With the Castle Doctrine having been heard by the Judiciary Committee yesterday, the media is starting to report on it. In the video linked here, you can see statements from John Hohenwarter, the NRA State Liaison for Pennsylvania, and Dan Pehrson, President of Pennsylvania Firearms Owners Association, as well as some of our opponents, who are against this change in the law.
But it’s really not so much of a change from the traditions of common law. In fact, to a large degree, it restores the common law concept of self-defense. If you go back to the authoritative source on the Common Law, Blackstone’s Commentaries on the Laws of England, you can find the common law source for many of the concepts enshrined in the proposed Castle Doctrine law:
Burglary, or nocturnal housebreaking, […] has always been looked upon as a very heinous offense: not only because of the abundant terror that it naturally carries with it, but also as it is a forcible invasion and disturbance of that right of habitation, which every individual might acquire even in a state of nature; and invasion, which in such a state, would surely be punished with death, unless the assailant were the stronger […] And the law of England has so particular and tender a regard to the immunity of a man’s house, that it stiles it his castle, and will never suffer it to be violated with impunity[.]
Emphasis mine. You will certainly find no duty to retreat there. A homeowner could “kill the assailant with impunity” for the offense of burglary under common law. So where did the duty to retreat come into play? You can find that in Book 4, Chapter 14 of Blackstone’s Commentaries. The Common Law Blackstone describes divides homicide into three types, “justifiable, excusable, and felonious.” In the realm of justifiable homicide, Blackstone speaks of “advancement of public justice” in the following context:
In the next place, such homicide, as is committed for the prevention of any forcible and atrocious crime, is justifiable by the law of nature; and also by the law of England, as it stood so early as the time of Bracton, and as it since declared by statue 24 Hen VIII. c. 5. If any person attempt to burn it, and shall be killed in such an attempt, the slayer shall be acquitted and discharged. This reaches not to any crime unaccompanied with force, as picking of pockets, or to the breaking open of any house in the time of day, unless it carries with it an attempt of robbery also.
Under common law, a citizen had a justification for committing homicide in order to stop a forcible felony. There was no duty to retreat here. It was, in fact, considered a civic duty for a citizen to stop felonies from being committed. We don’t get to a duty to retreat until we get to Blackstone’s commentary on self-defense, which under common law is not a justifiable homicide, but an excusable homicide. Blackstone notes that common law makes a distinction between these two.
Homicide in self-defense, or se defended, upon a sudden affray, is also excusable rather than justifiable, by the English law. This species of self-defense must be distinguished from that just now mentioned, as calculated to hinder the perpetration of a capital crime; which is not only a matter of excuse, but of justification. But the self-defense, which we are now speaking of, is that whereby a man may protect himself from an assault, or the like, in the course of a sudden brawl or quarrel, by killing him who assault him […] They cannot therefore legally exercise this right of preventive defense, but in sudden and violent cases; when certain and immediate suffering would be the consequence of waiting for the assistance of the law. Wherefore, to excuse homicide by the plea of self-defense, it must appear that the slayer had no other possible means of escaping from his assailant.
Emphasis mine. It is here you can see the common law origins of the Duty to Retreat. But notice this only applies to “sudden affray” or “sudden brawl” with someone who was otherwise not feloniously attacking a person. Blackstone implies there’s an element of the defender having been a willing participant in the “quarrel” or “affray.” When states started to codify common law into statutes, many erroneously adopted this aspect of common law for all justifiable homicides, even ones which were meant to prevent felony. Most state statutes on self-defense no longer make any distinction between justifiable and excusable homicide, though there are many states that allow for the use of deadly force to prevent commission of a forcible felony. Pennsylvania was one of the states that codified common law improperly, and created a duty to retreat in the face of felonious assault. Castle Doctrine is not really a radical change from the Common Law, but a restoration of it.
