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Nonlethal Weapons and the Right To Defend Life:

(As usual, please see the article draft for more details.)

Twenty-one state constitutions expressly secure a right to "defend[] life." The states with such a provision include the no-stun-gun or partial no-stun-gun jurisdictions of Delaware, New Jersey, Ohio, and Pennsylvania, as well as Massachusetts, which both entirely bans stun guns and bans possession of pepper spray by people who aren't U.S. citizens and people who aren't Massachusetts residents. To quote the Pennsylvania provision, to which the others are very similar,

All men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness.

The "defending life" and "protecting property" provisions have been read as securing a judicially enforceable right, including in many Ohio and Pennsylvania cases. And it's possible that the right to defend life is implicitly guaranteed by the federal Due Process Clause or the Ninth Amendment.

For the reasons discussed in Part II, nonlethal weapon bans substantially burden people's right to "defend[] life and liberty," because they take away a device without which defending life and liberty becomes much harder. And as with other constitutional rights, such a substantial burden should be treated as presumptively unconstitutional. (I discuss this in much more detail in a new article I'm working on, tentatively titled Facilitative Constitutional Rights.)

Consider, for instance, contraceptive bans, which deny people devices for preventing contraception but leave people free to use device-less techniques such as the rhythm method. The availability of the rhythm method doesn't keep the bans from being burdens on people's right "to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." The right to control one's reproduction is implicated not just by overt prohibitions on begetting (or on not begetting), such as the mandatory sterilization at issue in Skinner v. Oklahoma. It is also implicated by bans on those devices that make such begetting (or not begetting) much more effective, since such bans substantially burden the exercise of the right. The same logic should apply to bans on those devices that make defending life much more effective.

Likewise, the freedom of speech includes the freedom to use physical devices, such as telephones, the Internet, loudspeakers, and the like in order to speak, because they too are important devices for making speech effective. [See, among many other cases, Ward v. Rock Against Racism, 491 U.S. 781, 796, 802 (1989) (applying First Amendment scrutiny to a content-neutral restriction on the use of sound amplification equipment, and upholding it only on the grounds that the law was "narrowly tailored to serve a significant governmental interest," and "le[ft] open ample alternative channels of communication," including the use of amplified sound with some "regulati[on] of the extent of amplification").] And, similarly, the right to defend property -- a close cousin of the right to defend life -- has been read by courts to include the right to use devices to kill wild animals that have been destroying one's property. No-one suggests that the right allows one to kill moose, but only with one's bare hands, just as no-one suggests that the right to control one's reproduction protects only device-free contraceptive techniques and not condoms. The right to defend life should similarly be interpreted as presumptively including the right to use those devices needed to make self-defense especially effective.

More broadly, courts have routinely recognized that various rights are unconstitutionally burdened by laws banning behavior that is needed to exercise those rights effectively. The freedom of speech presumptively protects the freedom to associate for expressive purposes, precisely because association is an important device for making speech effective. The freedom of speech presumptively protects the freedom to spend money in order to speak, because spending money is an important device for making speech effective.

Likewise, the right to hire a lawyer, the right to educate one's children, and the right to get contraceptives or an abortion, also presumptively protect the freedom to spend money to exercise the right. Just as "the right to counsel is the right to the effective assistance of counsel," so other rights are the rights to more than just some opportunity to speak, to choose not to beget children, to educate one's child, or to defend life. They are the rights to do so effectively -- to be presumptively free of substantial burdens on the right, burdens that materially interfere with the rightsholder's ability to accomplish the purpose for which the right is secured.

Of course, these rights are not unlimited in scope. For instance, though courts have held that the right to speak often includes the right to use loudspeakers, it might not include the right to use loudspeakers that are excessively distracting (for instance when they're used at night, or are too loud). Likewise, the right to spend money to speak may sometimes be trumped by compelling interests in preventing quid pro quo corruption.

Similarly, one can argue that the right to defend life does not include the right to possess deadly weapons, precisely because those weapons pose special dangers of death well beyond the dangers inherently posed by the recognition of self-defense (even deadly self-defense) as a defense to a charge of homicide. A court may conclude that a right that is so dangerous must be expressly secured through a right-to-bear-arms provision, rather than implicitly found in a provision protecting the defense of life or liberty.

But when it comes to nonlethal weapons, the extra danger of crime posed by their possession is not particularly great, for the reasons discussed in Part II. And the burden on the right to defend life posed by bans on nonlethal weapons is great indeed, likewise for reasons that Part II canvasses. So the general principle outlined above should apply: The right to defend life should include the right to possess the nonlethal weapons needed for effective self-defense, much as other rights include the right to possess and use similar devices needed to effectively exercise those rights.

The right to defend life, as applied to possession of nonlethal weapons, should also cover minors and felons who have finished serving their sentence. There is no case holding that felons lack the right to defend life. In fact, a few cases have read the right to defend life as justifying even felons' picking up firearms in an emergency (though not possessing firearms in ordinary life, in expectation that they might eventually be needed). Nor are there cases holding that minors lack this right; and there would probably be less pressure on courts to so hold, when the right involved is not as closely linked to the possession of deadly weapons as the right to bear arms is. So the arguments made in Parts III.A.4 and III.A.5 as to the right to bear arms should apply to the right to defend life, but even more strongly.

Jon Roland (mail) (www):
It is important to look past the statutes to the underlying politics that drives the adoption and enforcement of them. Such statutes prohibiting nonlethal (or lethal) weapons is not to protect civilians from other civilians. They are to protect police from civilians. It is police who lobby for such legislation, because they want a regime in which they have a monopoly on the means and use of armed force, and in which they can arrest anyone having the means of self-defense. Police always want a legal cover to arrest and prosecute anyone they don't like, for whatever reason. It is all about maintaining control of an unruly populace.

The level and severity of police abuse is inversely proportional to the likelihood that civilians will be able to protect themselves from police abuse.

That is why police in Massachusetts got a statute banning civilians from videorecording their activities. That is to protect themselves from prosecution for abuse, in the unlikely event that Massachusetts prosecutors or courts would allow a prosecution of police for any abuse, no matter how atrocious.
4.22.2009 1:12pm
J. Aldridge:
No one possesses absolute natural rights because there would be no means for humans to preserve order among themselves. If there is no law that says no one may defend themselves than that is the right to defend oneself because there is no opposing law. Under our system of liberty you do not need laws declaring "rights." You don't need to make wild 2A arguments for a right, and when you do, its only because you disagree with some law and want the courts to intervene to make the law go away instead of using the ballot box.
4.22.2009 1:37pm
Eli Rabett (www):
Don't look at Eli cross-eyed.
4.22.2009 1:38pm
Uh_Clem (mail):
Pennsylvania, as well as Massachusetts, which both entirely bans stun guns and bans possession of pepper spray by people who aren't U.S. citizens and people who aren't Massachusetts residents.

Does anyone else think it's odd that Pennsylvania only allows Massachusetts residents to possess pepper spray?

Who'd have guessed?
4.22.2009 2:14pm
Bruce Hayden (mail):
No one possesses absolute natural rights because there would be no means for humans to preserve order among themselves. If there is no law that says no one may defend themselves than that is the right to defend oneself because there is no opposing law. Under our system of liberty you do not need laws declaring "rights." You don't need to make wild 2A arguments for a right, and when you do, its only because you disagree with some law and want the courts to intervene to make the law go away instead of using the ballot box.
Ok, I will agree that there are no "absolute" natural rights. Sure, there are a small number of times when you don't have the natural right to defend yourself. For example, if you rob a bank, you don't have a right to defend yourself from the police.

But you go much to far with that. You are, in essence, proposing the tyranny of the majority. Whatever the majority wants, they get, even if it means that the minority dies as a result.

Unfortunately for your argument, that is not the basis of our government. Instead, natural rights were recognized, and a major hurdle put on the government (and the majority) to overcome those rights.
4.22.2009 2:41pm
J. Aldridge:
@Bruce Hayden:

"Whenever Congress attempts to restrict this right of the majority to rule in the State it will attempt usurpation, and whenever the majority of loyal citizens surrenders that right into the hands of the minority it surrenders the cardinal principle of representative government."

--John A. Bingham, July 20, 1866
4.22.2009 2:57pm
Bruce Hayden (mail):
Interesting that you excerpt a cite out of a quote about overriding the majority to protect a fundamental right to prove that the majority have just that right to override fundamental rights through majority rule. Let me remind you that the right there was interracial marriage, and the right here that is arguably more important is that of Life, and the ability to protect it.

In any case, let me further suggest that you would do better finding support for your position in the Federalist Papers than in the works of someone 80 years later.
4.22.2009 3:09pm
J. Aldridge:
What does the organization of a limited national government have to do with that I am talking about?
4.22.2009 3:53pm
Dasarge:
Everyone is mistaking the means for the ends. The 2A, as important as it is, is not the basic right. If you look at the Framer's writing and, frankly, the majority in Heller, the basic right is the right to self defense. Weapons, the 2A, etc. are means to assert that right. Indeed, the tendency of King's officers to run roughshod over this right was one of the causa belli of the revolution.

The Federalist argument against the Bill of Rights was that the Constitution "clearly" protected all the basic rights of Englishmen. A BoR was therefore unnecessary. The Anti-Federalists were right.

I think that briefs and arguments should be framed in those terms. Self defense is a basic human right and one of the fundamental rights the Framers sought to protect against government encroachment. Pepper sprays, tasers, firearms, etc. are all necessary means to protect that right. The Police cannot assert the obvious "we can't be everywhere" argument and then say, "sorry, we're not there so you'll just have to capitulate to your assailants."
4.22.2009 4:40pm
J. Aldridge:
Dasarge wrote: "The Federalist argument against the Bill of Rights was that the Constitution "clearly" protected all the basic rights of Englishmen."

Federalists believed everyone was protected without a bill of rights because national government had no powers over the lives, liberties and property of the people.
4.22.2009 5:32pm
Clayton E. Cramer (mail) (www):
If you think that the regulation of the use of loudspeakers is a stretch when it comes to applicability to self-defense, there's a late 19th century case in California involving a city ordinance regulating drumming that was used in 1906 or so to justify a Riverside County ordinance prohibiting concealed carry.

