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Claiming Self-Defense Isn’t a Get-Out-of-Jail-Free Card

The McCloskey case in St. Louis is the latest demonstration of how self-defense and the right to keep and bear arms are warped for political ends.

July 23, 2020
Laurie Skrivan/St. Louis Post-Dispatch via AP File

This piece origin­ally appeared at the Duke Center for Fire­arms Law. 

It’s become an all-too-famil­iar scen­ario: a gun owner becomes scared that a protester or mere passerby could endanger him and bran­dishes a gun. The gun owner then asserts that the rights to self-defense and to keep and bear arms protect him from prosec­u­tion. This line of argu­ment, which is play­ing out in the McClo­s­key case in St. Louis, greatly miscon­strues the scope of the Second Amend­ment and how self-defense actu­ally works as a defense to crim­inal charges.

Mark and Patri­cia McClo­s­key became frightened when Black Lives Matter protest­ers marched along the side­walk in front of their house. The circum­stances are disputed, though it appears that they live in a private, gated community. Video does not show the protest­ers ever leav­ing the side­walk, but Mr. McClo­s­key said he was afraid the protest­ers “would run me over, kill me, [and] burn my house.” He and his wife grabbed a semi­auto­matic rifle and hand­gun and confron­ted the protest­ers. Video shows Ms. McClo­s­key with her finger on the trig­ger, aiming at one protester after another as they walked by.

This week, the couple was charged by the St. Louis prosec­utor with unlaw­ful use of a weapon and fourth-degree assault. The uproar about the prosec­u­tion was swift, even coming from some national Repub­lican figures like Sen. Josh Hawley and Pres­id­ent Trump. In an extraordin­ary move, Eric Schmitt, Missour­i’s attor­ney general, urged dismissal of the local charges. He argued that the prosec­u­tion “threatens to intim­id­ate and deter” Missouri­ans from exer­cising their rights to self-defense and to keep and bear arms. “Missouri­ans,” Schmitt wrote, “should not fear expos­ure to crim­inal prosec­u­tion when they use fire­arms to defend them­selves and their homes from threat­en­ing intruders.” In Twit­ter posts, he conflated the Second Amend­ment and self-defense, assert­ing that “[c]itizens should­n’t be targeted for exer­cising their #2A right to self-defense.”

Schmit­t’s argu­ment might make for good polit­ics, but it confuses the law of self-defense and the Second Amend­ment. From the very begin­ning of our nation’s history, and dating back even further to the English common law tradi­tion, a person enga­ging in a viol­ent act, includ­ing threat­en­ing viol­ence, is exposed to prosec­u­tion. They can argue to the judge and jury that they were justi­fied or excused in their conduct, but whether they succeed in their defense is ulti­mately not theirs alone to decide.

It’s always been this way, and for a reason. A basic goal of govern­ment is minim­iz­ing private viol­ence, which is why we crim­in­al­ize acts of phys­ical aggres­sion in the first place. Lawful self-defense oper­ates as an excep­tion to this general sanc­tion, and it is a care­fully circum­scribed one. Gener­ally speak­ing, defens­ive force, such as the bran­dish­ing of fire­arms, is only justi­fied if neces­sary and propor­tion­ate to a reas­on­ably perceived threat. The require­ments of neces­sity and propor­tion­al­ity apply no matter whether someone is in a duty-to-retreat or stand-your-ground juris­dic­tion, or whether someone is in their home or in public. As one well-known self-defense opin­ion comments, “‘[t]he law of self-defense is a law of neces­sity’; the right of self-defense arises only when the neces­sity begins, and equally ends with the neces­sity.” These require­ments reflect, as English jurist Edward Coke wrote, the “precious regard the Law hath of the life of man.”

The McClo­s­keys have every right to argue that the require­ments of self-defense were met under Missouri law, includ­ing its version of the castle doctrine. But that determ­in­a­tion is ulti­mately not up to them, but rather is up to the judge or jury. This, too, is as it should be. The altern­at­ive — which Attor­ney General Schmitt appar­ently favors — is that gun owners get to decide for them­selves whether they are justi­fied in using their guns. That’s a danger­ous and lawless posi­tion that almost certainly would lead to unne­ces­sary shows of force. One study found, for example, that a major­ity of self-repor­ted self-defense gun uses are prob­ably illegal. Illegal defens­ive gun use poses an espe­cially troub­ling risk to Black men and women, like those at the St. Louis protest, who are more likely to be misper­ceived as a threat.

Schmitt also invokes the Second Amend­ment, but the right to keep and bear arms does not subvert the tradi­tional oper­a­tion of self-defense law. The Second Amend­ment protects the right to “keep and bear” an arm, not to “keep, bear, wave, and shoot” it. The right to keep and bear arms is, and always has been, “auxil­i­ary” (to borrow William Black­stone’s term) to self-defense. The Supreme Court in District of Columbia v. Heller repeated this under­stand­ing when it held that the “core” interest served by the right to keep and bear arms is lawful self-defense. The Court could not possibly have thought that its decision was thereby undo­ing the centur­ies-long tradi­tion of using the crim­inal process to determ­ine when defens­ive weapons use is lawful.

The debate over the St. Louis case is reflect­ive of today’s gun polit­ics — not a reflec­tion of the proper oper­a­tion of the law. The case should run its course the same as any other prosec­u­tion. Anything else would mark a sharp turn away from the tradi­tional way we prevent unlaw­ful threats and viol­ence in this coun­try.

Eric Ruben is an assist­ant professor of law at SMU Dedman School of Law and a Bren­nan Center fellow.