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.