The topic of self-defense was addressed only briefly in my law school Criminal Law class. According to my professor – a former career public defender – prosecutors had a standard reply to self-defense claims: Let a jury decide. I was aghast that a prosecutor might be so cynical. In our adversarial legal system, litigators do not simply “let” juries decide anything. They are advocates who actively try to persuade the jury to accept their position.
Obviously, my former professor painted with too broad a brush. Reasonable prosecutors often decline to bring charges in cases of justified use of force, up to and including lethal force. But not everyone is reasonable, and never was this clearer than in the bizarre case of Hines v. Commonwealth of Virginia. In that case, Marvin Hines was confronted at home by Wayne Hudson (partner of Hines’ sister, Ruby Strange); Hudson was drunk, belligerent, and brandishing a gun. Concerned for the safety of himself, his wife and his sister, Hines shot Hudson and killed him, and was charged with murder. After a bench trial, the Court convicted Hines of voluntary manslaughter. In its written ruling, the Court said that although “[t]he Commonwealth hotly contest[ed] Defendant's testimony that the victim was armed,”[1] it found Mr. Hines credible, holding that he “was in the presence of an intoxicated, ranting and raving large man with a weapon,” and that “[h]e has maintained from his first encounter with law enforcement that the victim had a gun and that he was acting in self-defense.[2] Despite this, the Court convicted him of manslaughter because he had “retreated to an adjacent room, got a weapon of his own, and returned” to shoot Mr. Hudson. In the Court’s view,
“[i]f Mr. Hudson’s possession of a gun constituted a danger; Defendant had removed himself from that danger when he left the room. Returning to the room with a gun pointed at the victim significantly escalated the danger and undoubtedly caused Mr. Hudson to fear for his own safety. Defendant had the opportunity to retreat and did in fact retreat. He cannot assert any privilege to return to the room with a weapon of his own …[3][Hines] should have retreated to safety but instead got a gun of his own, and out of fear and impulse, without conscious reflection or malice, he shot the victim.”[4]
This is a truly astonishing verdict, given that it is well-established in Virginia that a person confronted by a criminal “need not retreat, but is permitted to stand his ground and repel the attack by force, including deadly force, if it is necessary.”[5] This applies all the more in the home. In Virginia, “[a] man is not obliged to retreat if assaulted in his dwelling but may use such means as are absolutely necessary to repel the assailant from his house or prevent his forcible entry, even to the taking of life.”[6] The Defense filed a motion to vacate the verdict, but rather than admit its egregious error, the Court doubled down. Although grudgingly conceding that Hines did not have a duty to retreat, the Court stubbornly stuck to its guilty verdict, arguing that while Hines was not required to retreat, once he had left the room he was obliged to stay away and not return. Despite Hudson’s aggressive behavior and brandishing of a gun, the Court reached the Orwellian conclusion that Hines “had no reasonable belief that the [Hudson] was going to hurt him or his family” (emphasis added), and therefore “reject[ed] the conclusion that [Hines] acted in self-defense when he returned to the room and immediately shot [Hudson] five times.”[7] This is a crucial finding by the Court, because in Virginia “[a] defendant may always act upon reasonable appearance of danger, and whether the danger is reasonably apparent is always to be determined from the viewpoint of the defendant at the time he acted”[8] (emphasis added). It is hard to imagine a more reasonable basis for Hines’ fear than an intoxicated and belligerent Mr. Hudson confronting him and his female relatives with a firearm, but the Court managed to find otherwise. The strangest aspect of the case is one the Court conspicuously ignored: When Mr. Hines retreated to retrieve his own firearm his wife and sister were left alone, unarmed, and unprotected in a room with the armed and raving Hudson. The Court took the Kafkaesque position that having taken himself out of immediate danger, Hines was obliged to leave his wife and sister alone with the aggressor, unprotected, in violation of longstanding Virginia precedent affirming “that one is privileged to use force in defense of family members” when reasonably necessary to protected them from death or serious injury.[9]
Mr. Hines had a happy ending: he was vindicated by the Virginia Supreme Court, which held that he had acted properly in self-defense and overturned the conviction.[10] Not everyone has such a happy outcome, however. In many jurisdictions the use of force in self-defense is looked at every bit as skeptically as it was by Hines’ trial judge. One such jurisdiction is Great Britain, which has enacted some of the world’s most stringent firearms restrictions. But skepticism of armed self-defense is not limited to defense with firearms, as Dr. Joyce Malcom showed in her ground-breaking book Guns and Violence: The English Experience.[11] According to Dr. Malcolm,
“[t]he right of Englishmen ‘to have arms for their defense’ has been effectively demolished by a series of ever more stringent parliamentary statutes and bureaucratic regulations. These culminated in a classified 1969 Home Office regulation that barred possession of a firearm for personal protection; the 1988 Firearms Act’s tighter controls of shotguns, the last firearm that could be purchased with a simple show of fitness; and the 1997 Firearms Act’s nearly complete ban on handguns …[12] Firearms apart, English law now prohibits civilians from carrying any article for what is termed ‘private defense.’ Paired with this policy is a much-narrowed legal standard of what force is acceptable for personal protection.”[13]
According to Malcom, the Prevention of Crime Act of 1953 and the Criminal Law Act of 1967 have “thrown the law of self-defense [in Britain] into disarray and seriously disadvantaged individual citizens.”[14] In a 1973 case, police stopped a man running on a road carrying several improvised weapons (“a length of polished steel, a two-foot length of bicycle chain, a metal clock weight and a studded glove”). He told the officers that he had been threatened by a gang, but he was arrested, nonetheless. He was charged, but the trial court found that “he had a reasonable excuse for carrying the weapons and did not convict.”[15] Unfortunately for the defendant, Britain has a different conception of double jeopardy than ours, under which the Crown may appeal acquittals in certain circumstances. The prosecution did so, and the appellate court reversed the acquittal ordered defendant to be convicted.[16] In another case, 56-year-old Eric Butler was assaulted in a London subway car by two men who strangled him and smashed his head against the door. Butler later testified that “[m]y air supply was being cut off, my eyes become blurred, and I feared for my life.” In desperation he unsheathed a sword blade in his walking stick and slashed at one of [his attackers] “as [his] last means of defense” … The assailants were charged with unlawful wounding but Butler was also tried and convicted of carrying an offensive weapon” (emphasis added).[17] Dr. Malcolm cites further examples, such as when “[a] tourist who had used her pen knife to protect herself when some men attacked her was convicted of carrying an offensive weapon.”[18] Worse, according to Malcom
“[m]erely threatening to defend oneself [in the UK] can also prove illegal, as an elderly lady discovered. She succeeded in frightening off a gang of thugs by firing a blank from a toy gun, only to be arrested for the crime of putting someone in fear with an imitation firearm. Use of a toy gun for self-defense during a housebreak is also unacceptable, as a householder found who had detained with an imitation gun two men who were burgling his home. He called the police, but when they arrived, they arrested him for a firearms offense.”[19]
This can happen in jurisdictions with much more aggressive security and surveillance regimes than in the US or UK. One example is the case of Chinese student Wang Xiaofei. Xiaofei and her family had been the victims of severe harassment at the hands of stalker Wang Lei, a co-worker whose amorous advances Xiaofei had spurned. According to Xiaofei, “[h]e asked [her] to be his girlfriend … but she refused;” Lei “sexually assaulted her the night after she refused him,” then “spent a month harassing her at university and at her home.”[20] He then “he began a campaign of harassment which escalated to threats that he would kill her, along with her family.”[21] Lei “turned up at their home armed with a knife and an electric baton and, on another occasion, broke into their home and stole hundreds of yuan.”[22] Throughout this ordeal the family made “numerous complaints to police [yet] the only advice to the family was to find somewhere else to live”[23] (emphasis added). Then “Wang Lei turned up at the house for the final time, climbed over the wall into their yard and shouted for them to come out, while also threatening to kill them.”[24] A confrontation ensued in which Lei was killed.[25] The police – whose only help to the family to that point had been to advise them, in effect, to abandon their home and flee – then arrested Xiaofei’s parents, “against the advice of prosecutors,”[26]“refus[ing] to accept that they acted in self-defense ”[27] because Xiaofei’s mother, Zhao Yinzhi “stabbed [Wang Lei] repeatedly after he fell over, which, they said, indicated that she ‘had an indulgent attitude toward her action of hurting another person’s body.’”[28] Only after a public outcry did the authorities finally relent and drop the charges.[29] The all-pervasive Chinese state – a regime that once aggressively regulated family size, interns tens of thousands of religious minorities, imprisons hundreds of dissidents, engages in intrusive surveillance of its citizens at home and aggressive spying abroad – was either too impotent or too apathetic to protect this simple family from attack and then sought to imprison them when they defended themselves.
In some cases, skepticism of personal self-defense is explicitly linked to gun control, as in Australia. In 2016, Presidential candidate Hillary Clinton infamously said that “the Australia example is worth looking at,”[30] referring to that country’s massive compulsory gun buyback scheme and strict gun control laws enacted in 1996 (stung by the criticism that this comment invited, Clinton’s campaign later disavowed support for gun confiscation).[31] Whatever Mrs. Clinton’s view of it, Australia’s hostility to firearms is older and deeper than that 1996 law. As early as 1992, the Australian state government of New South Wales bluntly stated in a series of newspaper announcements that “[p]ersonal protection is no reason to have a gun” (emphasis added), further directing that
“[i]f you own a gun which you keep protecting yourself, your family, or your property, you must dispose of it legally. Under the latest gun laws, personal and property protection are no longer considered acceptable reasons to possess any type of firearm, or to get a license. If you wish to possess any gun, you must have a license and meet the new requirements for safe storage of the weapon and its ammunition. When your current license expires you must reapply if you want to continue to possess or use a gun. Be warned, making a false or misleading statement on your license application could earn you ten years in prison. Act quickly. If you haven't got a license, now is the time to either apply for one, or legally dispose or your gun”[32] (emphasis added).
The notice concluded on the encouraging note that “[p]ossession and use of any firearm for personal or property protection is illegal and will attract severe penalties. No exceptions, no excuses”[33], [34] (emphasis added).
Another example of this attitude is Mexico. The Constitution of Mexico provides that
“The inhabitants of the United Mexican States are entitled to have arms of any kind in their possession for their protection and legitimate defense, except such as are expressly forbidden by law, or which the nation may reserve for the exclusive use of the army, navy, or national guard; but they may not carry arms within inhabited places without complying with police regulations.”[35]
The Mexican Congress has taken full advantage of the caveats in this provision to restrict gun ownership. As reported by CBS in 2016, there is only one legal gun store in all of Mexico, operated by a government agency, the Directorate of Arms and Munitions Sales[36] (DCAM). The Constitution notwithstanding, the Government of Mexico prefers that its citizens not arm themselves, as attested by DCAM official Col. Eduardo Tellez Moreno:
“It’s preferred not to have a gun, even at home, because there could be accidents or worse, accidents within families due to the mishandling of weapons. It’s like having a match close to a fire,” It’s an obligation of the state to provide security to the people who live in the country, not for you to take justice into your own hands.”[37]
Col Moreno’s last remark shines a light on one of two key the beliefs at the heart of the gun control movement: One of these is that preparing for personal self-defense is tantamount to vigilantism and that citizens have a duty to look solely to the state for protection and should not prepare to help themselves. One Mexican citizen, a university professor, called this “idiotic”:
“If I put my papers in ... they’re going to take about three to four, even six months, and then send me a letter telling me that it’s the obligation of the state to provide security for all people in Mexico, so your permit is denied … You can’t assign a soldier to preserve the security of each and every one of the people.”[38]
A similar debate played out decades earlier over British gun control legislation. Responding to assurances that the state would protect one of his elderly constituents on a lonely walk home from work through a crime ridden area, one Member of Parliament lamented that “although society ought to undertake the defense of its law-abiding members,”[39] nonetheless “one has to remember that there are many places where society cannot get or cannot get there on time. On those occasions a man has to defend himself and those whom he is escorting.”[40]
Gun control advocates and those suspicious of personal self-defense are aware of these objections of course. They know that the police cannot be everywhere and that for practical reasons the state’s efforts must usually be directed at punishing offenders after the fact rather than averting harm to the victim beforehand. Yet they persist in their effort to disarm private persons, owing to another core assumption underlying the gun control movement: A profound sense of resignation and futility in the face of violence. A former Virginia police officer gave voice to one aspect of this resignation – lack of confidence in peoples’ ability to defend themselves – in an otherwise thoughtful and useful primer on avoiding crime victimization: “I do not recommend weapons as part of your [defensive] plan,” the officer wrote,[41] before ticking off the shortcomings of various weapons including mace,[42] stun guns,[43] and knives.[44],[45]
Another aspect of this resignation is cringing, craven fatalism expressed by one gun control advocate this way: “[S]hould some scoundrel be intent on harming you, no matter where you are, or who you are, he will likely succeed.”[46] He further argues that
“[h]owever much the culture admires the confident and determined individual, no one can claim the power to control nature or other human beings, let alone the power of evil. Nothing made by human hands or conceived in the human mind can provide the security we all would like to have. Security is at best a superstition.”[47] (emphasis added).
In a famous passage written during the Second World War, George Orwell observed that “Pacifism is objectively pro-Fascist. This is elementary common sense. If you hamper the war effort of one side, you automatically help that of the other.”[48] This remark has implications for the current gun debate. The push for gun control is inextricably entangled with a fundamental hostility to private individuals having the skill, will, and ability to defend themselves against violent attack. People who advocate this view operate from a laudable motive: the hope for a more peaceful society with less violence. Yet objective results often diverge sharply from subjective desires. Disarming law abiding citizens only empowers and emboldens the criminal element, leading to more crime and more victims.Subjectively, the gun control movement wants you to be safe, secure, and happy; but objectively, it would rather risk your death than have you use force in your own defense.
Dennis P. Chapman, a retired U.S. Army officer, practices law in Virginia. He is the author of The AR-15 Controversy: Semi-Automatic Rifles and the Second Amendment (Third Brigade Press, 2021), available online from Amazon and Barnes and Noble.
Legal and Physical Disarmament: Gun Control and Hostility to Armed Self-Defense