As usual, for more details and footnotes, please read the whole draft.
I now turn to the last part of my analysis, focusing for this argument (as opposed to the right to bear arms and right to defend life arguments) only on those many contexts — discussed in the opening post of this thread — where stun guns, irritant sprays, or both are banned but firearms are allowed.
Some of the people who want to use nonlethal weapons rather than firearms may take that view for religious reasons. They might, for instance, follow the Mennonite theologian John Howard Yoder and the Pentecostalist theologian David K. Bernard, who reasoned that nonlethal defensive force is permitted though deadly force never is. Or they might follow the view of the Presbyterian Church (U.S.A.) that "deplore[s] the killing of anyone, anywhere, for any reason," but might themselves conclude that self-defense using force short of killing is permissible. Or they can independently read the Bible or other holy books as forbidding deadly force but not nondeadly force. The view that "thou shalt not kill" prohibits all killing — but doesn't prohibit nonlethal defensive force — is certainly a plausible view for a religious person to take, though it's obviously not the only plausible view.
Alternatively, the objectors might read the Catholic catechism and the work of St. Thomas Aquinas as mandating the least amount of violence necessary. The Talmud also reflects this view. Other religious traditions that call for avoiding harm to others (even to wrongdoers) could lead one to the same view. And people who take this view might conclude that, because a stun gun (for example) would usually be adequate, they should have a stun gun rather than a lethal weapon available. (In principle, they might conclude that they should have both available, as many police officers do; but in practice they might find it too expensive to buy both a firearm and a stun gun, or too difficult to pick up both when faced with the need for self-defense.) That way they can still protect themselves and their families without risking what would likely be an unnecessary killing of a wrongdoer.
Regimes that ban stun guns — and especially that ban both stun guns and irritant sprays — but allow firearms put these religious objectors in a difficult position. State law lets people have effective defensive weapons. (I assume here that the arguments I mentioned in the last few posts are not accepted — perhaps because there's no right to bear arms or right to defend life recognized in the jurisdiction — so the matter would indeed be a privilege and not a constitutional right.) But state law in effect attaches a condition to this privilege: If you want to use such a defensive weapon, you have to use a deadly one (a gun). And that is a condition that the religious people I describe above can't comply with without violating their felt religious obligations.
What is the legal significance of such religious sentiments? From 1963 to 1990, the Supreme Court took the view that the Free Exercise Clause presumptively required religious exemptions from generally applicable laws. In 1990, the Court reversed course, but since then about half the states — plus the federal government as to federal law — have adopted similar exemption regimes. This includes most of the no-stun-gun jurisdictions, and most of the irritant-spray-limiting jurisdictions. In some states, the state constitution's religious freedom clause has been interpreted as mandating religious exemptions. In other states, religious exemptions are presumptively required under a state Religious Freedom Restoration Act. And in D.C. and the Virgin Islands, they are presumptively required under the federal Religious Freedom Restoration Act.
The most familiar application of these religious exemption statutes is when the law directly bans an activity that some people see as religiously obligatory, for instance consuming the hallucinogen hoasca. Another familiar application is when the law mandates an activity that some people see as religiously forbidden, for instance sending one's teenagers to school (something the Amish oppose). These scenarios are not present with stun gun bans, since the law doesn't obligate people to use firearms, and since the activity the law bans isn't itself seen as a religious obligation.
But the religious exemption statutes also apply when the law offers people some privilege, but conditions this privilege on the person's doing something that his religion happens to forbid. Such a condition is seen as a "substantial[] burden" on "exercise of religion," and is impermissible unless the government shows that the condition is "the least restrictive means of furthering [a] compelling governmental interest." We see this in the Supreme Court's very first case recognizing a mandated religious exemption, Sherbert v. Verner, a case that is routinely mentioned in Religious Freedom Restoration Acts as a model of the approach that the Acts are trying to restore.
In Sherbert, the state offered the unemployed a valuable privilege — unemployment compensation. But the state attached a condition: To get this benefit, you have to be willing to accept all reasonable job offers, including ones that required working Saturdays. And that was a condition that Adele Sherbert, a Seventh-Day Adventist, couldn't comply with, because her religion forbade working Saturdays.
In such a situation, the Court said, Sherbert was constitutionally entitled to be exempted from the condition, so that she would get the privilege (unemployment compensation) without having to comply with the condition (working Saturdays). Here was the heart of the Court's reasoning, which religious freedom regimes have since adopted:
[T]he disqualification for [unemployment] benefits imposes [a] burden on the free exercise of appellant's religion.... [T]he consequences of such a disqualification to religious principles and practices may be only an indirect result of welfare legislation within the State's general competence to enact; it is true that no criminal sanctions directly compel appellant to work a six-day week. But this is only the beginning, not the end, of our inquiry....
[T]he pressure upon [Sherbert] to forego that practice [of refraining from Saturday work] is unmistakable. The ruling forces her to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand. Governmental imposition of such a choice puts the same kind of burden upon the free exercise of religion as would a fine imposed against appellant for her Saturday worship.
Nor may ... [the condition] be saved from constitutional infirmity on the ground that unemployment compensation benefits are not appellant's "right," but merely a "privilege." It is too late in the day to doubt that the liberties of religion and expression may be infringed by the denial of or placing of conditions upon a benefit or privilege.
Courts have likewise applied this reasoning to other religious objections to conditions attached to privileges. (The Supreme Court in Employment Division v. Smith (1990), reinterpreted Sherbert as being justified by much more narrowly applicable concerns about equal treatment of religious observers. But the premise of the Religious Freedom Restoration Acts and those state constitutional decisions that reject Smith and follow Sherbert is that Sherbert should not be so narrowly read.) Thomas v. Review Bd. (1981), held that religious people who wanted unemployment compensation while still adhering to their objections to working in military production got an exemption. So did Amish drivers who wanted to drive horse-drawn carts on public roads (a privilege that the state was generally free to regulate) without displaying red and orange "slow-moving vehicle" insignia; see State v. Miller, 549 N.W.2d 235 (Wis. 1996), and State v. Hershberger, 462 N.W.2d 393 (Minn. 1990).
The same reasoning would apply to a rule that gives people the privilege of using powerful defensive weapons, but only on condition that the people use the deadly ones (firearms) and not the nonlethal ones (stun guns). Compare the cases:
Case |
State rule |
Condition |
Objector says |
Result |
Sherbert |
You can get unemployment compensation |
but only if you are willing to work Saturdays |
But my religious beliefs forbid Saturday work |
Privilege provided even if objector refuses Saturday jobs |
Thomas |
You can get unemployment compensation |
but only if you are willing to work on military production |
But my religious beliefs forbid working on military production |
Privilege provided even if objector refuses such jobs |
Miller/Hershberger |
You can drive slow-moving vehicles on the highways |
but only if you attach a red and orange emblem |
But my religious beliefs forbid displaying "loud and bright" colors or "worldly symbols" |
Privilege provided even if objector displays a red lantern with white reflective tape (the objector's proposed alternative) |
Stun gun ban / irritant spray ban |
You can have one of the most powerful defensive weapons |
but only the deadly variety |
But my religious beliefs forbid the use of deadly weapons, even in self-defense |
Should be: Privilege provided even if objector gets a nondeadly stun gun (or, if he prefers, a nondeadly irritant spray) rather than a deadly firearm |
The religious exemption doctrine is thus well-settled, and applicable here. When a law offers people some privilege so long as they comply with some condition, people whose religions ban them from complying with the condition are presumptively entitled to still get the privilege, but with the condition waived.
Of course, the availability of religious exemptions is only a presumption: The government may still deny the exemption if it shows that the denial is the least restrictive means of serving a compelling government interest. But I don't think the government can show that, for the reasons discussed earlier.
So the policy arguments discussed earlier become constitutional arguments under state religious freedom provisions, or statutory arguments under state or federal Religious Freedom Restoration Acts. Those arguments, plus those discussed in this post, show that the law imposes a substantial burden on religious practice. And those earlier arguments also suggest that the nonlethal weapon ban isn't necessary to serve the government interest in preventing crime, so that carving out a religious exemption is a less restrictive but pretty much equally effective means of serving that interest. If this is right, then religious or conscientious objectors must be given exemptions from stun gun bans in contexts where the law allows firearms but not stun guns.
The religious exemption argument can be raised by anyone who feels a sincere religious belief that use of deadly force is wrong, and that the use of nonlethal force is permissible.
I pointed earlier to some particular religious traditions that support this view. But under religious exemption regimes, all that matters is that the objector have "an honest conviction that [a particular condition] was forbidden by his religion." The objector need not be a member of a denomination that expressly takes that view, and the objection is not defeated if many of the objectors' coreligionists take the opposite view. "[I]t is not within the judicial function and judicial competence to inquire whether the petitioner or his [coreligionist] more correctly perceived the commands of their common faith. Courts are not arbiters of scriptural interpretation."
The objector need not even be a member of any specific denomination or church. "[M]embership in an organized religious denomination, especially one with a specific tenet forbidding [certain behavior], would simplify the problem of identifying sincerely held religious beliefs, but we reject the notion that to claim the protection of the Free Exercise Clause, one must be responding to the commands of a particular religious organization."
Where a person's "refusal [is] based on a sincerely held religious belief," he is "entitled to invoke First Amendment protection." And while these decisions were handed down during the era when the Court saw religious exemptions as a Free Exercise Clause mandate, they have been followed in interpreting state constitutional religious exemption guarantees and state and federal religious exemption statutes.
It's also possible that someone who is not religious may have deeply held ethical beliefs opposing deadly force but not nonlethal force. Such secular conscientious objectors may well be entitled to exemptions under the various religious exemption regimes, but this has not yet been conclusively decided.