Second Amendment Decision Rules, Non-Lethal Weapons, and Self-Defense

Marquette Law Review Marquette Law Review

Volume 97

Issue 3

Spring 2014

Article 8

2014

Second Amendment Decision Rules, Non-Lethal Weapons, and Second Amendment Decision Rules, Non-Lethal Weapons, and

Self-Defense Self-Defense

A.J. Peterman

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A.J. Peterman,

Second Amendment Decision Rules, Non-Lethal Weapons, and Self-Defense

, 97 Marq. L.

Rev. 853 (2014).

Available at: https://scholarship.law.marquette.edu/mulr/vol97/iss3/8

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SECOND AMENDMENT DECISION RULES,

NON-LETHAL WEAPONS, AND SELF-

DEFENSE

General public debate about the Second Amendment has focused

almost exclusively on the regulation of firearms. After Heller and

McDonald, the scope of the Second Amendment’s protection has been

hotly contested. One area of the Second Amendment that has been less

discussed is the decisional rules that would govern non-firearms and

levels of protection based on location. This Comment proposes two

Second Amendment Constitutional decisional rules. Broadly, this

Comment suggests that the “common use” test for “arms” should be

modified for the development of new arms, such as non-lethal weapons,

that are subject to the Second Amendment. The proposed “common use

for the self-defense purpose” test attempts to add more precision by tying

the weapon to the individual right to self-defense. Second, this Comment

argues that a decisional rule that adjusts for location and arm type will

comport with the objectives of the Second Amendment, i.e., self-defense,

and provide an additional means for self-defense outside the home. This

argument is supported by Court precedent and practical objectives that

increase the ability of individuals to defend themselves outside the home

and simultaneously attempt to decrease the lethality of these

confrontations.

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 5 4

II.

NON-LETHAL ARMS DEFINED AND THEIR TYPES . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 5 9

A. Blunt Force Objects .................................................................... 862

B. Electric Weapons ......................................................................... 863

C. Irritant Sprays .............................................................................. 865

III. THE SECOND AMENDMENT GENERALLY, “ARMS” DEFINED,

AND THE

RECENTLY CREATED RIGHT TO SELF-DEFENSE ....... 867

A. “Arms” under Miller? ................................................................. 868

B. “Arms” under Heller and McDonald? ...................................... 871

IV.

NON-LETHAL WEAPONS STATUES & REGULATIONS TODAY . . . . . . . 8 7 6

A. The Upper Mid-West: A Complicated Array of State-by-

State Non-Lethal Weapons Statutes ....................................... 877

1. State-by-State ......................................................................... 877

a. Illinois ............................................................................... 878

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854 MARQUETTE LAW REVIEW [97:3

b. Wisconsin ......................................................................... 880

c. Michigan ........................................................................... 882

d. Indiana .............................................................................. 883

e. Minnesota ......................................................................... 884

2. State-by-State Problems ....................................................... 884

B. Federal Non-Lethal “Arms” Statues & Regulations ............... 887

NON-LETHAL WEAPONS AS “ARMS” AND COMMON USE FOR

SELF-DEFENSE: WHY PRECEDENT & PRACTICALITY

SUPPORT THIS APPROACH .............................................................. 890

Adjusting “Common Use” ......................................................... 891

B. Under the “Common Use for Self-Defense Purpose Test,”

Non-Lethal Weapons Are “Arms” ......................................... 894

C. Heightened Protections: The House, the Car, and the

Public .......................................................................................... 896

VI.

CONCLUSION ......................................................................................... 900

INTRODUCTION

December 14, 2012, started off like any other day for the parents of

the 458 children enrolled at Sandy Hook Elementary.

As scheduled in

the school’s recently updated emergency protocols, the front entry doors

were closed and locked at 9:30 a.m.

Twenty-year-old Adam Lanza had

just left his house, where he had shot his mother in the head four times.

Lanza then drove to Sandy Hook Elementary equipped with his

mother’s Bushmaster XM15-E2S rifle,

fired through the locked entry

doors to gain access to the building, and preceded to fire 152 rounds at

1.Enrollment Report as of November 30, 2012, NEWTOWN PUBLIC SCHOOL DISTRICT

(Feb. 1, 2013), http://www.newtown.k12.ct.us/LinkClick.aspx?fileticket=Ka95L6cIbcU%3d&t

abid=3295&mid=39347.

2. James Barron, Gunman Massacres 20 Children at School in Connecticut; 28 Dead,

Including Killer, N.Y.

TIMES, Dec. 15, 2012, at A1 (reporting that the school district changed

the security policy earlier in the year); Kate Hartman, School Security Remains a Priority

Since Newtown Shooting at Sandy Hook Elementary, R

EG. CITIZEN (Aug. 27, 2013),

http://www.registercitizen.com/general-news/20130827/school-security-remains-a-priority-sinc

e-newtown-shooting-at-sandy-hook-elementary.

