by T. Markus Funk*
(2023) Oxford U Comparative L Forum 1 at ouclf.law.ox.ac.uk | How to cite this article
Self-defense, the “first civil right,” continues to be among criminal law’s most controversial, enduring , and intuitively understood topics. The February 2020 murder of Ahmaud Arbery, the November 2021 Wisconsin trial of Kyle Rittenhouse, the January 2023 shooting of a masked robber in a Houston taqueria, and the February 2023 second-degree murder charges lodged against 73-year-old Arizona rancher George Alan Kelly for killing an allegedly trespassing migrant near the US-Mexico border all have helped bring to full boil the long-simmering national debate about where the state’s monopoly on force should end and the individual’s right to rely on self-preferential force should begin.
After each of these incidents, members of the legal commentariat followed the familiar practice of swiftly offering their takes on all aspects of these flashpoint cases. Much of what they said about these cases, for good reason, sparked spirited discussion.
There is, however, one disrupting note in the constant drumbeat of lawyers, legislators, academics, reporters, and other legal observers that is routinely and frustratingly out of sync: the claim that U.S. self-defense law is exceptionally severe by international standards and comparatively underappreciative of the value of human life and the need to prevent violence.
The problem with this narrative is that it fails to recognize that U.S. self-defense law is, in fact, very much within the international mainstream and, in many respects, is significantly more protective of attackers and more carefully calibrated to reduce overall societal violence than the self-defense laws of many other nations. In terms of impact, such erroneous claims seriously distract from the much-needed debate over U.S. self-defense law’s deeper public policy and moral grounding.