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Daily News, Unsolicited Advice

Everyday Legal Terms: Castle Doctrine

via ammoland.com

Shouldn't it be one gun per month?

Despite a few rulings and opinions saying that it might be prudent for Congress and state legislatures to regulate things like gun ownership, and even okaying limitations being placed on free speech, people almost always have a virulent negative reaction when they feel the Bill of Rights is being limited in any way.

Especially the Second Amendment.

Such was the case with the “One Gun a Month” or “Handgun-a-Month” Law that was recently repealed in Virginia.

The law was targeted at limiting “straw man” gun sales coming out of Virginia, which remains a state that produces high levels of illegal gun sales and trafficking to other states. The idea was that a person who could pass a background check would buy multiple guns, and then sell those guns to criminals. Those person to person sales are legal and background checks are not required, so this certainly presents a problem. The “One Gun a Month” Law was meant to limit the mass sales by, you guessed it, limiting purchases to one per month.

Now it seems like at least an okay idea to stop that specific problem, but in the 20 or so years it existed no one ever checked to see if it actually worked, and eventually Virginians got tired of it, so it was repealed. Thus, mass gun buys are legal once again in Virginia.

If you look at the comment section on WTVR.com‘s article about the law you see many people saying good riddance and that it violated the Second Amendment anyway. (lol) Many people there, and in the gun debate in general, pointed to home defense as a reason to never limit gun sales. Ever.

It’s a nice idea and it certainly seems valid, so let’s talk about it, and how the home defense thing actually works.

Your Everyday Legal Term is: the Castle Doctrine.

This is the legal concept that allows you to use deadly force, i.e. a gun, knife, etc. to defend your home. The essence of the rule is that a man’s (or woman’s) home is his castle and he should be allowed to defend it and those within its walls. However, this rule is actually pretty limited in its practical application.

To be blunt, the biggest misconception here is the notion that you can shoot anyone that trespasses on your property. There is a multitude of reasons why that doesn’t work, one being that suburban America isn’t the Wild West of yore. So, take it from us, that is not a real thing.

So what is the actually rule?

Since the phrase “Castle Doctrine” is colloquial (and codified) it isn’t in our law dictionary, so we will let the Supreme Court of Appeals of West Virginia define it for us:

The law regarding self-defense is often deceptively and simply stated: that a defendant who is not the aggressor and has reasonable grounds to believe, and actually does believe, that he is in imminent danger of death or serious bodily harm from which he could save himself only by using deadly force against his assailant has the right to employ deadly force in order to defend himself. [myweb.wvnet.edu]

In other words, you must believe that an intruder means to kill or maim you or anyone else in your house before you can take action. But, there’s more.

You cannot provoke an intruder into attacking you. Perhaps that sounds foolish, but if someone breaks into your house and is clearly only there to steal your TV, you cannot and should not corner this person or try to hold them at gun (or knife, bat, lamp, etc.) point. This kind of act makes you the aggressor, and may put the burglar into a position where he or she would be justified in defending his or her self against you, and if you killed that person you could be facing a murder charge. So, you can only really be on the defensive.

However, you may, and sometimes you must, announce to the intruder that you will defend yourself at all costs.

There is also the question of whether you have a duty to try to escape.

This is based strictly on state law, and about half of the states require some kind of attempt to flee from harm before you can use deadly force. The other half require only what the West Virginia Supreme Court of Appeals does, so if you are heart set on being able to injure an intruder, take a quiet moment and look up what your state requires.

Remember, your best option when you are subject to a home invasion is to get somewhere safe and call the police. If you do not have that option, then your next best option is to try to hurt an assailant enough that it will let you get away.

To all the “home defense” gun owners out there, make sure to continue to comply with any and all gun license requirements, and do not under any circumstances become aggressive unless it is strictly necessary. If you go beyond defending yourself and your family/guests you could end up in big trouble because, in the end, while you might have the right to own a gun, you need to understand that 99.999% of the time you do not have the right to point it at someone, even if they are walking out of your house with your TV.

About E.C.

Corporate and regulatory attorney. Also experienced in advocacy for the mentally disabled and minor litigation matters. Not currently practicing, but maintaining the blog to keep my research and writing skills sharp. Splitting time between Connecticut and Massachusetts.

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  1. Pingback: Never Back Down « everydaycounsel - March 20, 2012

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