only states of this once-free land whose laws governing self-defense explicitly disavow the spurious notion that free people under criminal attack have a duty to retreat before availing themselves of the innate right to lethal self-defense. And it is quite likely that even those state laws protect not a right, but a limited, situational privilege. [Actually, as a reader pointed out in the comments thread, 15 states have enacted "no duty to retreat" laws since 2005. I appreciate the correction, and regret my error. -- WNG]

Would the self-defense laws in Michigan and Louisiana [and elsewhere] provide legal protection to a citizen who shoots a law enforcement officer threatening the illegal use of lethal force?


If not, they're of very limited use. Without putting too fine a point on the observation, allow me to note that cases of lethal police abuse are becoming increasingly common, and defense against abusive agents of the State was the chief purpose of the Second Amendment -- not protecting the means of hunting, as that venerable nimrod Bill Clinton once said; not just deterring armed crime by non-government actors, as the Quislings at the National Rifle Amendment insist; and certainly not preserving the ability of states to maintain "select militias," as sundry dishonest collectivists maintain.


The Second Amendment made plain the Framers' understanding that citizens must protect their ability to kill government agents when such action is required to defend the innocent. They understood that free people have no duty to retreat when confronted with illicit armed violence from the State. And they inscribed that understanding in the Second Amendment.


I write those words as someone unalterably opposed to aggressive violence in any form. My soul rebels at the thought of taking another human life. I pray that God will preserve me from situations in which bloodshed is a possibility. And I likewise pray that if the defense of my family required it, God would grant me the clarity of purpose to kill those who threaten them quickly and efficiently.


The right to armed resistance against unlawful police power was widely recognized until at least the dawn of the 20th Century. In the 1900 case John Bad Elk v. United States, the Supreme Court recognized that the killing of a law enforcement officer who acts without a proper warrant can be justifiable homicide: If said officer is "killed in the course of [a] disorder which naturally accompanies an attempted arrest that is resisted, the law looks with very different eyes upon the transaction, when the officer had the right to make the arrest, from what it does if the officer had no such right. What might be murder in the first offense might be nothing more than manslaughter in the other, or the facts might show that no offense had been committed."

The heroic Geronimo: Brave patriot and freedom fighter.


Florida Circuit Judge Rick de Furia recently ruled, in the case of John and Cynthia Coffin, that citizens have the right to resist unlawful violence committed by police officers -- in this case, the unwarranted invasion of the Coffins' home and the criminal assault on Cynthia. John, a heart patient in his mid-50s, did the right thing: He beat the invaders bloody, until forced to relent at gunpoint.


Under Black Elk -- and the "no duty to retreat" principle in Michigan and Louisiana state laws -- John would have been justified in shooting dead the armed invaders who had attacked his wife.

If this principle were widely recognized, Mississippi resident Cory Maye, a young father who shot an armed intruder who proved to be part of a police SWAT team conducting a no-knock raid on the wrong address -- would not have been convicted of capital murder.


But ours is a form of despotism under which the immunities enjoyed by the State's enforcers are so complete, and their very persons so sacred, that a police officer can arrest and charge with "assault on a government official" a sick man who coughs in his presence.

Police have a version of the "no duty to retreat" doctrine: They are empowered to use lethal force in circumstances in which neither they nor others are in mortal danger.

A very good example of that doctrine is displayed in this notorious car chase video:



Notice how the chase begins with the officer lying: The driver (who apparently stole the car) didn't try to "ram" the police vehicle, but appeared to avoid a collision.


Note as well the statement at 2:05 into the video: "Eighty-three, I'm going to take this guy out if I get a chance." In light of the lethal fusillade at the end of the chase, that statement strikes me as evidence of pre-meditated intent to kill the suspect.


