Posted by Eugene Volokh:
Nonlethal Self-Defense, Nonlethal Weapons, and the Rights To Keep and Bear
Arms, Defend Life, and Practice Religion:
http://volokh.com/archives/archive_2009_04_12-2009_04_18.shtml#1239836306
My [1]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 [2]here.
* * *
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
and North Carolina allow home possession of stun guns, but ban
carrying them in public; Omaha bans 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.
([3]Show the rest of the Introduction.)
The other prominent self-defense device, the irritant spray (such as
pepper spray or Mace), likewise used to be illegal in California, New
York, Wisconsin, and Washington, D.C, but has since been largely
legalized in the U.S. Nonetheless, irritant sprays remain illegal to
carry in public, and probably even to carry in the home, in many
Illinois towns. They are probably illegal to carry in public in
Connecticut, and in Westland, Michigan, a suburb of Detroit with
population nearly 100,000. They are illegal to carry concealed in
Milwaukee.
Non-citizens are legally barred from possessing irritant sprays in
Massachusetts; so are people who aren�t Massachusetts residents.
Minors, even 16- and 17-year-olds, may not possess irritant sprays in
Maryland, New Jersey, New York, and Washington, D.C. It�s illegal for
felons, even nonviolent felons, to possess irritant sprays in Florida,
Massachusetts, New Jersey, and New York.
It�s illegal to possess irritant sprays on college and university
property in New Jersey, unless the possessor gets written
authorization from the governing officer of the college or university.
It�s illegal to possess irritant sprays in public parks in San Jose
(California), Brevard County (Florida), and several smaller towns.
It�s illegal to possess irritant sprays on buses in Fresno
(California); this means that people who ride the bus to work or
elsewhere can�t lawfully carry irritant sprays to protect themselves
at their destination.
Possession of irritant sprays is also forbidden by campus policy,
though not by criminal law, in the University of Massachusetts at
Dartmouth, Wayne State University in Detroit, University of Pittsburgh
at Johnstown, and several other public universities. This includes
people�s dorm rooms, so in practice someone who lives at one of those
schools would be unable to have pepper spray even if he plans to use
it only off-campus.
Much has been written, both by scholars and by judges and legislators,
about the use of deadly force in self-defense and defense of others.
But nonlethal self-defense is largely unrestricted, and largely
undiscussed by the academic literature. Bans on nonlethal weapons are
the main form of restriction on nonlethal self-defense, yet scholars
have almost entirely ignored them.
This Article aims to fill that gap. Part II will consider whether
nonlethal weapon bans are a good idea. It will discuss why people
might want to defend themselves with nonlethal weapons, and why some
people might reasonably choose stun guns over irritant sprays while
others might reasonably make the opposite choice. It will also
consider why the law might want to restrict nonlethal weapons.
Nonlethal weapons may indeed be used in crime, and might sometimes be
used even if lethal ones are not, for instance if a robber decides to
take an �always stun first� approach, or if someone wants to torture
someone else with a stun gun or pepper spray as part of a criminal
plan or as a juvenile prank. Nonetheless, I�ll argue that the bans�
interference with self-defense is too great, and their likely
interference with crime too small, to justify such bans, whether as to
adults, as to older minors, or as to nonviolent felons.
CAPTION: Stun gun bans
State Stun guns banned? Guns allowed? Gun concealed carry allowed (age
21+)? Const. right to bear arms? Const. self-defense right? Religious
exemption regime?
Conn. Carrying banned Yes Yes Yes Yes
D.C. Banned Yes Yes Yes
Del. (Wilmington) Banned Yes Yes Yes Uncertain
Haw. Banned Yes Uncertain Uncertain
Ill. Carrying banned Yes Yes Yes
Ind. (South Bend) Banned Yes Yes Yes Yes
La. (New Orleans) Banned Yes Yes Yes Uncertain
Md. (Annapolis/Baltimore area) Banned Yes
Mass. Banned Yes Yes Yes
Mich. Banned Yes Yes Yes Yes
N.J. Banned Yes Yes
N.Y. Banned Yes Yes, midlevel scrutiny
N.C. Carrying banned Yes Yes Yes Yes
Ohio (Akron) Banned age 18-to-20, police discretion for others Yes Yes
Yes Yes Yes
Pa. (Philadelphia) Banned Yes Yes Yes Yes Yes
R.I. Banned Yes Yes Yes
Wis. Banned Yes Yes Yes
Part III shifts from a pure policy analysis to a constitutional
analysis. Part III.A discusses the right to bear arms. At least 40
states have clearly self-defense-based right to bear arms provisions,
and they include most of the no-stun-gun or partial no-stun-gun
states. The Second Amendment applies in the District of Columbia and,
by federal statute, in the Virgin Islands; it may also eventually be
incorporated against the states via the Fourteenth Amendment. I will
argue that �arms� should be interpreted to cover nonlethal personal
defense weapons as much as lethal ones, and that the right to bear
arms should preclude stun gun bans and irritant spray bans.
Part III.B argues that these bans should also be treated as
unconstitutional under the right to defend life, which is likely
implicitly recognized by the U.S. Constitution and which is explicitly
recognized in 21 states, including the no-stun-gun or partial
no-stun-gun states of Delaware, Massachusetts, Ohio, New Jersey, and
Pennsylvania. This express state constitutional right has been almost
entirely ignored by scholars; but courts have rightly treated it as
legally binding.
And the right to defend life, I will argue, should be read -- like
other rights -- as including the right to possess devices that are
necessary to effectively engage in self-defense. The right to decide
whether to beget children protects the right to use contraceptive
devices to better implement one decision. The right to protect
property, expressly secured by all the states that also secure a right
to defend life, has been read as including the right to use devices
(such as weapons or traps) to stop animals that are consuming one�s
crops. The First Amendment presumptively protects the right to
associate, to spend money, and to use technological devices (such as
telephones, amplifiers, and the like) to make one�s expression
effective. Likewise, the right to defend life should protect the right
to use nonlethal devices that help effectively defend life.
Finally, Part III.C focuses on people who have a religious or
conscientious objection to the use of deadly force, and who find
themselves in contexts where deadly force is legal but religiously
forbidden and stun guns or irritant sprays are religiously permitted
but illegal. I will argue that such people should have a religious
exemption from the nonlethal weapon bans, just as (for instance)
Sabbatarians have a religious exemption from the requirement that they
be willing to work Saturdays to be eligible for unemployment benefits.
This will not happen under the Free Exercise Clause: The Court held in
Employment Division v. Smith that the Free Exercise Clause generally
doesn�t require the government to grant religious exemptions from
generally applicable laws. But most of the jurisdictions that restrict
nonlethal weapons have statutes or state constitutional provisions
that nonetheless presumptively require religious exemptions.
[Notes: I use �stun gun� as the generic term, but the main stun guns
now available are so-called Tasers, and the Taser Corporation is the
main supplier. Modern stun guns shoot two wires tipped with barbed
darts up to 15 feet; the darts deliver an electric shock that promptly
immobilizes the target (as well as inflicting severe pain). The stun
guns also work when put in direct contact with the target�s body.
The exact risk posed by stun guns is unclear, but the most recent
study, William P. Bozeman et al., Safety and Injury Profile of
Conducted Electrical Weapons Used by Law Enforcement Officers Against
Criminal Suspects, ANN. EMERG. MED. (forthcoming 2009), reports no
deaths caused by stun gun use in 1201 consecutive uses of stun guns by
three police departments, and only 3 moderate or severe medical
reactions, none leading to long-term harm. The study reports that two
of the targets did �die[] unexpectedly while in police custody,� but
concludes that stun gun use �was not determined to be causal or
contributory to death by the medical examiner in either case.� An
Amnesty International report, �Less Than Lethal�? The Use of Stun
Weapons in US Law Enforcement (2008), reports that �in at least 50
cases [since June 2001], coroners are reported to have listed the
Taser as a cause or contributory factor in the death.� But this seems
to be out of over 600,000 field uses against suspects since 1998. This
is why Amnesty agreed �that, overall, the death rate compared to the
number of reported Taser field uses is relatively low,� though it
argued that �Tasers are used in many situations where the degree of
force deployed is unwarranted, and considers that any risk of death
resulting from the use of excessive or unnecessary force is
unacceptable.�
By way of comparison, the death rate from gunshot wounds caused in
deliberate assaults on others is likely about 20%, and from knife
wounds caused in deliberate assaults on others is likely about 2% (I
say �likely� because such statistics are of course highly imprecise,
especially since not all wounds are reported to the authorities). Of
course all attacks are potentially deadly; pushing someone may cause
him to fall the wrong way and die. But stun guns are so rarely deadly
that they merit being labeled non-deadly, especially in comparison to
firearms and knives. Cf. MODEL PENAL CODE § 3.11 (defining �deadly
force� as �force which the actor uses with the purpose of causing or
which he knows to create a substantial risk of causing death or
serious bodily injury�).]
([4]Hide most of the above.)
References
1. http://www.law.ucla.edu/volokh/nonlethal.pdf
2. http://www.law.ucla.edu/volokh/nonlethal.pdf
3. file://localhost/var/www/powerblogs/volokh/posts/1239836306.html
4. file://localhost/var/www/powerblogs/volokh/posts/1239836306.html
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