By Paul H. Robinson, a professor at the University of Pennsylvania Law School and the author, most recently, of Law Without Justice: Why Criminal Law Doesn’t Give People What They Deserve (THE NEW YORK TIMES, 02/07/08):
A narrowly divided Supreme Court ruled last week that the Second Amendment gives Americans the right to keep a loaded gun at home for their personal use. Presumably, citizens can use these weapons to defend themselves from intruders. But given the growing effectiveness and availability of less lethal weapons, it is likely that state laws will increasingly keep people from actually using their guns for self-defense.
The states impose carefully defined limitations on the use of deadly force in self-defense. (These rules are fairly uniform, state to state; most are based on the American Law Institute’s Model Penal Code of 1962.) A person may use only as much force as is “immediately necessary.” If a less lethal means of defense is available, the use of deadly force is illegal. Firearms are by law deadly force. (The police are given somewhat greater authority to use force, even aggressive force.)
Guns have been considered a primary weapon for self-defense. But now there are nonlethal alternatives — some not yet on the market — that can quickly disable an attacker even more reliably than a firearm can.
The best known of these are Tasers, handgun-shaped devices that fire a dart that delivers a painful electrical shock. A hit from a Taser causes an instant muscular spasm that can disable any attacker, no matter how determined. And the Taser works no matter where on the attacker’s body the dart hits. A bullet, in contrast, instantly disables only if it hits a couple of vulnerable spots, like the space between the eyes. A shot to the arm, the leg or even the torso may not stop an attacker.
A Taser works only within a limited distance, up to 35 feet for advanced models. But most firearm confrontations are at less than 10 feet. More important, the legal limitations on self-defense typically do not allow use of force at a distance. Defensive force is considered “immediately necessary” only when the defender can wait no longer, when the threat is “imminent.”
Newer kinds of hand-held weapons that are less lethal than guns — many already in prototype — may be even more effective than Tasers. These include light lasers, designed to blind temporarily, and microwave beams that instantly cause the skin to feel as if it is on fire, but cause no lasting harm.
Of course, anyone who uses a gun in self-defense may argue that he would have used a less lethal weapon if he had had one at hand, but there was only the firearm. The problem with this argument is that the limited option is the person’s choice, and the law may not be blind to that choice.
If you are a surgeon and you leave your glasses behind on the way to the operating room, then botch a delicate procedure, you can’t convince a judge that the resulting death wasn’t your fault because you couldn’t see well. If, on your way to confront an intruder, you choose your gun rather than your more effective but less lethal weapon, you can hardly complain later about your limited options.
Similarly, when a person shops for a weapon of self-defense, anticipating some day a confrontation with an attacker, his choice of a gun over something less lethal but more effective is a choice to limit his options in a confrontation.
Should we worry that by expecting people to use only nonlethal weapons in self-defense we would sacrifice our personal autonomy and safety? No. On the contrary, personal autonomy would be even more vigilantly protected.
The reason for this is a second limitation on the use of defensive force, what might be called the “proportionality” requirement. Typically, a defender can lawfully use deadly force only to prevent death, rape, kidnapping or bodily injury serious enough to cause long-term loss or impairment of a body part or organ. But a nondeadly weapon can be used to defend against any threat of unlawful force.
As effective less-than-lethal weapons proliferate, the laws of self-defense may ultimately relegate last week’s court decision to the status of an odd little opinion, one that works mainly to ensure some special constitutional status for gunpowder technology. Gun collectors will be fond of it, but for most of society, it will have little practical effect.