The Volokh Conspiracy - 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.

	[Eugene Volokh, April 16, 2009 at 4:54pm] Trackbacks 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. Related Posts (on one page): Nonlethal Weapons and the Right To Defend Life: More on the Right To Bear Arms and Nonlethal Weapons Bans: Constitutional Objections to Nonlethal Weapons Bans: Laws That Ban Nonlethal Weapon Possession by Felons: Minors with Stun Guns and Sprays, Oh My! Laws That Ban Both Possession or Carrying of Stun Guns and of Handguns (and Sometimes of Irritant Sprays): Avoiding Nonlethal-Weapon Crime as Justification for Restricting Nonlethal Weapons Even When Firearms Are Allowed: Why Some People May Reasonably Prefer Nonlethal Weapons Over Guns: Nonlethal Self-Defense, Nonlethal Weapons, and the Rights To Keep and Bear Arms, Defend Life, and Practice Religion: