This is the second part of a series. Part one can be found here. A final, complete version with citations will be made available on SSRN.
The True Man
At the time of America’s founding, its justice system adopted the “duty to retreat”, a longstanding doctrine in the English common law. This duty to retreat represented a desire to keep violence from escalating. Noted British jurist Sir William Blackstone recognized that the law could, at its best, serve as a kind of moral ideal. With respect to violence, then, it could not equivocate. On retreat, Blackstone wrote, “[A man using violence] in his own defense, should have retreated as far as he conveniently or safely can, to avoid the violence of the assault, before he turns upon his assailant . . . from a real tenderness of shedding his brother's blood.”
In the nineteenth century, the “True Man” doctrine emerged in American common law in stark contrast to our inherited duty to retreat. A true man never backs down or flees from a fight. The American justice system began chiseling away at the duty to retreat in the nineteenth century, at first in courts in the west and then more broadly across the nation. Historians like Richard Maxwell Brown and Garrett Epps have detailed how the right to stand one’s ground solidified into precedent by the turn of the twentieth century. In 1895, the Supreme Court took up the cause of the true man in Beard v. United States. The Court held that "[i]f 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 . . . ."
In subsequent decisions, the “Castle Doctrine,” which was a time-honored exception to the duty to retreat in defense of one’s own home, expanded into a new regime, in which those castle walls extended potentially to the very edges of the universe.
The introduction of stand your ground statutes did not represent a sea change in American law, despite the great deal of attention such statutes receive, particularly in light of the Zimmerman case. In many states without such laws, the common law true man doctrine already excuses those who refuse to retreat. The innovation in stand your ground laws consists in their deterrent effect against prosecutors. Such laws require that prosecutors prove beyond a reasonable doubt that the defendant did not act in self-defense. By handcuffing the handcuffers, the statutes threaten to fill our streets with killers. Predictably, the successful use of the justifiable homicide defense has skyrocketed in Florida.
Ultimately, because such laws excuse those who meet violence with the same, they essentially emasculate those who shy away. Any man who flees from violence has only his cowardice to blame. They can no longer claim that but for the law they would have stood their ground. Lawmakers and citizens who take up the cause of codifying the violent norms of masculinity have blood on their hands.
The True Man
At the time of America’s founding, its justice system adopted the “duty to retreat”, a longstanding doctrine in the English common law. This duty to retreat represented a desire to keep violence from escalating. Noted British jurist Sir William Blackstone recognized that the law could, at its best, serve as a kind of moral ideal. With respect to violence, then, it could not equivocate. On retreat, Blackstone wrote, “[A man using violence] in his own defense, should have retreated as far as he conveniently or safely can, to avoid the violence of the assault, before he turns upon his assailant . . . from a real tenderness of shedding his brother's blood.”
In the nineteenth century, the “True Man” doctrine emerged in American common law in stark contrast to our inherited duty to retreat. A true man never backs down or flees from a fight. The American justice system began chiseling away at the duty to retreat in the nineteenth century, at first in courts in the west and then more broadly across the nation. Historians like Richard Maxwell Brown and Garrett Epps have detailed how the right to stand one’s ground solidified into precedent by the turn of the twentieth century. In 1895, the Supreme Court took up the cause of the true man in Beard v. United States. The Court held that "[i]f 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 . . . ."
In subsequent decisions, the “Castle Doctrine,” which was a time-honored exception to the duty to retreat in defense of one’s own home, expanded into a new regime, in which those castle walls extended potentially to the very edges of the universe.
The introduction of stand your ground statutes did not represent a sea change in American law, despite the great deal of attention such statutes receive, particularly in light of the Zimmerman case. In many states without such laws, the common law true man doctrine already excuses those who refuse to retreat. The innovation in stand your ground laws consists in their deterrent effect against prosecutors. Such laws require that prosecutors prove beyond a reasonable doubt that the defendant did not act in self-defense. By handcuffing the handcuffers, the statutes threaten to fill our streets with killers. Predictably, the successful use of the justifiable homicide defense has skyrocketed in Florida.
Ultimately, because such laws excuse those who meet violence with the same, they essentially emasculate those who shy away. Any man who flees from violence has only his cowardice to blame. They can no longer claim that but for the law they would have stood their ground. Lawmakers and citizens who take up the cause of codifying the violent norms of masculinity have blood on their hands.
