The Volokh Conspiracy - Don't tase <i>Heller</i>, Bro:

In an interesting op-ed in today's New York Times, Professor Paul Robinson reports on what he sees as the coming collision between the Second Amendment right recognized in Heller and state-law limitations on the use of deadly force for self-defense:

A narrowly divided Supreme Court ruled last week that the Second Amendment gives Americans the right to keep a loaded gun at home for their personal use. Presumably, citizens can use these weapons to defend themselves from intruders. But given the growing effectiveness and availability of less lethal weapons, it is likely that state laws will increasingly keep people from actually using their guns for self-defense.

The states impose carefully defined limitations on the use of deadly force in self-defense. (These rules are fairly uniform, state to state; most are based on the American Law Institute's Model Penal Code of 1962.) A person may use only as much force as is "immediately necessary." If a less lethal means of defense is available, the use of deadly force is illegal. Firearms are by law deadly force. . . .

Guns have been considered a primary weapon for self-defense. But now there are nonlethal alternatives — some not yet on the market — that can quickly disable an attacker even more reliably than a firearm can.

The best known of these are Tasers, handgun-shaped devices that fire a dart that delivers a painful electrical shock. . . .

Newer kinds of hand-held weapons that are less lethal than guns — many already in prototype — may be even more effective than Tasers. These include light lasers, designed to blind temporarily, and microwave beams that instantly cause the skin to feel as if it is on fire, but cause no lasting harm. . . .

If, on your way to confront an intruder, you choose your gun rather than your more effective but less lethal weapon, you can hardly complain later about your limited options.

Similarly, when a person shops for a weapon of self-defense, anticipating some day a confrontation with an attacker, his choice of a gun over something less lethal but more effective is a choice to limit his options in a confrontation. . . .

As effective less-than-lethal weapons proliferate, the laws of self-defense may ultimately relegate last week's court decision to the status of an odd little opinion, one that works mainly to ensure some special constitutional status for gunpowder technology. Gun collectors will be fond of it, but for most of society, it will have little practical effect.

So, is Heller obsolescent? Two quick reactions to this intriguing argument. First, I think the implication of Heller is broader than simply giving citizens "the right to keep a loaded gun at home for their personal use." The core of the Second Amendment, as identified by the Court, is the right to keep and bear "arms" for the purpose of self-defense. I think this right extends beyond "gunpowder technology," which makes the Second Amendment sound as if it is limited to weapons derived from the Eighteenth Century rather than to reasonably comparable modern weapons ("arms") used for personal self-defense (like tasers). An analogy would be to the First Amendment, which protects speech as communicated through the printing press, as in 1791, but also speech as communicated through modern means like movies, television, radio, and the Internet. I'm not sure Professor Robinson disputes this extension of the Second Amendment to other weapons, but the opening sentence of the op-ed makes Heller sound more limited than it really is.

Second, and more importantly, it's true that there are state-law limitations on self-defense. But I would expect these limitations themselves to be subject to constitutional constraints derived from the Second Amendment (assuming, as I do, that the Second Amendment will eventually be applied to restrain state power). Again, an analogy would be to state libel laws that are subject to First Amendment limitation even though they don't directly prohibit speech; they penalize or burden it.

It can't be the case, for example, that the Second Amendment gives citizens the right to keep weapons in their homes for self defense and at the same time gives the government plenary power to prohibit them from using weapons for that very purpose. "You have the right to keep and bear arms but may never use them," would be a hollow right. At the same time, surely a state can limit the circumstances in which a citizen uses deadly force, even in the home. The question will be how far the state can go in limiting the use of weapons — like handguns — whose possession is constitutionally protected.

Professor Robinson's op-ed suggests that because a state can insist that a citizen use non-lethal means of self defense, if available, handguns can effectively be eliminated as less-lethal weapons proliferate. On this view, if both a gun and a taser are available in the home, the state can require the citizen to use the taser. More ambitiously, he also suggests that a state could go so far as to require a citizen wishing to have a weapon for self-defense in the home to purchase a non-lethal weapon for this purpose rather than a gun. The implication is that the use of a gun for self-defense in the home could be criminalized because the citizen could always have chosen to buy something non-lethal.

This conclusion is provocative. The problem, as I see it, is that Professor Robinson does not wrestle at all with the issue of possible constitutional constraints on state self-defense laws. But, as I suggested above, there surely are at least some constraints. And these constraints point to some possible problems with Robinson's argument.

His conclusion about state power to require the use of non-lethal weapons would gut even the immediate and narrow holding of Heller — that guns may be kept in the home for self-defense — since these guns could not actually be used. Additionally, while Robinson posits that tasers may be more effective as a means of self-defense than guns are, the Court in Heller rejected similar arguments about the efficacy of gun control laws and the dangerousness of guns in relation to their self-defense benefits. The balancing of interests, Justuice Scalia wrote, has already been done in the Second Amendment and it favors gun possession in the home.

If possession is protected, and if a law requiring the disabling of guns is prohibited, there must be some constitutional protection for use. If I'm right about that, a hypothetical law that categorically banned gun use for self-defense because tasers and other non-lethal weapons may be purchased would likely be unconstitutional under the Second Amendment. While I'm not sure where the constitutional line will be drawn on state self-defense statutes, and there's plenty of room for debate about the subject, it won't likely be drawn in a way that makes this self-consciously landmark ruling "an odd little opinion."

UPDATE: Professor Robinson responds in the comments. He acknowledges that Heller may well have the effect of invalidating laws against the possession of some modern weapons for self-defense, like tasers. And while I agree with him that Heller does not "invalidate" every application of the general rule that you can't use more force than necessary for self-defense, it has at least clarified that handguns have a specially protected constitutional role in self-defense within the home that can't be eliminated by a state. This bodes ill for, say, a future statute banning handguns for self-defense in the home. And I think the opinion suggests that it does not matter whether the state thinks other methods of self-defense would be "better" for the individual or for society. Professor Robinson does not engage the reasons I offered for this view, and I won't repeat them here. All of this might be "astonishing" for a criminal law expert, but it's no less astonishing than it was for media lawyers to learn that the First Amendment placed limits on long-standing state statutory and common-law libel rules. I do appreciate Professor Robinson's contribution to the discussion.

On another note, contrary to what one commenter believes, I am not suggesting that the Second Amendment after Heller recognizes an independent, free-floating right to self-defense (though such a right may be secured elsewhere in the Constitution). Instead, the Second Amendment recognizes a personal right to keep arms in the home, and to do so at the very least for the purpose of self-defense.