3. Barron, supra note 2; Ashley Fantz, Shooter’s Mother Wanted Her Son to Fit In,

Friend Says, CNN.

COM (Dec. 21, 2012, 12:43 PM), http://www.cnn.com/2012/12/16/us/connecti

cut-nancy-lanza-profile.

4. Press Release, Conn. State Police, State Police Identify Weapons Used in Sandy

Hook Investigation; Investigation Continues (Jan. 18, 2013), available at http://www.ct.gov/de

spp/cwp/view.asp?Q=517284&A=4226; Barron, supra note 2.

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2014] SECOND AMENDMENT DECISION RULES 855

the children and staff.

In less than five minutes,

Lanza left a trail of

carnage that resulted in the deaths of twenty-six innocent people,

including twenty children and six school staff.

Upon learning that the

police had arrived, Lanza took his own life with a pistol.

Twenty-six

more lives had been added to the recent string of active-shooter mass

shootings,

and these deaths add to the 32,163 gun-related deaths in

2011.

Annual homicide rates in the United States have gone up and down

since 1995, but hover around 15,953 per year, with rates of homicide per

100,000 people down by half since 1993.

In 2011, there were a total of

11,101 gun homicides, accounting for almost 70% of all homicides in the

United States.

Additionally, 851 individuals died unintentionally at the

hands of guns.

The seriousness of homicide and deaths by guns in the

5.See Dave Altimari et al., Lanza Studied Mass Murders: Researched Multiple Killers,

ARTFORD COURANT, Mar. 14, 2013, at A1.

6. Susan Candiotti et al., Newtown Shooting Details Revealed in Newly Released

Documents, CNN.COM (Mar. 29, 2013, 9:53 AM), http://www.cnn.com/2013/03/28/us/connectic

ut-shooting-documents/; see also Rich Scinto & Luther Turmelle, Newtown Shooting: An

Interactive Timeline of Events, N

EW HAVEN REG. (Dec. 15, 2012), http://www.nhregister.com

/articles/2012/12/16/news/doc50cd04641ce4f908399785.txt.

7. Barron, supra note 2 (reporting that twenty of the twenty-six people killed were

children); Scinto & Turmelle, supra note 6.

8.See Altimari et al., supra note 5.

9.See Mark Follman et al., A Guide to Mass Shootings in America, M

OTHER JONES

(July 20, 2012, 6:32 PM), http://www.motherjones.com/politics/2012/07/mass-shootings-map

(reporting that there have been at least sixty-two mass shootings since 1982—including

several shootings in 2012: Colorado theatre, Wisconsin Sikh temple, and Minnesota

manufacturer, among others). While the Guide to Mass Shootings includes statistics on how

often the killer obtained a weapon legally, these statistics seem to misrepresent the claim

because, for instance, it claims Adam Lanza’s weapons were obtained legally, see id.,

suggesting to the reader that he went out and purchased the weapons legally, when in fact, the

weapons were purchased by his mother and he took and used them. Caroline Bankoff,

Newtown Shooter Adam Lanza’s Mother Was an Avid Gun Collector,

N.Y. MAG. (Dec. 16,

2012, 10:35 AM), http://nymag.com/daily/intelligencer/2012/12/adam-lanzas-mother-was-an-

avid-gun-collector.html; Fantz, supra note 3. So, technically, the weapons were purchased

legally but were obtained by Adam Lanza without permission. See Follman et al., supra.

10.See Philip Alpers et al., Guns in the United States: Total Number of Gun Deaths,

UNPOLICY.ORG, http://www.gunpolicy.org/firearms/compareyears/194/total_number_of_gu

n_deaths (last visited Jan. 29, 2014).

11.See D

ONNA L. HOYERT & JIAQUAN XU, U.S. CTR. FOR DISEASE CONTROL, 61

NAT’L VITAL STAT. REP. NO. 6, DEATHS: PRELIMINARY DATA FOR 2011, at 19 tbl.2 (2012);

Gun Homicide Rate Declines By Half Since 1993 Peak, P

EW RES. SOC. & DEMOGRAPHIC

TRENDS (May 2, 2013), http://www.pewsocialtrends.org/2013/05/07/gun-violence-in-america/s

t_13-05-02_ss_guncrimes_02_murder-rate/.

12. See H

OYERT & XU, supra note 11, at 19 tbl.2.

13.Id. at 18 tbl.2.

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856 MARQUETTE LAW REVIEW [97:3

country cannot be underestimated, nor should the problem be swept

under the rug.

