The shooting of Trayvon Martin and the trial of George Zimmerman have divided the country along predictable lines: blacks and whites, “liberals” (that is to say, self-hating European-American leftists) and “conservatives” (or, rather, confused liberals).  The racial conflict is entirely without interest except insofar as it tends to confirm what everyone in America knows by now: that black political activism is synonymous with antiwhite racism.  However, the political controversy over “Stand Your Ground” legislation affords an opportunity for Americans to learn something about who they are—or, more accurately, used to be—as a people.

Most Americans know at least the leftist version of what happened in Sanford, Florida, on the evening of February 26, when George Zimmerman fatally shot Trayvon Martin in the chest.  They also know the broader context in which the left has set this morality play in black and white.  Zimmerman was incited to commit his “crime” by two laws passed by the Florida legislature under the inspiration of right-wing ideologues: the right to carry a concealed weapon and the right to stand one’s ground and defend one’s person and property with deadly force.  If Zimmerman had not been carrying a gun and had been taught by the law that he had a duty to flee from an aggressor, so the story goes, he would never have found himself with a broken nose, two black eyes, a battered head plus lacerated scalp, and a second-degree murder charge.  Unfortunately, the truth is that without a gun and a willingness to use it, George Zimmerman would very likely be dead, though it is highly doubtful that young Mr. Martin would be standing trial.  His defense?  Obviously, he suffered an unprovoked attack, stood his ground, and killed in self-defense.

Zimmerman’s “misguided” application of Florida’s laws only confirm, so the leftists say, their cherished myth that Americans have inherited a “strain of violence” from their frontier experience.  If Wild Bill Hickok had not got away with shooting a bill collector, our streets would be as safe as the streets of Stockholm or Oslo.  (Perhaps it is better not to mention Oslo.)  In fact, if we only look at the crime rates of the Northern European ethnic groups who, for the most, settled the frontier, Americans are no more violent than their Scottish and Norwegian cousins.  This is not a subject that can any longer be brought up in polite company or discussed in a major newspaper, but we are as prissy about statistics on race and crime as a Victorian haberdashery clerk referring to the white meat of a chicken or the limbs of a chair.

While it is certainly true that frontiersmen had to rely on their own courage and skill to protect themselves, both from Indians and from their less peaceable neighbors, the fanciful picture sketched by writers from Ned Buntline to Cormac McCarthy is rather misleading.  Few Americans on the frontier were homicidal maniacs, and most of the really dangerous men—the Jameses and Youngers, John Wesley Hardin and Clay Allison—were political, economic, and moral victims of the War.  At their violent worst, these gunmen were a far cry from modern gangbangers.  They lived hard, drank hard, and fought like men.  The best of them could boast that, in the words of Clay Allison’s grave marker, they “never killed a man that did not need killing.”  Decent women did not have to worry—they were not only safe but honored in the roughest mining camps, as the diary of Josiah Royce’s mother makes plain.

Our own Roger McGrath has shown that Western towns proverbial for violence were actually more peaceful than major cities in the East.  My own explanation is that there were more of Dr. McGrath’s wild Irish kinsmen in Boston and New York than there were in the Wild West.  Whatever the reason, the frontier is not responsible for urban violence in present-day America.

For several decades, one of the leading authorities on the history of American violence has been Richard Maxwell Brown, a consultant to the National Advisory Commission on Civil Disorders set up by Lyndon Johnson in response to the urban riots of the 1960’s.  The Kerner Commission (as it was known) blamed black urban violence on white racism.  Plus ça change!  The most-cited statement of the commission’s report was the prediction that “our nation is moving toward two societies.”  It has, but the division, while similar, is not quite what Governor Kerner and his accomplices had in mind.  On the one side are the taxpaying workers who fit the bill for the rulers and the slaves of government; on the other the tax-consuming rentiers, dictators, and parasites who feed on the sweat of carpenters, engineers, and entrepreneurs.

In much the same vein, Brown went on to author Strain of Violence: Studies of American Violence and Vigilantism.  Later, in a very influential book, No Duty to Retreat, Professor Brown capped his career and added a chapter to the tale of American exceptionalism.  This nation of self-seeking individualists, in order to give full vent to its violent racism—here he inevitably cites Lincoln and Gunnar Myrdal—had to break with English law, but our Anglo-American tradition of gunfights, vigilantes, and lynch mobs is being undermined by mass immigration from peaceful Third World countries.  I only wish I were making this up.

