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Nonlethal Self-Defense, Nonlethal Weapons, and the Rights To Keep and Bear Arms, Defend Life, and Practice Religion:

My article on this subject will be coming out next year in the Stanford Law Review, and I thought I'd preview it on the blog (with the journal's permission). I hope you folks find it interesting, and I'd very much like to have people's comments, criticisms, and suggestions while there is still plenty of time to work them in. Let me begin with the Introduction, with the footnotes largely omitted; for the footnotes, the Appendix listing the various statutes, ordinances, and rules that I refer to, and for the body of the paper, see here.

* * *

Owning a stun gun is a crime in seven states — Hawaii, Massachusetts, Michigan, New Jersey, New York, Rhode Island, and Wisconsin — plus New Orleans, Philadelphia, South Bend (Indiana), the Virgin Islands, Washington, D.C., Wilmington (Delaware), and three counties surrounding Annapolis and Baltimore. In Illinois, possessing a stun gun in a public housing project is a crime. In Akron, Ohio, 18-to-20-year-olds aren’t allowed to possess stun guns. Connecticut allows home possession of stun guns, but ban carrying them in public; North Carolina and Omaha ban concealed carrying.

Yet in all these jurisdictions, people are free to possess guns at home. In some — Connecticut, Michigan, North Carolina, New Orleans, Omaha, Philadelphia, and South Bend — pretty much any law-abiding adult over age 21 is even entitled to a license to carry a concealed handgun in public. In North Carolina, Wisconsin, and New Orleans, no laws bar any adult from carrying a gun openly even without a license.

So in those jurisdictions, killing devices are fine. But say you have religious or ethical objections to killing, or fear that you’ll be emotionally unable to pull the trigger on a gun, or don’t want to risk accidentally killing an innocent bystander, or don’t want to risk having your children get their hands on a deadly weapon. Not wanting to kill, and knowing that modern stun guns pose at most a very small risk of death, you get a stun gun instead of a handgun (something that over 130,000 civilians have apparently done). Then you’re a criminal.

In other contexts, firearms are restricted as much as stun guns are, so stun gun bans leave people unable to defend themselves either with stun guns or firearms. This is so

  • in public places in those no-stun-gun jurisdictions (such as New York) that also generally ban carrying concealed firearms;
  • on public streets in Illinois;
  • for 18-to-20-year-olds in public places in all the no-stun-gun jurisdictions, since even those jurisdictions that freely grant licenses to carry concealed firearms (such as Michigan and Pennsylvania) generally don’t grant such licenses to 18-to-20-year-olds;
  • for aliens admitted under a nonimmigrant visa in Illinois, which can include long-term residents, such as students and workers let in because of their special skills (for instance, foreign lawyers who live in the U.S. and who are allowed to work here because of their knowledge of foreign law);
  • for 18-to-20-year-olds in Illinois, even at home, if their parents refuse to give permission, if their parents are dead, if their parents are felons, or if their parents are nonimmigrant aliens;
  • for university students on Georgia and North Carolina campuses (including in their own homes in campus dorms), and on California campuses unless they have written permission from the university;
  • for people staying in Louisiana domestic violence shelters;
  • for minors, even ones old enough to use the deadly devices known as automobiles, in public places in all the no-stun-gun jurisdictions plus Arkansas, Indiana, Minnesota, New Hampshire, Las Vegas, and probably San Francisco and Oakland;
  • for 16- and 17-year-old minors even at home, in Massachusetts and Minnesota;
  • for under-16-year-old minors in Hawaii, New Jersey, Annapolis, Baltimore, and New York City; and
  • for felons (even nonviolent felons) in all the no-stun-gun jurisdictions plus Connecticut, Florida, Minnesota, New Hampshire, Pennsylvania, and Las Vegas are barred from having access either to stun guns or firearms, which also means that people who live with felons may find it dangerous to possess either weapon.

My Middle Name Is Ralph:
"and Practice Religion"??? Of course, I would have to read the entire article, but the "practice religion" part seems like quite a stretch; almost like you're trying to sneak an argument for non-lethal weapons onto a popular principle of freedom of religion.
4.15.2009 7:18pm
Shelby (mail):
Have there been any instances of stun guns being used in aid of a crime? Do proponents of stun-gun bans argue that criminals who do not want to risk using a gun for a crime, will use a stun gun because of easier availability/reduced liability if caught/moral qualms about killing? If not, what are the principal arguments advanced in support of stun-gun bans?

EV -- your paper may address these questions, though a quick glance suggests it only mentions them hypothetically. I thought such a discussion might shed light on the legislative background for such laws. Nevertheless, if this comment is too off-topic, feel free to delete.
4.15.2009 7:25pm
My Middle Name Is Ralph:
I posted too quick. I had missed the extended text and after reading the rest of your introduction see where you're going. Should be an interesting read.
4.15.2009 7:50pm
Doc W (mail):
I suspect the anti-gun pols get away with picking on stun guns because mainline pro-rights groups like the NRA have been unwilling to divert much capital away from defending access to actual firearms. If the Heller decision gets upheld as applying to the states, then it may become relatively easy to overturn bans on non-lethal weapons, for the obvious reasons.
4.15.2009 7:55pm
Titus Andronicus:
Exactly which religious groups prohibit carrying a lethal weapon (even if the carrier would intend to use it in a non-lethal manner) but permit carrying stun guns?
4.15.2009 8:36pm
BZ (mail):
I love the citation to Firefly. Is this a favorite episode or did you have someone search to get the quotes?

I might also have considered citing two Babylon 5 episodes: the one with the order of monks, and the one with the odd telepath's non-violence. But those examples are both much more distant from your points. I just liked the show better than Firefly.

A good article.
4.15.2009 8:46pm
einhverfr (mail) (www):
Good review. I will have to read the article.

Just one point:

for aliens admitted under a nonimmigrant visa in Illinois, which can include long-term residents, such as students and workers let in because of their special skills (for instance, foreign lawyers who live in the U.S. and who are allowed to work here because of their knowledge of foreign law);


Last I checked fiance visas were classed as nonimigrant too (basically you have to get married or leave). So, does this mean that someone admitted with an I-129F fiance visa may NOT possess a stun gun in Illinois, but someone admitted with a spouse immigrant visa could? In short, get married internationally, rather than here? Wouldn't that be entirely arbitrary?
4.15.2009 9:17pm
einhverfr (mail) (www):
The fiance visa is a strange beast, being a non-immigrant visa providing conditional permission to immigrate. So such folks are admitted into the US as non-immigrant visas but convert status after getting here and getting married. So my reading of the letter of the Illinois law is that it treats spouse visas (immigrant visas) and fiances who get married here via fiance visas wholely differently.

Would that survive a due process challenge?
4.15.2009 9:28pm
RowerinVa (mail):
Is the reason for stun gun bans related to a perception that they are tools for harassment and sexual assault, in a way that guns aren't? College kids have been known to do drive bys (really, run bys) of zapping the local townsfolk or each other, and there are rumors of these things being used to stun women for sexual assault purposes (I have no idea whether the rumors are true). College kids don't usually want to shoot the townsfolk, and rapists don't usually want their victims dead, so it could be perfectly rational to ban the stun guns and not ban lethal firearms. Is that behind the ban?
4.15.2009 9:49pm
FredR (mail):
"Connecticut and North Carolina allow home possession of stun guns, but ban carrying them in public"

I believe you're in error on this -- NC only bans carrying them on school property so far as I can see.
4.15.2009 11:06pm
Larrya (mail) (www):
Is the reason for stun gun bans related to a perception that they are tools for harassment and sexual assault, in a way that guns aren't?
There’s a Taser regulation bill in the Texas Legislature right now. According to the author’s press release it’s to protect law enforcement.

“San Antonio, TX - Representative Trey Martinez Fischer (San Antonio) called for safer TASER use by filing H.B. 1535. H.B. 1535 will monitor, train and require registration for Texans who use TASERs.

"The San Antonio Police Department brought this bill to me because they are concerned about the nature of this weapon and its anti-law enforcement implications," said Representative Martinez Fischer. "We owe it to our law enforcement to ensure that Texans register their TASERs and have the proper training to use these weapons responsibly."

