Amicus Brief in the Michigan Second Amendment Stun Gun Case

Michael Smith and I have just filed an amicus brief that I drafted for Arming Women Against Rape & Endangerment (AWARE) in the Michigan Second Amendment stun gun case, People v. Yanna. As I noted in April, a Michigan trial court had struck down the Michigan stun gun ban on Second Amendment grounds; the case is now on appeal to the Michigan Court of Appeals.

I quote below the body of the argument in the brief, minus the footnotes; but if you’re interested in the issue, you might just want to read the PDF. The brief is built on the arguments I made in my Nonlethal Self-Defense, (Almost Entirely) Nonlethal Weapons, and the Rights to Keep and Bear Arms and Defend Life, 62 Stan. L. Rev. 199 (2009), but it also has a much more extended discussion of why the Second Amendment should be read as extending beyond firearms, and in particular to stun guns. Many thanks to Michael Smith — an experienced Michigan appellate lawyer — for all his help with this project!

I. Many People Have Good Reason to Choose Stun Guns or Tasers as Self-Defense Tools.

Michigan rightly allows people to possess and carry guns. See MCL 28.422. But different people have different self-defense needs, and they should be able to choose other means of defending themselves, as well—especially when those means are much less deadly than guns, as is the case for stun guns (electric weapons that require the user to touch the target with the weapon) and Tasers (electric weapons that shoot a probe that delivers the electric shock). See Appellant’s Brief App. VIII (parties’ stipulation that such weapons are “generally nonlethal”).

Some people, for instance, have religious or ethical compunctions about killing. For instance, noted Mennonite theologian John Howard Yoder, noted Pentecostalist theologian David K. Bernard, and the Dalai Lama have expressed the view that while one ought not use deadly force even in self-defense, self-defense using nondeadly force is permissible. Some members of other religious groups, such as Quakers, share this view. Other religious and philosophical traditions, such as the Jewish and Catholic ones, take the view that defenders ought to use the least violence necessary. Some religious believers might therefore conclude that, when fairly effective nondeadly defensive tools are available, they should be used in preference to deadly tools.

Other people might feel they will be emotionally unable to pull the trigger on a deadly weapon, even when doing so would be ethically proper. Thus, for instance, Liqun Cao et al, Willingness to Shoot: Public Attitudes Toward Defensive Gun Use, 27 Am J Crim Just 85, 96 (2002), reports that 35 percent of a representative sample of Cincinnati residents age 21 and above said they would not be willing to shoot a gun at an armed and threatening burglar who had broken into their home. (The fraction was higher for women respondents. Id at 100.) It seems likely that many of the 35 percent feel they would be psychologically unprepared to shoot an attacker, even if they were ethically permitted to do so.

Others might worry about erroneously killing someone who turns out not to be an attacker. Still others might be reluctant to kill a particular potential attacker, for instance when a woman does not want to kill her abusive ex-husband because she does not want to have to explain to her children that she killed their father, even in self-defense. Others might fear a gun they own might be misused, for instance by their children or by a suicidal adult housemate. Still others, such as people with past criminal convictions, may be barred from owning firearms. See People v Swint, 225 Mich App 353, 362; 572 NW2d 666 (1997) (upholding MCL 750.224f’s ban on gun possession by felons be¬cause it “[a]rguably” “does not completely foreclose defendant’s consti¬tution¬al right to bear ‘arms,’ i.e., nonfirearm weapons, in defense of himself”). And even people who own guns may still want to have both a gun and a stun gun or Taser accessible, so that they can opt for a nonlethal response whenever possible, and for a lethal one when absolutely necessary. (This, of course, is part of the reason that police officers carry both kinds of weapons.)

These are not just aesthetic preferences, such as a person’s desire to have a particular gun that she most likes when other equally effective guns are available. These are preferences that stem from understandable and even laudable moral belief systems, emotional reactions, or pragmatic concerns. Members of Arming Women Against Rape & Endangerment generally believe that killing in self-defense is morally proper. But people who take the opposite view should be presumptively free to act on their beliefs without having to forgo effective self-defense tools; and people who have practical reasons to prefer nonlethal self-defense weapons should likewise be presumptively free to have the weapons that they need to effectively defend themselves.

The “Right to Keep and Bear Arms” Extends Beyond Just Firearms.

The Second Amendment and the Michigan Constitution speak of the “right to keep and bear arms,” not of a right to keep and bear guns or firearms. US Const, Am II; Const 1963, art 1, § 6. And the United States Supreme Court, the Michigan Supreme Court, this Court, and courts of other states have treated the right as extending beyond firearms.

The United States Supreme Court Has Treated the “Right to Keep and Bear Arms” as Extending Beyond Just Firearms.

The Supreme Court concluded in District of Columbia v Heller, 554 US 570 (2008), that “arms” refers to “weapons of offence, or armour of defence,” or “any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another,” id at 647 (quotation marks and citations omitted)—terms that cover more than just guns. And the Court, in the section discussing the phrase “keep and bear arms,” id at 581–92, four times expressly discussed non-firearms as “arms.”

First, in showing that “keep and bear arms” included civilian possession of arms for self-defense, the Court noted that, “Timothy Cunningham’s important 1771 legal dictionary” “gave as an example of usage: ‘Servants and labourers shall use bows and arrows on Sundays, & c. and not bear other arms,’” id at 581 (citation omitted). Including the Cunningham quotation would have been pointless—indeed, counter¬productive to the Court’s argument—if the Court saw “arms” as limited to firearms.

Later in that section, the Court said that various “legal sources frequently used ‘bear arms’ in nonmilitary contexts,” id at 587, and cited several examples. One such citation was a repeat of the Cunningham quote. See id at 587–88 (“Cunningham’s legal dictionary, cited above, gave as an example of its usage a sentence unrelated to military affairs (‘Servants and labourers shall use bows and arrows on Sundays, & c. and not bear other arms’)”). The other quoted the great international law scholar Vattel. See id at 587 n10 (“E. de Vattel, The Law of Nations, or, Principles of the Law of Nature 144 (1792) (‘Since custom has allowed persons of rank and gentlemen of the army to bear arms in time of peace, strict care should be taken that none but these should be allowed to wear swords’)”). Both examples treated “arms” as including non-firearms; again, both would have been pointless and counterproductive if the Court believed “arms” meant only guns.

Three pages later, the majority mentioned knives as an example of “arms.” The dissent had pointed to a proposed version of the Second Amendment that included a conscientious-objector provision—a provision that was deleted as the Bill of Rights made its way through Congress—in support of its view that “bear arms” must have been limited to military contexts. The majority disagreed:

[The deleted provision] was not meant to exempt from military service those who objected to going to war but had no scruples about personal gunfights. Quakers opposed the use of arms not just for militia service, but for any violent purpose whatsoever—so much so that Quaker frontiersmen were forbidden to use arms to defend their families, even though “[i]n such circumstances the temptation to seize a hunting rifle or knife in self-defense … must sometimes have been almost overwhelming.”

554 US at 590 (emphasis added) (citation omitted). The Court thus included knives alongside rifles as examples of “arms” for Second Amendment purposes.

To be sure, Heller speaks mostly about guns. But the law challenged in Heller was a gun ban, so it makes sense that guns would be the Court’s primary focus. The quotes given above, though, show that the Court’s references to firearms were not intended to limit the Second Amendment to a right to bear only firearms.

The Michigan Supreme Court Has Treated the “Right to Keep and Bear Arms” as Extending Beyond Firearms.

The Michigan Supreme Court in interpreting the Michigan Constitution appears to likewise view the phrase “right to keep and bear arms” as covering weapons other than guns. In People v Brown, 253 Mich 537; 235 NW 245 (1931), the Court noted that the right to keep and bear arms is subject to regulations, but stressed that such regulations “cannot constitutionally result in the prohibition of the possession of those arms which, by the common opinion and usage of law-abiding people, are proper and legitimate to be kept upon private premises for the protection of person and property.” 253 Mich at 541. And in noting the narrowness of the statute in question, the Court stressed that the law “does not include ordinary guns, swords, revolvers, or other weapons usually relied upon by good citizens for defense or pleasure.” Id at 542 (emphasis added).

Brown thus makes clear that, for 70 years, Michigan law has viewed “the right to keep and bear arms” as extending beyond firearms, treating swords and revolvers analogously as potentially the sort of “arms” that “are proper and legitimate to be kept . . . for the protection of person and property,” and that are therefore constitutionally protected.

This Court Has Treated the “Right to Keep and Bear Arms” as Extending Beyond Just Firearms.

Likewise, this Court has treated the “right to keep and bear arms” in the Michigan Constitution as covering weapons other than guns. In Swint, this Court upheld Michigan’s ban on gun possession by felons, relying expressly on the view that the “right to keep and bear arms” covered more than just guns (and thus left felons with other weapons for self-defense):

We also note that while [Const 1963,] art 1, § 6 ensures a Michigan citizen’s right to keep and bear “arms,” that term is not defined. Black’s Law Dictionary (6th ed.), p 109, defines “arms” as “anything that a man wears for his defense, or takes in his hands as a weapon.” While MCL § 750.224f; MSA § 28.421(6) only precludes a former felon’s use, possession, receipt, sale or transportation of a “firearm,” it is silent regarding other “weapons.” Arguably, MCL § 750.224f; MSA § 28.421(6) does not completely foreclose defendant’s constitution¬al right to bear “arms,” i.e., nonfirearm weapons, in defense of himself. [225 Mich App at 362].

As the Court went on to note,

“[A]s long as our citizens have available to them some types of weapons that are adequate reasonably to vindicate the right to bear arms in self-defense, the state may proscribe the possession of other weapons without infringing on” the constitutional right to bear arms. [Id at 362 (emphasis in original) (citation omitted)].

Swint thus made clear that “arms” includes “nonfirearm weapons,” and expressly relied on that in concluding that the ban on felon gun possession was constitutional because it left felons free to possess “some types of weapons”—other than guns—“that are adequate reasonably to vindicate the right to bear arms in self-defense.” Id.

Note that Heller does not undermine the soundness of Swint with regard to felons’ continuing rights to possess some non-firearms weapons. The Supreme Court in Heller held only that “nothing in [the] opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons.” Heller, 554 US at 626 (emphasis added).

Other Courts Have Treated the “Right to Keep and Bear Arms” as Extending Beyond Just Firearms.

More recently, state courts in Delaware, Ohio, and Oregon have likewise concluded that the right to keep and bear arms extends beyond just firearms. See State v Griffin, 2011 WL 2083893, *7 n62; 2011 Del Super LEXIS 193, *26 n62 (Del Super Ct, May 16, 2011) (holding that the “right to keep and bear arms” under the Delaware Constitution extends to knives, and concluding that the Second Amendment right does the same); City of Akron v Rasdan, 105 Ohio App 3d 164, 171-172; 663 NE2d 947 (Ct App, 1995) (treating a restriction on knife possession as implicating the “right to keep and bear arms” under the Ohio Constitution, though concluding that the restriction is constitutional because “[t]he city of Akron properly considered this fundamental right by including in [the knife restriction] an exception from criminal liability when a person is ‘engaged in a lawful business, calling, employment, or occupation’ and the circumstances justify ‘a prudent man in possessing such a weapon for the defense of his person or family’”); State v Delgado, 298 Or 395, 397-404; 692 P2d 610 (1984) (holding that the “right to keep and bear arms” under the Oregon Constitution extends to knives); State v Blocker, 291 Or 255, 257-258; 630 P2d 824 (1981) (same as to billy clubs), citing State v Kessler, 289 Or 359; 614 P2d 94 (1980); also Barnett v State, 72 Or App 585, 586; 695 P2d 991 (Ct App, 1985) (same as to blackjacks).

Likewise, Florida’s Attorney General has expressly concluded that the right to keep and bear arms covers stun guns and Tasers, determining that “the term [‘arms’] is generally defined as ‘anything that a man wears for his defense, or takes in his hands as a weapon.’” 1986 Fla Op Att’y Gen 2, 1986 Fla AG LEXIS 107 (January 6, 1986). And the Attorney General relied on this to conclude that county-level regulation of stun guns and Tasers is unconstitutional, because the Florida Constitution’s right to bear arms reserves regulation of arms—including stun guns and Tasers—to the legislature.

We do not know of any recent cases that have disagreed with this consensus, and that have read “arms” as limited to guns. Indeed, the only two cases cited by the State as supposedly limiting “arms” to guns, Wooden v United States, 6 A3d 833 (DC, 2010), and Mack v United States, 6 A3d 1224 (DC, 2010), held only that the question was unresolved in the D.C. courts. This is all the D.C. Court of Appeals needed to decide in those cases, because the defendants in both cases failed to properly object at trial, and their convictions were thus reviewed only for “plain” or “obvious” error. Wooden, 6 A3d at 839; Mack, 6 A3d at 1236–37.

Thus, Wooden noted that Heller focused only on firearms—understandable, since the law at issue in Heller was a gun ban—and went on to acknowledge that “[p]erhaps a detailed Heller-type analysis would result in a conclusion that some kinds of knives today” “may qualify for Second Amendment protection.” 6 A3d at 839. Likewise, Mack said only that “it is not at all clear that the Second Amendment right to keep and bear arms applies to the ice pick carried by Mr. Mack.” 6 A3d at 1235. The court was, in the words of Mack, “disinclined” in both cases “to delve further into these questions when our review is limited by the plain error standard.” 6 A3d at 1236-37.

The Second Amendment “Right to Keep and Bear Arms” Covers Stun Guns and Tasers.

The Supreme Court in Heller did stress that the Second Amendment does not cover all arms:

We also recognize another important limitation on the right to keep and carry arms. [United States v Miller, 307 US 174; 59 S Ct 816; 83 L Ed 1206 (1939)] said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.” See 4 Blackstone 148-149 (1769); 3 B. Wilson, Works of the Honourable James Wilson 79 (1804). [Heller, 554 US at 627 (some citations omitted)].

Thus, “dangerous and unusual” weapons are seen as historically excluded from the scope of the right to keep and bear arms.

But this suggests that the exception is indeed limited to weapons that are not only “unusual” but also “dangerous.” And since all weapons are “dangerous” to some extent, the reference to “dangerous . . . weapons” must mean weapons that are more dangerous than some threshold, or more dangerous than the norm—likely weapons that are unusually dangerous.

Whatever else might fall under that description, stun guns and Tasers are not unusually dangerous weapons. They are much less dangerous than guns, which are constitutionally protected and broadly allowed in Michigan. They are less dangerous even than knives, clubs, and other such devices—including, in some circumstances, bare hands. Caldwell v Moore, 968 F2d 595, 602 (CA 6, 1992) (“It is not unreasonable for the jail officials to conclude that the use of a stun gun is less dangerous for all involved than a hand to hand confrontation”).

To be sure, all attacks are potentially deadly: pushing or punching someone may cause him to fall the wrong way and die. But stun guns and irritant sprays are so rarely deadly that they merit being viewed as tantamount to generally non-deadly force, such as a punch or a shove. The best estimates seem to be that deliberate uses of Tasers are deadly in less than 0.01% of all cases, as compared to an estimated 20% death rate from gunshot wounds in deliberate assaults, and an estimated 2% death rate from knife wounds in deliberate assaults). Eugene Volokh, Nonlethal Self-Defense, (Almost Entirely) Nonlethal Weapons, and the Rights to Keep and Bear Arms and Defend Life, 62 Stan L Rev 199, 205 (2009). This is why we label stun guns as “nonlethal” or “nondeadly” weapons, consistently with the parties’ stipulation in this case that stun guns are “generally nonlethal,” Appellant’s Brief App. VIII.

Likewise, though stun guns and Tasers can be used in crimes as well as in lawful self-defense, that is true of all weapons. If private ownership of arms posed no risks, there would be no movements to ban arms, and no need to secure constitutional protection of arms. The premise of the constitutional right to keep and bear arms in self-defense is that self-defense is a basic right, and that people must be able to possess the tools needed for effective self-defense despite the risk that some people will abuse those tools. And if that is true for deadly weapons such as handguns, it is especially true for almost entirely nonlethal weapons, such as stun guns and Tasers.

Of course, stun guns and Tasers were unknown when the Second Amendment was enacted, but Heller expressly rejected the view “that only those arms in existence in the 18th century are protected by the Second Amendment.” 554 US at 582 (2008). Instead, Heller held, “[j]ust as the First Amendment protects modern forms of communications [such as the Internet], and the Fourth Amendment applies to modern forms of search [such as heat detection devices], the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.” Id (citations omitted).

People v Smelter, 175 Mich App 153, 155; 437 NW2d 341 (1989), did conclude that stun guns were not protected by the Michigan Constitution’s Second Amendment analog, Const 1963, art 1, § 6, because the state may “prohibit weapons whose customary employment by individuals is to violate the law.” But Smelter does not control here, since it predates both 1990 (and thus is not binding under MCR 7.215(J)(1)) and Heller. Further, Smelter offered no evidence in support of its bald assertion that stun guns were customarily used to violate the law in the late 1980s; and the briefs offered no such evidence, either. Answer in Opposition to Application, People v Smelter, No. 100234 (Mich Apr 17, 1989), http://www.law.ucla.edu/‌volokh/smelter/sct2.pdf; Application for Leave to Appeal, People v Smelter, No. 100234 (Mich Mar 14, 1989), http://www.law.ucla.edu/volokh/smelter/sct1.pdf; Brief of Appellee, People v Smelter, No. 86-678412 (Mich Ct App Feb. 24, 1988), http://www.law.ucla.edu/volokh/smelter/ctapp2.pdf; Brief of Appellant, People v Smelter, No. 86-678412 (Mich Ct App Nov. 10, 1987), http://www.law.ucla.edu/volokh/smelter/ctapp1.pdf. Indeed, Taser Corp. reports that it sold 241,000 Tasers to civilians as of September 30, and there is also an unknown number of non-Taser stun guns that have been lawfully sold to civilians in the 43 states that do not ban Tasers and stun guns. See Eugene Volokh, Nonlethal Self-Defense, (Almost Entirely) Nonlethal Weapons, and the Rights to Keep and Bear Arms and Defend Life, 62 Stan L Rev 199, 244 (2009) (collecting statutes). Naturally, there is no census of how many of the buyers are criminals; but there is no evidence at all that such criminal buyers form a majority or even a large minority of all buyers.

The State cites 25 published cases nationwide, over a nearly 20-year period (1993-2011), in which stun guns or Tasers were possessed or used by criminals, Appellant’s Brief at 22–26. It argues that “[t]hese cases clearly demonstrate that Tasers and stun guns are not ‘typically possessed . . . for lawful purposes’ as required by Heller,” Id at 26. But those cases demonstrate no such thing. Even if they represent only 1 percent of all the criminal uses of stun guns and Tasers, so that there were 2,500 hypothetical criminal uses nationwide over those three decades—or nearly 140 hypothetical cases per year—those cases would tell us nothing about the typical behavior of the over 200,000 civilian owners of stun guns, the overwhelming majority of whom no doubt are law-abiding women and men who, like AWARE’s members, carry them solely for self-protection.

Indeed, in just the past 36 months, this Court has seen more than a dozen cases in which a baseball bat was used to inflict serious injury or death, and others in which a bat was used in furtherance of crimes such as felonious assault, vehicle theft, and witness intimidation. Yet we would not infer from these cases that the “customary employment” of a baseball bat is crime, as opposed to the Tuesday night softball league. Likewise, the State’s cases do not show that the “customary employment” of stun guns is crime, as opposed to lawful possession for lawful self-defense.

Finally, as noted above, this Court in Swint held that felons may be barred from owning firearms because they remain free to own “nonfirearm weapons.” 225 Mich App at 362-363. And it expressly relied on that in concluding that the ban on felon possession of guns was constitutional because it left felons free to possess “some types of [nonfirearm] weapons that are adequate reasonably to vindicate the right to bear arms in self-defense.” Id at 362. Any such nonfirearm weapons—such as knives or clubs—necessarily involve some risk of abuse and injury, and indeed considerably greater risk of death than stun guns do. See, nn 5 & 6. It would make little sense for the right to bear arms to be read as allowing felons to possess quite lethal nonfirearm weapons, while at the same time denying everyone (felon or not) the right to possess much less lethal stun guns.