Complicating matters in the legal concept of the castle doctrine is castle doctrine per states that there is no duty to retreat from an intruder in one’s home (variously defined). A justifiable homicide which occurs inside one’s private space or anywhere else is distinct as a matter of law. Therefore, those states with justifiable homicide provisions related to one’s private space, do not necessarily authorize indiscriminate violence therein. A confusing consequence of that separation of the castle doctrine and laws related to justifiable homicide is that the mere fact that a person is trespassing is no defense per se to justifying homicide. And different states have different castle doctrines and laws regarding justifiable homicide. Anyone contemplating owning a gun for self-defense would do well to be thoroughly acquainted with his or her own state’s policies and laws.

Twenty-eight states have more or less strong castle doctrine policies and/or laws: Alaska, Arizona, California, Colorado, Connecticut, Hawaii, Idaho, Illinois, Indiana, Iowa, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Minnesota, Missouri, New Hampshire, New Jersey, New York, North Carolina, North Dakota, Ohio, Oregon, Pennsylvania, Rhode Island, Wisconsin, and Wyoming. It is of interest to note that these states do not necessarily share the same political or religious views or have similar conservative versus liberal popular acceptance.

Here are examples of the variety in this castle doctrine accepting states: In Illinois, use of deadly force is justified. Specific Illinois legislation prevents filing a claim against a defender of a dwelling and there is no requirement of retreat. Iowa hasno duty to retreat from home or place of business in defense of self or a third party. Kentucky has no duty to retreat from dwelling, residence or occupied vehicle. On the other hand, Maine allows defense against a trespasser but does not have a policy or law regarding the requirement of retreat, and in Maryland, case-law, not statute, incorporates the common law castle-doctrine into Maryland self-defense law. Invitees or guests may have duty to retreat based on mixed case law.For the most part, Utah’s lawmakers have refused to disarm or tie the hands of the innocent so that they cannot defend themselves. Utah is the only state that has unequivocally established the right of public school teachers with concealed firearm permits to carry concealed weapons in class–from kindergarten through college–to protect themselves and their students. However, Utah law states, “A person is justified in using force intended or likely to cause death or serious bodily injury only if the personreasonably believes that force is necessary to prevent death or serious bodily injury to the person or a thirdperson as a result of another person’s imminent use of unlawful force, or to prevent the commission of a forciblefelony.

Four states and the District of Columbia generally uphold castle doctrine, but may rely on case law instead of specific legislation, may enforce a duty to retreat, and may impose specific restrictions on the use of deadly force, placing both criminal and civil cases in a grey area. Those states are: Nebraska, New Mexico, South Dakota, and Vermont. South Dakota considers justifiable homicide only in cases of efforts to resist attempted murder or a felony against the person or his or her dwelling.Nebraska has a bill pending to limit justification only to affirmative defense of lawsuits pertaining to justifiable use of force.

A man’s home is his castle, and he has the right to defend it, even lethally, goes the castle doctrine or more formally, thedefense of habitation law.To what degree one may defend his home or in some states or, in some states, any legally-occupied place such as even a vehicle or workplace is a legal doctrine and heartfelt attitude of many people that designates a person’s home or his or her private spaces as being set off from others to be a place in which a person has important rights to protection—including self-protection–and immunities. Thus, in defense of one’s castle, the citizen is permitted to use force, even lethal force, in defense. The definition of qualifying circumstances differ from city to city and state to state. In every state in the U.S., there is at least some guaranteed rightto use some level of force for protection against an intruder and some freedom from legal responsibility and/or prosecution for the consequences of using that force.Deadly or lethal force may be considered justified, and a defense of justifiable homicide applicable, in cases when the person reasonably fears imminent lethal peril or of serious bodily harm to him or herself or another, especially family members and persons for whom the individual is responsible. Almost nowhere in the United States is the Castle Doctrine defined enough to be a clearly stated law that can be invoked, but, rather is a set of principles which is incorporated one way or another in the laws of many states. There is considerable difference—state by state—about what constitutes just cause for the use of force, what force can be used, and by whom.

The meaning of the Second Amendment and its ‘right to bear arms’ in the Bill of Rights has been hotly contested since it was included in the Constitution. In United States v. Cruikshank, 1875, the Supreme Court interpreted the Second Amendment as not protecting an individual’s right to bear arms under federal law, and left the regulation of any individual’s possession and use of firearms to the individual states. That concept was clouded in District of Columbia v. Heller, 2008, wherein the court found that the D.C. ban essentially forced residents of the District to maintain their personal weapons in an unusable condition which completely eliminated handguns, the traditional firearm used in self-defense. The Court held D.C.’s ban was unconstitutional and confirmed the individual’s right to possess and to use firearms in self-defense. Heller and subsequent cases have effectively reversed Cruikshank and the Court has, for all practical purposes, decreed that self-defense by firearm applies to all states. In Nevada, for instance, the law has no equivocation concerning the right to keep arms and no confusion about the right being separate or distinct from those of any legal militia. “Every citizen has the right to keep and bear arms for security and defense, for lawful hunting and recreational use and for other lawful purposes.” The right to have a concealed weapon or even a clearly visible one is being vigorously contested throughout the United States.

Inviolability of the home has been a firmly entrenched concept since before recorded history. Legal dicta have been known–at least in Western Civilization–since the Roman Republic. In fact, the term comes from the English common law:“an Englishman’s home is his castle” in the 17^th century and transported to the New World by its colonists. Americans, in their rapidly developing pluralistic society made it, “a man’s home is his castle”—the castle doctrine.

Under the castle doctrine, one is not required to retreat to accomplish defense.Justifiable homicide inside one’s home is distinct, as a matter of law, along with there being no duty to retreat makes the mere occurrence of trespassing or the even more subjective requirement of fear—is sufficient to invoke the castle doctrine. In every state, the burden of proof of fact regarding justifiable homicide is considerably less challenging than that of justifying a homicide outside the castle.In the next installment of this BlogPost, we will consider the differences among the states regarding the castle