The Volokh Conspiracy - 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.

(Show more, on felons and on concealed carry.)

Felons: D.C. v. Heller categorically asserted that the right to bear arms doesn't apply to felons, because of the "longstanding" tradition of excluding felons from the right. There's a debate about whether such a tradition was indeed longstanding, and there's good reason to think that the tradition — at least dating back beyond about 80 years ago — does not indeed cover most nonviolent felonies. Nonetheless, it seems practically unlikely that the Court will depart from Heller's statement on this subject. And state courts have generally taken the same view under state right to bear arms provisions.

On the other hand, it is again not clear that this is the right rule where nonlethal weapons are involved. Felons who have finished their sentences (as opposed to people who are still on parole or probation) generally have the same constitutional rights as ordinary citizens, except when they are expressly excluded from the constitutional right, as is the case in many states with voting. The possession of deadly weapons is the rare exception to this rule. It's not clear that the possession of nonlethal weapons, especially by nonviolent felons who seem not to be materially more likely than the ordinary citizen to abuse such nonlethal weapons, should likewise qualify. As with minors, I'm not strongly confident of this conclusion; but as with minors, I don't think that nonviolent felons' constitutional claims on this score can be lightly dismissed. Concealed Carry: Heller did note another limitation on the scope of the right to bear arms: "[T]he majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues." This wouldn't affect the right to have stun guns at home, or to carry them openly. But does it allow bans on concealed carry of stun guns, as in Illinois and Omaha, or of irritant sprays, as in Milwaukee?

I think it shouldn't. The concealed carry exception rests entirely on a tradition of upholding bans on concealed carry of guns and knives — but those bans were justified by the lethality of the weapons. Even if it is proper to defer to longstanding legislative and judicial judgment in carving out exceptions from constitutional guarantees, there's no reason to defer to a judgment that had never been made. Nineteenth-century legislatures didn't have to consider whether concealed carry of nonlethal weapons should be banned, and nineteenth-century courts didn't have to consider whether restrictions on such nonlethal weapons were reasonable.

And banning concealed carry of stun guns is a substantial burden on people's ability to defend themselves, though not as grave as a total carrying ban would be. Many people are understandably reluctant to openly carry stun guns, for fear of "frighten[ing] friends and customers" and passersby. Moreover, many women's clothes don't readily offer places for stun guns or irritant sprays to be holstered — the logical place for many women to carry a stun gun or an irritant spray is inside a purse.

(Hide the felons and concealed carry material.)

	[Eugene Volokh, April 21, 2009 at 5:35pm] Trackbacks 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. (Show more, on felons and on concealed carry.) Felons: D.C. v. Heller categorically asserted that the right to bear arms doesn't apply to felons, because of the "longstanding" tradition of excluding felons from the right. There's a debate about whether such a tradition was indeed longstanding, and there's good reason to think that the tradition — at least dating back beyond about 80 years ago — does not indeed cover most nonviolent felonies. Nonetheless, it seems practically unlikely that the Court will depart from Heller's statement on this subject. And state courts have generally taken the same view under state right to bear arms provisions. On the other hand, it is again not clear that this is the right rule where nonlethal weapons are involved. Felons who have finished their sentences (as opposed to people who are still on parole or probation) generally have the same constitutional rights as ordinary citizens, except when they are expressly excluded from the constitutional right, as is the case in many states with voting. The possession of deadly weapons is the rare exception to this rule. It's not clear that the possession of nonlethal weapons, especially by nonviolent felons who seem not to be materially more likely than the ordinary citizen to abuse such nonlethal weapons, should likewise qualify. As with minors, I'm not strongly confident of this conclusion; but as with minors, I don't think that nonviolent felons' constitutional claims on this score can be lightly dismissed. Concealed Carry: Heller did note another limitation on the scope of the right to bear arms: "[T]he majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues." This wouldn't affect the right to have stun guns at home, or to carry them openly. But does it allow bans on concealed carry of stun guns, as in Illinois and Omaha, or of irritant sprays, as in Milwaukee? I think it shouldn't. The concealed carry exception rests entirely on a tradition of upholding bans on concealed carry of guns and knives — but those bans were justified by the lethality of the weapons. Even if it is proper to defer to longstanding legislative and judicial judgment in carving out exceptions from constitutional guarantees, there's no reason to defer to a judgment that had never been made. Nineteenth-century legislatures didn't have to consider whether concealed carry of nonlethal weapons should be banned, and nineteenth-century courts didn't have to consider whether restrictions on such nonlethal weapons were reasonable. And banning concealed carry of stun guns is a substantial burden on people's ability to defend themselves, though not as grave as a total carrying ban would be. Many people are understandably reluctant to openly carry stun guns, for fear of "frighten[ing] friends and customers" and passersby. Moreover, many women's clothes don't readily offer places for stun guns or irritant sprays to be holstered — the logical place for many women to carry a stun gun or an irritant spray is inside a purse. (Hide the felons and concealed carry material.) 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: