Yesterday The Washington Times ran a story claiming that President Obama "co-sponsored [a] 'stand your ground' law" when he was a state senator in Illinois. The first sign of confusion in this misleading story is in the first sentence, which describes "stand your ground" statutes as "gun laws" and the principle they establish as a "right-to-carry rule." Contrary to the implication, "stand your ground" laws are not weapon-specific; they eliminate the duty to retreat for someone attacked in a public place, regardless of how he chooses to defend himself. In fact, a state could recognize a right to stand your ground even while prohibiting people from carrying guns in public. That is what Illinois has done for at least half a century. The Criminal Code of 1961, in laying out the circumstances where the use of force is justified, made no mention of a duty to retreat. Yet until this year, when a deadline set by a federal appeals court decision compelled the state legislature to change the policy, there was no "right to carry" in Illinois.
The 2004 bill cited by the Times, S.B. 2386, created neither a right to carry nor a right to stand your ground (which already existed). The original version did refer to guns, saying, "It is an affirmative defense to a violation of a municipal ordinance that prohibits, regulates, or restricts the private ownership of firearms if the individual who is charged with the violation used the firearm in an act of self-defense or defense of another." But that provision was eliminated by an amendment that substituted language shielding people from civil liability for the justified use of force. It is fair to say that the final version of the bill, which Obama supported, "strengthened Illinois' 1961 'stand your ground' law," as the Illinois Review puts it. But the ban on lawsuits by aggressors applies to any self-defense situation, whether at home or elsewhere. Obama therefore could argue that his vote for the bill did not necessarily mean he agreed with applying the "stand your ground" principle to public places, which is the aspect of Florida's law that he and Attorney General Eric Holder have criticized.
More likely, as John Fund suggests at National Review Online, the bill was not controversial at the time because the legal definition of self-defense was not yet perceived as a partisan issue. The legislation was unanimously approved by the Democrat-controlled state Senate and passed the Democrat-controlled House with the assent of all but two members. Fund notes that Florida's "stand your ground" law, enacted the following year, had similarly strong bipartisan support.
My former Reason colleague Dave Weigel, in a Slate post that Matt Gertz of Media Matters cites to debunk the Illinois Review's report, questions the premise that Illinois has a "stand your ground" law, "because Florida was pretty famously the first state to pass a 'stand your ground' law, a year after this Illinois bill." While Florida started the recent wave of laws abolishing the duty to retreat, other states already recognized a right to stand your ground outside the home. A 2012 ProPublica report noted that Illinois' self-defense law "does not include a duty to retreat, which courts have interpreted as a right to expansive self-defense." Although Weigel claims the 2004 bill was merely "a tweak to the 'castle doctrine'" (which applies in the home), he quotes only the part of the law related to the "use of force in defense of other property," which does not specify a location. He overlooks the parts addressing the "use of force in defense of [a] dwelling" and the "use of force in defense of [a] person" (again, no setting specified). Since the liability shield for which Obama voted in 2004 applies in all of these contexts, it did have the effect of strengthening the right to stand your ground, although he can plausibly claim that was not his intent.