To illustrate the significance of guns in the United States, current

estimates put the total number of guns owned by civilians in the United

States at around 270 million.

The United States has the highest rate of

private ownership of firearms at 88.8 per 100 people, making it higher

than Yemen, Iraq, and Afghanistan.

Additionally, it would take the

next ninety-two countries, by highest rate of ownership per weapons

combined, to hit 255 million firearms owned by citizens.

China, taking

the position of 102, has 4.9 weapons per 100 people and a grand total of

40 million weapons.

The United States purchases roughly 4.5 million

of the 8 million new guns manufactured worldwide.

These statistics are not meant to show that guns should be banned or

that they should not be sold—by contrast, the statistics show three

valuable things: (1) that individuals need to be better trained on storing

and using guns; (2) that high numbers of weapons correlate to a high

number of gun-related deaths; and (3) that other alternatives to guns

should be explored in an effort to curb gun-related violence and death.

By comparison, the statistics for the number of civilian-purchased,

non-lethal weapons are not as clear as the statistics for lethal weapons

purchases. Civilian purchases of tasers numbered 198,000 as late as

2009.

Because more than one company sells irritant sprays, little

numerical data exists on irritant spray sales numbers; however, a recent

article estimates that there may be at least 600,000 people who possess

irritant sprays.

The rate of death by stun guns is substantially lower,

14.See Aaron Karp, Completing the Count: Civilian Firearms, in SMALL ARMS SURVEY

2007: GUNS AND THE CITY 39, 39 (2007).

15.Id. at Annexe 4 (per 100 civilians: Yemen at 54.8; Iraq at 34.2, Afghanistan at 4.4).

16.Id.

17.Id.

18. Laura MacInnis, U.S. Most Armed Country with 90 Guns Per 100 People, REUTERS

(Aug. 28, 2007), http://www.reuters.com/article/2007/08/28/us-world-firearms-idUSL28348938

20070828 (citing Karp, supra note 14, at 46).

19. Eugene Volokh, Nonlethal Self-Defense, (Almost Entirely) Nonlethal Weapons, and

the Rights to Keep and Bear Arms and Defend Life, 62

STAN. L. Rev. 199, 201 & n.6 (2009)

[hereinafter Volokh, Nonlethal Self-Defense] (citing Elizabeth Zavala, Tasers Gain

Widespread Acceptance, but Tarrant Sheriff Is Rare Holdout, F

ORT WORTH STAR-

ELEGRAM, Oct. 11, 2009, at B1).

20. Volokh, Nonlethal Self-Defense, supra note 19, at 201 n.6. As Professor Volokh

notes, this number was based on the 12,804 active irritant spray licenses in the state of

Massachusetts as of July 15, 2009, and extrapolated over the entire population. Id. This

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2014] SECOND AMENDMENT DECISION RULES 857

“no more than 0.01% per use.”

Conversely, the rate of death for

gunshot victims in deliberate attacks is about 20% and the rate of death

for knife attack victims in deliberate attacks is 2%.

In light of the horrific massacre at Sandy Hook Elementary,

divergent solutions to the problem of gun violence generally, and gun

violence in schools specifically, have been proposed.

Unfortunately,

both sides of the debate neglect to raise the use of non-lethal weapons

as a deterrent to violent crime, which can simultaneously decrease the

use of guns and increase an individual’s ability to defend himself.

The

United States Supreme Court, by its decision in District of Columbia v.

Heller,

pronounced a “constitutional operative proposition,”

number is likely low because many states allow possession of irritant spray without a license.

Id.

21. Eugene Volokh, Older Minors, the Right to Keep and Bear (Almost Entirely)

Nonlethal Arms, and the Right to Defend Life, 43 A

RIZ. ST. L.J. 447, 450 (2011) [hereinafter

Volokh, Older Minors];

see also infra notes 34–38 and accompanying text.

22. Volokh, Older Minors, supra note 21, at 450.

23.See Barron, supra note 2.

24.Compare T

HE WHITE HOUSE, NOW IS THE TIME: THE PRESIDENT’S PLAN TO

PROTECT OUR CHILDREN AND OUR COMMUNITIES BY REDUCING GUN VIOLENCE 2

(2013), available at www.wh.gov/now-is-the-time (proposing four solutions to reduce gun

violence: (1) “Closing background check loopholes to keep guns out of dangerous hands”; (2)

“Banning military-style assault weapons and high-capacity magazines, and taking other

common-sense steps to reduce gun violence”; (3) “Making schools safer; and” (4) “Increasing

access to mental health services”), with Wayne LaPierre, NRA Executive Vice President &

CEO, NRA Press Conference 7–8 (Dec. 21, 2012) (transcript available at

http://home.nra.org/pdf/Transcript_PDF.pdf) (arguing that armed police in schools through a

national armed security program would stem the tide of school shootings). The divergent

approaches to gun violence seem to suggest that little progress will be made because neither

side wants to address the real roots of violent crime, such as socio-economic and cultural

factors. See D

ON B. KATES, JR., GUNS, MURDERS, AND THE CONSTITUTION: A REALISTIC

ASSESSMENT OF GUN CONTROL 58 (1990) (“The basic determinants of violent crime are

fundamental socio-cultural, institutional, and economic factors that no gun law can overcome.

