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2023
Strengthening the Law of Self-Defense After Bruen Strengthening the Law of Self-Defense After Bruen
Cynthia Lee
George Washington University Law School
, cylee@law.gwu.edu
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98 N.Y.U. L. Rev. 1905 (2023).
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1905
STRENGTHENING THE LAW OF
SELF-DEFENSE AFTER BRUEN
C L*
On June 22, 2022, the Supreme Court issued its opinion in New York State Rie &
Pistol Association v. Bruen, striking down New York’s over 100-year-old law requiring
individuals seeking to carry a rearm concealed in public to show a special need
for self-protection. Holding that New York’s law violated the Second Amendment,
the Court rejected the means-end scrutiny that lower courts had previously used to
determine whether rearms restrictions comported with the Second Amendment,
explaining that the appropriate test for evaluating the constitutionality of a rearms
restriction is whether it is consistent with the Second Amendment’s text and historical
understanding. The plain text of the Second Amendment, however, does not explicitly
say private citizens have a right to carry rearms in public. Instead of acknowledging
this, the Court focused on the fact that the text of the Second Amendment draws
no distinction between the possession of rearms in the home and the possesion of
rearms in public. The Court then proceeded to cherry pick which historical sources
it found relevant, rejecting sources that supported upholding the New York law and
nding persuasive only those that supported its conclusion that individuals have a
Second Amendment right to carry rearms outside the home. One result of Bruen is
that states now have fewer tools to limit the number of individuals who can lawfully
carry a rearm in public.
To reduce gun violence in public, legislators can try to regulate rearms on the front
end by limiting those who can carry rearms in public. Alternatively, legislators
can try to regulate rearms on the back end by discouraging those who choose to
carry in public from unjustiably using their rearms to injure or kill others. Since
Bruen limits “front-end” regulation, it is a particularly opportune time to explore the
effectiveness of “back-end” regulation.
This Article argues that lawmakers should add reform of back-end laws to their
arsenal of tools to deal with the epidemic of gun violence that aficts our country.
While a variety of laws can be amended to discourage the unjustiable use of
rearms, this Article focuses on just one body of law that is uniquely situated to
discourage the unjustiable use of rearms: the law of self-defense. Self-defense law
is uniquely positioned to inform whether and when an individual chooses to use
their rearm to threaten, injure, or kill another person in light of the Supreme Court’s
declaration in Heller that self-defense is at the core of the Second Amendment. The
Article examines a few ways the law of self-defense can be strengthened to discourage
the unjustiable use of rearms in public.
* Copyright © 2023 by Cynthia Lee, Edward F. Howrey Professor of Law, George
Washington University Law School. I thank Eric Ruben and Joseph Blocher for their help
with this Essay. I also thank Matthew Broussard and Garrett Dowell for their excellent
research assistance and Jake Charles, Joseph Blocher, and Darrell Miller from the Duke
Center for Firearms Law for inviting me to write this essay. Finally, I thank David Ogle and
the New York University Law Review for excellent editorial assistance.
08 Lee-fin.indd 1905 18/12/23 4:38 PM
1906 NEW YORK UNIVERSITY LAW REVIEW [Vol. 98:1905
I ........................................... 1906
I. A P L S-D ............... 1909
II. S L S-D ............ 1915
A. Substantive Strengthening ........................ 1916
1. The Necessity Requirement ................... 1917
2. Proportionality ............................. 1919
3. Imminence ................................. 1920
4. Initial Aggressors ........................... 1921
B. Procedural Strengthening ........................ 1922
1. Burden of Proof ............................ 1922
2. Immunity Provisions ........................ 1925
C ............................................. 1927
I
The Supreme Court’s recent decision in New York Rie & Pistol
Association v. Bruen is highly consequential.
1
By holding unconstitu-
tional New York’s licensing scheme that required applicants seeking
to carry a rearm concealed in public to show a special need for self-
defense,
2
Bruen makes it harder for state legislatures to pass common-
sense laws regulating rearms.
The United States already has the highest number of guns per cap-
ita in the world.
3
It also has the highest rearm homicide rate per capita
in the developed world.
4
By relaxing the restrictions states can place on
1
N.Y. State Rie & Pistol Ass’n v. Bruen, 142 S. Ct. 2111 (2022).
2
Id. at 2156.
3
German Lopez, America’s Love for Guns, in One Chart, V (June 21, 2018, 12:30
PM), https://www.vox.com/2018/6/21/17488024/gun-ownership-violence-shootings-us
[https://perma.cc/Z4QV-H97G]; A K, S A S, E G
C-H F N 4 tbl.2 (2018), https://www.smallarmssurvey.org/
leadmin/docs/T-Brieng-Papers/SAS-BP-Civilian-Firearms-Numbers.pdf [https://perma.
cc/37RN-KLCQ].
4
See German Lopez, America’s Gun Problem, N.Y. T (May 26, 2022) https://
www.nytimes.com/2022/05/26/brieng/guns-america-shooting-deaths.html [https://perma.
cc/3CWA-QWHQ], for a chart entitled “Gun Ownership and Homicide Rates in Developed
Countries,” which depicts the drastic gap in homicide rates between the United States and
countries such as Canada, France, Portugal, Germany, Spain, Belgium, and Australia. See also
Kara Fox, Krystina Shveda, Natalie Croker & Marco Chacon, How US Gun Culture Stacks Up
with the World, CNN (Apr. 10, 2023, 10:40 AM), https://www.cnn.com/2021/11/26/world/us-
gun-culture-world-comparison-intl-cmd/index.html [https://perma.cc/X4ZW-8SFG]; Jaclyn
Schildkraut, Updated Insights from the Gun Violence Data Dashboard, R I.
G’, https://rockinst.org/blog/updated-insights-from-the-gun-violence-data-dashboard
[https://perma.cc/S5BX-SKBQ] (“Firearm-related deaths in the United States rose again in
2021, with 48,830 people killed, the highest number ever recorded .... This represents an 8
percent increase over the 45,222 gun deaths that occurred in 2020 and a 69.9 percent increase
over the 28,663 in 2000.”).
08 Lee-fin.indd 1906 18/12/23 4:38 PM
December 2023] SELF-DEFENSE AFTER BRUEN 1907
individuals wishing to carry a rearm in public, Bruen makes it more
likely that these numbers will go up, not down, in the future.
5
In attempts to reduce gun violence, one can try to regulate on
the front end to limit purchase and public carry or on the back end to
limit use. Since Bruen limits “front-end” regulation,
6
it is a particularly
opportune time to explore the effectiveness of “back-end” regulation.
7
Indeed, the more we relax the laws regulating guns on the front end, the
more important it becomes to strengthen the laws regulating guns on
the back end. It is particularly important, in light of Bruen, to use both
the expressive and deterrent function of the criminal law to send a clear
message to those who own or possess rearms that it is not okay to use
a rearm to unjustiably threaten, harass, injure, or kill another person.
Aside from a few recently published or forthcoming articles,
8
reform of back-end laws as a means of dealing with permissive public
5
Following Bruen, there was an increase in applications for concealed carry gun
permits, i.e., permits to carry rearms concealed in public, in states which previously required
a showing of “good cause” to carry a rearm in public. See, e.g., Fredrick Kunkle, Supreme
Court Ruling Sets Off Rush for Concealed Gun Permits in Maryland, W. P (July 18,
2022), https://www.washingtonpost.com/dc-md-va/2022/07/15/concealed-carry-maryland-
guns-hogan [https://perma.cc/8FN9-8PT5]; Robert Brodsky, LI Applications Spike for
Concealed Carry Gun Permits After Supreme Court Ruling, N (July 9, 2022), https://
www.newsday.com/long-island/concealed-carry-gun-permit-application-spike-long-island-
vfne6998 [https://perma.cc/5RQR-L5EL] (describing increase in applications on Long
Island); The Future of Concealed Carry Permits in California, S N (July 12, 2022),
https://spectrumnews1.com/ca/la-west/inside-the-issues/2022/07/13/the-future-of-concealed-
carry-permits-in-california [https://perma.cc/S4TX-HXSL] (noting a post-Bruen increase in
permits issued by the Los Angeles County Sheriff’s Department). Research suggests that
permissive right-to-carry laws are associated with an increase in violent crime. See John
J. Donahue, Abhay Aneja, & Kyle D. Weber, Right-to-Carry Laws and Violent Crime: A
Comprehensive Assessment Using Panel Data and a State-Level Synthetic Control Analysis,
16 J. E L S. 198, 200 (2019) (noting that right-to-carry laws increase rather
than decrease violent crime); Emma E. Fridel, Comparing the Impact of Household Gun
Ownership and Concealed Carry Legislation on the Frequency of Mass Shootings and
Firearms Homicide, 38 J. Q. 892, 904 (2021) (nding that “rearms homicide was more
likely to occur in areas with more permissive concealed carry laws”).
6
By “front-end” regulation, I mean the rules and regulations that apply before an
individual uses a rearm. Front-end regulation would include laws governing the purchase
of rearms and laws regulating the ability to carry guns in public.
7
By “back-end” regulation, I mean rules and regulations that come into play after
a rearm is used. Back-end regulation would, for example, include laws specifying the
requirements for conviction of homicide and assault, legal rules making it easier for
prosecutors to convict defendants charged with murder and other crimes of violence, laws
regulating claims of self-defense, and laws increasing the penalties for crimes committed
while using a rearm.
8
See, e.g., Cynthia Lee, Firearms and Initial Aggressors, 101 N.C. L. R. 1 (2022)
(arguing that lawmakers should strengthen the initial aggressor doctrine to discourage gun
violence); Eric Ruben, Public Carry and Criminal Law After Bruen, 135 H. L. R. F.
505, 506 (2022) (noting ways that the criminal law both advantages and disadvantages gun
carriers through the deadly weapon doctrine and what Ruben calls the “he was going for
08 Lee-fin.indd 1907 18/12/23 4:38 PM
1908 NEW YORK UNIVERSITY LAW REVIEW [Vol. 98:1905
carry laws and increasing gun violence in this country has largely been
overlooked. Much of the post-Bruen focus in states that previously
required a showing of special need has been on the front end, with leg-
islators looking for ways to continue regulating public carry of rearms
consistent with Bruen. For example, in the wake of Bruen, the New York
legislature passed a law prohibiting the carrying of handguns in certain
sensitive locations, including schools, libraries, and parks.
9
The new law
also prohibits the bringing of concealed rearms into a private business
unless the business expressly agrees to allow rearms.
10
Given the increase in applications for public carry permits fol-
lowing Bruen
11
and the limitations on regulating public carry imposed
by Bruen, I argue that states concerned about reducing gun violence
should focus their efforts on strengthening back-end laws regulating the
use of rearms, as opposed to simply modifying front-end laws regu-
lating the public carry of rearms to comport with Bruen. I recognize
that attempts to strengthen laws regulating gun use on the back end are
likely to meet with objections from both the left and the right. Some on
the left will argue that strengthening laws regulating the use of rearms
is a bad idea because such efforts will worsen the problem of mass incar-
ceration.
12
Some on the right will likely complain that such strengthen-
ing will infringe on individuals’ Second Amendment rights.
13
It is beyond the scope of this Article to comprehensively address
these critiques. My quick response to the left is that if someone has
my gun” defense); Eric A. Johnson, When Provocation Is No Excuse: Making Gun Owners
Bear the Risks of Carrying in Public, 69 B. L. R. 943 (2021) (proposing that the heat-of-
passion defense should not be available if the defendant carried a loaded gun in public and
used that gun to kill his provoker).
9
See, e.g., Praveena Somasundaram, Andrew Jeong & Meryl Korneld, N.Y. Passes Law
on Guns, Starts Abortion Rights Process After Supreme Court Rulings, W. P (July
1, 2022), https://www.washingtonpost.com/nation/2022/07/01/new-york-restrictions-guns-
abortion-roe [https://perma.cc/U9ZX-ZXUC] (noting that “New York was forced to narrow
its regulations after the Supreme Court ruled that the law was too restrictive” and that
“Justice Clarence Thomas, who wrote the [Bruen] ruling, afrmed that authorities still could
prohibit the carrying of rearms in specic ‘sensitive places,’ such as schools and government
buildings”).
10
Id.
11
See infra note 51.
12
See, e.g., Aya Gruber, Race to Incarcerate: Punitive Impulse and the Bid to Repeal Stand
Your Ground, 68 U. M. L. R. 961, 1014–21 (2014) (arguing that attempts to narrow self-
defense laws by progressives concerned about the racial inequities of Stand Your Ground
laws reect a punitive impulse that augments police and prosecutorial power).
13
See Robert J. Cottrol, Submission Is Not the Answer: Lethal Violence, Microcultures
of Criminal Violence and the Right to Self-Defense, 69 U. C. L. R. 1029, 1080 (1998)
(opposing attempts to strengthen self-defense doctrine on the ground that such efforts will
work to the disadvantage of armed law-abiding citizens, making them “a more submissive
population less capable of self-defense”).
08 Lee-fin.indd 1908 18/12/23 4:38 PM
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used a rearm to kill, injure, or threaten another person without justi-
cation, I don’t think that person should be able to easily avoid being
held accountable by simply asserting a claim of self-defense. My quick
response to the right is that the Second Amendment right to keep and
bear arms just gives one a right to possess or carry a rearm for the pur-
pose of self-defense. It does not give one the right to use that rearm
regardless of the circumstances.
14
Self-defense law controls whether
one’s use of a rearm was in fact in self-defense.
15
While many different types of laws can apply on the back end to
one who has used a rearm in a way that threatens or causes physi-
cal injury to another, I will focus on just one body of law in this essay:
the law of self-defense. Part I provides a primer on self-defense law.
Part II discusses a variety of ways in which the law of self-defense can
be strengthened to discourage or punish rearm use in public.
I
A P L S-D
As a general matter, a defendant claiming self-defense must have
had an honest and reasonable belief that she was being threatened
with an imminent threat of unlawful force and that the force she used
was necessary to repel the threat and proportionate to the threatened
force.
16
The law of self-defense thus includes an imminence or imme-
diacy requirement,
17
a necessity requirement,
18
and a proportionality
requirement,
19
all overlaid with an honest and reasonable belief require-
ment.
20
While the law of self-defense may vary from state to state, these
general features of self-defense are present in the majority of states and
serve as a useful basis from which to start our analysis.
14
E.g., Eugene Volokh, Implementing the Right to Keep and Bear Arms for Self-Defense:
An Analytical Framework and A Research Agenda, 56 UCLA L. R. 1443, 1537 (2009) (“The
right to keep and bear arms in lawful self-defense doesn’t include the right to use those arms
in a crime.”).
15
A Second Amendment enthusiast might argue that strengthening the law of self-
defense will narrow the scope of situations in which individuals may legally keep and bear
arms and thus infringe on their Second Amendment rights. Strengthening the law of self-
defense, however, does not impinge on anyone’s right to keep and bear arms. The Second
Amendment right is not a right to use a rearm to threaten, injure, or kill another person. If
one uses a rearm in a way that threatens or harms another person and claims one did so in
self-defense, then one must answer to self-defense law, which controls whether one’s use or
threatened use of a rearm was in self-defense.
16
J D, U C L §18.01[B] (8th ed. 2018).
17
2 W R. LF, S C L §10.4(d) (3d ed. 2017).
18
Id. §10.4(c).
19
2 P H. R, C L D §131(d), Westlaw (database updated
July 2023).
20
D, supra note 16, §18.01[E].
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1910 NEW YORK UNIVERSITY LAW REVIEW [Vol. 98:1905
Imminence, necessity, and proportionality in self-defense doctrine
are not absolute requirements. As Professor Addie Rolnick observes,
the defendant does not have to be correct in his or her belief that the
force used was in fact necessary to defend against an imminent threat
of unlawful force.
21
As long as the defendant honestly and reasonably
believed in the need to act in self-defense, she may be acquitted even if
her belief was mistaken.
22
Even without the honest and reasonable belief overlay, necessity, im-
minence, and proportionality are not absolute requirements for a success-
ful self-defense claim. Many states, for example, allow an individual who
is in a public place to use deadly force in self-defense without retreating
even if a safe retreat is available.
23
If an individual can safely retreat and
avoid a conict through means other than using deadly force, arguably
their use of deadly force in self-defense is not truly necessary.
24
No-duty-to-retreat provisions in self-defense statutes are often
called “Stand Your Ground” laws because they allow individuals to
stand their ground and use deadly force in self-defense rather than
avoid a physical confrontation by retreating.
25
Legal scholars have
discussed various ways in which Stand Your Ground laws are highly
problematic. For example, Mario Barnes observes that some empirical
data suggests that Stand Your Ground laws may be associated with an
increase in homicides and may also have signicant racialized effects.
26
21
Addie C. Rolnick, Defending White Space, 40 C L. R. 1639, 1660 (2019).
22
Id.
23
Cynthia C. Ward, “Stand Your Ground” and Self-Defense, 42 A. J. C. L. 89, 90
(2015) (“[M]ore than thirty states have adopted a ‘Stand Your Ground’ (No Retreat) rule
which bars the prosecution of people who use deadly force against a deadly aggressor
without rst attempting to retreat, or offers such persons a valid self-defense claim against a
charge of criminal homicide ....”); see also Guns in Public: Stand Your Ground, G L.
C., https://giffords.org/lawcenter/gun-laws/policy-areas/guns-in-public/stand-your-ground-
laws [https://perma.cc/D89H-SKSF] (noting that 30 states have enacted Stand Your Ground
laws and in eight other states, courts have eliminated the traditional duty to retreat in public
rule).
24
E.g., People v. Riddle, 649 N.W.2d 30, 40 (Mich. 2002) (“If it is possible to safely avoid
an attack then it is not necessary, and therefore not permissible, to exercise deadly force
against the attacker.”). But see Commonwealth v. Hasch, 421 S.W.3d 349, 361–62 (Ky. 2013)
(“We do not consider, as part of the ‘necessity’ for using force, whether a victim of an actual
attack could have averted the danger by evading the attacker.”).
