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2ND AMENDMENTBy: KEN HANSONith all of the hype surroundingthe introduction of “Stand YourGround” legislation in numerous differentstates (also referred to as “CastleDoctrine,” “No Retreat” or “Self-DefenseBill of Rights”), you probably arewondering what all the fuss is about.In fact, if you listen to the Brady Bunchversion, you might believe that otherstates are handing out a “license to kill”(or “license to shoot first,” dependingupon which spin master you aretalking to).Quite simply, these bills are anattempt to regulate the aftermath ofself-defense shootings. In many states,such as Ohio, there is a convolutedand burdensome process to establisha shooting as “self-defense.” Since it iseasiest to examine what these changesare all about by example, let’s beginby looking at a self-defense shootingin Ohio.In Ohio, if justified, you claim theaffirmative defense of self-defense in ashooting. It is important to understandthe concept of an “affirmative defense.”It means that you are not really contestingthat you committed actions that aredefined as “criminal,” but rather, you arestating that your actions were justified.This is critical to understand, becausethe burden is on you to proveyour case. It is not up to the prosecutorto prove that you were not acting in selfdefense.It is up to you, at yourexpense and under the threat ofimprisonment, (and sometimes whileactually imprisoned) to prove that youwere acting in self-defense.Think about that for a minute…Theprosecution has to prove almost nothingin a self-defense trial; the burden is uponthe defendant. (Get used to that title.) Aself-defense trial is not about whether youdid X, Y and Z. It is about the defendantproving that she/he was justified. We aretaught from elementary school onwardsthat in America, you are presumedinnocent until proven guilty. Doesn’t itsound like the burden has shifted slightlyin self-defense cases?So in Ohio, if someone kicks downmy front door, runs up the stairs and triesto grab my daughter out of bed and dragher out of the house, I have two categoriesof choices: (1) I can let the bad guy go,call the police, hope my dogs scare themoff, try to tackle/wrestle him, beg/plead,use a squirt gun full of lemon juice orsome other half-measure; or (2) I can usemy gun, then have to prove to a court’s/jury’s satisfaction [at my own expense,probably after a jail stay, or perhapswhile in jail, unemployed and awaitingtrial] that what I did was reasonableunder Ohio’s self-defense test, hopingthat at the end of the day, I can walk outof the front door of the courthouse, ratherthan out of the backdoor, in handcuffs.Should a family have to make a choicebetween losing a daughter and riskinglosing a parent to our legal system?This is the first important change thistype of “Self-Defense Bill of Rights” lawmakes. If someone kicks down my doorto drag off my daughter, or otherwiseenters my house with violent intent, theyare legally presumed to be there to causeme serious physical harm or death. Nomore burden on the homeowner. Theburden is placed back where it belongs:on the bad guy. As long as there are notany extenuating circumstances, the caseends and the healing begins at that point.No hauling off to jail, no worries aboutcriminal trial and the whims of a jury, andno civil suit from the bad guy’s family.It should be noted that these laws areproperly structured to make sure that theyare not abused. You can’t shoot someonewho lives in that house and enjoy thepresumption in your favor. You can’tinvite someone in, shoot them and claimthe protection of the law. You can’t ignorea scenario where the bad guy clearly hasacted inconsistent with the presumptionagainst him (such as running away out ofyour front door), and be protected underthe law.That is really all that these types oflaws do. They codify common sense withregard to the defense of your home. Ifsomeone enters your house violently,they are not there to sell you Girl Scoutcookies. In a self-defense shooting inyour house, you are probably going tobe awaken out of a sound sleep and youmay be undressed or in your sleepingattire. You will have to rush the gun outof secure storage, try to figure out whatis going on, identify targets and friends,maybe fumble for eyeglasses, and try tocall 911. Do you really want a court orjury calmly deliberating over your actions9 months later, and second-guessingwhether you were “reasonable?” Isn’t itmore reasonable to put the burden backon the bad guy?Broadly speaking, these billsimplement two categories of changes.First, a presumption against the bad guyis reestablished, and the person acting inself-defense is granted civil and criminalimmunity for their actions. The secondcategory of change is elimination of theduty to retreat. It is this change, more thanthe others, that creates hysteria amongthe social engineering crowds who claimthat it is nothing more than a license tomurder. (After all, it is very hard to argueagainst creating a presumption against afelon, so this is the only area they haveleft to argue against.)But just what is the duty to retreat,and where does it come from? In Ohioand in most states with a duty to retreat,a person cannot exercise lethal forcein self-defense if they have an abilityto safely remove themselves from thesituation without using force. Typically,this duty does not apply to the actor’sown home or own place of business.Many months later, a judge and jury(in the comfort and security of a welllit courtroom) will calmly and rationallysecond-guess the actor to determineif the actor reasonably met their dutyunder the law. So once again, the actor50 Concealed Carry Magazine www.usconcealedcarry.comVolume 4 - May/June 2007