No Duty to Retreat in Law and the American Mind

Abstract As far back as the thirteenth century, English common law dealt harshly with the act ofhomicide. The “right to kill in self-defense was slowly established, and is a doctrine of modern rather than medieval law,” wrote one authority. On this issue Sir William Blackstone looked not to the future but to the past in his eighteenth-century summation of the English common law of homicide.

At the core of Blackstone ‘s view was the centuries-long English common-law tradition that supported “the idea of all homicides as public wrongs.” In England the burden was on the one accused of a homicide to prove his innocence. The plea of self-defense was eyed most skeptically. The presumption against the accused killer stemmed from the fear, as Blackstone put it, that “the right to defend may be mistaken as the right to kill.” Before the court in the English common-law tradition would countenance killing in self-defense two essential tests had to be met: that of retreat or avoidance and that of “reasonable determination of necessity.” The latter test meant that the accused must prove in open court his necessity to kill in order to prevent his own There were two types of Western gunfighters: grassroots gun fighters and glorified gunfighters.3 The glorified gunfighters were those who became regionally and nationally famous: Wild Bill Hickok, Wyatt Earp, John Wesley Hardin, Billy the Kid.