On occasion, we are reminded that what is old may be useful. See Chuck Lanehart’s article in this edition. I recently had the pleasure of handling a murder court martial at Fort Stewart, Georgia. The one and only real issue in the case was whether my client properly acted in self‑defense when he shot and killed a civilian who entered my client’s off‑post home in the middle of the night after beating on the door and threatening to come inside and do some form of harm (depending on whose story you believe). The government argued throughout the pretrial proceedings that the Texas defense of self‑defense, or the Castle Doctrine, applies to members of the military since the defense is not codified in the Uniform Code of Military Justice (UCMJ). Our judge in the case, Colonel Cook from Fort Bragg, was one of the best and most thoughtful judges in front of whom I have had the pleasuring of practicing. At one of our 39a sessions (motions hearing), we were scheduled to argue for any nonstandard panel instructions. I convinced all three of my fellow defense counsel that we needed and were entitled to the Texas jury instruction on self‑defense within one’s home. Although I had said all the right words, i.e., equal protection and the right not to die in your own home, my team told me if we were going to wade off into that fight, I had to write the brief. And so, I started down the path of proving what I knew had to be true. I was shocked at the literal death of caselaw that existed on the topic within my normal time‑period search ranges. I mean, I knew about the seminal case, District of Columbia v. Heller, 554 U.S. 570 (2008), but I had to be honest with myself, I hadn’t done a deep‑dive into that case in a few or more years. I have to admit, Justice Scalia was not always a friend of the criminal defendant, but that case is worth going back and reading. Justice Scalia, in what may be dicta, essentially recognized the castle doctrine as a constitutional right. In deciding that the rights afforded by the Second Amendment were unconnected to service in a militia, Heller, 554 U.S. at 595, Justice Scalia specifically addressed the history of what we now refer to as the castle doctrine, noting that the right to protect one’s “castle” was recognized by at least 1866. Id., at 616. Scalia even went so far as to state that the handgun ban at issue in Heller amounted “to a prohibition of an entire class of arms that is overwhelmingly chosen by American society for that lawful purpose” and “extends, moreover, to the home, where the need for defense of self, family, and property is most acute.” Id. (emphasis added). The opinion went even further and noted that the statutory requirement that “any lawful firearm in the home be disassembled or bound by a trigger lock at all times, rendering it inoperable,” id., “[made] it impossible for citizens to use them for the core lawful purpose of self- defense . . .” Id. at 630 (emphasis added).
So, what you might ask, is so old about a case from 2008? Nothing. It was the rest of my research that led me to a gem from 1896. In Alberty v. United States, 162 U.S. 499 (1896), the Supreme Court recounted a case from a year earlier: “In the case of Beard v. United States, 158 U.S. 550, the doctrine of the necessity of retreating was considered by this court at very considerable length, and it was held, upon a review of the authorities upon the subject, that a man assailed upon his own premises, without provocation, by a person armed with a deadly weapon, and apparently seeking his life, is not obliged to retreat, but may stand his ground and defend himself with such means as are within his control . . .” Alberty, 162 U.S. at 505. Although not named specifically “the castle doctrine,” this right has long existed in our jurisprudence. When I made the argument that our client had a constitutional right to defend himself in his home but, according to the government, forfeited that right by joining the United States Army, Judge Cook bristled . . . and denied my motion. He clarified that I was not going to get the entire Texas jury instruction. However, the issue was going to remain pending until trial, and he would revisit the issue once evidence was presented because he did not believe that a man or woman forfeited their right to be safe in their home just because they joined the Army. Ultimately, the government and the commanding authority did the right thing and dismissed the case. I don’t believe any of them, from the general on down, truly wanted to admit they wouldn’t use force in their own homes either.