	[Dale Carpenter, July 2, 2008 at 11:16am] Trackbacks Don't tase Heller, Bro: In an interesting op-ed in today's New York Times, Professor Paul Robinson reports on what he sees as the coming collision between the Second Amendment right recognized in Heller and state-law limitations on the use of deadly force for self-defense: A narrowly divided Supreme Court ruled last week that the Second Amendment gives Americans the right to keep a loaded gun at home for their personal use. Presumably, citizens can use these weapons to defend themselves from intruders. But given the growing effectiveness and availability of less lethal weapons, it is likely that state laws will increasingly keep people from actually using their guns for self-defense. The states impose carefully defined limitations on the use of deadly force in self-defense. (These rules are fairly uniform, state to state; most are based on the American Law Institute's Model Penal Code of 1962.) A person may use only as much force as is "immediately necessary." If a less lethal means of defense is available, the use of deadly force is illegal. Firearms are by law deadly force. . . . Guns have been considered a primary weapon for self-defense. But now there are nonlethal alternatives — some not yet on the market — that can quickly disable an attacker even more reliably than a firearm can. The best known of these are Tasers, handgun-shaped devices that fire a dart that delivers a painful electrical shock. . . . Newer kinds of hand-held weapons that are less lethal than guns — many already in prototype — may be even more effective than Tasers. These include light lasers, designed to blind temporarily, and microwave beams that instantly cause the skin to feel as if it is on fire, but cause no lasting harm. . . . If, on your way to confront an intruder, you choose your gun rather than your more effective but less lethal weapon, you can hardly complain later about your limited options. Similarly, when a person shops for a weapon of self-defense, anticipating some day a confrontation with an attacker, his choice of a gun over something less lethal but more effective is a choice to limit his options in a confrontation. . . . As effective less-than-lethal weapons proliferate, the laws of self-defense may ultimately relegate last week's court decision to the status of an odd little opinion, one that works mainly to ensure some special constitutional status for gunpowder technology. Gun collectors will be fond of it, but for most of society, it will have little practical effect. So, is Heller obsolescent? Two quick reactions to this intriguing argument. First, I think the implication of Heller is broader than simply giving citizens "the right to keep a loaded gun at home for their personal use." The core of the Second Amendment, as identified by the Court, is the right to keep and bear "arms" for the purpose of self-defense. I think this right extends beyond "gunpowder technology," which makes the Second Amendment sound as if it is limited to weapons derived from the Eighteenth Century rather than to reasonably comparable modern weapons ("arms") used for personal self-defense (like tasers). An analogy would be to the First Amendment, which protects speech as communicated through the printing press, as in 1791, but also speech as communicated through modern means like movies, television, radio, and the Internet. I'm not sure Professor Robinson disputes this extension of the Second Amendment to other weapons, but the opening sentence of the op-ed makes Heller sound more limited than it really is. Second, and more importantly, it's true that there are state-law limitations on self-defense. But I would expect these limitations themselves to be subject to constitutional constraints derived from the Second Amendment (assuming, as I do, that the Second Amendment will eventually be applied to restrain state power). Again, an analogy would be to state libel laws that are subject to First Amendment limitation even though they don't directly prohibit speech; they penalize or burden it. It can't be the case, for example, that the Second Amendment gives citizens the right to keep weapons in their homes for self defense and at the same time gives the government plenary power to prohibit them from using weapons for that very purpose. "You have the right to keep and bear arms but may never use them," would be a hollow right. At the same time, surely a state can limit the circumstances in which a citizen uses deadly force, even in the home. The question will be how far the state can go in limiting the use of weapons — like handguns — whose possession is constitutionally protected. Professor Robinson's op-ed suggests that because a state can insist that a citizen use non-lethal means of self defense, if available, handguns can effectively be eliminated as less-lethal weapons proliferate. On this view, if both a gun and a taser are available in the home, the state can require the citizen to use the taser. More ambitiously, he also suggests that a state could go so far as to require a citizen wishing to have a weapon for self-defense in the home to purchase a non-lethal weapon for this purpose rather than a gun. The implication is that the use of a gun for self-defense in the home could be criminalized because the citizen could always have chosen to buy something non-lethal. This conclusion is provocative. The problem, as I see it, is that Professor Robinson does not wrestle at all with the issue of possible constitutional constraints on state self-defense laws. But, as I suggested above, there surely are at least some constraints. And these constraints point to some possible problems with Robinson's argument. His conclusion about state power to require the use of non-lethal weapons would gut even the immediate and narrow holding of Heller — that guns may be kept in the home for self-defense — since these guns could not actually be used. Additionally, while Robinson posits that tasers may be more effective as a means of self-defense than guns are, the Court in Heller rejected similar arguments about the efficacy of gun control laws and the dangerousness of guns in relation to their self-defense benefits. The balancing of interests, Justuice Scalia wrote, has already been done in the Second Amendment and it favors gun possession in the home. If possession is protected, and if a law requiring the disabling of guns is prohibited, there must be some constitutional protection for use. If I'm right about that, a hypothetical law that categorically banned gun use for self-defense because tasers and other non-lethal weapons may be purchased would likely be unconstitutional under the Second Amendment. While I'm not sure where the constitutional line will be drawn on state self-defense statutes, and there's plenty of room for debate about the subject, it won't likely be drawn in a way that makes this self-consciously landmark ruling "an odd little opinion." UPDATE: Professor Robinson responds in the comments. He acknowledges that Heller may well have the effect of invalidating laws against the possession of some modern weapons for self-defense, like tasers. And while I agree with him that Heller does not "invalidate" every application of the general rule that you can't use more force than necessary for self-defense, it has at least clarified that handguns have a specially protected constitutional role in self-defense within the home that can't be eliminated by a state. This bodes ill for, say, a future statute banning handguns for self-defense in the home. And I think the opinion suggests that it does not matter whether the state thinks other methods of self-defense would be "better" for the individual or for society. Professor Robinson does not engage the reasons I offered for this view, and I won't repeat them here. All of this might be "astonishing" for a criminal law expert, but it's no less astonishing than it was for media lawyers to learn that the First Amendment placed limits on long-standing state statutory and common-law libel rules. I do appreciate Professor Robinson's contribution to the discussion. On another note, contrary to what one commenter believes, I am not suggesting that the Second Amendment after Heller recognizes an independent, free-floating right to self-defense (though such a right may be secured elsewhere in the Constitution). Instead, the Second Amendment recognizes a personal right to keep arms in the home, and to do so at the very least for the purpose of self-defense.