Posted by Eugene Volokh:
Self-Defense-Blindness:
http://volokh.com/archives/archive_2009_04_12-2009_04_18.shtml#1239838768
Many arguments against allowing private gun ownership or gun carrying
strike me as quite plausible; I think they're mistaken, but they make
sense. The arguments claim that banning guns would provide more
benefits, especially in saving people's lives, than the costs that
such a ban would impose (frustrated self-defense, decreased
deterrence, and other things). I think that this argument is
empirically unlikely, and morally troublesome. But it makes sense on
its own terms.
Occasionally, though, I run across a different phenomenon -- both as
to guns and as to other things -- that I think of as
"self-defense-blindness": a complete failure to even consider
self-defense as one of the functions of a gun or other weapon. Either
the speaker doesn't even think of self-defense, or at least he assumes
that the listener can be persuaded not to think of self-defense.
We see this, for instance, in claims that some guns should be banned
because they lack a "sporting purpose," without considering a possible
self-defense purpose. We also see this in statements that [1]guns are
good only for killing. Even if one includes threatening to kill
alongside killing (and ignores hunting and target-shooting), talking
about "killing" in condemning guns without distinguishing criminal
killings/threats from self-defense killings/threats strikes me as
self-defense-blindness.
But in doing research for my nondeadly weapons article, I saw the same
for non-firearms devices as well. Consider Tear Gas -- Pencil Gun --
Dangerous Weapon, 26 Opinions of the Connecticut Attorney General 207
(1950). The question was whether "tear gas pencil gun[s]" (described
basically as individualized irritant spray weapons) should be treated
as "dangerous or deadly weapon[s]" for purposes of the Connecticut
statute banning the carrying of such weapons without a permit. The
A.G. said yes, and that's a plausible bottom-line, if the question is
just whether the device is dangerous. But consider the A.G.'s
rationale:
It is obvious that the function of this so-called pencil gun is to
injure and to disable an individual and it is inconceivable that
this instrument would be used or has any other function than to
disable temporarily or permanently. It may well be that in the
hands of proper authority, such as a police official, the temporary
disabling of an individual or individuals may ultimately serve a
useful function. However, in the hands of an individual without any
such authority, there is no question but that the pencil gun could
only be calculate [to] injure.
It is our opinion, therefore, that the so-called tear gas pencil
gun is a dangerous and deadly weapon within the provisions of [the
statute].
So the only "useful function" for a tear gas pencil gun is when police
officers use it to temporarily disable people. The possibility that a
citizen who wants to defend himself (or herself) might "useful[ly]" do
so with a tear gas pencil gun is simply omitted. Nor is the A.G.
simply commenting on the physical reality that the tear gas pencil gun
can be dangerous regardless of whether used for good or ill; he's
making a normative judgment that the device is "useful" when used by
the police, but not even discussing whether people might find it
equally "useful" for self-defense.
([2]Show two other examples.)
I saw the same in a 1976 Pennsylvania Attorney General opinion on
Tasers, 75 Pa. D. & C. 2d 597, which opines on whether tasers are
covered under the Pennsylvania ban on possessing "offensive
weapon[s]." The law defined offensive weapons as any "implement for
the infliction of serious bodily injury which serves no common lawful
purpose." The A.G. treated incapacitation by Taser as a form of
"serious bodily injury," an odd reading but one I won't quarrel with
here. But that still left the question whether a Taser "serves no
common lawful purpose." Here's the A.G.'s reasoning:
(1) "Common lawful purpose" should be neither "so strictly construed
that no item would be prohibited by the phrase" nor "so loosely
construed that all items would be prohibited," but should "be given a
reasonable common sense interpretation."
(2) Under this "common sense" approach, "The Taser, like a 30-inch
knife, metal knuckles, and a sawed off shotgun [devices that had been
found to 'serve no common lawful purpose' under past precedents], and
unlike a butter knife, scissors, or a pack of razor blades, is capable
of inflicting serious bodily injury and serves no common lawful
purposes," and is thus banned.
Nowhere is there any mention of the possibility that self-defense
might be a "common lawful purpose" for Taser ownership. The A.G.
doesn't even mention self-defense as a possible purpose, or discuss
why he thinks criminal purposes would be more common than self-defense
purposes. Nor does he adopt the unsound but at least not
self-defense-blind view that self-defense doesn't matter because the
uncommonness of Tasers means that none of their purposes, lawful or
otherwise, are "common." Self-defense is just ignored.
Likewise, consider People v. Smelter, 437 N.W.2d 341 (Mich. Ct. App.
1989), the only case that considers whether stun guns are protected
under a state right-to-bear-arms provision. Here's the entirety of the
reasoning that says they aren't protected:
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.
Let's say that the right to bear arms really shouldn't extend to
weapons "whose customary employment by individuals is to violate the
law." The trouble is that the court doesn't offer any evidence that
stun guns are customarily used for crime rather than self-defense.
(None of the briefs in the case offered any such evidence, either.)
The court's argument simply points out that the weapon is potentially
dangerous -- well, of course it is, since all devices and techniques
for violence, even in entirely lawful self-defense, are dangerous.
Paralyzing an attacker in lawful self-defense can be entirely
permissible. But the court's analysis was self-defense-blind: The
possibility of self-defense didn't even come up.
([3]Hide two of the above examples.)
And all these examples aren't about guns. They can't just be described
as the direct effect of hostility to guns. Nor can they be defended on
the grounds that they implicitly borrow from the standard critique of
gun ownership. Rather, they seem to be part of a broader blindness to
self-defense, and an unthinking assumption that the "useful function,"
the "common lawful purpose," and the "customary employment" of weapons
simply doesn't include lawful self-defense.
All the states of the union legally allow self-defense. They even
allow deadly self-defense when necessary to repel a threat of death,
serious injury, rape, kidnapping, or in many states robbery (or even
burglary). But despite this, the arguments I quoted above (and many
like them) simply ignore self-defense altogether. The arguer is
self-defense-blind, or he wants his listeners to be.
References
1. http://volokh.com/2002_04_21_volokh_archive.html#75659421
2. file://localhost/var/www/powerblogs/volokh/posts/1239838768.html
3. file://localhost/var/www/powerblogs/volokh/posts/1239838768.html
_______________________________________________
Volokh mailing list
[email protected]
http://lists.powerblogs.com/cgi-bin/mailman/listinfo/volokh
