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Religious Objections to Laws That Ban Nonlethal Weapons But Allow Lethal Ones:

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.

Richard Aubrey (mail):
Correction:
The Presbyterian Church (USA) is a just war church, officially.
It has a number of peace&wonderfulness committees or other entities staffed by clergy who are not wanted by congregations and who are quite lefty. These committees sometimes purport to be speaking for the church. At other times, their pronouncements are taken by outsiders as the church's position.
After Gulf 1, there was a move to modify the Just War Doctrine. This passed in the General Assembly and became official. However, what passed was that the standing committee on peace&wonderfulness was tasked with the job. They punted, instead working on "how the Christian handles the bully".
Close enough--they never did take direction well--but it leaves them an out should they ever meet Augustine and Aquinas. It won't be necessary to tell those two worthies that they were inadequate.
4.23.2009 10:22am
PersonFromPorlock:
I still think the "thereof" in "the free exercise thereof" refers not to religion but to establishments of religion, an entirely different thing. If it does, then the Establishment Clause straightforwardly prohibits Congress from establishing a federal church or interfering with the then-existing state established churches.

If "thereof" refers to religious practice then we are forced to conclude that the Founders intended that religiously motivated human sacrifice - even of infants, as in the worship of Moloch - can't be outlawed in the District of Columbia or other federal territory. "[M]ake no law" is about as strong as it gets.

And yes, I know that that I'm beating a dead horse. But it certainly makes the problem of religious exemptions go away.
4.23.2009 10:48am
Bored Lawyer:
Your hypothetical is based on the following religious position:


my religious beliefs forbid the use of deadly weapons, even in self-defense


This is a minority view among religions, but not unheard of. BUT, if you vary this somewhat, then it becomes much more mainstream:


my religious beliefs forbid the use of deadly force where there is a non-deadly alternative that can accomplish the same defensive result (although if there is no choice, deadly force can be used)


I think the majority of religious thinkers -- indeed even non-religious moral philosophers -- would agree that it is immoral to use deadly force to defend oneself (or a third person) where non-deadly force would do just as well.

I.e., if a woman can repel a would-be rapist with a spray of mace, then it is immoral to use a handgun to shoot him dead.

Are persons who hold the second view also entitled to a religious exemption?
4.23.2009 10:50am
PLR:
Kill a man, and you are a murderer. Kill millions of men, and you are a conquerer. Kill everyone, and you are a god.


I suspect Jean Rostand would also say that firearms are the quicker route to spiritual perfection.
4.23.2009 11:00am
Positroll:
"you want to use such a defensive weapon, you have to use a deadly one (a gun)."
If you use it to shoot the bad guy in his lower legs, a gun isn't a deadly weapon ... One can kill people with your bare hands or a stick, too (including accidentially, cf. the London G20 protesters death). That doesn't mean you can't use your hands to defend yourself ...
4.23.2009 11:37am
pintler:

If you use it to shoot the bad guy in his lower legs, a gun isn't a deadly weapon


I don't believe that is mainstream law.

It's also not medically sensible - hitting the femoral artery, for example, is quite likely to prove fatal.
4.23.2009 12:05pm
rosetta's stones:
My religion embraces fully automatic weapons. We believe it to be sinfully cruel to open up on a target absent the certain knowledge it will be dispatched efficiently. For us, full auto is a central canon.

why aren't we footnoted in this article?!
4.23.2009 12:11pm
gattsuru (mail) (www):
PersonFromPorlock
If "thereof" refers to religious practice then we are forced to conclude that the Founders intended that religiously motivated human sacrifice - even of infants, as in the worship of Moloch - can't be outlawed in the District of Columbia or other federal territory. "[M]ake no law" is about as strong as it gets.

If we weren't talking lawyers, that'd actually be applicable. We are, however, and specifically lawyers that can read the sky to be green and the grass blue. More specifically, the Supreme Court has long read "Make no law" to mean "Make no law (unless it'd be kinda useful)" in the doctrine of strict scrutiny. A law banning the sacrifice of human beings would pass strict scrutiny, as there is a compelling government interest in not having lots of murdered people around, and a ban on murdering people is both rather narrowly tailored and the least restrictive possibility.

Practically speaking, the anti-establishment clause already covers the matter of state churches, and the Founders were rather loathe to repeat themselves. The texts from the time rather clearly make sure that there was as much concern about all competing religions to the popular one being banned and setting up a state church in practice without doing so in effect. If you could, for example, ban confession, it'd make being an American Catholic quite difficult even if the Protestant churches were still entirely unofficial.

Positroll
If you use it to shoot the bad guy in his lower legs, a gun isn't a deadly weapon

Until he bleeds to death in a couple minutes from the nicked popliteal artery. Guns are often used as the quintessential example of a deadly weapon for a reason; they are very effective at stopping attackers, but they tend to work best when the attacker is assuming room temperature.
4.23.2009 12:17pm
Tim H. (mail):
As a law student...i just find it hard to care about the gun debate in light of the OLC memos, and the reporting that we tortured to justify the war in Iraq...
4.23.2009 12:26pm
PersonFromPorlock:
Tim H.:

As a law student...i just find it hard to care about the gun debate in light of the OLC memos, and the reporting that we tortured to justify the war in Iraq...

That's OK. As a lawyer, you'll care about whatever your clients hire you to care about, and in exactly the way they want you to care....
4.23.2009 12:34pm
1Ler:

As a law student...i just find it hard to care about the gun debate in light of the OLC memos, and the reporting that we tortured to justify the war in Iraq...


Tim, you must be a very dedicated law student, indeed. The fact that we engaged in waterboarding against certain individuals--and a description of the procedure that entails--has been public knowledge for a long, long time.
4.23.2009 12:47pm
Jon Roland (mail) (www):
The Constitutionalist Church demands strict compliance with the original meaning of constuitutions of government that are derived from the superior (unwritten) constitutions of nature, society, and the state.

It holds that the Union government doesn't even have the authority to forbid private possession of nuclear weapons on state territory, because the Framers neglected to include a provision for that (and it would accept a properly worded amendment to do that).

One can argue whether the United State and its constitutional government is not itself an establishment of that religion, although it is in a severe state of apostasy.
4.23.2009 1:02pm
rosetta's stones:
That's an amusing website:


"Given the definitions of constitutionalism, the question often arises of whether the United States itself is an "establishment" of the religion of constitutionalism. That would put it in conflict with its own First Amendment."
4.23.2009 3:21pm
LarryA (mail) (www):
I.e., if a woman can repel a would-be rapist with a spray of mace, then it is immoral to use a handgun to shoot him dead.
The trick, of course, is knowing which rapist is coming through your bedroom door at 2:00 AM.

There's a complication to the guns=lethal::stun guns &pepper spray=less lethal argument. A firearm, and only a firearm, has the effect of deterring a determined attack. Most defensive gun uses are resolved without pulling the trigger, because even the hardest criminal knows a bullet can be fatal.

OTOH stun guns and pepper spray may be perceived as a challenge to the street-smart, resulting in a much higher rate of violence.

So what is less lethal than the weapon you usually don't have to use? Showing someone a handgun is usually more effective and less violent than using a stun gun or pepper spray.

"Ah," the response comes, "But if you do have to shoot a bullet is several times more life-threatening than voltage or spray."

True. But if you are in a confrontation with someone so high, angry, or psychotic that he looks at a loaded gun and keeps coming, the non-violent resolution is no longer a viable option.
4.23.2009 3:31pm
Clayton E. Cramer (mail) (www):

As a law student...i just find it hard to care about the gun debate in light of the OLC memos, and the reporting that we tortured to justify the war in Iraq...
You might want to read DNI Blair's memo, where he reminds everyone of the circumstances. We had just lost 3000 people in a single day. There were continuing attempts (such as the shoe bomber), and the fear was very real that another attack was coming, just as devastating. Under the circumstances, the small number of persons tortured (and I would call waterboarding torture) shows considerable self-restraint.

