Nonlethal self-defense, (almost entirely) nonlethal weapons, and the rights to keep and bear arms and defend life.

AuthorVolokh, Eugene

INTRODUCTION I. WHAT NONLETHAL WEAPONS ARE II. WHY PEOPLE MAY WANT TO USE NONLETHAL WEAPONS III. RESTRICTIONS ON LAW-ABIDING ADULTS' POSSESSION AND CARRYING OF NONLETHAL WEAPONS A. Laws That Restrict Nonlethal Weapons when Guns Are Allowed B. Laws that Ban Both Possession or Carrying of Stun Guns and of Handguns (and Sometimes of Irritant Sprays) IV. CONSTITUTIONAL OBJECTIONS TO NONLETHAL WEAPON BANS A. The Right to Keep and Bear Arms in Self-Defense 1. Are nonlethal weapons "arms "? 2. Is concealed carrying covered by the right? B. State Constitutional Rights to "Defend[] Life" V. BANS ON POSSESSION BY FELONS VI. BANS ON POSSESSION IN PUBLIC HOUSING, IN PUBLIC UNIVERSITIES, AND ON PUBLIC BUSES A. Policy B. Constitutionality VII. BANS ON POSSESSION IN NARROWER ZONES VIII. SHALL-ISSUE LICENSING SCHEMES, LICENSING FEES, AND WAITING PERIODS CONCLUSION APPENDIX I: A NOTE ON GENERIC RESTRICTIONS A. "Weapons" and "Defensive Weapons " B. Projectile Devices C. Weapons Capable of Causing Death or Serious Injury (or, in Some Jurisdictions, Extreme Pain) D. Weapons Readily Capable of Causing Death or Serious Injury E. Weapons Capable or Readily Capable of Causing Death F. Weapons Likely to Cause Death or Serious Bodily Injury G. Undefined "Dangerous Weapons, " "Deadly Weapons, "or "Offensive Weapons" H. Weapons "Closely Associated with Criminal Activity ". APPENDIX II: GENERAL RESTRICTIONS ON STUN GUNS AND IRRITANT SPRAYS A. Bans on Possession, Including in the Home 1. Stun guns 2. Irritant sprays 3. Stun guns and irritant sprays B. Bans on Carrying in Most Places Outside the Home, Including Public Streets and Sidewalks 1. Stun guns 2. Stun guns and irritant sprays C. Bans on Carrying Concealed Outside the Home 1. Stun guns 2. Irritant sprays 3. Stun guns and irritant sprays D. Requirements of a Permit to Possess, Carry, or Carry Concealed, with the Government Having Some Discretion Whether to Issue the Permit 1. Stun guns 2. Irritant sprays 3. Stun guns and irritant sprays INTRODUCTION

Owning a stun gun (1) is a crime in seven states and several cities. (2) Carrying irritant sprays--such as pepper spray or Mace--is probably illegal in several jurisdictions. (3) Even possessing irritant sprays at home is illegal in Massachusetts if you're not a citizen, (4) and in several states if you're under eighteen (even if you're sixteen or seventeen). (5)

Yet in most of these jurisdictions, people are free to possess guns in the same situations where stun guns or irritant sprays are illegal. So deadly devices are fine. But say you have religious, ethical, or emotional objections to killing, or don't want to risk accidentally killing an innocent bystander, or don't want your children to potentially have access to a deadly weapon. Not wanting to kill, and knowing that stun guns and irritant sprays pose at most a very small risk of death, you get a stun gun (which over 198,000 civilians have apparently done) or an irritant spray. (6) Then you're a criminal.