So long as perhaps 1 of every 300 persons who grow up in the United States is inclined toward

violent crime, our society will be far more violent than either gun-banning England or gun-

loving Switzerland, where only 1 of 30,000 inhabitants is so inclined.”).

25.See, e.g., Atlanta Woman Uses Stun Gun to Help Officer in Distress, WSB-TV.

COM

(Jan. 26, 2009, 6:23 PM), http://www.wsbtv.com/news/news/atlanta-woman-uses-stun-gun-to-

help-officer-in-dis/nJTqt/.

26. District of Columbia v. Heller, 554 U.S. 570 (2008).

27.See Mitchell N. Berman, Constitutional Decision Rules, 90

VA. L. REV. 1, 9 (2004)

(stating that a “constitutional operative proposition” represents the Court’s understanding of

a particular constitutional provision).

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858 MARQUETTE LAW REVIEW [97:3

constitutional rule,

that the Second Amendment guarantees an

individual right to keep and bear arms for self-defense.

While the

Court offered strikingly little decisional guidance when developing this

constitutional rule,

little guidance leaves open room for innovative

arguments.

Given the current lack of guidance in how courts are to apply and

develop Second Amendment jurisprudence, the Court has an

opportunity to provide clarity and stability for non-lethal weapons that

can be used in self-defense. Rarely are rights categorical—most of the

amendments within the Bill of Rights contain special exceptions

—and

the Second Amendment should be no different. Through the

acceptance of non-lethal weapons as “arms,” a nuanced legal distinction

between lethal and non-lethal weapons, and a test that provides more or

28.See Calvin Massey, Second Amendment Decision Rules, 60 HASTINGS L.J. 1431, 1431

& n.2 (2009) (citing Berman, supra note 27, at 9) (stating that a “constitutional operative

proposition” is a “constitutional rule”).

29.See Heller, 554 U.S. at 636.

30.See Massey, supra note 28, at 1431. While the Court provided a new constitutional

rule in District of Columbia v. Heller, little if any guidance was given on when this right is

infringed and no constitutional decisional rules were provided regarding the following:

defining the right; identifying who can assert the right; special circumstances that qualify the

right; the burden on the right that “constitutes a presumptive infringement of it must be

articulated”; and the level of scrutiny must be practically “phrased in a useable manner.” Id.

(attempting to provide a framework and discussion for the decisional rules that were left out

of the opinion in Heller).

31. This can be seen through the exceptions for freedom of speech and association. See,

e.g., Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 513–14 (1969) (expanding

free speech rights to students in schools, but recognizing that reasonable limitations may be

placed on that right in certain circumstances); NAACP v. Ala. ex rel. Patterson, 357 U.S. 449,

463–64, 466 (1958) (including the right to keep membership lists private within the freedom of

association provided by the First Amendment, but suggesting that if the state were able to

show a substantial and compelling interest in obtaining the lists, the right may be infringed).

But see Jones v. N.C. Prisoners’ Labor Union, 433 U.S. 119, 132–33 (1977) (ruling that

prisoners’ First Amendment right of association to join labor unions is outweighed by the

state’s legitimate objectives). The Fourth Amendment’s protection against unreasonable

searches and seizures also has limited exceptions. See, e.g., Oliver v. United States, 466 U.S.

170, 178–81 (1984) (holding that a field owned by the defendant falls outside of the Fourth

Amendment’s protection because there is no reasonable expectation of privacy in the field);

New Jersey v. T.L.O., 469 U.S. 325, 340 (1985) (stating that the school environment requires

the relaxation of some of the Fourth Amendment restrictions that authorities are subject to).

Additionally, there are certain individuals that have been exempted from the proportionality

review courts typically undergo when confronted with a freedom from cruel and unusual

punishment issue under the Eighth Amendment, preventing the execution of these

individuals regardless of their crime. See, e.g., Roper v. Simmons, 543 U.S. 551, 564, 578

(2005) (those under eighteen at the time of their crime); Atkins v. Virginia, 536 U.S. 304, 311–

12, 321 (2002) (mentally disabled).

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2014] SECOND AMENDMENT DECISION RULES 859

less protection of one’s right to bear arms based on location, the Court

has a unique opportunity to shape the current arms debate in a way that

will give state lawmakers the flexibility and time needed to address the

roots of violence while giving lawfully acting citizens an individual right

to self-defense in a variety of contexts.

In order to evaluate whether non-lethal weapons are arms and to

craft the proper test for determining whether a weapon is protected

under the Second Amendment, this Comment starts by describing what

non-lethal weapons are and how they work. Part III walks through

recent Court history and the Court’s transition from a collective to an

individual right under the Second Amendment. Part IV shows that the

current makeup of different states’ non-lethal-weapons schemes is so

confusing and unclear that those law-abiding citizens who wish to carry

non-lethal weapons will likely need to hire an attorney to understand

the laws, creating an undue burden on those citizens. Further, this

Section will show that current federal law does not and should not

attempt to nationally regulate non-lethal weapons. Finally, a brief

proposal will highlight the constitutional decisional rule that should be

used and the precedential and practical reasons to support such a

proposal. While the ideas in this Comment are not entirely novel, taken

as a whole they suggest an innovative solution that the Court may use to

help solve a current crisis with a constitutional decisional rule that will

satisfy both precedential and practical objectives.

II.

NON-LETHAL ARMS DEFINED AND THEIR TYPES

An analysis of non-lethal weapons and their proper place within the

Second Amendment is not useful unless an understanding of these

weapons is established.

Non-lethal weapons are defined as “[w]eapons

that are explicitly designed and primarily employed so as to incapacitate

personnel or material, while minimizing fatalities, permanent injury to

personnel, and undesired damage to property and the environment.”

32. This explanation of types and differences of non-lethal weapons is particularly

important as there is a common perception among gun-rights advocates that those who

advocate for tighter gun controls have no substantial knowledge about guns. Whether this is

true or not, establishing a common understanding of terms and types will help to reduce

confusion, increase awareness, and focus on the merits.

33. U.S.

DEP’T OF DEF., DICTIONARY OF MILITARY AND ASSOCIATED TERMS 373

(2005). These weapons typically employ a method of incapacitation that does not destroy

their target and “are intended to have one, or both, of the following characteristics: (1) They

have relatively reversible effects on personnel or material. (2) They affect objects differently

within their area of influence.” Id. Interestingly, the U.S. Department of Defense created a

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860 MARQUETTE LAW REVIEW [97:3

Although the definition and name implies that non-lethal weapons are

never lethal, this is a slight misnomer.

Non-lethal weapons are

designed to incapacitate a threat without death and minimize permanent

damage.

However, these definitions focus on the intent of the

weapons, not the actual outcome.

While the definition is open to

multiple interpretations and functional differences,

the characteristics

that make non-lethal weapons non-lethal are that their effects are

reversible; the weapons significantly reduce the probability of death and

permanent injury; and they are intended to deter, disrupt, disorient, and

deny instead of destroy.

The types of non-lethal weapons discussed below are those typically

Joint Non-Lethal Weapons Directorate by Congressional initiative and Department of

Defense Directive 3000.03E. See U.S. D

EP’T OF DEF., DIRECTIVE NO. 3000.03E, POLICY

FOR

NON-LETHAL WEAPONS (2013), available at http://www.dtic.mil/whs/directives/corres/

pdf/300003p.pdf; U.S. D

EP’T OF DEF., JOINT NON-LETHAL WEAPONS DIRECTORATE: NON-

ETHAL WEAPONS REFERENCE BOOK (2011), available at http://www.jnlwp.defense.gov.

Non-lethal weapons are sometimes called “less lethal weapons.” See C

AL. PENAL CODE

§ 16780 (West 2012) (“‘Less lethal weapon’ means any device that is designed to or that has

been converted to expel or propel less lethal ammunition by any action, mechanism, or

process for the purpose of incapacitating, immobilizing, or stunning a human being through

the infliction of any less than lethal impairment of physical condition, function, or senses,

including physical pain or discomfort. It is not necessary that a weapon leave any lasting or

permanent incapacitation, discomfort, pain, or other injury or disability in order to qualify as

a less lethal weapon.”).

34.See, e.g., ACLU

OF S. CAL., PEPPER SPRAY: A MAGIC BULLET UNDER SCRUTINY

27 (1993) (reporting the deaths of seven individuals between January 5 and September 9,

1993, due to police use of pepper spray); A

MNESTY INT’L, USA—STUN WEAPONS IN LAW

ENFORCEMENT 2 (2008) (reporting that at least 330 individuals died between 2001 and 2008

after being struck with a taser by police). Although reports partly minimized the role pepper

spray played in the deaths, the studies were not conclusive of the role pepper spray played in

the police-use deaths. See, e.g., J

OHN GRANFIELD ET AL., INT’L ASS’N OF CHIEFS OF

POLICE, PEPPER SPRAY AND IN-CUSTODY DEATHS 3 (1994) (describing studies that suggest

the results of a series of deaths involving police oleoresin capsicum (OC) use were not

attributable to the OC); N

AT’L INST. OF JUSTICE, U.S. DEP’T OF JUSTICE, OLEORESIN

CAPSICUM: PEPPER SPRAY AS A FORCE ALTERNATIVE 5 (1994) (explaining the potential for

death resulting from OC exposure).

