Withdrawing a License to Kill: Why American Law Should Jettison “Stand Your Ground” and Adopt the English Approach to Retreat

INTRODUCTIONAmericans own more guns than their counterparts in other wealthy nations. 1 In fact, one in four Americans, 35% of American households, own at least one gun.2 The Supreme Court has held that the Second Amendment to the U.S. Constitution guarantees an individual right to gun ownership-especially when the gun is kept for self-defense.3 For better or worse, American law operates in an environment that is heavily armed.4 Nonetheless, American laws have adopted an ever-expanding view of self-defense justifications by diminishing the common-law requirement of retreat and eliminating the requirement in certain situations.5 Meanwhile, America's common-law ancestor, England, has expanded the justification by incorporating the duty to retreat into the determination of whether the use of force in self-defense was reasonable.6This Note examines the ways in which the United States and England approach the obligation to retreat in the context of self-defense. It advocates that U.S. jurisdictions should adjust their laws to reflect English law so that the obligation to retreat is included as a factor to consider when assessing whether the defendant's use of force in self-defense was reasonable. Part I of this Note describes the status of the self-defense justification in U.S. and English criminal law. Part II discusses the legal development of self-defense in both systems through an examination of significant cases, the history of self-defense, gun ownership statistics, and homicide rates. Part III evaluates the positive and negative qualities of the different approaches and concludes the English approach is preferable-even with private gun ownership as high as it is in the United States. In particular, including retreat in the assessment of the reasonableness requirement is superior because it puts greater emphasis on human life and safety, which is particularly important in a society that is built on laws and replete with guns.I. BACKGROUNDThe legal systems of the United States and England are intimately related due to their shared cultural heritage and common-law systems-the latter of which is identified as the body of law first developed in England by judicial application of precedent set by prior cases.7 This English law followed colo- nists to North America through clauses in their colonial charters that permitted them to establish laws but which also held English law as superior, forbidding any colonial law that conflicted with English law.8 Upon American independence, the former colonies'newly empowered state legislatures enacted statutes formally adopting the common law of England.9 This trend continued such that every state except Louisiana adopted similar statutes embracing the common law.10 Of course, these statutes only adopt the common law to the extent permitted and amended by the U.S. Constitution or state law.11 Further, through early cases, American judges not only relied on the law of England in their decisions but also adapted it to fit the needs of the new American society.12 One of the areas of law in which this adaptation was most pronounced was regarding the justification of self-defense.13Justifications and excuses are defenses to criminal charges.14 Excuses, like insanity or involuntary intoxication, are defenses that demonstrate a criminal defendant is not actually blameworthy for his otherwise criminal acts.15 Justifications, on the other hand, are defenses that show a lawful reason for the defendant's actions-the absence of which would render them criminal.16 Justifications include necessity and self-defense.17 The justification of selfdefense generally provides that a reasonable amount of force may be used to repel an attack when the victim has a reasonable belief that the use of force is necessary to prevent the imminent attack.18A. Status of U.S. LawThe common law imported to North America from England restricted the use of deadly force in self-defense to situations in which no retreat was possible. …