The ‘Castle Doctrine’

In 1761, while arguing against renewal of the “blank search warrants” known as “writs of assistance,” James Otis popularized the expression: “A man’s house is his castle.”

Arguing that the king himself must ask permission to cross the threshold into a man’s home unless a judicial proceeding had determined a pressing state need, Otis proclaimed that uninvited intruders were violating the “natural rights” of freeborn men. Another “natural right” of freeborn men is the right to defend one’s own life and liberty.

These beliefs predate the existence of this country.

In 2009, the state of Montana finally codified these same principles when it passed legislation that allowed people to “stand their ground” and defend their “castle” if faced with an invasion of their home and put the burden of proof on the government that the homeowner acted in a criminal or negligent fashion.

A recent tragedy in Kalispell has brought cries that the “castle doctrine” needs to be repealed and that the law should reflect a more “humanitarian” approach that requires the homeowner to retreat if possible. Denying the “natural rights” of man is tyranny.

Civil, not criminal court, is the correct location for this alleged wrong.

As it happens, my own children are lineal descendants of James Otis, and while I would certainly expect them to defend their “castle,” I’d hold them to a higher set of standards than Montana law currently does. Our code makes the presumption that an unlawful (uninvited) entrant is doing or has done so with the purpose to commit an act of force or violence.

The actuality, nature, or severity of such presumed act apparently need not be determined.

In my view, this is much too broad. Because of this, friends and relatives, for instance, may wish to reconsider “surprise” parties, and the phrase “make my day” carries seriously more threat.

I don’t know enough of the facts, or have the necessary background, to judge the legalities of the Harper-Fredenberg situation, but the published reports certainly leave me with both ethical and practical doubts.

If rule by law is to work, our laws must be as sophisticated as our society. We do not live in a simplistic “black and white” world. Subtleties matter and “bumper sticker” solutions are seldom enough. At the minimum, preserving the “natural rights” of humankind presumes keeping people alive to enjoy those rights.

Sometimes taking a broader view leads to gaining a better perspective.

Let’s review the law.