The chase ended when the officer driving the first car rammed his vehicle into the allegedly stolen vehicle -- and then began firing into the suspect's car without warning. Another angle shows one of the three officers involved in the chase splayed T.J. Hooker-style on the hood of the car, firing multiple rounds into the suspect, 37-year-old Charles Wayne Bennett -- and then asking the passenger if the driver had a gun (see the clip below).

The passenger, a neighbor and casual acquaintance of Bennett, was an innocent bystander. He had no idea why Bennett fled from the police, and believes that it wasn't necessary to kill him:




According to police Captain James Schaffer, the shooting was justified because the car driven by Bennett "was being used as a weapon."


This may have been true. However, there were other options available to the officers apart from summarily executing Bennett, such as disabling the vehicle by shooting out its tires after Bennett was pinned in.


Perhaps the use of non-lethal force would be considered a "retreat" of sorts -- and the police don't have the duty to retreat. That being the case, law-abiding citizens should be protected in exercising lethal force in exactly the same fashion when confronted with the threat of illicit violence from police.


I'm old enough to remember a time when police would fire warning shots. Russian comedian Yakov Smirnoff (whose career was a casualty of the Cold War's end) once said that warning shots were America's most appealing trait: "In Russia, the police just shoot the guy and that's a warning to everybody else."

On the evidence of the video above, Yakov -- much to his dismay -- should feel right at home in Amerika, 2007.

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Dum spiro, pugno!

The Second Amendment: The Constitution, In Miniature

"We are here now to protect you, and no one has a need for a weapon any more.” --

A Khmer Rouge soldier sent to disarm Cambodian peasants, as recounted by a survivor of the Cambodian genocide; The New Yorker, January 24, 1994

It is because Daniel Lazare makes no effort to disguise his contempt for the US Constitution that he enjoys the luxury of candor about its provisions.

In his 1995 book The Frozen Republic, Lazare assailed the Constitution for “paralyzing democracy” -- which was one of the key objectives of the Framers, who did not share Lazare's enthusiasm for “majoritarian absolutism” (as one critic aptly described the author's philosophy).

To his credit, Lazare doesn't claim to have found some previously concealed progressive subtext in the Constitution, or offer flatulent platitudes about the “true” meaning of the “living” document. He admits that the Framers created a system in which the powers of the State were to be limited by a written text and not easily expanded through demagogic appeals to the mob.

In similar fashion, Lazare's October 1999 Harper's magazine essay “Your Constitution is Killing You: A Reconsideration of the Right to Bear Arms,” Lazare – a stout supporter of civilian disarmament – offers the following rueful admission:

“The truth about the Second Amendment is something that liberals cannot bear to admit: The right wing is right. The amendment does confer an individual right to bear arms, and its very presence makes effective gun control in this country all but impossible.”

Even here, Lazare misses the most important point, namely that neither the Second Amendment nor any other part of the Constitution could be said to “confer” rights of any kind; rather, they protect unalienable rights by specifying what government can do, and a few of the myriad things it is prohibited from doing.

(A brief digression: Even in the absence of the Second Amendment, the Constitution would protect the individual right to bear arms, since it does not confer on the federal government the authority to disarm the citizenry. The Amendment is an important supplemental protection, however, in that it denies the central government the luxury of using its delegated powers – for instance, that of regulating interstate commerce – to infringe on that right.)

Despite his subtle denial of innate individual rights, Lazare's admission against interest is useful, as are his pointed words of rebuke to fellow “liberals” (here meaning left-leaning collectivists, not lovers of individual liberty) who interpolate their political prejudices into the Constitution's text.

“We have long been in the habit of seeing in the Constitution whatever it is we want to see.,” Lazare admits. “Because liberals want a society that is neat and orderly, they tell themselves that this is what the Constitution `wants' as well.” That desire translated into, among other things, a “purely collectivist reading” of the Second Amendment, in which the purported right mentioned in the text is that of states to create and regulate “select” militias; this is in contrast to the “individualist” view, in which the right to bear arms – like those of speech, freedom of worship, and all other rights and immunities protected in the Bill of Rights – is exercised by the individual.