In public places within some other jurisdictions, stun guns, irritant sprays, and firearms are equally banned. People there are entirely barred from defending themselves with any of the devices that are most effective for self-defense. That's the rule in many Illinois towns, in Milwaukee as to concealed carrying, for foreign citizens in Massachusetts, (7) and probably for eighteen- to twenty-year-olds outside the home in Connecticut and Memphis. (8)

It's the rule for minors, even ones old enough to use the deadly devices known as automobiles, in public places in several states and cities. (9) And it's the rule for felons (even nonviolent felons)--even in their own homes--in several other states, (10) which also means that people who live with felons may find it dangerous to possess such defensive devices. (11)

People are likewise barred from having handguns, stun guns, or irritant sprays in many public universities, in public housing in Aurora (Illinois), and in some jurisdictions on public buses. (12) This also means that people who live in those places or who travel on those buses are practically barred from having such weapons even outside the place where the weapons are formally forbidden, since such people have no practical way of legally storing or transporting the weapon.

Finally, in many places people are barred from possessing handguns and stun guns, but allowed to have irritant sprays. This burdens self-defense less than a total ban on all three devices would. But it still substantially burdens self-defense, since stun guns are often materially more effective than irritant sprays. (13)

Much has been written by scholars about the use of deadly force in self-defense and defense of others. But nonlethal self-defense remains largely undiscussed. Bans on nonlethal weapons are the main form of restriction on nonlethal self-defense, yet scholars have almost entirely ignored them. (14)

This Article aims to fill that gap. It begins by explaining (Part I) how stun guns and irritant sprays operate, and why some people might reasonably choose one or the other as their preferred nonlethal weapon. It also discusses (Part II) why people might want to defend themselves with nonlethal weapons rather than with lethal ones.

The Article then turns to the arguments for and against bans on law-abiding adults' possession and carrying of nonlethal weapons, both where firearms are allowed (Part III.A) and where firearms are forbidden (Part III.B). 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 a "when in doubt, stun" 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. But Part III argues that the bans are nonetheless not justified, because they are unlikely to do much to diminish crime, and likely to do a good deal more to interfere with self-defense against crime.

And these arguments are not only policy arguments, but also constitutional arguments. First, at least forty state constitutions protect a right to bear arms in self-defense, and these include several 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, two jurisdictions that ban stun guns; the Supreme Court is now considering whether it is incorporated against the states via the Fourteenth Amendment. Part IV.A argues that the word "arms" in all these provisions should be interpreted to cover nonlethal personal defense weapons as much as lethal ones, and that the right to bear arms in self-defense should preclude stun gun bans and irritant spray bans.

Second, twenty-one state constitutions explicitly recognize a right to defend life, and the U.S. Constitution might implicitly do the same. 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, Part IV.B argues, should be read--like other rights--as including the fight to possess devices that are necessary to effectively exercise the right. The right to decide whether to beget children protects the right to use contraceptive devices to better implement one's 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.

Felons are also often targeted by nonlethal weapon bans. Part V argues that, though the case for restricting possession of nonlethal weapons by felons is stronger than for law-abiding adults, nonviolent felons should nonetheless be free to possess such weapons. They need to defend themselves at least as much as the law-abiding do. And their need for nonlethal weapons is even greater, since they are generally denied access to the firearms that the law-abiding typically turn to when they need defensive weapons. Though felons are probably more likely to abuse such weapons than are the law-abiding, that risk should be modest enough that it's worth running as to nonlethal weapons even if it isn't worth running as to firearms. I make a similar point about older under-eighteen-year-olds in a separate article. (15)

Some jurisdictions have more localized bans on stun guns and irritant sprays. Part VI briefly discusses the policy and constitutional issues raised by bans focused on public housing, public universities, and public buses. Part VII briefly discusses bans that are limited to other places, such as parks and places that sell alcohol (which may include not just bars but also restaurants and even markets).

Finally, Part VIII discusses some jurisdictions' licensing requirements and waiting periods for buying nonlethal weapons. These restrictions are often borrowed directly (and unwisely) from gun regulation without any attention to the special characteristics of stun guns and irritant sprays. Such restrictions are thus likely to be more burdensome than they need to be, and less effective than they could be.


    First, a few words about the devices discussed in this article. Stun guns and Tasers work by producing electrical pulses that make the target's muscles spasm, and thus quickly but temporarily disable him. (16) And unlike, say, a baton or a similar weapon, they generally stop the target with one blow, and can be used even by people who are weak or disabled.


    The original stun guns were--despite the name--contact weapons: the user had...

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