Drumming at odd hours: noise problem. Concealed carry isn't a noise problem at all. But the court was looking for a way to justify the ordinance by picking a completely inappropriate precedent.
4.22.2009 6:46pm
Clayton E. Cramer (mail) (www):

You don't need to make wild 2A arguments for a right, and when you do, its only because you disagree with some law and want the courts to intervene to make the law go away instead of using the ballot box.
So you are arguing for sodomy laws, laws prohibition abortion, laws prohibiting same-sex marriage, laws prohibiting obscene publications (like Playboy, for example). Unlimited democracy is what you want?
4.22.2009 6:49pm
Eugene Volokh (www):
Folks: Just to be clear, I'm talking here primarily about state constitutional rights to self-defense, ones that are expressly guaranteed by the state constitution, and ones that state courts have generally held are judicially enforceable the same way that other state constitutional rights are enforceable against the state government. I'm not talking here about the Second Amendment, nor about the Fourteenth.
4.22.2009 6:56pm
Clayton E. Cramer (mail) (www):

Federalists believed everyone was protected without a bill of rights because national government had no powers over the lives, liberties and property of the people.
That's a slight overstatement. Madison and James Wilson argued that because no powers were expressly given to do X, there was no need to prohibit the government from doing X.

It turned out that the Antifederalists were not only correct on the theory, but greatly underestimated how big Leviathan would become under the elastic clause.
4.22.2009 7:00pm
Clayton E. Cramer (mail) (www):
There are a number of impact weapons that could be considered less lethal defensive weapons (such as the nunchaku) that are prohibited under California law--and California has a right to defend life and liberty provision in Art. I, sec. 1. I can't recall ever seeing if anyone has tried to argue against the nunchaku carrying felony statute based on the right to defend life.
4.22.2009 7:09pm
mariner:
Instead, natural rights were recognized, and a major hurdle put on the government (and the majority) to overcome those rights.

Not major enough, unfortunately.
4.22.2009 7:16pm
Dasarge:

It turned out that the Antifederalists were not only correct on the theory, but greatly underestimated how big Leviathan would become under the elastic clause.

No kidding. There is a great exposition of this view in The Politically Incorrect Guide to the Constitution by Prof. Kevin R.C. Gutzman. It can be had as an audiobook from Audible.com & is well worth the time.

If y'all doubt just how far things can go, have a look at England today. The right to keep & bear arms is virtually abolished. In a recent home invasion, the police declined to come for 1+ hrs because they did not want (i.e., were afraid) to engage the burglars. The safety of the police was more important than the citizens they are sworn to protect. Mr. Cramer may know more about this.
4.22.2009 8:52pm
Dasarge:
And this just in from Prof. Reynolds:

THE RULE OF LAW IN MILWAUKEE, WISCONSIN: The Attorney General says it's legal to openly carry a gun, but the police chief says:

"My message to my troops is if you see anybody carrying a gun on the streets of Milwaukee, we'll put them on the ground, take the gun away and then decide whether you have a right to carry it," Flynn said.

So if you see Police Chief Ed Flynn, put him on the ground, take his wallet away, and then decide whether he's accepted any bribes that day. If, after doing that, you think the money's his, give his wallet back. Who cares what the law says? It's the Milwaukee Way!

I rest my case.

I do not take back my suggestion that one be polite to the police, but this sort of behavior would make it VERY hard to follow my own advice.
4.22.2009 8:58pm
JHU BME:
Prof. Volokh,

I find your argument for the presumptive unconstitutionality of nonlethal weapons bans to be persuasive. But I was left with a nagging question (perhaps it is answered in the remainder of the Article, but I did not notice it). You suggest that bans on nonlethal weapons substantially burden the right to defend life. But do bans on certain nonlethal weapons substantially burden the right to defend life when other effective nonlethal weapons are not banned? That is, since the "right to defend life" is clearly not the "right to defend life by any and all means", why should bans on stun guns and irritant sprays be disallowed when there are other nonlethal weapons which are not banned (e.g., batons, bats, and boiling water)? Shouldn't that other nonlethal means are available weigh in favor of allowing bans on certain means?

While I don't think the above questions derail the argument in any way, I think it wouldn't hurt to address them (if they are not elsewhere), at least insofar as you view them as nontrivial.
4.23.2009 12:07am
JHU BME:
I just noticed the section of the draft that discusses the above questions. It seems that you answer them by arguing that other effective nonlethal weapons do not exist (or are burdensome to use).
4.23.2009 12:22am
pintler:

why should bans on stun guns and irritant sprays be disallowed when there are other nonlethal weapons which are not banned (e.g., batons, bats, and boiling water)?


Part of the rationale would be that tasers and pepper spray are generally considered much less likely to cause permanent harm than batons, bats, and boiling water.

Outside of a castle siege, boiling water is pretty inconvenient, too :-).
4.23.2009 9:05am

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