Saturday, February 13, 2010
Eugene Volokh has published Nonlethal Self Defense, (Almost Entirely) Nonlethal Weapons, and the Rights to Keep and Bear Arms and Defend Life at The Legal Workshop. It is drawn from his article in the Stanford Law Review and includes a discussion of state constitutional provisions protecting a right to self defense. From the introduction:
Owning a stun gun or Taser is a crime in seven states and several cities. Carrying irritant sprays, such as pepper spray or Mace, is probably illegal in several jurisdictions. Even possessing irritant sprays at home is illegal in Massachusetts if you’re not a citizen.
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 people who have deadly devices are fine. But those who have a nonlethal weapon—perhaps because they have religious, ethical, or emotional compunctions about killing, or because they worry about killing someone by mistake, or because they worry about a family member misusing the gun—are criminals.
Other jurisdictions ban some people (such as felons and minors) from possessing not just stun guns and irritant sprays but also firearms. Others bar all people from possessing all three kinds of weapons in all public places, in public universities, in public housing, or on public transportation systems. People there are entirely stripped of the ability to defend themselves with any of the devices that are most effective for self-defense.
I think such regulatory schemes are generally bad policy. And I think they are unconstitutional, perhaps under the Second Amendment—if it’s held to apply to state and local governments—and in any event under those state constitutions that secure a right to bear arms or a separate right to self-defense.