25
Tamara Rice Lave, Shoot to Kill: A Critical Look at Stand Your Ground Laws, 67
U. M. L. R. 827, 832–33 (2013); Renée Lettow Lerner, The Worldwide Popular Revolt
Against Proportionality in Self-Defense Law, 2 J. L. E. & P’ 331, 342 (2006); Kimberly
Kessler Ferzan, Stand Your Ground, in T P H A E
C L 731, 731 (Larry Alexander & Kimberly Kessler Ferzan eds., 2019).
26
Mario L. Barnes, Taking a Stand?: An Initial Assessment of the Social and Racial
Effects of Recent Innovations in Self-Defense Laws, 83 F L. R. 3179, 3192–96 (2015)
(noting that while several reports indicate Stand Your Ground laws have racialized effects,
the results from the available studies are inconclusive).
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December 2023] SELF-DEFENSE AFTER BRUEN 1911
Similarly, Elizabeth Megale highlights the racial disparity in outcomes
for individuals in Florida, a state with a Stand Your Ground law. She
notes that a study of over 200 self-defense cases in Florida suggested
that “people who killed a black person walked free 73[%] of the time,
while those who killed a white person went free [only] 59[%] of the
time.”
27
As Aya Gruber observes, “Stand-your-ground laws have come
to symbolize, especially for many in the center-to-left, the intense racial
injustice of the modern American criminal system.”
28
States that impose a duty to retreat prior to using deadly force in
public reect stricter adherence to the idea that deadly force should
only be used when necessary.
29
However, even in these duty-to-retreat
jurisdictions, under what is known as the “castle doctrine,” one does
not have a duty to retreat if attacked in the home.
30
As Catherine
Carpenter explains, the castle doctrine serves as an exception to the
duty to retreat in these jurisdictions.
31
Courts also vary in terms of how rigorously they apply the immi-
nence requirement. The word “imminence” in the context of self-defense
is generally understood to mean impending or about to happen.
32
Some courts, however, have relaxed the imminence requirement in the
27
Elizabeth B. Megale, Disaster Unaverted: Reconciling the Desire for a Safe and Secure
State with the Grim Realities of Stand Your Ground, 37 A. J. T A. 255, 273 (2013)
(quoting Susan Taylor Martin, Race Plays Complex Role in Florida’s ‘Stand Your Ground’ Law,
T B T (Feb. 17, 2013), https://www.tampabay.com/news/courts/criminal/race-plays-
complex-role-in-oridas-stand-your-ground-law/1233152 [https://perma.cc/XK4N-URJQ].
28
Aya Gruber, Race to Incarcerate: Punitive Impulse and the Bid to Repeal Stand Your
Ground, 68 U. M. L. R. 961, 962 (2014).
29
See generally Commonwealth v. Toon, 773 N.E.2d 993, 1005 (Mass. App. Ct. 2002)
(“Before either nondeadly force or deadly force may be invoked the duty to retreat must be
observed.”); State v. Quarles, 504 A.2d 473, 475 (R.I. 1986) (“Before resorting to the use of
deadly force, the person attacked must attempt retreat if he or she is consciously aware of an
open, safe, and available avenue of escape.”).
30
E.g., State v. Fetzik, 577 A.2d 990, 994–95 (R.I. 1990) (“[D]efendant was under no
duty to retreat when the assailant had entered defendant’s dwelling.”); Commonwealth v.
Gregory, 461 N.E.2d 831, 832 (Mass. App. Ct. 1984) (“[T]here is no obligation on the part of
an occupant of a dwelling to retreat if he acts in a reasonable belief that a person unlawfully
in his dwelling is about to inict great bodily injury or death upon him”).
31
Catherine L. Carpenter, Of the Enemy Within, the Castle Doctrine, and Self-Defense,
86 M. L. R. 653, 656–57 (2003) (“Generally, under the Castle Doctrine, those who
are unlawfully attacked in their homes have no duty to retreat, because their homes offer
them the safety and security that retreat is intended to provide.”). Some jurisdictions have
recognized an exception to the castle doctrine for cohabitants and require retreat prior
to using deadly force in the home if the defendant and the victim are cohabitants. Id. at
658–59. Catherine Carpenter argues that these jurisdictions have improperly rejected the
castle doctrine and points out that “the effect of these rulings is to rob intimates who are
faced with violence [in the home] of their basic and fundamental right of self-defense.” Id. at
660.
32
See, e.g., Commonwealth v. Sands, 553 S.E.2d 733, 736 (Va. 2001); Porter v. State, 166
A.3d 1044, 1059 (Md. 2017).
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1912 NEW YORK UNIVERSITY LAW REVIEW [Vol. 98:1905
domestic violence context, allowing homicide defendants who claim
they were the victim of domestic violence to argue they acted in self-
defense even if they killed their abuser during a lull in the violence
when an attack was not impending or about to happen.
33
For example,
in State v. Gallegos, a New Mexico court permitted a woman who shot
and stabbed her abusive husband while he was lying in bed to argue
that she had acted in self-defense.
34
Similarly, in State v. Allery, a woman
shot and killed her abusive husband while he was lying on the couch.
35
Even though the decedent was not attacking the defendant when she
shot him, the Allery court allowed the defendant to argue she acted in
self-defense.
36
Many courts, however, do not allow an individual who
kills an abuser during a lull in the violence to argue self-defense. These
courts reason that self-defense does not apply unless the defendant was
facing an imminent or immediate threat of death or serious bodily
injury and if the victim was not attacking or about to attack the defen-
dant, then there was no imminent threat.
37
Proportionality is another element of self-defense doctrine that
appears to have some elasticity. As a general matter, proportionality
is only an issue when the defendant used deadly force. An individ-
ual’s use of nondeadly force is rarely challenged on proportional-
ity grounds because an individual may use nondeadly force against
either nondeadly force or deadly force.
38
When an individual uses
33
See, e.g., State v. Leidholm, 334 N.W.2d 811, 819–20 (N.D. 1983) (reversing conviction
of a woman who stabbed her husband to death while he was sleeping and ordering a new
trial on the ground that the trial court’s instruction to the jury on self-defense erroneously
applied an objective standard of reasonableness rather than a subjective standard); Dan
Bilefsky, Wife Who Fired 11 Shots is Acquitted of Murder, N.Y. T (Oct. 6, 2011), https://
www.nytimes.com/2011/10/07/nyregion/barbara-sheehan-who-killed-husband-is-found-
not-guilty-of-murder.html [https://perma.cc/TW7V-TK22] (reporting acquittal of woman
charged with second-degree murder who allegedly shot her abusive husband eleven times
with two different guns while he was shaving and argued that she acted in self-defense).
34
State v. Gallegos, 719 P. 2d 1268, 1269, 1275 (N.M. Ct. App. 1986).
35
State v. Allery, 682 P. 2d 312, 317 (Wash. 1984).
36
Id. at 314.
37
See, e.g., State v. Stewart, 763 P. 2d 572, 577 (Kan. 1988) (rejecting claim of self-defense by
a woman who killed her abusive husband, explaining that “to instruct a jury on self-defense,
there must be some showing of an imminent threat or a confrontational circumstance involving
an overt act by an aggressor”); State v. Walker, 700 P. 2d 1168, 1172, 1173 (Wash. Ct. App. 1985)
(afrming a conviction where the defendant, the victim of an abusive relationship, stabbed
her husband in the back when he was not making any threatening moves against her at that
time, explaining, “Mrs. Walker’s own description of the confrontation did not supply a sense
of imminent peril”); State v. Norman, 378 S.E.2d 8, 16 (N.C. 1989) (“[W]e decline to expand
our law of self-defense beyond the limits of immediacy and necessity which have heretofore
provided an appropriately narrow but rm basis upon which homicide may be justied ....”).
38
D, supra note 16, § 18.01[D] (“Assuming all of the other elements of the
defense apply, a person may use non-serious force to repel a minor physical threat; he may
also use such force against a deadly threat ....”).
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deadly force, however, the general rule is that the individual must
have honestly and reasonably believed they were being threatened
with deadly force.
39
Deadly force is often dened as force likely or intended to cause
death or serious bodily injury.
40
While one might think the proportion-
ality requirement means that an individual with a gun could only shoot
another individual armed with a gun, this is not the case. Even an un-
armed individual can threaten another with deadly force. For example,
an individual who is squeezing another person’s neck with the capabil-
ity and intent of killing that person is using force likely or intended to
cause death or serious bodily injury.
In addition to imminence, necessity, and proportionality, an indi-
vidual is justied in using physical force against another person only
if the threatened attack was, or the defendant reasonably believed it
to be, unlawful.
41
If, for example, a uniformed police ofcer is lawfully
attempting to arrest an individual, many jurisdictions will preclude the
39
People v. Riddle, 649 N.W.2d 30, 34 (Mich. 2002) (“[T]he killing of another person
in self-defense by one who is free from fault is justiable homicide if ... he honestly and
reasonably believes that he is in imminent danger of death or great bodily harm and that it
is necessary for him to exercise deadly force.”).
40
E.g., Commonwealth v. Cataldo, 668 N.E.2d 762, 764 (Mass. 1996) (“Deadly force
is dened ... as ‘force intended or likely to cause death or great bodily harm.’” (quoting
Commonwealth v. Klein, 363 N.E.2d 1313, 1316 (Mass. 1977))); T. P C A.
§9.01(3) (West 2021) (“‘Deadly force’ means force that is intended or known by the actor
to cause, or in the manner of its use or intended use is capable of causing, death or serious
bodily injury.”).
41
LF, supra note 17, § 10.4(a). Courts interpreting self-defense statutes typically
require only a reasonable belief that the triggering force was unlawful, not that the force was
in fact unlawful. See State v. Oliphant, 218 P. 3d 1281, 1290 (Or. 2009) (en banc) (“[I]n general,
a person’s right to use force in self-defense depends on the person’s own reasonable belief in
the necessity for such action, and not on whether the force used or about to be used on him
actually was unlawful.”); State v. Beck, 167 S.W.3d 767, 787 (Mo. Ct. App. 2005) (“[Missouri’s
statute] does not require proof that the victim’s acts of force were actually unlawful, but only
proof that the defendant ‘reasonably believed’ that they were unlawful.”), overruled on other
grounds by State v. Bolden, 371 S.W.3d 802 (Mo. 2012) (en banc); Jordan v. State, 593 S.W.3d
340, 343 (Tex. Crim. App. 2020) (nding that the Texas statute does not require evidence that
“the victim was actually using or attempting to use unlawful deadly force because a person
has the right to defend himself from apparent danger as he reasonably apprehends it”). This
approach, allowing for a reasonable belief that the threatened force is unlawful, contrasts
with state court interpretations of the unlawful entry requirement in defense of habitation
statutes, typically requiring that the entry must in fact be unlawful. See Fair v. State, 702
S.E.2d 420, 429 (Ga. 2010) (“[G]enerally the use of force in defense of habitation is justied
only where there is an unlawful entry.”); State v. Hagen, 903 P.2d 1381, 1385 (Mont. 1995)
(“This Court has consistently refused to apply the defense of an occupied structure statute
in cases in which the initial entry into the structure was in fact lawful.”); People v. McNeese,
892 P. 2d 304, 310 (Colo. 1995) (en banc) (“The plain language of the [defense of habitation]
statute ... requires proof of an actual unlawful entry and not merely a reasonable belief that
the entry was unlawful.”).
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1914 NEW YORK UNIVERSITY LAW REVIEW [Vol. 98:1905
arrestee from using force against the ofcer to resist that arrest.
42
If,
however, the ofcer exceeds his lawful authority by using excessive
force to effectuate the arrest, most jurisdictions will permit the per-
son being arrested to use reasonable force,
43
including deadly force if
threatened with death or serious bodily injury, to protect himself.
44
It is important to realize that the unlawful force requirement may
also preclude an individual from claiming self-defense against a non-
law enforcement civilian. Here, the law draws a distinction between jus-
tied and excused attacks. Unlawful in this context means unjustied.
45
If the attacker is justied because he himself is acting in self-defense, in
defense of others, or out of necessity, then his attack will be considered
lawful and the defendant will not be allowed to claim self-defense.
46
If
the attacker is excused because of insanity, duress, or some other excuse
42
See LF, supra note 17, § 10.4(h) (noting that many modern codes follow the Model
Penal Code by including a provision outlawing the use of force against a known police ofcer
making an arrest, even if the arrest is unlawful); see also Commonwealth v. Biagini, 655
A.2d 492, 497–98 (Pa. 1995) (explaining why there is no right to resist an unlawful arrest, e.g.
one lacking probable cause); State v. Ramsdell, 285 A.2d 399, 403–04 (R.I. 1971) (explaining
rationale for rule that a citizen yield to an unlawful arrest). An individual is typically
prohibited from using force to resist an arrest by a peace ofcer, regardless of whether it is,
or the arrestee reasonably believes it to be, an illegal arrest due to lack of probable cause.
See LF, supra note 17, §10.4(h). At common law, an individual was justied in using force
to resist an unlawful arrest, but this right has been abolished by statute in most jurisdictions.
See, e.g., Ramsdell, 285 A.2d at 402–03 (noting that the right to resist an unlawful arrest was
cognizable at common law but abolished by statute in 1941); 12 R.I. G. L §12-7-10
(2020) (prohibiting the use of force in resisting all arrests, including unlawful ones); C.
P C §834a (2020) (same); I C §804.12 (2020) (same); M. C A.
§45-3-108 (2020) (same).
43
See, e.g., State v. Copeland, 850 S.E.2d 736, 743 (Ga. 2020) (compiling Georgia cases
permitting reasonable force in resistance to an unlawful arrest); State v. Holley, 480 So.
2d 94, 96 (Fla. 1985) (distinguishing between resisting an arrest and resisting the use of
excessive force in making that arrest); State v. Wright, 799 P. 2d 642, 644 (Or. 1990) (en banc)
(distinguishing between the use of physical force to resist an arrest, which is unlawful, and
the use of physical force to defend oneself, which may be justiable and not criminal).
44
See, e.g., Mullis v. State, 27 S.E.2d 91, 98–99 (Ga. 1943); Rodriquez v. State, 544 S.W.2d
382, 383 (Tex. Crim. App. 1976); Robison v. United States, 111 P. 984, 987 (Okla. Crim. App.
1910).
45
See Bennett v. State, 726 S.W.2d 32, 36 (Tex. Crim. App. 1986) (en banc) (“[I]n
claiming self-defense appellant necessarily asserts that the deadly force used against him
was unjustied, and hence, unlawful.”); State v. Trombley, 807 A.2d 400, 406–07 (Vt. 2002)
(“[T]he aggressor may reasonably defend himself against the unjustied deadly force ...
because the person using unjustied deadly force is using excessive force and is therefore
acting unlawfully.”).
46
See People v. Jones, 434 P. 3d 760, 765 (Colo. App. 2018) (“[T]he touchstone of self-
defense is a belief that one is defending against the unlawful use of force .... The corollary
to that principle is that a person is not justied in using force to defend against another
person’s lawful use of force.”); People v. Frandsen, 126 Cal. Rptr. 3d 640, 646 (Ct. App. 2011)
(“[A] defendant may not use force to defend himself against a victim’s resort to lawful
deadly force.”).
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defense, the defendant will be permitted to act in self-defense because
excused but unjustied conduct is considered unlawful conduct.
47
Finally, most jurisdictions impose a requirement that the defendant
not be the initial aggressor.
48
The initial aggressor limitation on the de-
fense of self-defense precludes an individual charged with a crime of
violence from claiming that his use of physical force was justied if that
individual was the person who instigated the conict.
49
II
S L S-D
In New York State Rie & Pistol Association v. Bruen, the Supreme
Court struck down a New York law that required individuals seeking a
license to carry a concealed rearm in public to show “proper cause,”
nding that the law interfered with an individual’s Second Amendment
right to keep and bear arms in public.
50
As a result of Bruen, states that
previously required proof of some special need above and beyond the
general desire for self-protection have had to relax their laws regulating
the purchase and sale of rearms for public carry.
51
In forcing the relax-
47
D, supra note 16, § 18.02[D][2] (“[I]f V, an insane person, uses unjustiable
force upon another, this constitutes ‘unlawful force,’ notwithstanding V’s potential excuse
claim.”). See also Cynthia K.Y. Lee, The Act-Belief Distinction in Self-Defense Doctrine: A
New Dual Requirement Theory of Justication, 2 B. C. L. R. 191, 206 (1998) (“When
the attacker (or to-be victim) is excused rather than justied, the defendant is permitted to
resist the attack because excused but unjustied conduct is considered unlawful.”). Attacks
by innocent aggressors raise a host of interesting issues. For discussion of these issues, see
Larry Alexander, Self-Defense, Justication, and Excuse, 22 P. & P. A. 53 (1993), and
George P. Fletcher, Proportionality and the Psychotic Aggressor: A Vignette in Comparative
Criminal Theory, 8 I. L. R. 367 (1973).
48
See Lee, Firearms and Initial Aggressors, supra note 8, at 23 (“[I]n most jurisdictions,
a criminal defendant who is considered an initial aggressor loses the right to claim
self-defense.”).
49
See id. at 1 (“Under the initial aggressor doctrine, a person who initiates a physical
confrontation loses the right to claim self-defense.”).
50
N.Y. State Rie & Pistol Ass’n v. Bruen, 142 S. Ct. 2111 (2022).
51
See, e.g., Paul Duggan & Ovetta Wiggins, Hogan Orders Relaxed Rules for
Maryland Concealed Handgun Permits, W. P (July 6, 2022, 12:39 PM), https://www.
washingtonpost.com/dc-md-va/2022/07/05/maryland-handgun-rules-relaxed-hogan [https://
perma.cc/Q4DM-8UMT] (noting that following the Bruen decision, Governor Larry Hogan
“ordered his administration to ease [Maryland]’s licensing rules for carrying a concealed
handgun”). Under the New York law struck down by the Court in Bruen, to establish
proper cause to obtain a license without any restrictions, an applicant had to “demonstrate
a special need for self-protection distinguishable from that of the general community or of
persons engaged in the same profession.” Kachalsky v. County of Westchester, 701 F.3d 81,
86 (2d Cir. 2012). “A generalized desire to carry a concealed weapon to protect one’s person
and property [would] not constitute ‘proper cause.’” Id. Likewise, merely “living or being
employed in a ‘high crime area’” would not constitute proper cause. Id. at 87. In one instance,
a transgender female tried to obtain a license, arguing that she was more likely to be the
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1916 NEW YORK UNIVERSITY LAW REVIEW [Vol. 98:1905
ation of these rearm licensing laws, the Bruen decision has encouraged
a spike in public carry permit applications in states that, like New York,
previously restricted public carry.
52
In light of the relaxation of front-end laws regulating the licens-
ing of rearms for public carry following Bruen, the need to strengthen
back-end laws that regulate the use of rearms in public is imperative.
Now that states have been forced on the front end to allow virtually
anyone who applies for a permit to publicly carry a rearm, the only
thing left to do—for those states that want to try to reduce the rise in
gun violence that will likely come from the proliferation of guns on the
street—is to strengthen the laws on the back end. This Article focuses
on one body of law that indirectly regulates the use of rearms on the
back end—the law of self-defense.
Over the past several decades, the law of self-defense has been
weakened by the passage of laws allowing individuals to use deadly
force in public even when there are safe ways to avoid the threatened
force
53
and laws shifting the burden of proving self-defense from the
defendant to the government.
54
This Part suggests a sampling of ways
the law of self-defense can be strengthened both substantively and pro-
cedurally. An in-depth exploration of each possible reform is beyond
the scope of this Article.
A. Substantive Strengthening
The basic law of self-defense can be strengthened without being
radically changed. Courts can start by more stringently enforcing the
necessity, imminence, and proportionality requirements that are already
a part of self-defense law.
victim of violence because of her gender identity. Id. at 88. The court found this reason was
insufcient because she had not reported any threat to her own safety. Id.
52
See, e.g., Walter Morris, Concealed Carry Permit Applications Soar in Maryland, NBC
N4 (July 12, 2022, 8:07 AM), https://www.nbcwashington.com/news/local/concealed-
carry-permit-applications-soar-in-maryland/3098367 [https://perma.cc/877L-CD6E] (noting
that applications for concealed carry permits in Maryland increased by over 700% after
Bruen).
53
Reforms that loosen self-defense law, like Stand Your Ground laws, have often been
applied differently with the race of the defendant and victim factoring into whose claims of
self-defense are most successful. See supra text accompanying note 27. To the extent these
changes increase overall violence, that violence is also likely to fall disproportionately on
marginalized communities of color. See Barnes, supra note 26. Strengthening the law of self-
defense will likely make it more difcult for criminal defendants—who are disproportionately
from racially marginalized communities—to invoke self-defense law successfully. Balancing
these disparate impacts of violence and the application of self-defense law is beyond the
scope of this Article but warrants attention in future work.
54
See infra Section II.B.1.
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1. The Necessity Requirement
If an individual who uses a rearm in public is charged with a
crime and claims self-defense, the judge should remind the jury during
jury instructions that it must nd the defendant honestly and reason-
ably believed the use of that rearm was necessary to protect against
an imminent threat of death or serious bodily injury before returning a
not guilty verdict on the ground that the defendant acted justiably in
self-defense. If a defendant knew or should have known that he could
have avoided the threat without resorting to deadly force, the defen-
dant’s use of deadly force was not actually nor reasonably necessary.
In many jurisdictions, however, a defendant can be found not guilty
on self-defense grounds even if there was—and even if the defendant
knew there was—a safe way to avoid the threatened harm, i.e., a safe
retreat, but nonetheless chose to use deadly force against another per-
son rather than retreat.
55
No-duty-to-retreat rules weaken the necessity requirement in self-
defense law by allowing a defendant to be acquitted when it was not
actually necessary for the defendant to use deadly force against the
other person. For example, let’s say A is being chased by B, an unarmed
person intending to harm A, and A can duck into his home, lock the
door, and take cover but instead decides to take out a rearm and shoot
B.
56
In a jurisdiction with a no-duty-to-retreat rule, A could be found not
guilty on the grounds that he acted in self-defense even though it was
not actually nor even reasonably necessary for A to have used deadly
force against B.
One way courts can address this problem is to recognize the leg-
islature’s choice not to require retreat if one is attacked in a public
place—even if a safe retreat is known and available—but allow the jury
to consider whether a safe retreat was known and available to the de-
fendant as a factor in assessing the defendant’s claim of self-defense.
57
55
See supra text accompanying notes 20–24.
56
See, e.g., Laney v. United States, 294 F. 412, 414 (D.C. Ct. App. 1923) (noting that “when
defendant escaped from the mob into the back yard of the Ferguson place, he was in a place
of comparative safety, from which, if he desired to go home, he could have gone by the
back way” and therefore when “he adjusted his gun and stepped out into the areaway,” this
conduct “was such as to deprive him of any right to invoke the plea of self-defense”).
57
See, e.g., Sara L. Ochs, Comment, Can Louisiana’s Self-Defense Law Stand Its Ground?:
Improving the Stand Your Ground Law in the Murder Capital of America, 59 L. L. R. 673,
716–17 (2013) (noting that under Louisiana law, the trier of fact may not consider whether
a safe retreat was known and available to the defendant and arguing that “whether the
defendant had an opportunity to retreat should ... at least be a factor considered during
trial”). But see L. S. A. §14:20(D) (2014) (“No nder of fact shall be permitted to
consider the possibility of retreat as a factor in determining whether or not the person who
used deadly force had a reasonable belief that deadly force was reasonable and apparently
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1918 NEW YORK UNIVERSITY LAW REVIEW [Vol. 98:1905
In keeping with the no-duty-to-retreat rule, defendants would not auto-
matically be barred from claiming self-defense if they knew there was a
way to avoid the threatened harm and chose to use deadly force against
the other person, but the jury would be able to consider the availability
of retreat when assessing the reasonableness of a defendant’s use of a
rearm in public.
This is already the rule in several jurisdictions.
58
In these jurisdic-
tions, the court will instruct the jury to consider whether a safe retreat was
known and available to the defendant as a factor in assessing whether
the defendant reasonably believed the use of deadly force was neces-
sary or whether the defendant’s use of deadly force was reasonable. For
example, Wisconsin’s pattern jury instructions on self-defense provide
that there is no duty to retreat, but whether a safe retreat was available
is a factor the jury can consider.
59
Similarly, the model jury instructions
in Washington, D.C. provide that in deciding whether the defendant
acted reasonably in self-defense, the jury should consider whether the
defendant could have taken reasonable steps, such as stepping back or
walking away, to avoid the danger.
60
At a minimum, more states should allow the jury to consider the
availability of a safe retreat as a factor in assessing the reasonableness
of a defendant’s use of deadly force.
61
Even better, legislators should
require individuals to retreat before using deadly force in public if a
safe retreat is known and available. The law should encourage actions
that safeguard human life because human life is more valuable than a
legislatively created right to stand one’s ground. To better enforce the
necessity requirement, legislators in states that currently do not im-
pose a duty to retreat prior to using deadly force in public should pass
necessary ....”); M. C A. §97-3-15(4) (2016) (“[N]o nder of fact shall be permitted
to consider the person’s failure to retreat as evidence that the person’s use of force was
unnecessary, excessive or unreasonable[.]”).
58
See, e.g., People v. Crow, 340 N.W.2d 838, 844 (Mich. Ct. App. 1983) (noting that the jury
“should be informed that the possibility of a safe retreat, if the jury nds that there was such a
possibility, is one of the circumstances which the jury could consider in determining whether
the defendant acted in lawful self-defense”); State v. Wenger, 593 N.W.2d 467, 471 (Wis. Ct.
App. 1999) (“While Wisconsin has no statutory duty to retreat, whether the opportunity to
retreat was available may be a consideration regarding whether the defendant reasonably
believed the force used was necessary to prevent or terminate the interference.”); State v.
Charles, 634 P. 2d 814, 818 n.3 (Or. Ct. App. 1981) (“Whether deadly force is necessary or
whether its use is unnecessary because it can be avoided by a safe retreat or other less drastic
means would seem to be more properly a subject of jury argument.”).
59
W C J I §810 (2019).
60
Dawkins v. United States, 189 A.3d 223, 228 n.6 (D.C. Cir. 2018) (citing C J
I D C, No. 9.503 (5th ed. 2013)).
61
See Chad Flanders, Interpreting the New “Stand Your Ground” Rule, 73 J. M. B 20
(2017) (arguing that the possibility of retreat should be a relevant factor for the factnder to
consider in deciding whether the use of force was reasonable).
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legislation requiring such retreat if a safe retreat is available and the
defendant knew or should have known of that retreat.
2. Proportionality
In addition to the necessity requirement, courts should also enforce
the proportionality requirement more strictly. If a person uses deadly
force in the commission of a crime and claims they acted in self-defense,
the jury is supposed to nd that the defendant honestly and reasonably
believed they were being threatened with deadly force before it can nd
the defendant not guilty on the ground of self-defense.
62
Deadly force is typically dened as force intended or likely to
cause death or serious bodily injury.
63
Courts generally agree that one
who discharges a rearm at another person has used deadly force.
64
However, there is a split of opinion as to whether brandishing a re-
arm or pointing a rearm at another person constitutes deadly force.
65
Some states provide that pointing a rearm at another person consti-
tutes deadly force.
66
Other states follow the Model Penal Code and take
the position that brandishing a weapon constitutes nondeadly force.
67
62
See supra text accompanying note 39.
63
See, e.g., T. P C A. §9.01(3) (West 2007) (“‘Deadly force’ means force
that is intended or known by the actor to cause, or in the manner of its use or intended use is
capable of causing, death or serious bodily injury.”).
64
See, e.g., Cunningham v. State, 159 So. 3d 275, 277 (Fla. Dist. Ct. App. 2015) (“It is
now well established by this court that the discharge of a rearm constitutes deadly force
as a matter of law.”); N.H. R. S. A. §627:9(II) (“Purposely ring a rearm capable
of causing serious bodily injury or death in the direction of another person or at a vehicle
in which another is believed to be constitutes deadly force.”); accord State v. Rice, 159 A.3d
1250, 1258 (N.H. 2017) (“[I]f the actor purposely discharges a rearm in the direction of
another person or of a vehicle in which another person is believed to be located, the actor
has used deadly force as a matter of law ....”).
65
Kim Ferzan argues that further studies are needed to assess whether to classify
pointing a gun at someone as “deadly force,” suggesting that “we need consensus” on how
often any such incident ends in gun violence before we can correctly decide the question.
Kimberly Kessler Ferzan, Taking Aim at Pointing Guns? Start with Citizen’s Arrest, Not Stand
Your Ground: A Reply to Joseph Blocher, Samuel W. Buell, Jacob D. Charles, and Darrell A.H.
Miller, Pointing Guns, 99 T. L. R. 1173 (2021), 100 T. L. R. O 1, 5–7 (2021).
66
See, e.g., A S. A. §11.81.900(b)(16) (West 2022) (“‘[D]eadly force’ includes
intentionally discharging or pointing a rearm in the direction of another person or in the
direction in which another person is believed to be and intentionally placing another person
in fear of imminent serious physical injury by means of a dangerous instrument[.]”); State v.
Foster, 955 P. 2d 993, 996 (Ariz. Ct. App. 1998) (“Certainly, pointing a gun at a person would
be threat of deadly physical force.”).
67
New Jersey, for example, considers the brandishing of a weapon to scare off a potential
attacker a non-deadly use of force. N.J. S. A. §2C:3-11b (West 2005) (production of
a deadly weapon for the limited purpose of “creating an apprehension that [one] will use
deadly force if necessary, does not constitute deadly force”). See also M P C
§3.11(2) (“A threat to cause death or serious bodily harm, by the production of a weapon
or otherwise, so long as the actor’s purpose is limited to creating an apprehension that he
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1920 NEW YORK UNIVERSITY LAW REVIEW [Vol. 98:1905
The pointing of a rearm at another person or the display of a re-
arm in a threatening manner should be considered deadly force. Firing
a rearm is force likely to cause death or serious bodily injury, so if one
threatens another by pointing a rearm in their direction or displaying
that rearm in a threatening manner, one is threatening force likely to
cause death or serious bodily injury. One should only be allowed to do
so and claim self-defense if one is facing an imminent threat of death or
serious bodily injury.
One opposed to this suggestion might argue that eliminating the
distinction between pointing a rearm at another person and ring that
weapon by treating both as “deadly force” could incentivize persons
who have pointed a weapon at another person to re that weapon. A
person handling a rearm, however, is likely to realize that if they shoot
their rearm and kill or injure a person, the criminal justice system is
more likely to see them as the culpable party than if they merely dis-
played or pointed a rearm at another person. Moreover, most individ-
uals would probably realize that the penalties for causing physical harm
are going to be much heavier than the penalties if one does not cause
such harm, so it is unlikely that characterizing the pointing of a rearm
at another as “deadly force” will incentivize a person who displays or
points a rearm at another person to shoot it.
Because the risk of death or serious bodily injury from an inten-
tional or accidental discharge of a rearm pointed at another person is
substantial, courts should strictly enforce the proportionality require-
ment when an individual claiming self-defense displayed a rearm in a
threatening manner or pointed that rearm at another person by tell-
ing jurors that such actions constitute deadly force and therefore the
defendant must have honestly and reasonably believed he was being
imminently threatened with deadly force in order to succeed on his
claim of self-defense.
3. Imminence
Courts should also strictly enforce the imminence requirement,
particularly in cases involving the use of a rearm outside the home.
One who uses a rearm against another is more likely to cause irrepa-
rable harm than one who uses another type of weapon, such as a knife,
or one who does not use any weapon at all.
68
Once a person shoots and
will use deadly force if necessary, does not constitute deadly force.”); N.H. R. S. A.
§ 627:9(IV) (“The act of producing or displaying a weapon shall constitute non-deadly
force.”).
68
See David B. Kopel, Clayton E. Cramer & Joseph Edward Olsen, Knives and the
Second Amendment, 47 U. M. J.L. R 167, 183 (2013) (“[F]irearm injuries were 5.5
times more likely to result in death than were knife injuries.”); Linda E. Saltzman, James A.
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December 2023] SELF-DEFENSE AFTER BRUEN 1921
kills another person, the victim’s life is over, and nothing can bring the
person back.
If a criminal defendant who uses a rearm claims he acted in self-
defense, the judge will usually instruct the jury that they need to nd
that the defendant honestly and reasonably believed the threat of being
attacked with deadly force was imminent before returning a not guilty
verdict. The judge should also instruct the jury that the term “imminent”
means impending or just about to happen.
69
If the threat of deadly force
was not imminent, then it may not have been necessary to use deadly
force against the victim at that time.
4. Initial Aggressors
States can also strengthen their self-defense rules concerning initial
aggressors. In almost every state, one who instigates a physical confron-
tation is barred from claiming they acted in justiable self-defense.
70
However, as I explain in Firearms and Initial Aggressors, the rules con-
cerning who qualies as an initial aggressor are not a model of clarity.
71
Some states require that the defendant provoked the victim into attack-
ing him with the intent of using the attack as a pretext for responding
with physical force and then claiming self-defense.
72
Other states do not
require such intent but may require the defendant to have been engag-
ing in an unlawful act in order to qualify as an initial aggressor.
73
Legislatures can and should clarify what it takes to become an ini-
tial aggressor. The term “initial aggressor” can and should be dened as
one whose words or acts created a reasonable apprehension of physi-
cal harm in another person.
74
Moreover, judges should generally be re-
quired to give an initial aggressor instruction to the jury
75
whenever a
Mercy, Patrick W. O’Carroll, Mark L. Rosenberg & Philip H. Rhodes, Weapon Involvement
and Injury Outcomes in Family and Intimate Assaults, 267 JAMA 3043, 3044 (1992) (“FIAs
[Family and Intimate Assaults] involving rearms are 12 times more likely to result in death
than all nonrearm FIAs.”).
69
See supra text accompanying note 32.
70
See, e.g., People v. Silva, 987 P. 2d 909, 914 (Colo. App. 1999) (“Under the common
law, a defendant could not avail himself of the defense of self-defense if the necessity for
such defense was brought on by a deliberate act of the defendant, such as being the initial
aggressor or acting with the purpose of provoking the victim into attacking.”).
71
See Lee, Firearms and Initial Aggressors, supra note 8, at 17, 21–22.
72
Id. at 25–26.
73
Id. at 32; see also infra text accompanying note 33.
74
Id. at 52, 54–58. See also State v. Jones, 128 A.3d 431, 452 (Conn. 2015) (dening initial
aggressor as “the person who rst acts in such a manner that creates a reasonable belief in
another person’s mind that physical force is about to be used [on] that other person”); State
v. Rivera, 204 A.3d 4, 26 (Conn. App. Ct. 2019) (dening initial aggressor similarly).
75
An initial aggressor jury instruction is an instruction that explains the jurisdiction’s
initial aggressor rule or rules to the jury. See generally Lee, Firearms and Initial Aggressors,
supra note 8.
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1922 NEW YORK UNIVERSITY LAW REVIEW [Vol. 98:1905
defendant who is claiming they acted in self-defense pointed a rearm
at another person or displayed it in a threatening manner outside their
home.
76
B. Procedural Strengthening
1. Burden of Proof
There are also some procedural changes that states could imple-
ment to strengthen the rules relating to the defense of self-defense.
One such procedural change would be to place the burden of proof in
self-defense cases on the defendant. A defendant claiming self-defense
should have to prove that he honestly and reasonably believed it was
necessary to use deadly force to protect against an imminent threat of
death or serious bodily injury.
