Posted by Eugene Volokh:
Laws That Ban Nonlethal Weapon Possession by Felons:
http://volokh.com/archives/archive_2009_04_19-2009_04_25.shtml#1240245124
(As before, for the footnotes and for the other parts of the argument,
please see [1]the full Stanford Law Review draft.)
Felons are generally barred from owning or carrying a firearm. This
law may also deter firearm possession by people who live with a felon.
Connecticut, Florida, Minnesota, New Hampshire, Pennsylvania, and
Virginia -- plus of course the general no-stun-gun jurisdictions --
add to this a ban on felons� possessing stun guns or having them in
their control. Florida, Massachusetts, New Jersey, New York, and
Portland (Oregon) ban felons� possessing or having control over
irritant sprays.
Yet felons need self-defense tools, too. They may need self-defense
tools more than the average nonfelon does: Being a felon dramatically
hurts your career prospects, which means you�ll likely have to live in
a poorer and therefore on average more crime-ridden part of town. And
the legal bar on felons� possessing firearms makes stun guns even more
valuable to them.
Some felons have committed the sort of violent crimes that might make
us reasonably worry that they are especially likely to misuse stun
guns or irritant sprays, either in deliberate crimes or in impulsive
crimes motivated by anger or revenge. But many felons have been
convicted only of nonviolent crimes. And while most nonviolent felons
have generally shown a willingness to disobey the law, it seems
unlikely that this willingness will map into a substantially greater
risk that they will violently misuse nonlethal weapons. This is
especially when the past felony is fraud, embezzlement, and similar
crimes that are rarely accompanied with violence. (Even embezzlers may
sometimes be tempted to kill, when someone is about to uncover their
crime. We might therefore worry that if a convicted embezzler returns
to a life of embezzlement or fraud when he gets out of prison, he
might pose a higher risk of misusing deadly weapons. But it�s unlikely
that he will misuse nonlethal weapons to avoid being caught again,
because using a nonlethal weapon will generally only add to a
criminal�s punishment rather than making the criminal harder to catch,
especially when the criminal has already been identified, which is
likely the case for repeat-offender embezzlers or defrauders who are
about to get arrested.)
It thus seems to me that at least nonviolent felons should generally
be allowed to possess stun guns and irritant sprays, and just as they
are allowed to possess stun guns in most states. The precise line
between which felons are dangerous enough that we need to deny them
stun guns and which are not might be hard to draw. But at least for
many nonviolent felonies, the case for denying felons the tools needed
for effective self-defense seems quite weak.
* * *
To come shortly: The constitutional analysis of nonlethal weapon bans
(and not limited to felons or minors), under the right to bear arms,
the right to defend life, and the state constitutional and statutory
rights to religious exemptions.
References
1. http://www.law.ucla.edu/volokh/nonlethal.pdf
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