other kind) was “not obliged to fly” from a menacing assailant.rnThe following year the supreme court of Indiana faced the issuernand likewise upheld the doctrine of no duty to retreat. Thernauthor of the Indiana court’s decision was a conservativernDemocrat, William Niblack, who later would be mentioned asrna possibility for the presidential nomination of his party.rnNiblack’s father was a leading Indiana pathfinder who pioneeredrnthe primitive “mud hole” trail in the angle between thernOhio and Wabash Rivers. His son William forged a frontier lawrnpractice and a career in polities that took him to the nation’srncapital for a long stint in the House of Representatives beforernelection to the Indiana Supreme Court.rnWilliam Niblack was a forceful judge who in the case of Runyanrnv. Stale (1877) confronted the issue of retreat posed by thernappeal of a manslaughter conviction growing out of an electiondayrndispute. The killer, John Runyan, appealed his convictionrnon the ground that the lower-court trial judge—who hewed tornthe retreat requirement—^was incorrect in his instruction to thernjury that Runyan should have obeyed the duty to retreat beforernshooting and killing his opponent. For his supreme court colleagues,rnJudge Niblack upheld Runyan’s appeal. Niblack resortedrnto both law and the frontier values of the Midwest tornsupport his finding that Runyan, as the target of a felonious assault,rnhad no duty to retreat.rnHolding that Runyan’s fatal wounding of his assailant was arnjustifiable homicide, Niblack noted that the “ancient” Englishrndoctrine of the duty to retreat had been “greatly modified”rnin America. Then in a passage that would be widelyrnquoted in other high-court cases supporting no duty to retreat,rnNiblack got down to the social bedrock of the matter: “Indeed,”rnhe announced, “the tendency of the American mind seems to bernvery strongly against the enforcement of any rule which requiresrna person to flee when assailed [emphasis added].” In effect, thernIndiana Supreme Court held that the duty to retreat was a legalrnrationale for cowardice and that cowardice was simply un-rnAmerican. A similar idea had surfaced earlier in Tennessee,rnwhere a Supreme Court judge contemptuously referred to arnhunter who had been a participant in a murder episode as arn”timid, cowardly man.” This influential Tennessee ease,rnGrainger v. State (1830), significantly widened the right ofrnself-defense and was ever after labeled the “timid hunter” case.rnAlso serving to undermine the sway of the legal doctrine ofrnthe duty to retreat in the United States was, as the 19th centuryrnwore on, the increasing deadliness of repeating firearms. Inrn1905 the Minnesota supreme court, supporting no duty to retreatrnin regard to a North Woods murder case, emphasized thernfrontier conditions that brought “courageous” and “selfreliant”rnmen into conflict equipped with a weaponry of riflernand revoK’er far more lethal than anything known in Englishrnmedieval times when the duty to retreat was formulated.rnMeanwhile, Rudyard Kipling encountered the culture of nornduty to retreat during an 1889 tour of America. As the eventualrnpoet and prophet of imperialism, Kipling might havernbeen expected by some latter-day observers to approve the aggressiverntemper of no duty to retreat, but such was not the case.rnPossibly because he was a product of England’s much less violentrnduty-to-retreat society, Kipling was horrified by thernviolence of Americans. Visiting Portland, Oregon, on his crosscountryrntrip, Kipling was impressed by the bustling, busy life ofrnthe Pacific Northwest metropolis, but he was appalled by a recentrnkilling there. “One well-known man,” wrote Kipling, “hadrnshot another on the street, and was now pleading self-defense.rnbecause the other man had, or the murderer thought he had,rna pistol [on him]. I read the [legal] pleadings [in the newspaper],”rncontinued Kipling, “and they made me ill. So far as Irncould judge, if the dead man’s body had been found with a pistolrnon it the shooter would have gone free.” “Here in this civilizedrncity the surviving brute was afraid he would be shot—fanciedrnhe saw the other man make a motion to his hip-pocket,rnand so on. And the degrading thing,” he concluded, “was thatrnthe trial was reported by men who evidently understood allrnabout the pistol, was tried before a jury who were versed in thernetiquette of the hip pocket, and was discussed on the street byrnmen equally initiate [emphasis added].” Kipling was an accuraternreporter on the state of law and social values in Oregon, forrnin the same month that Kipling was in Portland, a staternsupreme court judge confirmed that in Oregon a man had arn”right” to “stand his ground and defend himself against the personalrnviolence of another. He isn’t obliged to retreat: that doctrinernis done away with in these days, especially when firearmsrnare used and missiles strike at a distance and without warning.”rnYet a one-man scholarly backlash was building up againstrnthe American right to stand one’s ground and kill in selfdefense.rnIt was Professor Joseph H. Beale, Jr., of the HarvardrnLaw School who, in taking to the pages of leading law journalsrnin 1903, echoed Kipling’s consternation over “the etiquette ofrnthe hip pocket,” staunchly defended the English notion ofrnthe duty to retreat, and in reference to the habitual packing ofrna pistol in a side pocket scathingly denounced what he termedrnthe “hip-pocket ethics” of the West. Did Beale base his phrasern”hip-pocket ethics” on Kipling’s “etiquette of the hip pocket”?rnBeale gave no such acknowledgment, but he might well havernread Kipling’s book American Notes (1895), in which the phrasernappeared, and, perhaps unconsciously, adapted Kipling’s usagernto his own.rnTo Beale’s extreme displeasure, the reign of “hip-pocketrnethics” made questions of cowardice and honor superior to reverencernfor life. In an attitude that would not have been widelyrnaccepted or even widely understood in grassroots America,rnBeale conceded that “a really honorable man” would “perhapsrnalways regret the apparent cowardice of a retreat” from an assailant,rnbut in “the case of a killing to avoid a stain on one’srnhonor,” he would “regret ten times more, after the excitementrnof the contest was past, the thought that he had the blood ofrna fellow-being on his hands.” Even Beale, however, sensed thatrnhe was bucking the momentum of society as well as the law,rnand, although read with respect, his impassioned views did notrnreverse the trend.rnWhile the majority of states enshrined no duty to retreat inrntheir Common Law, the U.S. Supreme Court had in thern1890’s waffled on the issue in regard to cases under federal jurisdiction.rnIn 1921 the Supreme Court once more faced thernmatter and this time settled it. For the Court, Justice OliverrnWendell Holmes, a fellow New Englander and an even greaterrnlegal scholar than Professor Beale, carefully considered butrnstrongl}’ rejected Beale’s viewpoint when in Brown v. UnitedrnStates (1921) he wrote the 7-2 majority opinion in favor of nornduty to retreat. The case originated in Texas, a state whose lawrnso strongly supported the doctrine of standing one’s groundrnthat the latter was often called the “Texas rule.” In the case inrnquestion, a knife-wielding enemy came at Robert Brown on arnU.S. post-ofhce construction site and, far from running away orrnretreating. Brown stood his ground and shot to death his oplANUARYrn1994/21rnrnrn