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.
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.
|State||Stun guns banned?||Guns allowed?||Gun concealed carry allowed (age 21+)?||Const. right to bear arms?||Const. self-defense right?||Religious exemption regime?|
|Ind. (South Bend)||Banned||Yes||Yes||Yes||Yes|
|La. (New Orleans)||Banned||Yes||Yes||Yes||Uncertain|
|Md. (Annapolis/Baltimore area)||Banned||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|
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”).]
Related Posts (on one page):
- Nonlethal Weapons and the Right To Defend Life:
- More on the Right To Bear Arms and Nonlethal Weapons Bans:
- Constitutional Objections to Nonlethal Weapons Bans:
- Laws That Ban Nonlethal Weapon Possession by Felons:
- Minors with Stun Guns and Sprays, Oh My!
- Laws That Ban Both Possession or Carrying of Stun Guns and of Handguns (and Sometimes of Irritant Sprays):
- Avoiding Nonlethal-Weapon Crime as Justification for Restricting Nonlethal Weapons Even When Firearms Are Allowed:
- Why Some People May Reasonably Prefer Nonlethal Weapons Over Guns:
- Nonlethal Self-Defense, Nonlethal Weapons, and the Rights To Keep and Bear Arms, Defend Life, and Practice Religion: