Constitutional Objections to Nonlethal Weapons Bans:

(As usual, for more, including citations, please read the draft article.)

Stun gun and irritant spray bans, I have argued, are a bad idea. The few jurisdictions that have them should largely repeal them (at least setting aside narrow exceptions such as for young children and violent felons). The many jurisdictions that don’t have them shouldn’t enact them.

But the arguments I gave aren’t just policy arguments. They are also constitutional arguments, under the federal and state constitutional rights to keep and bear arms and under the right to defend life that is secured by many state constitutions. And they may be constitutional or statutory arguments under state religious freedom provisions, if those provisions are raised by people who have religious objections to using deadly force in self-defense.

To begin with, let us consider the right to keep and bear arms in self-defense. This right is secured by the constitutions of Connecticut, Delaware, Illinois, Indiana, Louisiana, Michigan, North Carolina, Pennsylvania, Rhode Island, and Wisconsin (as well as of at least 30 other states that aren’t relevant here because they and their subdivisions don’t ban stun guns or irritant sprays). To quote the Michigan provision, for instance, “Every person has a right to keep and bear arms for the defense of himself and the state.”

In federal enclaves, such as D.C., this right is secured by the Second Amendment. In the Virgin Islands, it is secured by the Virgin Islands Bill of Rights. And if the Court concludes that the Second Amendment is incorporated via the Fourteenth Amendment, then the right to keep and bear arms in self-defense would be secured throughout the nation even against state and local laws.

As I suggest elsewhere, there are four kinds of possible justifications that would make particular weapons control laws constitutional notwithstanding a right to bear arms in self-defense: (1) The law might restrict activity that is outside the scope of the right, as defined by the text, original meaning, tradition, or background legal principles. (2) The law might not substantially burden the ability to defend oneself using arms. (3) The law might be justified because it materially reduces a sort of danger that is greater than the danger that normally attends exercise of the right. (4) The law might be justified because the government is controlling behavior on or using its own property.

The government-as-proprietor arises for some of the restrictions -- on possession in public housing, universities, dorm rooms, parks, and buses -- but I speak more about those general issues elsewhere. The substantial burden and reducing danger arguments are covered in the policy discussion of Part II; those would apply equally to the constitutional argument I discuss here. The remaining questions have to do with what I’ve labeled scope arguments. The scope of the term “arms”: The first question is whether stun guns and irritant sprays should be treated as “arms” for constitutional purposes. Such weapons were historically unknown when all but the most recent right-to-bear-arms provisions were enacted, but D.C. v. Heller expressly rejected the view “that only those arms in existence in the 18th century are protected by the Second Amendment.” Instead, Heller held, “Just 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.”

Some early courts concluded that right-to-bear-arms guarantees covered only weapons “usually employed in civilized warfare,” distinguishing such protected arms from unprotected weapons that “are employed in quarrels and brawls and fights between maddened individuals.” And stun guns and pepper spray of course aren’t usually employed in warfare.

But, as Heller pointed out in rejecting this civilized-warfare test, “arms” in the late 1700s generally meant “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.” This includes purely civilian defensive weapons, which makes sense given Heller’s holding that the right protects arms used for self-defense, and the relevant state constitutions’ protection of arms for self-defense.

Heller does limit “arms” to weapons that are “of the kind in common use,” and excludes “weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.” Many state cases have used similar definitions. But, as I argue elsewhere, this definition arose in cases involving weapons that were seen as unusually dangerous, not unusually safe. In particular, Heller reasons that the “limitation is fairly supported by the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons’” -- something that suggests that weapons that are less dangerous than protected ones, though still unusual, would indeed be outside the limitation and would thus be constitutionally protected.

Thus, I think that the Oregon courts -- and some other recent authorities -- are right in concluding that weapons such as knives and billy clubs, which are less lethal than guns, should be considered arms alongside guns. A fortiori, stun guns and irritant sprays should be covered as well. And this interpretation has the merit of following function, as I noted above: Stun guns and irritant sprays are indeed useful “arms” for “defense of [one]self.”

Only one case expressly considers whether bans on such nonlethal weapons violate the right to bear arms, People v. Smelter, 437 N.W.2d 341 (Mich. Ct. App. 1989), and here is Smelter’s entire analysis:

Third, defendant claims that the statute prohibiting the possession of stun guns impermissibly infringes on defendant's right to keep and bear arms for his own defense. We disagree. Const. 1963, art. 1, § 6 provides:

“Every person has a right to keep and bear arms for the defense of himself and the state.”

The right to regulate weapons extends not only to the establishment of conditions under which weapons may be possessed, but allows the state to prohibit weapons whose customary employment by individuals is to violate the law. [People v. Brown, 235 N.W. 256 (Mich. 1931) (upholding a ban on carrying blackjacks).] The device seized from defendant was capable of generating 50,000 volts. Testimony in the lower court established that such weapons can not only temporarily incapacitate someone but can result in temporary paralysis. Our Supreme Court in Brown explained that the power to regulate is subject to the limitation that its exercise be reasonable. We conclude that the Legislature’s prohibition of stun guns is reasonable and constitutional.

The court appears to reason that stun guns’ “customary employment by individuals is to violate the law,” and that therefore the regulation is “reasonable.” Presumably the theory is similar to Heller’s view that the right to bear arms doesn’t protect “weapons not typically possessed by law-abiding citizens for lawful purposes.”

But I know of no evidence that stun guns were customarily used to violate the law in the late 1980s; neither the opinion nor the briefs offer such evidence. And it seems especially unlikely that there is any such evidence today. Stun guns, like handguns and other weapons, are today used both by law-abiding citizens and by criminals. And they are especially useful to law-abiding citizens, precisely because law-abiding citizens are more likely to comply with bans on gun carrying, and will therefore need an alternative defensive weapon.

(In Harris v. State, 432 P.2d 929 (Nev. 1967), defendant claimed a Second Amendment defense to a charge of illegal possession of a tear gas pen; but the court held, following United States v. Cruikshank, 92 U.S. 542 (1875), that the Second Amendment didn’t apply to the states, and the Nevada Constitution didn’t then have a right-to-bear-arms provision. State v. Delgado, 692 P.2d 610, 614 n.8 (Ore. 1984), notes the view that “it is incongruous to believe that a woman today to defend herself from a rapist would have constitutional sanction for carrying a switch-blade knife but not for the can of mace because the latter was unknown to the mid-nineteenth century,” but doesn’t discuss it in detail because the case itself involved knives and not irritant sprays.)

[More to come in the coming days.]

How about a different approach? Instead of considering what the Constitution prohibits the government from doing, why not look at how little it allows? Article One Section Eight grants Congress the power

"To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof."

State constitutions usually have a similar clause.

Why not simply argue that if a law is useless, it's unconstitutional because it's unnecessary and Congress has no authority to make unnecessary laws?

Granted, the Court will talk about "deference to the legislature," but that's just issue-dodging on its part.
4.21.2009 1:08pm
Eugene Volokh (www):
PersonFromPorlock: (1) I'm trying to write about the law as it actually is, and as it plausibly could be -- if my article rested on a rejection of the broad scope of Congressional power that has been accepted since 1937, it wouldn't be terribly useful.

(2) None of the laws I discuss are federal laws that apply within states; the only federalish laws are the D.C. and Virgin Islands laws, which are enacted by local legislatures that get their powers from Congress via the District Clause (the one that says "To exercise exclusive Legislation in all Cases whatsoever," not "necessary and proper") and the Territory Clause (which does say "all needful Rules and Regulations," but which I doubt was understood as imposing a judicially enforceable "needfulness" constraint).

(3) State constitutions are generally not framed as giving the government only limited powers (the way the federal ways); rather, the state generally has plenary powers, subject only to the express constitutional constraints. But perhaps there are some state constitutional provisions I'm missing here -- can you point me to them, please?
4.21.2009 1:25pm
Sk (mail):
Swords? Brass knuckles? Lasers capable of blinding?

4.21.2009 1:52pm
EV: (1) I know I'm making an idealistic argument here but I feel it has to be made, if only for the long-term effect it may have. If legal scholars made it often enough it might eventually affect the courts. Consider how decades of Second Amendment scholarship eventually resulted in Heller.

(2) I made an assumption about state constitutions and, well, "assume means...." It might be interesting to try writing a 'necessary and proper' clause into the several state constitutions, though: I think you'd find that most people think one's there already. Something for the 'Tea' Party to do?
4.21.2009 1:58pm
The Original TS (mail):

Very interesting post. Post-Heller, it is very difficult to argue with your core premise. It seems beyond dispute that governments have a much lesser interest in banning pepper spray than in banning handguns. Allowing the greater "evil" while banning the lesser is suspect on both policy and constitutional grounds.

Arguably, you do not go far enough. Speaking for myself, I'd be just thrilled if violent felons were to abandon their handguns for pepper spray!
4.21.2009 2:47pm
Allan Walstad (mail):
I should hope that any "government-as-proprietor" justification must be narrow indeed, and generally needing to pass both a "special danger" and a "sufficient protection" test. In a courthouse, for example, it may be argued that the nature of many of the activities--prisoners being escorted, sentences being handed down, applications possibly denied, etc poses an extra likelihood of violent reactions or attack unless private firearms are excluded, while at the same time the armed police presence, metal detector at the door, etc, obviates the need for individual self-defense. But parks?

Dorm rooms are an interesting case. I think it can cogently be argued that the dorm environment does not allow sufficient opportunity for individuals to maintain control over firearms, to prevent their theft and misuse by others. The same might apply to other weapons, but at some point with non-lethal weapons the needs of self-defense ought to win out. Like, if my roommate's drinking buddy snatches my pepper spray and zaps somebody, the likelihood of death is relatively small while the severity of punishment can be high.

Unlike in early America, today we have very extensive professional police forces in well-populated areas, but they still can't be everywhere at once. (Nor do I suppose I'd want them to be.) It seems to me that the significance of the militia clause, aside from defense against tyranny, should be understood as protecting the ability of armed citizens to defend themselves and come to the aid of others against criminal attack, during the period of time until the professional forces can arrive and take over. Professional police and organized military units have taken over the role of the organized militia in defending against external attack, insurrection, etc. But the role of the unorganized militia--armed citizens engaging in self-defense and mutual aid until police can arrive--remains as relevant as ever. It is in that context that I believe many issues involving the Second Amendment should be addressed.
4.21.2009 3:35pm
Clayton E. Cramer (mail) (www):

I know I'm making an idealistic argument here but I feel it has to be made, if only for the long-term effect it may have. If legal scholars made it often enough it might eventually affect the courts. Consider how decades of Second Amendment scholarship eventually resulted in Heller.
But it wasn't because we made claims about how we wanted the Second Amendment to be, but because we found evidence to support those claims. Prof. Volokh is correct: I am unaware of any state constitutions that have a limitation on state power equivalent to Art. I, sec. 8.

States have had enormous authority under the police power to regulate all sorts of things, as long as they spoke the magic phrase "public health and safety" and did not openly violate a specific provision of the state or federal constitution. I'm not keen on that kind of nearly unlimited authority, but the only real solution is to move somewhere where libertarians are either a sizable minority or a majority (i.e., into a science fiction novel).
4.21.2009 5:05pm
Clayton E. Cramer (mail) (www):
Another point worth considering is that the "civilized warfare" argument was developed to deal with weapons that would never be confused with "less lethal" weapons, such as Bowie knives, Arkansas toothpicks, sword-canes, and the like. These were weapons that didn't just injure you, or kill you, but often eviscerated a person, making a bloody mess. No comparison at all to pepper spray.

In addition, as my book Concealed Weapon Laws of the Early Republic points out, much of this "civilized warfare" argument is really an outgrowth of a serious social problem related to honor violence and dueling. It's relevance to modern conditions is quite a bit more removed.
4.21.2009 5:10pm

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