Exactly! From some of my other posts I detailed how I work for my local govt., and one of the pieces of advice I was given was "if you ever have to use your CC gun, you never use it to "kill" , you use it to "stop"." That's when I was also advised to carry a 9mm, .40 or a .38 Special revolver loaded with +P or +P+, so that you "carry enough handgun to stop a threat" but not a "hand cannon". I was told to avoid carrying anything "magnum". Advice is worth what you pay for it, but it's something to consider if you ever have to go to court.
The Deputy Sheriff's all carry Glock 22 .40's, and off duty most of them carry the same type of gun, or a 9mm or .38. I talk about guns a lot with them, and the guys who carry revolvers seem happy with a .38 for a backup and off duty gun. One of them just got one of the new .38 Bodyguards.
Whereas I agree that a defendant would have to face up to and defend himself against the above theories, I believe a competent attorney can do so.
First, one should carry the weapon most suitable, and that includes stopping power, ability to shoot accurately and comfortably.
I shoot a Redhawk .45 Colt more accurately than a S&W 9MM or the S&W .38 special. For some reason, it fits my hand, balances and instinctively points better.
I will not give up those characteristics which all work in my favor for a legal theory which may or may not ever materialize.
Also the other reasons for carrying a specific weapon. For instance a person who lives in bear country, alligator country, works on a cattle farm, etc., has every reason to carry a powerful weapon.
It is hardly reasonable to expect one to change weapons every time one crosses from one side of the road to the other.
So I believe a more powerful weapon can be successfully defended on several grounds.
Nevertheless, one should not gloat over the fact that he killed a BG. That will not go over well with the court system.
I see frequently see posts bragging that if "Blah blah blah, I'll blow him away" or something similar.
Not smart. There is no real anonymity on the internet. Certainly not if you are the object of a criminal investigation. Your computer will be seized, your passwords hacked and all of your email and posts examined.
Woe to he who bragged that he would "blow him away".