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Nonlethal Self-Defense, Nonlethal Weapons, and the Rights To Keep and Bear Arms, Defend Life, and Practice Religion:

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.

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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.

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Why Some People May Reasonably Prefer Nonlethal Weapons Over Guns:

[This is part of a series of posts drawn from my Nonlethal Self-Defense, Nonlethal Weapons, and the Rights To Keep and Bear Arms, Defend Life, and Practice Religion (forthcoming in the Stanford Law Review). For footnotes, and for the rest of the argument, check out the full draft; I will also post most of the rest of the argument in the coming days.]

Some people are especially reluctant to use lethal force or possess lethal tools, even when they legally can. There are many possible reasons for this, some of which may be mutually reinforcing:

(1) Some people have religious or ethical compunctions about killing.

(2) Some feel they will be emotionally unable to pull the trigger on a deadly weapon even when doing so would be ethically proper.

(3) Some worry about erroneously killing someone who turns out not to be an attacker.

(4) Some are reluctant to kill a particular potential attacker, for instance when a woman doesn’t want to kill her abusive ex-husband because she doesn’t want to have to explain to her children that she killed their father, even in self-defense.

(5) Some fear a gun they own might be misused, for instance by their children or by a suicidal adult housemate. It’s not clear whether the availability of guns actually increases the risk of suicide, given the availability of other comparably lethal means, but it’s at least reasonable to be concerned about the possibility that a gun would make suicide more likely. And this is especially so because some people might feel especially emotionally traumatized if their guns are used by a family member or friend to commit suicide, even if they suspect that the suicide would have happened in any event.

These are not just esthetic preferences, such as a person’s desire to have a particular gun that he most likes, or that has special sentimental value (for instance, his father’s military-issue weapon), when other equally effective guns are available. Perhaps even those esthetic preferences should be respected in the absence of particularly good reasons to disregard them. But there should be even more respect for preferences that stem from understandable and even laudable moral belief systems and emotional reactions, or reasonable worries about the risk that a gun might be abused. Even if one thinks (as I do) that killing in self-defense is morally proper, people who take the opposite view should be presumptively free to act on their beliefs without having to go without the most effective self-defense tools.

(A few people might be able to learn unarmed self-defense techniques. But many people can’t, because they are physically disabled or otherwise not strong enough. Many others might lack the time needed to train themselves in such techniques, especially if they have work or family obligations. And even those who are comparatively well-trained might end up being considerably less effective with their limbs alone than they would be with a stun gun.)

Naturally, many people don’t have such worries, or conclude that the value of having a gun for self-defense overcomes such worries. Both firearms and nonlethal weapons can stop people, and can deter through the risk of pain or incapacitation leading to arrest. But firearms have the major extra deterrent force of threatening death: That’s why “I have a gun!” is more likely to cause an attacker to flee than “I have a stun gun!”

Also, civilian stun guns today are good only for one shot. After the cartridge is shot, the stun gun can only be used in direct contact mode. This makes stun guns less useful than firearms against multiple attackers, or when the defender misses with the first shot.

But this just shows that many people may reasonably prefer firearms for self-defense. It doesn’t undermine the legitimacy of other people’s preference for stun guns or irritant sprays instead of firearms.

A ban on stun guns would be a less substantial burden if other nonlethal weapons remained available and were pretty much as effective for self-defense purposes. But batons and similar devices generally aren’t as effective at stopping the attacker with one blow, and, to be even moderately effective, they require strength that many defenders don’t possess.

Stun guns also appear to be materially more effective than irritant sprays. Pepper spray (the most effective irritant spray in use today) may still leave the attacker able to attack, though he is distracted and in pain. It’s especially likely to be ineffective when the attacker is less sensitive to pain because he’s drunk or on drugs. To be most effective, pepper spray requires a hit on the suspect’s face rather than, as with a stun gun, any part of the suspect’s body. Pepper spray may in part blow back at the defender, which can leave the defender especially vulnerable if the attacker isn’t entirely stopped. And pepper spray has an effective range of only about 7 feet (about the average width of a car), as opposed to 15 feet for modern stun guns. Since an attacker can lunge 7 feet in a split second, pepper spray gives a defender less time to react.

Pepper spray does have advantages. It can be used at a distance more than once, which is useful when one misses the first time, or needs to fight off multiple attackers. It’s also much cheaper than a stun gun. Bans on carrying irritant sprays would thus also materially interfere with people’s ability to defend themselves, even if stun guns were an available option. But that just reflects that different defensive devices are optimal for different people, and that banning either one may materially interfere with the ability of many people to defend themselves.

[More on the arguments in favor of such nonlethal weapons restrictions, even when when guns are allowed, in coming posts.]

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Avoiding Nonlethal-Weapon Crime as Justification for Restricting Nonlethal Weapons Even When Firearms Are Allowed:

(As before, see the full article for more.)

The nonlethality of stun guns and irritant sprays does make it possible that such weapons will be abused in situations where firearms wouldn’t be, though each such abuse would likely be much less harmful. Robbers might be likelier to stun victims than shoot them, precisely because this won’t expose the robber to a murder charge (and because stun guns are quieter, even than firearms with illegal silencers). People looking for revenge, or trying to pull a prank, might stun or spray their victims even if they wouldn’t have tried to kill them.

There are, though, three countervailing factors that should overcome this extra risk of abuse. First, nonlethal weapon bans, especially city- and state-level ones, are likely to have only modest effects on the already seemingly modest level of stun gun or irritant spray crime, precisely because much such crime would be perpetrated by serious criminals. Someone who is not stymied by the laws against robbery, rape, and kidnapping is unlikely to be much influenced by laws against possessing stun guns or sprays. (The Taser Corporation’s products have a special “Anti-Felon Identification” feature that tries to reduce taser crime still further: “Every time a TASER cartridge is deployed, 20-30 small confetti-like Anti-Felon Identification (AFID) tags are ejected. Each AFID is printed with the serial number of the cartridge deployed, allowing law enforcement to determine which cartridge was fired.” This feature, however, doesn’t operate when the stun gun is used in contact mode; and it’s not useful for tracing the stun gun if it has been stolen. I therefore won’t rely on this feature in my analysis.

The bans would make it harder to buy nonlethal weapons locally, if such weapons (especially stun guns) remain rare enough that no black market develops. But many criminals would have no trouble visiting a neighboring state to buy the stun gun or the spray, or asking a friend to do that, or just driving out of town if the ban is only city-level. And bans on carrying stun guns, in jurisdictions that allow buying them, would be even easier for criminals to violate.

Second, a crime committed with a stun gun or irritant spray will often be a crime that would otherwise have been committed with a gun or a knife. This is especially true of robbery, rape, and kidnapping, but it may also be true of revenge attacks (for instance, by people who caught their spouses cheating).

Thus, nonlethal weapon bans might decrease painful stunnings or pepper spray attacks, but might increase knife and gun crimes that cause death, serious injury, and psychological trauma. And even if the stun gun crime or irritant spray crime would otherwise have been performed using only manual force, that too could have led to serious pain, to lasting injury, or even to death — especially given that the sorts of robbers who are likely to use manual force are likely ones who are strong enough to inflict significant injury.

Third, nonlethal weapon bans are likely to have a far greater effect on self-defense by law-abiding citizens than on attacks by criminals. A woman who wants a stun gun or irritant spray for self-defense is much more likely to be deterred by the threat of legal punishment for illegally buying, possessing, or carrying the nonlethal weapon than a criminal would be. And if she can’t get the nonlethal weapon that works best for her, she might be less able to protect herself against robbery, rape, abuse, or even murder.

Why then do some jurisdictions treat nonlethal weapons — especially stun guns — worse than firearms? My sense is that it isn’t because allowing stun guns is indeed more dangerous than allowing only firearms. Rather, it’s because firearms bans draw public attention and hostility in ways that stun gun bans do not.

There is no well-organized National Stun Gun Association that has millions of members who fight proposed stun gun bans. There is no stun gun culture in which people remember being taught to use stun guns from an early age. Stun guns are too new and too rare for that. There is also no stun gun hunting, stun gun target-shooting, or stun gun collecting that makes people want to protect stun gun possession even when they feel little need to have stun guns for self-defense.

Moreover, many stun gun bans date back to the 1970s and 1980s, before the Taser Corporation started widely marketing guns to the public. At the time, stun guns might well have seemed like exotic weapons that are rarely used for self-defense by law-abiding citizens. It was therefore easy to ignore the effect of stun gun bans on self-defense, even in states whose laws reflected the potential value of firearms for self-defense. But today stun guns are practically viable self-defense weapons, owned by over 100,000 people. The self-defense interests of prospective stun gun owners in the no-stun-gun states ought not be ignored.

Much of this, of course, is speculation. There is no available data about how often stun guns or irritant sprays are used either criminally or defensively. The Uniform Crime Reports, our best source on crimes reported to the police, doesn’t provide a category for such crime. Neither does the National Crime Victimization Survey, our best estimate of all crimes, whether or not reported to the police. Neither does the Centers for Disease Control’s WISQARS Fatal Injury Reports and Nonfatal Injury Reports query system. So speculation is all we have, and it’s all that the legislatures that banned stun guns or irritant sprays had.

But for the reasons I mentioned above, I think such speculation strongly points towards the choice selected by 43 states (minus a few cities) as to stun guns and 49 or 50 states (minus some restrictions in a few states) as to chemical sprays: allowing stun gun and chemical spray possession, and criminalizing only misuse. And this is especially so given the value of self-defense — a value that, as Part III discusses, is constitutionally recognized — and the value of freedom more broadly. If there is uncertainty, we should resolve this uncertainty in favor of letting law-abiding people use nonlethal tools to defend themselves and their families.

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Laws That Ban Both Possession or Carrying of Stun Guns and of Handguns (and Sometimes of Irritant Sprays):

(As before, see the full article for more.)

In ten to twelve states, even law-abiding adults generally can’t get licenses to carry concealed handguns. In those states and for those people, stun guns would be the most effective available defensive weapon. In fact, in California and Delaware (except Wilmington), stun guns may indeed be carried even though handguns generally cannot be.

But in the no-stun-gun no-handgun-carry jurisdictions -- Hawaii, Massachusetts, New Jersey, New York, Rhode Island, Wisconsin, Annapolis, Baltimore, the Virgin Islands, Washington, D.C., and Wilmington -- law-abiding citizens are entirely denied the most effective defensive weapons in public. And noncitizens and nonresidents in Massachusetts are denied such weapons, as well as irritant sprays, both in public and at home.

Even in those no-stun-gun jurisdictions (Michigan, Akron, New Orleans, Philadelphia, and South Bend) where handgun carry licenses are generally available, 18-to-20-year-olds are nonetheless not allowed to get such licenses. They are therefore likewise denied both firearms and stun guns in public places. Yet 18-to-20-year-old women need defensive weapons more than most adults do: The average 18-to-24-year-old woman’s risk of being raped is 5 times greater than the risk for the average woman age 25 and above.

Legislatures that ban both carrying stun guns and carrying handguns can at least say they are worried about the criminal uses of weapons generally, not just about the rare situations where a stun gun would be misused but a handgun would not be. And indeed stun guns can be used both for crime and for self-defense.

But this is likewise true for the criminal law justification of self-defense: Allowing lethal self-defense lets some deliberate murderers (or people guilty of voluntary or involuntary manslaughter) get away with their crimes by falsely claiming self-defense. The killer is alive, and able to claim he was reacting to a threat from the victim. The victim is dead, and can’t rebut the killer’s claim. The killer doesn’t have to prove the victim had a weapon, since it is enough for him to claim that the victim said something threatening and reached for his pocket. And the prosecution has to disprove the killer’s claims beyond a reasonable doubt.

Sometimes the jury will see through the killer’s false claims of self-defense, and conclude the claims are false beyond a reasonable doubt. But sometimes it won’t, and the killer will be acquitted. And sometimes a killer will be emboldened to kill by the possibility that he might get away on a self-defense theory. The self-defense defense is thus crime-enabling as well as defense-enabling.

So are irritant sprays, which are now legal nearly everywhere in the United States (of course with the narrow exceptions noted above), though they are indeed sometimes used by criminals. So are the skills taught in fighting classes, whether the classes focus on street fighting (such as Krav Maga), Asian martial arts, or boxing. Someone trained in these things can use the skills for crime -- whether robbing someone or just beating someone up -- as well as for lawful self-defense. (Some of the classes also provide physical fitness and recreation, but some, such as Krav Maga, are focused chiefly on self-defense.) Yet these classes are not only lawful, but generally seen as socially valuable.

Among other things, we expect that criminals will already have plenty of tools -- often deadly ones, such as guns and knives -- for committing crimes. The marginal benefit to criminals of fighting skills is thus comparatively small. But the marginal benefit to law-abiding citizens of such skills is quite large, especially if the citizens are barred by law from carrying deadly weapons.

Stun guns and irritant sprays are in this respect much like fighting skills. Such weapons might be more effective than mere unarmed combat for committing crimes. But they are likewise more effective for self-defense. And for some people -- such as the weak, the disabled, or those whose work or family commitments keep them from taking classes -- unarmed self-defense is just not much of an option, while stun guns are.

It seems to me, then, that stun guns and irritant sprays should likewise be allowed. The law rightly values self-defense, which should include effective self-defense. Nonlethal defensive weapons dramatically facilitate self-defense. They also facilitate crime, but comparatively slightly (again, because criminals have access to many other tools, both highly deadly, such as guns and knives, and less deadly, such as blunt weapons), and at a lower level of harm than lethal weapons such as guns and knives. The protection they offer to law-abiding citizens should justify allowing them, despite the modest risk of crime they pose.

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Minors with Stun Guns and Sprays, Oh My!

(Again, for more details, please read the article.)

All the general no-stun-gun jurisdictions, plus Arkansas, Indiana, Minnesota, New Hampshire, Las Vegas, and probably Oakland and San Francisco, ban under-18-year-olds from possessing and carrying stun guns. Illinois and Maryland ban them from possessing and carrying irritant sprays. New Jersey, New York, Annapolis, Aurora (Illinois), Baltimore, and Washington, D.C. ban them from possessing and carrying either stun guns or irritant sprays, and of course guns, thus leaving under-18-year-olds entirely disarmed.

Few people would give a stun gun or irritant spray to a small child: They would rightly worry that the child will use the device irresponsibly, which likely won’t lead to death but would lead to severe and unnecessary pain, for the child himself or a playmate. They would rightly suspect that the child will be unlikely to know when he needs to use the device defensively, and unlikely to use it effectively when he does realize the need. And they would rightly suspect, especially for young enough children, that the child’s risk of being the target of violent crime is much less than an adult’s risk.

Yet it does not follow that older minors, such as 16-year-olds, should be denied such defensive tools as well. Girls age 15 to 17 are three times more likely to be victims of rape or sexual assault than women 18 and over. Older teenagers are often victims of other crimes as well. And older teenagers are likely about as able as adults to effectively use a stun gun, and to know when the need for self-defense arises. California and Florida law, incidentally, allows minors 16 and over to possess stun guns, so long as they have a parent’s consent; many other states have no prohibitions at all on minors’ possessing stun guns.

Older teenagers are likely to be less mature than adults, and might thus be tempted to misuse stun guns and irritant sprays, for instance for juvenile pranks or for revenge. But we do have a benchmark for thinking about when teenagers should be treated as mature enough to possess such nonlethal devices: Throughout the U.S., teenagers 16 and above are routinely given access to deadly devices, despite the risk that they will misuse those devices, and despite the temptation that those devices offer for such misuse.

Those devices, of course, are cars. Car accidents involving 16- and 17-year-old drivers kill over 1500 Americans each year. These older minors are tempted to drive cars too fast, or even deliberately race them. Some such minors use their cars to further other crimes, for instance to get to and away from a robbery, or to more effectively deal drugs. (Many crimes become much harder to commit without access to a car.) Yet despite that, we are willing to run the risk, even the certainty, of death and crime to allow 16- and 17-year-olds to drive.

Minors are allowed to drive because the aggregate benefits are seen as more important than the injuries and deaths that minors’ driving causes. When minors may drive, they can much more easily hold jobs. Letting minors drive is more convenient for their parents, who no longer have to drive their older children to school or to meet friends. Letting minors drive gives the older minors more freedom to do things that they enjoy. And driving sometimes even makes minors safer from crime, for instance if the minor can drive to a nighttime job instead of walking down a dark street to and from a bus stop.

But there are also benefits to letting older minors have nonlethal defensive weapons. When minors can effectively defend themselves, they can much more easily have certain jobs, because they can be more secure when going to and from work. Letting minors have nonlethal weapons gives them more freedom to do things that they enjoy, and lets them enjoy those things more because they worry less about being attacked. And letting minors have nonlethal weapons makes them safer from crime.

And it does all this without being likely to cost 1500 lives, as driving by 16- and 17-year-olds does. At most, it might lead to some extra crime by immature older minors, something that is largely deterrable by criminal punishment for misuse of the weapons -- more so than as to cars, since most injuries involving cars are accidental and thus harder to deter, while most misuses of nonlethal weapons would likely be deliberate.

Consider also our attitudes to martial arts classes, or for that matter self-defense fighting classes (such as Krav Maga). Knowing how to fight is useful for self-defense, but, as with a nonlethal weapon, it can also be used in crime -- whether robbery, bullying, revenge, an attack on a romantic rival, or many other things that an immature 16-year-old might want to do. While manual attacks only very rarely kill, the same is true for stun gun or irritant spray attacks. And manual attacks can inflict both serious pain (though probably less than with stun guns) and lasting injury (probably more likely than with stun guns or irritant sprays).

Yet our reaction to martial arts classes or self-defense fighting class¬es is not “save them for 18-year-olds, who are mature enough to use their training wisely.” Rather, we applaud minors’ taking such classes, even when the minors are quite young.

This is partly because we think the classes are good exercise, or teach discipline. (The classes may also teach an ideology of responsibility and restraint in using martial arts techniques, but naturally some students can learn the techniques while rejecting the ideology.) But I take it we’d applaud a child’s taking classes even if the child’s purpose was expressly to learn self-defense, and even if the class was designed for that rather than for more extended learning of martial arts as sport, philosophy, or fitness training. We would recognize that self-defense is valuable enough that children should be able to learn to defend themselves even when that also teaches them to attack. Why shouldn’t the same be true, especially as to older minors, for defensive tools as well as defensive techniques?

(We might also think that children who take martial arts classes are especially likely to be “good kids” because they are willing to work hard. But the main concern I’ve heard about older minors’ possessing stun guns has to do with the minors’ lack of maturity, and willingness to use such devices in anger or as a prank. Such lack of maturity is not inconsistent with willingness to work hard.)

To be sure, these analogies are not perfect. Among other things, because nonlethal weapons are less lethal than cars it may be proper to let minors have nonlethal weapons even before they reach driving age. That is in fact the policy in most states, which put no age limit on stun guns and irritant sprays (as well as in Washington, which has deliberately set the irritant spray age limit at 14). On the other hand, my suspicion about the likely rarity of children’s misuse of nonlethal weapons is speculation, for much the same reasons as those mentioned earlier as to adults. If an increase in legal nonlethal weapon possession by 16- and 17-year-olds leads to thousands of stun gun or pepper spray pranks each year, and to very few defensive uses, the case for prohibiting such possession would be stronger (though the analysis would still have to weigh the degree to which stun gun possession deters attacks on older teenagers, and thus makes defensive uses unnecessary).

But absent such evidence, we shouldn’t dismiss older minors’ need for self-defense, just as we shouldn’t dismiss adults’ need for self-defense. And our willingness to run what are likely much greater risks by letting older minors use lethal cars should further counsel in favor of running lesser risks by letting the older minors use nonlethal weapons.

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Laws That Ban Nonlethal Weapon Possession by Felons:

(As before, for the footnotes and for the other parts of the argument, please see the full Stanford Law Review draft.)

Felons are generally barred from owning or carrying a firearm. This law may also deter firearm possession by people who live with a felon. Connecticut, Florida, Minnesota, New Hampshire, Pennsylvania, and Virginia -- plus of course the general no-stun-gun jurisdictions -- add to this a ban on felons’ possessing stun guns or having them in their control. Florida, Massachusetts, New Jersey, New York, and Portland (Oregon) ban felons’ possessing or having control over irritant sprays.

Yet felons need self-defense tools, too. They may need self-defense tools more than the average nonfelon does: Being a felon dramatically hurts your career prospects, which means you’ll likely have to live in a poorer and therefore on average more crime-ridden part of town. And the legal bar on felons’ possessing firearms makes stun guns even more valuable to them.

Some felons have committed the sort of violent crimes that might make us reasonably worry that they are especially likely to misuse stun guns or irritant sprays, either in deliberate crimes or in impulsive crimes motivated by anger or revenge. But many felons have been convicted only of nonviolent crimes. And while most nonviolent felons have generally shown a willingness to disobey the law, it seems unlikely that this willingness will map into a substantially greater risk that they will violently misuse nonlethal weapons. This is especially when the past felony is fraud, embezzlement, and similar crimes that are rarely accompanied with violence. (Even embezzlers may sometimes be tempted to kill, when someone is about to uncover their crime. We might therefore worry that if a convicted embezzler returns to a life of embezzlement or fraud when he gets out of prison, he might pose a higher risk of misusing deadly weapons. But it’s unlikely that he will misuse nonlethal weapons to avoid being caught again, because using a nonlethal weapon will generally only add to a criminal’s punishment rather than making the criminal harder to catch, especially when the criminal has already been identified, which is likely the case for repeat-offender embezzlers or defrauders who are about to get arrested.)

It thus seems to me that at least nonviolent felons should generally be allowed to possess stun guns and irritant sprays, and just as they are allowed to possess stun guns in most states. The precise line between which felons are dangerous enough that we need to deny them stun guns and which are not might be hard to draw. But at least for many nonviolent felonies, the case for denying felons the tools needed for effective self-defense seems quite weak.

* * *

To come shortly: The constitutional analysis of nonlethal weapon bans (and not limited to felons or minors), under the right to bear arms, the right to defend life, and the state constitutional and statutory rights to religious exemptions.

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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.]

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More on the Right To Bear Arms and Nonlethal Weapons Bans:

Again, for more details, please see the article draft.

Minors: Minors have some constitutional rights, like many aspects of the freedom of speech, and the right to have the criminal charges against them proved beyond a reasonable doubt. But they entirely lack other rights, such as the right to marry, to exercise sexual autonomy, or to access sexually themed publications. And they have weaker versions of other rights, such as the right to abortion.

It seems quite likely — and sensible — that minors would be seen as outside the scope of the right to bear arms where deadly weapons are concerned. While no right-to-bear-arms provision expressly excludes minors, it seems likely that such provisions were enacted with an understanding that minors did not have all the constitutional rights that adults have. This background understanding likely reflected a judgment that minors weren’t mature enough to fully appreciate the consequences of their actions, a judgment that could apply to minors’ potential dangerousness to others, as well as to themselves. And such a judgment particularly supports limits on minors’ rights when the minors’ immaturity could mean unnecessary death.

Nonetheless, it’s not clear that the same general principle should be applied to minors and nonlethal weapons. A minor’s immature misuse of nonlethal weapons is much less dangerous than the minor’s immature use of guns. And, as importantly, denying the minor the tools needed for self-defense is much more dangerous to the minor than is delaying the minor’s ability to legally have sex, have children, or view pornography. One reason that contraceptive rights and abortion rights — once accepted (however controversially) for adults — were extended to minors is that denying minors such a right risks irreversible and harmful changes to the minors’ lives:

The pregnant minor’s options are much different from those facing a minor in other situations, such as deciding whether to marry. A minor not permitted to marry before the age of majority is required simply to postpone her decision. She and her intended spouse may preserve the opportunity for later marriage should they continue to desire it. A pregnant adolescent, however, cannot preserve for long the possibility of aborting, which effectively expires in a matter of weeks from the onset of pregnancy.

Moreover, the potentially severe detriment facing a pregnant woman is not mitigated by her minority. Indeed, considering her probable education, employment skills, financial resources, and emotional maturity, unwanted motherhood may be exceptionally burdensome for a minor.... In sum, there are few situations in which denying a minor the right to make an important decision will have consequences so grave and indelible.

The same would apply to tools that defend against assault, rape, and murder, as well as to tools that defend against unwanted pregnancy and childbirth. Delaying the right to use such tools until the minor is 18 may equal denying the minor the right when she most needs it, and having likewise “grave and indelible” consequences.

The constitutional rights of minors are a difficult matter, which I’ve only touched on here. I feel comfortable, as I suggested above, that the majority American view as to stun guns (allow possession at least by 16-year-olds and generally even somewhat younger minors, with parental permission) and the nearly unanimous American view as to irritant sprays (allow possession by minors generally) is sound policy. I’m not as confident that this should be seen as a constitutional principle. Still, the contraceptive and abortion rights cases generally suggest that the rights of minors, especially older minors, to keep and bear nonlethal defensive weapons can’t be lightly rejected.

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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.

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