The other prominent self-defense device, the irritant spray (such as pepper spray or Mace), likewise used to be illegal in California, New York, Wisconsin, and Washington, D.C, but has since been largely legalized in the U.S. Nonetheless, irritant sprays remain illegal to carry in public, and probably even to carry in the home, in many Illinois towns. They are probably illegal to carry in public in Connecticut, and in Westland, Michigan, a suburb of Detroit with population nearly 100,000. They are illegal to carry concealed in Milwaukee.

Non-citizens are legally barred from possessing irritant sprays in Massachusetts; so are people who aren’t Massachusetts residents. Minors, even 16- and 17-year-olds, may not possess irritant sprays in Maryland, New Jersey, New York, and Washington, D.C. It’s illegal for felons, even nonviolent felons, to possess irritant sprays in Florida, Massachusetts, New Jersey, and New York.

It’s illegal to possess irritant sprays on college and university property in New Jersey, unless the possessor gets written authorization from the governing officer of the college or university. It’s illegal to possess irritant sprays in public parks in San Jose (California), Brevard County (Florida), and several smaller towns. It’s illegal to possess irritant sprays on buses in Fresno (California); this means that people who ride the bus to work or elsewhere can’t lawfully carry irritant sprays to protect themselves at their destination.

Possession of irritant sprays is also forbidden by campus policy, though not by criminal law, in the University of Massachusetts at Dartmouth, Wayne State University in Detroit, University of Pittsburgh at Johnstown, and several other public universities. This includes people’s dorm rooms, so in practice someone who lives at one of those schools would be unable to have pepper spray even if he plans to use it only off-campus.

Much has been written, both by scholars and by judges and legislators, about the use of deadly force in self-defense and defense of others. But nonlethal self-defense is largely unrestricted, and largely undiscussed by the academic literature. Bans on nonlethal weapons are the main form of restriction on nonlethal self-defense, yet scholars have almost entirely ignored them.

This Article aims to fill that gap. Part II will consider whether nonlethal weapon bans are a good idea. It will discuss why people might want to defend themselves with nonlethal weapons, and why some people might reasonably choose stun guns over irritant sprays while others might reasonably make the opposite choice. It will also consider why the law might want to restrict nonlethal weapons. Nonlethal weapons may indeed be used in crime, and might sometimes be used even if lethal ones are not, for instance if a robber decides to take an “always stun first” approach, or if someone wants to torture someone else with a stun gun or pepper spray as part of a criminal plan or as a juvenile prank. Nonetheless, I’ll argue that the bans’ interference with self-defense is too great, and their likely interference with crime too small, to justify such bans, whether as to adults, as to older minors, or as to nonviolent felons.

Stun gun bans

State	Stun guns banned?	Guns allowed?	Gun concealed carry allowed (age 21+)?	Const. right to bear arms?	Const. self-defense right?	Religious exemption regime?
Conn.	Carrying banned	Yes	Yes	Yes		Yes
D.C.	Banned	Yes		Yes		Yes
Del. (Wilmington)	Banned	Yes		Yes	Yes	Uncertain
Haw.	Banned	Yes		Uncertain		Uncertain
Ill.	Carrying banned	Yes		Yes		Yes
Ind. (South Bend)	Banned	Yes	Yes	Yes		Yes
La. (New Orleans)	Banned	Yes	Yes	Yes		Uncertain
Md. (Annapolis/Baltimore area)	Banned	Yes
Mass.	Banned	Yes			Yes	Yes
Mich.	Banned	Yes	Yes	Yes		Yes
N.J.	Banned	Yes			Yes
N.Y.	Banned	Yes				Yes, midlevel scrutiny
N.C.	Concealed carrying banned	Yes	Yes	Yes		Yes
Ohio (Akron)	Banned age 18-to-20, police discretion for others	Yes	Yes	Yes	Yes	Yes
Pa. (Philadelphia)	Banned	Yes	Yes	Yes	Yes	Yes
R.I.	Banned	Yes		Yes		Yes
Wis.	Banned	Yes		Yes		Yes

Part III shifts from a pure policy analysis to a constitutional analysis. Part III.A discusses the right to bear arms. At least 40 states have clearly self-defense-based right to bear arms provisions, and they include most of the no-stun-gun or partial no-stun-gun states. The Second Amendment applies in the District of Columbia and, by federal statute, in the Virgin Islands; it may also eventually be incorporated against the states via the Fourteenth Amendment. I will argue that “arms” should be interpreted to cover nonlethal personal defense weapons as much as lethal ones, and that the right to bear arms should preclude stun gun bans and irritant spray bans.