"San Antonio Police Officers are trained and required to meet certain standards before being able to carry a TASER. We strongly believe the public should meet certain requirements and standards as well," said Teddy Stewart, President of the San Antonio Police Officers Association.

Stunning with a TASER sends 50,000 volts throughout the body incapacitating its target. A TASER poses a significant threat to law enforcement because it can't be defended against. Guns and bullets are more lethal but bulletproof vests can provide some protection. As Representative Martinez Fischer points out, "Electricity can't be stopped. No practical amount of body armor will keep an electrical charge from immobilizing a police officer. TASERs are weapons and I don't want to see them used against police officers or people to commit crimes."

In related news, HB 3023 would establish a moratorium where law enforcement agencies and peace officers could not purchase or use stun guns or Tasers until 2011. HB 2953 prohigits use of stun guns and Tasers by school personnel in elementary through junior high school.
4.16.2009 4:48am
pintler:

Have there been any instances of stun guns being used in aid of a crime?


I have heard of 'you wallet or I stun you' crimes (sorry no cite, it has been several years).

N.b. for the specific case of Tasers, there are fairly robust measures to prevent misuse - background checks, discharging serial numbered confetti when fired, etc (not to mention the price). You could still misuse one as a contact weapon, of course.

For other brands, do they actually work? I've gotten zapped by them in classes, and they had all the deterrent power of a bee sting.
4.16.2009 9:49am
KR Training (mail) (www):
You are still using the wrong words to describe these weapons. "Non lethal" misleads the reader into believing that these weapons are absolutely incapable of causing death. This perpetuates a dangerous myth that affect the way the public perceives the use of these weapons by law enforcement and by private citizens, no different from stating that cops should try to shoot someone in the arm or the leg. By using the wrong term this makes you part of the problem, not part of the solution. Why the refusal to correct your language when multiple commenters corrected this in reaction to your previous post regarding this upcoming paper?

The technically correct term is "less lethal". Each time the term "non lethal" is incorrectly used to describe these weapons it only adds to the difficulties law enforcement agencies and officers (and self defense trainers and citizens using these weapons) face in explaining their use to the uneducated and untrained.
4.16.2009 10:00am
HT4:
Eugene, I was unaware Delaware banned stun guns. Do you have a cite to the relevant law?
4.16.2009 11:10am
will47:
HT4: Try Del. Code Ann. tit. 11, § 222.
4.16.2009 12:46pm
FredR (mail):
I've looked thru the NC statutes applicable to firearms and can find only two specific references to stun guns. One defines them as a weapon and lumps them in with firearms, which means you can't carry one concealed, and the other prohibits carrying them on educational grounds (schools).

Other than that there seems to be no specific prohibition.

The NC AG has a nice summary of NC gun laws at (pdf file):

www.jus.state.nc.us/NCJA/ncfirearmslaws.pdf
4.16.2009 5:04pm
einhverfr (mail) (www):
KR:

In your view is there such a thing as a non-lethal weapon? If so, please name one. I think non-lethal is a perfectly good term.
4.16.2009 9:12pm
HT4:

HT4: Try Del. Code Ann. tit. 11, § 222.


I took a look but that does not help. A "neuro-muscular incapacitation device" is part of the definition of a "dangerous instrument." But "dangerous instruments" are not banned (just their use in crimes).

I assume since Eugene said stun guns were only banned in Wilmington, that it must be some city regulation.
4.16.2009 9:32pm
Eugene Volokh (www):
HT4: The Wilmington ban is indeed a city code provision; I have a cite in the Appendix to my article.

FredR: Very sorry; I should have noted that North Carolina bans concealed carry (which does indeed substantially interfere with the ability to carry, though doesn't entirely prohibit it). Fixed it, thanks.
4.16.2009 9:59pm
HT4:
Thanks. I got the cite. I also noticed that Wilmington bans "Armor Piercing Bullets," defined generally as bullets with a teflon coating. I will never cease to be amazed at how uninformed our legislators can be.
4.17.2009 12:55pm

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