The “collectivist” view, Lazare writes, “is becoming harder and harder to defend” as more honest scholarship – that is, honest scholarship, more widely reported – demonstrates what should be obvious: The American Founders, who had wrested independence from Britain in a war that began with gun-toting citizens repelling an effort to disarm them, were determined to protect the individual right to armed self-defense. And nothing could be more alien to their intentions than the “collectivist” view of firearms ownership.

“`Standing armies,' the great bugaboo of the day, represented concentrated power at its most brutal; the late-medieval institution of the popular militia represented freedom at its most noble and idealistic,” writes Lazare. “Beginning with the highly influential Niccolo Machiavelli, a long line of political commentators stressed the special importance of the popular militias in the defense of liberty. Since the only ones who could defend popular liberty were the people themselves, a freedom-loving people had to maintain themselves in a high state of republican readiness. They had to be strong and independent, keep themselves well armed, and be well versed in the arts of war. The moment they allowed themselves to surrender to the wiles of luxury, the cause of liberty was lost.”

Does anybody really think it's a good idea to let Bucketheads like these have all the guns?

Lazare is warily circling a point that he apparently doesn't want to make clearly, so I'll do it for him:

The Second Amendment does explicitly protect an individual right to bear arms, but its real significance is that it denies the government a monopoly on the legitimate use of force.

The typical political science textbook published in the last five decades will either assert or assume that government claims a monopoly on force. This is Lenin's vision -- “power without limit, resting directly on force” -- not that of Jefferson, et. al. -- namely, that of governments as contingent entities “deriving their just powers from the consent of the governed,” and subject to abolition when they exceed their modest mandate.

They can't operate a parking brake on their federally funded Gestapomobiles, but they're uniquely qualified to carry and use firearms.

Lazare, like every other commentator, politician, or scholar who wants to transmute the individual right to armed self-defense into a limited, State-granted privilege, is on Lenin's side of this argument. He's simply more honest than most, even though his concessions are heavily seasoned with condescension toward the supposedly archaic views of the Framers.

“Since `we the people' are powerless to change the Second Amendment, we must somehow learn to live within its confines,” he writes as if sighing in weary frustration. “But since this means standing by helplessly while ordinary people are gunned down by a succession of heavily armed maniacs, it is becoming more and more difficult to do so.... There is simply no solution to the gun problem within the confines of the U.S. Constitution.... Other countries are free to change their constitutions when it becomes necessary. In fact, with the exception of Luxembourg, Norway, and Great Britain, there is not one advanced industrial nation that has not thoroughly revamped its constitution since 1900. If they can do it, why can't we? Why must Americans remain slaves to the past?”

Lazare's writing is shot through with the sort of smug historicism one would expect of a modestly bright undergraduate: How could a group of unenlightened white males – most of them Christians of a repellently literalist sort – who gadded about in powdered wigs and tricornered hats possibly have anything worthwhile to say about our modern society and its problems?

The obvious answer is that the Framers knew a great deal about human nature as magnified by political power, and that because of their sound insights the US Constitution, unlike a milk carton, doesn't contain an expiration date.

Nothing that has occurred since 1787 has invalidated the wisdom of the Framers in decentralizing political power and denying the State a monopoly on force. Exactly the opposite is the case: When viewed in retrospect across centuries littered with war and political mass murder carried out by states that claimed a monopoly on coercion, the honest observer whose mind is not hostage to collectivist delusions is astonished at the Founders' foresight.

“Heavily armed maniacs” of the sort Lazare alludes to can kill dozens of unarmed innocents. Heavily armed maniacs in the employ of the State, and clothed in its supposed authority – the oh-so-helpful Khmer Rouge soldier quoted above, for example -- have killed tens of millions of disarmed victims. Important though the first consideration is when we're discussing the right protected by the Second Amendment, it is the latter that best illustrates why that Amendment could be considered the Constitution in microcosm.

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