Maybe I’m not understanding you, but if one is only a criminal based on the body/property damage he has caused, then a man has no right to self-defense unless he is first injured. If I shoot at you and miss, then I have done nothing criminal by this logic. If you shoot back at me and hit me (after making the reasonable assumtpion that I might try to shoot you again), then you are the criminal, but clearly this doesn’t seem right.
This is why I find it interesting to think about this stuff, because I don’t know where I stand.
I am not equating self defense with restitution. They are two separate things. You are not a criminal if it cannot be shown to a jury of your peers (or arbitrator) that you have trespassed against someone’s life/property. If you have, then you owe restitution, and in the modern state, you are a “criminal”–which means you pay the state, either in fines, prison time, or both.
You always have the right to self-defense. Do you think that the rest of society would condemn you if you attacked someone who pulled a gun on you, whether it was unloaded, fake, drawn without intent to fire, a water pistol, etc? Criminal is a legal term that is applied after the fact, i.e. in a court of opionion or law, and ultimately determines who you owe restitution to. Criminality and restitution have nothing to do with justified self-defense.
If someone shoots at you and misses, have they trespassed against your life or property? Does it matter if the shooting is intentional? And for that matter, does intention matter if they do hit you?
If you suscribe to a Rothbardian definition of criminal then it would be someone who agresses against you or your property. Under that definition I would argue that shooting at someone constitutes an act of agression against them whether you hit them or not. If you hit someone unintentionally then you would be liable for the damages that you have caused to them.