In the tradition of English law, Brown explains in his first chapter, homicide even in self-defense was criminal unless the killer had made a serious effort to escape his attacker by retreating to a point from which he could retreat no farther.  Classic statements of the duty to retreat can be found not only in the state-loving Blackstone but in the work of Sir Matthew Hale, a judge famous for his probity and integrity.  According to Brown, the duty to “retreat to the wall” or to a river bank, while it was challenged by such distinguished English jurists as Sir Michael Foster, remained an established fact in English law down to the Criminal Law Act of 1967, still in force today.  However, American judges were more impressed by Foster’s critique and developed the argument that “no true man” could be expected to run away from an attacker or refuse to meet a challenge.  Decisions by judges in Ohio and Indiana then laid the groundwork for the revival of dueling—including gunfights in the street—that so disturbed the peace of the West.  Applying Brown’s historical analysis to Stand Your Ground legislation, we could conclude such laws are, indeed, a residue of our violent past and a break with the more civilized laws of our mother country.

It is a nice story, one that used to make me proud to be an American, but it is inaccurate to the point of falsehood.  I do not think Brown set out deliberately to mislead his readers, but his second-hand citations are an embarrassing revelation of a scholar who did not check his sources so long as his misconceptions did not contradict his prejudices.

Let us start the story in medias res, with Sir Michael Foster, in the middle of the 18th century.  In A Report on some proceedings on the commission for the trial of the rebels in the year 1746 in the county of Surry, and of other crown cases to which are added discourses upon a few branches of the crown law, Foster attempts to clarify—though certainly not to reverse—laws regarding justifiable and excusable homicides.  He very clearly distinguishes between someone who kills in a street quarrel, arranged or impromptu, and someone who kills defending himself or his property from a felon.

Where a known felony is attempted upon the person, be it to rob or murder, here the party assaulted may repel force with force [an ancient legal maxim], and even his servant . . . or any other person present, may interpose for preventing mischief; and if death ensueth, the party so interposing, will be justified.  In this case nature and social duty cooperate.

Foster includes nature because, as he correctly insists, men had a right to defend themselves before any governments existed, and where the forces of government are not available, we are put back into a state of nature.  Defending persons and property from assault is a clearer case than an affray, where the Stand Your Ground rule ordinarily applies.  Nonetheless, Foster cites several cases where two men quarreled and, in the course of argument, the one who initiated or threatened violence was killed.  Depending on circumstances, the homicide, although not justified, had been excused.

Foster’s disagreement with Judge Hale, for whom he generally expresses a respect bordering on reverence, is largely over terminology.  Foster’s innovation consists only in relying less on the benignity of the crown in the use of pardon and in more strictly defining terms like murder, self-defense, and justifiable.  Sir Matthew Hale, though far less precise, had in fact made exception for defense against felonious assaults.

Hale, contrary to what is often argued, did not insist on a universal duty to retreat, though he does say that in retreating a man gives proof of his innocent intent, even if he initiated the altercation.  Retreat is not required in certain cases, viz. when an officer of the law is assaulted by a criminal, or “if a thief assaults a true man [note the key phrase] either abroad or in his house, either to rob or kill him, the true man is not bound to give back but may kill the assailant and it is not felony, or if he is assaulted so violently that he cannot defend himself without killing.”  Similarly, if one man kills another in defense of the life of a wife, servant, or child, it is treated as an act of self-defense.

Blackstone is no less explicit that a homicide committed in self-defense against a violent criminal or a thief in the night is not merely excusable but justifiable, and “the slayer is in no kind of fault whatsoever, not even in the minutest degree.”  The duty to retreat does not enter into such cases but covers violence arising from arguments, dueling, street altercations and the like, and even in such cases circumstances may excuse, though not justify, the homicide.

Then, if there is no universal duty to retreat in Common Law, how can it have been enshrined in the U.K. Criminal Law Act of 1967?  The simple answer is that it is not there.  In fact, it is the general legal opinion in the United Kingdom that the Act of 1967 replaced the duty to retreat with a rule based on the use of reasonable force for defense of one’s self or another person.  Very pertinently to the Zimmerman case, the Act stipulates that “A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large.”

Leftists like the English legal traditions on weapons and self-defense because they were, admittedly, among the harshest and most restrictive laws known to European history.  Why should the freedom-loving English have subjected themselves to such restrictions?  The answer is simple.  When William I conquered the Anglo-Saxons, he and his henchmen assumed ownership of over 95 percent of the land of England, which they had robbed from Anglo-Saxon owners who had been brought up and trained to defend themselves.  Disarming and pacifying the natives was a primary Norman objective, and it was only in the passage of time that Norman masters and Saxon subjects coalesced into a nation of equitable laws, but even then the admirably hidebound English could never quite free themselves from even a bad tradition, though they did learn how to reinterpret Norman law in order to give the subjects the right to defend themselves.

In the 1750’s Sir Michael Foster saw the problem clearly and argued for a more precise legal definition of self-defense.  A generation of English colonists in Massachusetts strongly objected to the invasion of their houses and shops by excise officers of the crown and refused to surrender their weapons when British officers demanded them.  The result was, as Roger McGrath has recently reminded us, “the shot heard round the world.”  The round fired by George Zimmerman in his own defense is only the latest echo of that shot.