And remember that Democrats in Congress knew about this, and raised NO objections. At the time, we were not Republicans or Democrats, but Americans facing a common threat. Once the threat was over, the Democrats turned back into the scheming crooks that they have always been.

Here's a question for you, Mr. Idealist. Someone has taken your spouse hostage. You've received one of her fingers, delivered by a courier, who other information shows is friends with the hostage taker. Would you waterboard that courier to get information on where your wife is being held?

If your answer is no, you're either a liar, or a person who should never hold an important job involving national security. But you'll probably end up working for the Obama Administration when you graduate.
4.23.2009 5:16pm
Joshua (mail):
Positroll: If you use it to shoot the bad guy in his lower legs, a gun isn't a deadly weapon ...

Tell that to NFL defensive back Sean Taylor. Oh, wait...

LarryA: There's a complication to the guns=lethal::stun guns &pepper spray=less lethal argument. A firearm, and only a firearm, has the effect of deterring a determined attack. Most defensive gun uses are resolved without pulling the trigger, because even the hardest criminal knows a bullet can be fatal.

But if your religious beliefs still obligate you to forgo the more lethal weapon, or at least try the less lethal weapon first, then isn't that a moot point?

From a purely secular standpoint, this is "merely" a matter of life or death. But once you add religious beliefs to the mix, it ups the ante quite literally to infinity (or eternity, to be more precise) - now it's a matter of life or death followed by heaven or death followed by hell. That creates a whole new set of overriding incentives for behavior that, it seems to me, is a highly underappreciated factor here. When you believe your good standing in the afterlife rides on you refraining from killing your assailant, chances are you're going to err on the side of letting him live, even if that means you die. After all, that would just speed you on your way to your eternal reward.
4.23.2009 7:24pm
Positroll:
"If you use it to shoot the bad guy in his lower legs, a gun isn't a deadly weapon."
"I don't believe that is mainstream law. "

You are right, it's not. Let me be clearer:
My argument is that the religious rules I have heard of are not opposed to "deadly weapons" in the legal sense. They are opposed to the act of killing.

"Deadly" and "non-deadly" weapons in the legal sense can both be used to kill someone, and both carry a certain risk of accidential homicide. Now, you sure can argue that the risk is bigger with a gun fired at the bad boys leg, as compared to the risk of internal bleeding from a punch to his liver.

But as long as you do not intend to kill someone and you do believe that shooting him in the leg is reasonably unlikely to cause his death (especially because you will at once call the police and an ambulance), you should be in the clear with most religious sets of rules mentioned in the post.
4.24.2009 4:42am
Richard Aubrey (mail):
Clayton Cramer.
Don't look for an honest answer from Mr. Idealist. He will continue to preen and present his moral superiority no matter what happens.
Until the really bad thing happens.
Which he knows.
4.24.2009 7:42am
PLR:
Clayton Cramer. Don't look for an honest answer from Mr. Idealist. He will continue to preen and present his moral superiority no matter what happens.
Mr. Aubrey, it's interesting that you can infer idealism, dishonesty and moral superiority based on a one-sentence post by an infrequent visitor to this site.

But I bow to your apparent moral superiority, and hope that Professor Volokh will take pity on the rest of us and keep comments open.
4.24.2009 11:44am
Richard Aubrey (mail):
PLR. It's experience. You should get some.
4.24.2009 12:07pm
LarryA (mail) (www):
But if your religious beliefs still obligate you to forgo the more lethal weapon, or at least try the less lethal weapon first, then isn't that a moot point?
Not if you legitimately believe (as I do) that because of its deterrent effect the handgun is the less-lethal weapon.

Of course I know that people who believe self-defense use of deadly force is immoral will most likely disagree.
4.24.2009 2:53pm
Richard Aubrey (mail):
See, as has been said before, Rebecca West's view of the conflict of Black Lamb and Gray Falcon in her book of the same name.
It's holy to be a loser.
4.24.2009 3:31pm

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