35. E

RIK L. NUTLEY, NON-LETHAL WEAPONS: SETTING OUR PHASERS ON STUN?

POTENTIAL STRATEGIC BLESSINGS AND CURSES OF NON-LETHAL WEAPONS ON THE

BATTLEFIELD 2 (2003).

36. J

OHN L. BARRY ET AL., NON-LETHAL MILITARY MEANS: NEW LEVERAGE FOR A

NEW ERA 5 (1994); NUTLEY, supra note 35, at 2.

37.See N

UTLEY, supra note 35, at 2. While this discussion focuses a great deal on non-

lethal weapons from the standpoint of the military, the different types, uses, and pitfalls of

these weapons from a military perspective can help shed light on different civilian uses and

can help with figuring out what types of arms fall within the scope of the Second Amendment.

See discussion infra Part V.A–B.

38.See N

UTLEY, supra note 35, at 3.

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2014] SECOND AMENDMENT DECISION RULES 861

available as personal self-defense weapons. Non-lethal weapons that

are typically available for personal self-defense are determined by three

factors: cost, access, and ease of use.

While each of these factors can

play varied roles in an individual’s decision to purchase and possess

these weapons, most civilian weapons used for personal self-defense can

be broken into three main types: blunt force objects, electrical weapons,

and irritant sprays.

39. Cost, for instance, may be a high barrier to certain types of acoustic-based weapons

that could be used by the civilian population. The Long-Range Acoustic Device (LRAD) can

target threats with a 95-decibel sound wave (similar to standing next to a train), leaving them

disoriented, but cost between $20,000 and $30,000 in 2005. Bruce V. Bigelow, Device Helped

Thwart Pirates: Sound Waves Are Turned Into Weapon by S.D. Firm, S

AN DIEGO UNION-

RIB., Nov. 9, 2005, at C1. Additionally, access to this original system and its size, thirty-

three inches across and nearly forty-five pounds, make this weapon highly ineffective for

personal self-defense use. Id. However, advances in technology are proving to make these

weapons more functional in personal ways by decreasing size and costs. See LRAD 100X

Long Range Acoustic Device, LRAD

CORP., http://www.lradx.com/site/content/view/207/110/

(last visited Jan. 31, 2014) (marketing the next LRAD 100X at fourteen inches across and

fifteen pounds, while producing a 137-decibel sound wave); Pierre Chamberland, Sound

Cannons, M

ARK (Jun. 17, 2010), http://pioneers.themarknews.com/articles/1711-sound-

cannons/#.UyH72T9dWSo (reporting the cost of an LRAD 100X at $10,000).

40. There are many different types of non-lethal weapons currently in use by the U.S.

military: acoustic, optical, blunt trauma, irritant, and vehicle-stopping. N

AT’L INST. OF

JUSTICE, U.S. DEP’T OF JUSTICE, DEPARTMENT OF DEFENSE NONLETHAL WEAPONS AND

EQUIPMENT REVIEW: A RESEARCH GUIDE FOR CIVIL LAW ENFORCEMENT AND

CORRECTIONS (2004) [hereinafter A RESEARCH GUIDE FOR CIVIL LAW ENFORCEMENT];

Non-Lethal Weapons Program: Current Non-Lethal Weapons, U.S. DEP’T OF DEF.,

http://jnlwp.defense.gov/CurrentNonLethalWeapons.aspx (last visited Jan. 31, 2014)

(describing non-lethal weapons, with pictures, used by U.S. military forces and civilian law

enforcement); Non-Lethal Weapons Program: History, U.S.

DEP’T OF DEF.,

http://jnlwp.defense.gov/About/History.aspx (last visited Jan. 31, 2014). However, the

military’s use of these weapons is governed by a plethora of international treaties, domestic

law, and policies and regulations. See, e.g., Biological Weapons Anti-Terrorism Act of 1989,

18 U.S.C. § 175 (2012); Chemical Weapons Convention Implementation Act of 1998, 22

U.S.C. § 6701 (2012); National Defense Authorization Act for Fiscal Year 1996, Pub. L. No.

104-106, § 219, 110 Stat. 186, 223–24; N.

ATLANTIC TREATY ORG., NATO POLICY ON NON-

ETHAL WEAPONS (1999); Additional Protocol to the Convention on Prohibitions or

Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be

Excessively Injurious or to Have Indiscriminate Effects (Protocol IV, Entitled Protocol on

Blinding Laser Weapons), Oct. 13, 1995, T.I.A.S. No. 09-721.2, 2024 U.N.T.S. 167; Geneva

Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces

in the Field, Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31; Geneva Convention for the

Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed

Forces at Sea, Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85; Geneva Convention Relative to

the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135; Geneva

Convention Relative to the Protection of Civilian Persons in the Time of War, Aug. 12, 1949,

6 U.S.T. 3516, 75 U.N.T.S. 287; Convention Respecting the Laws and Customs of War on

Land, Oct. 18, 1907, 36 Stat. 2277, 1 Bevans 631; U.S. D

EP’T OF DEF., DIRECTIVE NO.

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862 MARQUETTE LAW REVIEW [97:3

A. Blunt Force Objects

Blunt force objects are intended to cause temporary pain or injury

and can take the form of projectiles, batons, bean-bags, liquid filled

munitions, and water cannons, among others.

The most common and

easy-to-use weapons for self-defense purposes are batons.

With the

exception of some projectiles, blunt force objects are some of the oldest

and most predominantly used non-lethal weapons because they can be

easily manipulated and are inexpensive.

Batons come in a variety of

lengths, designs, and materials.

They are relatively cheap compared to

electric weapons and can be purchased at national retailers.

Some can

collapse and expand, while others attach to key rings and contain a ball

at the end to increase the baton’s disabling effects.

Additionally,

batons are easily concealable in a pocket, bag, or purse,

but if used

improperly, they can cause death or permanent damage.

Another type of blunt force object, projectiles, come as bullets or

3000.03, POLICY FOR NON-LETHAL WEAPONS 2 (1996) (defining non-lethal weapons); U.S.

EP’T OF DEF., INSTRUCTION NO. 6055.15, DOD LASER PROTECTION PROGRAM (2007).

Additionally, certain guidance regarding the rules of engagement, implementation of law of

war, and guidance using chemical and biological employment of riot control agents and

herbicides is given to commanders. See generally, J

OINT CHIEFS OF STAFF, COMPENDIUM OF

CURRENT CJCS DIRECTIVES (2009) (noting, for example, Instructions 3110.07C, 3121.01B

and 5810.01C). Although most of these are classified, it is important to note that there is

guidance in place for the armed forces’ use of these devices. See id.

41.See N

UTLEY, supra note 35, at 14 tbl.2.

42. Charlie Mesloh et al.,

Less Lethal Weapons for Law Enforcement: A Performance

Based Analysis,

8 L. ENFORCEMENT EXECUTIVE F. 133, 141 (2008); see also WEAPONS &

PROTECTIVE SYS. TECHS. CTR., A GUIDEBOOK FOR LESS LETHAL DEVICES: PLANNING

FOR, SELECTING, AND IMPLEMENTING TECHNOLOGY SOLUTIONS 4-2 (Edward L. Hughes &

Robert A. Osborne eds., 1st ed. 2010) [hereinafter W

EAPONS & PROTECTIVE SYS.], available

at https://www.justnet.org/pdf/WPSTC-GUIDE-FINAL-%282010.05.07%29-COMPLETE.pd

43.See W

EAPONS & PROTECTIVE SYS., supra note 42, at 4-2; Personal Defense,

ABELA’S, http://www.cabelas.com/catalog/browse/personal-defense/_/N-1100279/Ns-CATE

GORY_SEQ_104496480?WTz_l=SBC%3BMMcat104792580%3Bcat104778180 (last visited

Mar. 29, 2014) (selling three Smith & Wesson collapsible batons for $29.99 to $44.99,

depending on length).

44. W

EAPONS & PROTECTIVE SYS., supra note 42, at 4-2.

45.See Personal Defense, supra note 43 (selling three Smith & Wesson collapsible

batons for $29.99 to $44.99, depending on length, and a Taser C2 Gold Kit for $399.99).

46. W

EAPONS & PROTECTIVE SYS., supra note 42, at 4-2.

47.See Clip-On Batons,

ASP USA, https://www.asp-usa.com/store/batons/clip-on-

batons.html (marketing the P12 clip-on baton as 5 1/8 inches closed while 11 5/8 inches open).

48. C

AL. DEP’T CONSUMER AFFAIRS, BUREAU OF SEC. & INVESTIGATIVE SERVS.,

BATON TRAINING MANUAL: STUDENT TEXT 16 (2006), available at http://www.bsis.ca.gov/f

orms_pubs/bat_stuman.pdf.

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2014] SECOND AMENDMENT DECISION RULES 863

balls composed of rubber, wood, or foam and are only available to law

enforcement or military personnel.

