66 Pages Posted: 6 Jul 2009 Last revised: 17 Jul 2009
Date Written: June 27, 2009
Much has been written about the law of lethal self-defense, but comparatively little has been written about nonlethal self-defense. And very little has been written on what is likely the most significant restrictions on nonlethal self-defense - restrictions on possessing and carrying stun guns and irritant sprays, which are indeed almost always nonlethal. Seven states and several cities, for instance, totally ban private possession of stun guns, even in the home. And that’s so even though in all those states gun possession in the home is perfectly legal.
This article discusses the most common such nonlethal weapon restrictions: (1) general bans on possession or carrying, (2) bans on possession by minors (including older minors), (3) bans on possession by felons (including nonviolent felons), (4) bans on possession or carrying in public universities, public housing, and public transportation systems, and (5) bans on carrying in public parks and in places that sell alcohol. All of these, it argues, are generally bad policy, though the case against them is stronger as to some restrictions than others.
It also argues that many such restrictions should be seen as unconstitutional under the right to bear arms, whether federal or state (at least 40 state constitutions secure an individual right to bear arms). It argues that they should be seen as unconstitutional under the right to defend life, which is expressly secured by 21 state constitutions and that might be implicitly secured by the federal constitution. And it argues that when a law allows possession of deadly weapons and not nondeadly weapons, then people who have religious beliefs that forbid deadly force (even in self-defense) but allow nondeadly force should get religious exemptions from such rules, in the roughly half the states that have presumptive religious exemption regimes.
Keywords: Criminal Law, Self-Defense, Constitutional Law, Right to Keep and Bear Arms, Religious Freedom
Suggested Citation: Suggested Citation
Volokh, Eugene, Nonlethal Self-Defense, (Almost Entirely) Nonlethal Weapons, and the Rights to Keep and Bear Arms, Defend Life, and Practice Religion (June 27, 2009). Stanford Law Review, Vol. 62, 2010; UCLA School of Law Research Paper No. 09-20. Available at SSRN: https://ssrn.com/abstract=1426628