Part III.B argues that these bans should also be treated as unconstitutional under the right to defend life, which is likely implicitly recognized by the U.S. Constitution and which is explicitly recognized in 21 states, including the no-stun-gun or partial no-stun-gun states of Delaware, Massachusetts, Ohio, New Jersey, and Pennsylvania. This express state constitutional right has been almost entirely ignored by scholars; but courts have rightly treated it as legally binding.

And the right to defend life, I will argue, should be read — like other rights — as including the right to possess devices that are necessary to effectively engage in self-defense. The right to decide whether to beget children protects the right to use contraceptive devices to better implement one decision. The right to protect property, expressly secured by all the states that also secure a right to defend life, has been read as including the right to use devices (such as weapons or traps) to stop animals that are consuming one’s crops. The First Amendment presumptively protects the right to associate, to spend money, and to use technological devices (such as telephones, amplifiers, and the like) to make one’s expression effective. Likewise, the right to defend life should protect the right to use nonlethal devices that help effectively defend life.

Finally, Part III.C focuses on people who have a religious or conscientious objection to the use of deadly force, and who find themselves in contexts where deadly force is legal but religiously forbidden and stun guns or irritant sprays are religiously permitted but illegal. I will argue that such people should have a religious exemption from the nonlethal weapon bans, just as (for instance) Sabbatarians have a religious exemption from the requirement that they be willing to work Saturdays to be eligible for unemployment benefits.

This will not happen under the Free Exercise Clause: The Court held in Employment Division v. Smith that the Free Exercise Clause generally doesn’t require the government to grant religious exemptions from generally applicable laws. But most of the jurisdictions that restrict nonlethal weapons have statutes or state constitutional provisions that nonetheless presumptively require religious exemptions.

[Notes: I use “stun gun” as the generic term, but the main stun guns now available are so-called Tasers, and the Taser Corporation is the main supplier. Modern stun guns shoot two wires tipped with barbed darts up to 15 feet; the darts deliver an electric shock that promptly immobilizes the target (as well as inflicting severe pain). The stun guns also work when put in direct contact with the target’s body.

The exact risk posed by stun guns is unclear, but the most recent study, William P. Bozeman et al., Safety and Injury Profile of Conducted Electrical Weapons Used by Law Enforcement Officers Against Criminal Suspects, ANN. EMERG. MED. (forthcoming 2009), reports no deaths caused by stun gun use in 1201 consecutive uses of stun guns by three police departments, and only 3 moderate or severe medical reactions, none leading to long-term harm. The study reports that two of the targets did “die[] unexpectedly while in police custody,” but concludes that stun gun use “was not determined to be causal or contributory to death by the medical examiner in either case.” An Amnesty International report, ‘Less Than Lethal’? The Use of Stun Weapons in US Law Enforcement (2008), reports that “in at least 50 cases [since June 2001], coroners are reported to have listed the Taser as a cause or contributory factor in the death.” But this seems to be out of over 600,000 field uses against suspects since 1998. This is why Amnesty agreed “that, overall, the death rate compared to the number of reported Taser field uses is relatively low,” though it argued that “Tasers are used in many situations where the degree of force deployed is unwarranted, and considers that any risk of death resulting from the use of excessive or unnecessary force is unacceptable.”

By way of comparison, the death rate from gunshot wounds caused in deliberate assaults on others is likely about 20%, and from knife wounds caused in deliberate assaults on others is likely about 2% (I say “likely” because such statistics are of course highly imprecise, especially since not all wounds are reported to the authorities). Of course all attacks are potentially deadly; pushing someone may cause him to fall the wrong way and die. But stun guns are so rarely deadly that they merit being labeled non-deadly, especially in comparison to firearms and knives. Cf. MODEL PENAL CODE § 3.11 (defining “deadly force” as “force which the actor uses with the purpose of causing or which he knows to create a substantial risk of causing death or serious bodily injury”).]