77
For those who embrace the view that historical precedent—in par-
ticular, the laws in effect at the time of the founding—should control
constitutional interpretation, placing the burden of proof on the defen-
dant should be acceptable, as this would comport with founding era
common law.
78
“[T]he common-law rule was that afrmative defenses,
including self-defense, were matters for the defendant to prove.”
79
Well
into the twentieth century, “a number of States followed the common-
law rule and required a defendant to shoulder the burden of proving
that he acted in self-defense.”
80
By 1987, however, all but two states—South Carolina and Ohio—
had abandoned the common law rule and required the prosecution
to prove the absence of self-defense when a defendant asserted self-
defense.
81
Today, every state except Virginia
82
and Louisiana (but only
76
Id. at 58–63.
77
Jurisdictions that decided to place the burden of proving self-defense on the defendant
would also need to decide the quantum of proof for such defenses, such as whether to require
proof beyond a reasonable doubt, by clear and convincing evidence, by a preponderance of
the evidence, or some other standard. See Eugene Volokh, Burden and Quantum of Proof as
to Self-Defense, V C (July 14, 2013, 2:29 PM), https://volokh.com/2013/07/14/
burden-and-quantum-of-proof-on-self-defense [https://perma.cc/XL5M-JBTS] (discussing
the “interesting question” of who should bear the burden of proving or disproving self-
defense in criminal cases and by what quantum of proof).
78
Id. (“The English common law rule at the time of the Framing was that the defense
must prove self-defense by a preponderance of the evidence ....”).
79
Martin v. Ohio, 480 U.S. 228, 235 (1987).
80
Id. (citing George P. Fletcher, Two Kinds of Legal Rules: A Comparative Study of
Burden-of-Persuasion Practices in Criminal Cases, 77 Y L.J. 880, 882 & n.10 (1968) (noting
that “in many prominent common law jurisdictions” a defendant who claimed self-defense
had to “go so far as to prove his claim of self-defense by a preponderance of the evidence”).
81
Id. at 236.
82
See, e.g., Smith v. Commonwealth, No. 0604-21-1, 2022 Va. App. LEXIS 383, at *14
(Aug. 16, 2022) (“Self-defense is an afrmative defense that places the burden of persuasion
08 Lee-fin.indd 1922 18/12/23 4:38 PM
December 2023] SELF-DEFENSE AFTER BRUEN 1923
in non-homicide cases)
83
places the burden of disproving self-defense
on the prosecution.
84
on the accused to demonstrate to the fact nder that he acted in self-defense to the degree
necessary to raise a reasonable doubt about his guilt.”); Lynn v. Commonwealth, 499 S.E.2d
1, 9 (Va. Ct. App. 1998) (“Self-defense and defense of others are afrmative defenses for
which the accused has the burden of persuading the fact nder that he or she acted in
defense of self or another to the degree necessary to raise a reasonable doubt about his
or her guilt.”).
83
See, e.g., State v. Ross, 269 So. 3d 1052, 1074 (La. Ct. App. 2019) (“This circuit has
repeatedly held that the burden of proving self-defense in a non-homicide case rests with
the defendant to prove the defense by a preponderance of the evidence.”); State v. Howard,
182 So. 3d 360, 363 (La. Ct. App. 2015) (“When self-defense or the defense of another is
claimed by the defendant in a non-homicide case, the defendant has the burden of proof
by a preponderance of the evidence that his actions were in self-defense or in defense of
others.”). In contrast, in homicide cases, the burden of disproving self-defense rests with the
government. State v. Woodburn, 643 So. 2d 1263, 1265 (La. Ct. App. 1994) (recognizing that,
in homicide cases, “the state has the burden of establishing beyond a reasonable doubt that
[the defendant] did not act in self-defense”).
84
Manuel v. State, 711 So. 2d 507, 509 (Ala. Crim. App. 1997) (placing burden on State to
prove that the defendant did not act in self-defense); Morrell v. State, 216 P. 3d 574, 577–78
(Alaska Ct. App. 2009); State v. King, 235 P.3d 240, 242 (Ariz. 2010); Kinsey v. State, 503
S.W.3d 772, 779 (Ark. 2016); People v. Lee, 32 Cal. Rptr. 3d 745, 756 (Ct. App. 2005); People
v. Pickering, 276 P. 3d 553, 556 (Colo. 2011); State v. Riggsbee, 963 A.2d 1122, 1127 (Conn.
App. Ct. 2009); Hamilton v. State, 343 A.2d 594, 595 (Del. 1975); Freeman v. United States,
912 A.2d 1213, 1220 (D.C. 2006); Morgan v. State, 127 So. 3d 708, 717 (Fla. Dist. Ct. App.
2013); Daniley v. State, 554 S.E.2d 483, 485 (Ga. 2001); State v. Feliciano, 115 P. 3d 648, 666
(Haw. 2005); State v. Jimenez, 362 P. 3d 541, 545 (Idaho Ct. App. 2015); People v. Zapata,
808 N.E.2d 1064, 1070 (Ill. App. Ct. 2004); Carroll v. State, 744 N.E.2d 432, 433 (Ind. 2001);
State v. Ceaser, 585 N.W.2d 192, 194 (Iowa 1998); K. S. A. §21-5108 (West 2011); K.
R. S. A. §500.070 (West 1974); State v. Domingue, 244 So. 3d 489, 491 (La. Ct. App.
2018); State v. Ouellette, 37 A.3d 921, 929 (Me. 2012); Jacobs v. State, 363 A.2d 257, 261 (Md.
Ct. Spec. App. 1976); Commonwealth v. Williams, 883 N.E.2d 249, 253 (Mass. 2008); People
v. Dupree, 788 N.W.2d 399, 408 (Mich. 2010); State v. Radke, 821 N.W.2d 316, 324 (Minn.
2012); Hammond v. State, 119 So. 3d 1074, 1078 (Miss. Ct. App. 2013); State v. Minnis, 486
S.W.2d 280, 284 (Mo. 1972); M. C A. §46-16-131 (West 2009); State v. Warren,
608 N.W.2d 617, 621 (Neb. Ct. App. 2000); Barone v. State, 858 P.2d 27, 28 (Nev. 1993); State
v. Etienne, 35 A.3d 523, 542 (N.H. 2011); State v. Handy, 73 A.3d 421, 434 (N.J. 2013); State
v. Benally, 34 P. 3d 1134, 1137 (N.M. 2001); People v. Every, 46 N.Y.S.3d 695, 701 (App. Div.
2017); State v. McArthur,
651 S.E.2d 256
, 261 (N.C. Ct. App. 2007); State v. Olander, 575
N.W.2d 658, 664 (N.D. 1998); McHam v. State, 126 P.3d 662, 667 (Okla. Crim. App. 2005);
State v. Oliphant, 218 P. 3d 1281, 1292 (Or. 2009); Commonwealth v. Houser, 18 A.3d 1128,
1135 (Pa. 2011); State v. Hallenbeck, 878 A.2d 992, 1012 (R.I. 2005); State v. Dickey, 716
S.E.2d 97, 101 (S.C. 2011); State v. Burtzlaff, 493 N.W.2d 1, 8 (S.D. 1992); T. C A.
§39-11-201 (West 1990); Alonzo v. State, 353 S.W.3d 778, 781 (Tex. Crim. App. 2011); State
v. Garcia, 18 P. 2d 1123, 1127 (Utah Ct. App. 2001); State v. Barrett, 266 A.2d 441, 443 (Vt.
1970); State v. McCullum, 656 P. 2d 1064, 1071 (Wash. 1983); State v. Kirtley, 252 S.E.2d 374,
381 (W. Va. 1978); State v. Head, 648 N.W.2d 413, 419 (Wis. 2002); Drennen v. State, 311 P. 3d
116, 125 (Wyo. 2013). As of 2010, Ohio placed the burden of proving self-defense on the
defendant. State v. Dykas, 925 N.E.2d 685, 690 (Ohio Ct. App. 2010) (requiring defendant to
prove elements of self-defense by a preponderance of the evidence). In 2018, however, the
Ohio legislature passed a statute placing the burden of proof in alleged self-defense cases on
the government if “evidence [is] presented that tends to support” self-defense. See H.B. 228,
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1924 NEW YORK UNIVERSITY LAW REVIEW [Vol. 98:1905
Just because most States today place the burden of disproving self-
defense on the prosecution does not mean that a State cannot choose
to place the burden of proving self-defense on the defendant tomorrow.
In 1987, a woman who was convicted of aggravated murder after shoot-
ing and killing her husband appealed her conviction on the ground that
in placing the burden of proving self-defense on her, Ohio had forced
her to prove her innocence in violation of the Due Process Clause.
85
In
Martin v. Ohio, the Supreme Court rejected this argument and held that
in placing the burden of proving self-defense on the defendant, Ohio
did not violate the Due Process Clause.
86
Importantly, the Martin v. Ohio Court stated that “the fact that
a majority of the States have now assumed the burden of disprov-
ing afrmative defenses—for whatever reasons—[does not] mean
that those States that strike a different balance are in violation of the
Constitution.”
87
Because the jury was instructed that it had to nd each
of the elements of the crime of aggravated murder had been proven
by the government beyond a reasonable doubt in order to convict the
defendant, the jury could also be told it could acquit if it found by a
preponderance of the evidence that the defendant satised each of the
elements of the afrmative defense of self-defense.
88
There is very little recent scholarship on which party should bear
the burden of proof in a self-defense case. Most legal scholars who have
written on this subject support placing the burden of disproving self-
defense on the government.
89
Less than a handful of legal scholars have
suggested that the burden of proving self-defense should rest with the
defendant. In 1983, for example, John Q. La Fond suggested that the
defendant should bear the burden of proof in a self-defense case.
132nd Gen. Assemb. §2901.05(B)(1) (Ohio 2019) (passed over Governor’s veto, Dec. 27,
2018).
85
Martin v. Ohio, 480 U.S. 228 (1987).
86
Id. (rejecting the defendant’s argument that the Due Process Clause, which protects
an accused from conviction except upon proof beyond a reasonable doubt of every element
of the charged offense, was violated in placing the burden of proving self-defense on the
defendant and noting that the State had not shifted the burden of proving the offense of
murder from the government to the defendant).
87
Id. at 232.
88
Id. at 233.
89
See, e.g., Evelyn L. Wilson, Treading Through Murky Waters: The Burden of Proof for
Self-Defense in Non-Homicide Cases in Louisiana, 51 L. L. R. 439 (2005); Randy R.
Koenders, Shifting the Burden of Proving Self-Defense—With Analysis of Related Ohio Law,
11 A L. R. 717 (1978); George P. Fletcher, Two Kinds of Legal Rules: A Comparative
Study of Burden-of-Persuasion Practices in Criminal Cases, 77 Y L.J. 880 (1968); David S.
Klein, Burden of Proof of Afrmative Defenses in Criminal Cases – Gunther v. State, 24 M.
L. R. 78 (1964); W.C.F., Jr., The Burden of Proving Self-Defense, 71 U. P. L. R. 376, 379
(1923).
08 Lee-fin.indd 1924 18/12/23 4:38 PM
December 2023] SELF-DEFENSE AFTER BRUEN 1925
La Fond argued that defendants would have better access than the gov-
ernment to evidence regarding their self-defense claim and that plac-
ing the burden of proof on the defendant would deter defendants from
making false self-defense claims.
90
More recently, John Gross has sug-
gested that self-defense should be viewed as an afrmative defense that
must be proven by clear and convincing evidence, noting “[i]t is fair
and reasonable to require that the person who felt privileged to use
self-defense bear the burden of persuading the jury that they acted in
self-defense.”
91
It is beyond the scope of this Article to engage in a full-throated
exploration of this topic, so I will leave this to be explored more
fully elsewhere. I merely suggest that it may be time to reconsider
the wisdom of placing the burden of disproving self-defense on the
government.
2. Immunity Provisions
Another way to strengthen the law of self-defense would be to
repeal the immunity provisions that have been adopted in a minority of
states.
92
Immunity provisions are a relatively recent modication to self-
defense law.
93
Such provisions shield individuals claiming self-defense
from criminal prosecution.
94
If an immunity provision has been enacted
as part of a state’s self-defense law, an individual who simply claims they
acted in self-defense cannot be prosecuted for any crime arising from
their use of force.
95
Immunity provisions not only provide individuals
who use or threaten force and then claim self-defense immunity from
criminal prosecution, but some also provide such individuals immunity
from civil action.
96
90
John Q. La Fond, The Case for Liberalizing the Use of Deadly Force in Self-Defense, 6
U. P S L. R. 237, 279–84 (1983).
91
John Gross, Analysis: Here’s Why Kyle Rittenhouse is Likely to be Acquitted—and
Why the Law on Self-Defense Must Change, W. S J. (Nov. 19, 2021), https://madison.
com/wsj/opinion/column/analysis-heres-why-kyle-rittenhouse-is-likely-to-be-acquitted-
and-why-the-law-on/article_f1e4edf4-6fd2-5004-ae14-d45b009ab5a9.html [https://perma.cc/
UW8R-THHS].
92
See Eric Ruben, Self-Defense Exceptionalism and the Immunization of Private Violence,
96 S. C. L. R. 509, 512 (2023) (noting that fourteen states have enacted immunity
provisions, including Alabama, Colorado, Florida, Georgia, Kansas, Kentucky, Oklahoma,
South Carolina, Michigan, Idaho, Utah, South Dakota, Iowa, and North Carolina).
93
See id. (showing that most of the states with immunity provisions enacted them after
2005).
94
See id.
95
See Mary Anne Franks, Men, Women, and Optimal Violence, 2016 U. I. L. R. 929,
936 (noting that immunity provisions can shield the individual not only from prosecution but
also from arrest and detention).
96
See, e.g., F. S. §776.032(1) (2022).
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1926 NEW YORK UNIVERSITY LAW REVIEW [Vol. 98:1905
As Eric Ruben notes, the defense of self-defense is exceptional in
granting immunity to individuals who simply assert they acted in self-
defense.
97
No other criminal law justication or excuse defense provides
an individual with immunity from prosecution.
98
Of note, “the loudest
voices advocating for immunizing self-defense [are] those seeking to
expand gun rights.”
99
Support for immunity provisions appears to be growing. Ruben
points out that a common view of the high-prole Kyle Rittenhouse
case was, “as former President Donald Trump put it, that Rittenhouse
‘shouldn’t have been prosecuted in the rst place.’”
100
Indeed, after
Rittenhouse’s acquittal, one Rittenhouse supporter penned “Kyle’s
Law,” which would immunize individuals claiming self-defense from
prosecution altogether and make prosecutors subject to personal
liability in self-defense cases.
101
Two state legislators introduced bills
named Kyle’s Law in their states.
102
Granting immunity from prosecution to individuals who sim-
ply claim they acted in self-defense is deeply problematic. As Ruben
notes, “The message that self-defense immunity sends is troubling:
that people can engage in defensive violence that they believe is lawful
....”
103
Moreover, as Ruben points out, “[s]elf-defense is inherently fact-
based, calling for answering difcult questions about the reasonableness
of a defendant’s perception of—and violent response to—a threat,”
104
yet
97
Ruben, supra note 92 at 104–06.
98
Id.
99
Id. at 108.
100
Id. at 103 (citing Fox News, Trump on Rittenhouse Verdict, Y (Nov. 19, 2021),
https://www.youtube.com/watch?v=b0lReIesfZE&t=6s [https://perma.cc/J7FK-GPSB]).
101
Id. at 104 (citing Andrew Branca, Kyle’s Law: Stopping Politically Motivated Prosecutions
of Self-Defense, T L S-D (Nov. 19, 2021), https://lawofselfdefense.com/
kyles-law-stopping-politically-motivated-prosecutions-of-self-defense [https://perma.cc/
R6EX-2SJN]).
102
One week after Rittenhouse’s acquittal in November 2021, a lawmaker in Oklahoma
introduced Senate Bill 1120, or “Kyle’s Law”, “to ensure that what happened to Kyle
Rittenhouse cannot happen to the people of Oklahoma.” See Isa Cox, State Senator
Introduces ‘Kyle’s Law’ to Keep What Government Did to Rittenhouse from Happening
Again, W. J. (Nov. 26, 2021) https://www.westernjournal.com/state-senator-introduces-kyles-
law-keep-government-rittenhouse-happening [https://perma.cc/XXT8-DTQZ] (noting that
the proposed law “would hold the state accountable for ‘malicious prosecution’ should any
overzealous prosecutors try to charge a person with murder who is found to have acted
in self-defense”). In January of 2022, a Tennessee lawmaker followed suit. Valencia Wicker,
‘Kyle’s Law’: Tennessee Lawmaker Proposes Bill Named after Kyle Rittenhouse, KXAN
(Jan. 20, 2022, 12:59 CST), https://www.kxan.com/news/national-news/kyles-law-tennessee-
lawmaker-proposes-bill-named-after-kyle-rittenhouse [https://perma.ccLR4C-Y9XT]
(noting that the law “would reimburse accused killers if it is proven they acted in self-defense
and were acquitted of the charges against them”).
103
See Ruben, supra note 92, at 133.
104
Id. at 139.
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December 2023] SELF-DEFENSE AFTER BRUEN 1927
“[o]ne consequence of granting a defendant immunity is to remove
the jury’s opportunity to decide facts surrounding a properly charged
crime.”
105
The states that have enacted immunity provisions should
repeal those provisions.
106
C
Now that the Supreme Court in Bruen has made it difcult for states
to regulate the licensing of rearms for public carry on the front end,
states concerned about gun violence should take steps to strengthen
laws that govern the use of a rearm on the back end, after a rearm has
been used. The law of self-defense is one such body of law that can and
should be strengthened in the ways described above to deter the use of
guns outside the home.
105
Id.
106
See id. at 136–37 for an additional discussion of immunity provisions.
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