These projectiles can be

particularly effective at incapacitating an intruder while reducing the

impact of residual or collateral damage.

If these weapons are used

improperly, they can cause injury and, in some cases, death; however,

these weapons substantially decrease the risk of death to the intended

target and others.

B. Electric Weapons

Electric weapons are energy devices that use pain and muscle

tenancy (or involuntary muscle convulsion) to affect the targeted

person.

Electric weapons come in two types: stun guns and tasers.

Stun guns must directly touch the intended target, leaving the user in a

particularly vulnerable position.

Tasers, on the other hand, employ

49.See Impact Munitions, DEF. TECH., http://www.defense-

technology.com/specialty_impact.aspx (last visited Feb. 1, 2014); see also, e.g., Foam Baton—

40 mm Product Spec Manual,

SAFARILAND (Dec. 2011), available at http://www.defense-

technology.com/pdfs/specs/6099_40%20mm%20Foam%20Baton%20Round%20Rev%2012-

11.pdf (warning that the foam baton product is to be used only by trained military personnel

or law enforcement).

50.See D

AVID K. DUBAY & PAUL J. MARQUARD, 2003 SPECIFICATION MANUAL:

DEFENSE TECHNOLOGY, KINETIC AND IMPACT PARAMETERS OF LESS-LETHAL

MUNITIONS (2003), available at http://www.defense-technology.com/pdfs/resources/kinetic%

20impact%20analysis.pdf. Unfortunately, much of the ballistic testing data of these types of

munitions is held by the military and is not available to the public, but Defense Technology

has published some of its findings, which resulted in a greater understanding for the less-than-

lethal nature of the munitions. Id. According to its tests, the kinetic energy used in its

munitions is on par with a .22 bullet, which can penetrate a human at most distances because

the force is concentrated in such a small area, unlike a bean bag projectile. Id. However, the

blunt force projectiles can still cause serious impact trauma because more force is being

transferred to the body versus being “pushed” into the body like a .22 round. Id.

51. K

EN HUBBS & DAVID KLINGER, NAT’L INST. OF JUSTICE, IMPACT MUNITIONS

USE: TYPES, TARGETS, EFFECTS 2–3 (2004), available at https://www.ncjrs.gov/pdffiles1/nij/

206089.pdf (reporting eight individuals’ deaths from being hit with impact munitions and two

additional deaths from lethal rounds mistakenly fired instead of impact munitions).

52. Nat’l Inst. of Justice, How Conducted Energy Devices Work, NIJ.

GOV (June 23,

2008), http://www.nij.gov/nij/topics/technology/less-lethal/how-ceds-work.htm.

53. Mesloh et al.,

supra note 42, at 134. See, e.g., U.S. Patent No. 6,636,412 B2, at [57]

(filed Dec. 12, 2001). This patent for Taser International, Inc., includes a brief description:

“A hand-held stun gun incapacitates a human target by generating a series of powerful

electrical output pulses across first and second spaced apart output terminals in response to

closure of a trigger.” Id. Taser devices are also known as “tethered systems.” W

EAPONS &

PROTECTIVE SYS., supra note 42, at 4-11.

54. Volokh, Nonlethal Self-Defense, supra note 19, at 204; Stun Gun vs Taser, TBO-

TECH, http://www.tbotech.com/stungun-vs-taser.htm (last visited Feb. 1, 2014).

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864 MARQUETTE LAW REVIEW [97:3

tethered wires with barbed hooks that transfer the electric current from

some distance away.

Consumers are moving towards tasers, which

shoot two electrically charged darts up to fifteen feet, over stun guns,

which require direct contact with the attacker.

One major

disadvantage of tasers is their high cost.

Electric weapons are much more effective than blunt force objects

and irritant sprays because of their speed, accuracy, and effect on the

target’s central nervous system. Yet, electric weapons are not without

controversy; more than 330 people died after police used electric

weapons on them between 2001 and 2008, but most of these deaths were

attributed to other causes.

However, by their own accounts, electric

weapons have been used and rigorously tested by more than 11,000 law

enforcement agencies.

Additionally, in the cases where individuals

died as a result of being shocked, law enforcement had subjected the

individual to multiple shocks, often lasting longer then the prescribed

55. WEAPONS & PROTECTIVE SYS., supra note 42, at 4-11. In recent years, the use of

electric weapons in movies and television has increased. See, e.g., H

ANNIBAL 99:10–25

(Metro-Goldwyn-Mayer 2001); Archer: White Elephant (FX Networks television broadcast

Jan. 13, 2014).

56. Stun Gun vs Taser, supra note 54; Taser Maker Targets Civilian Sales, ABC

NEWS

(Feb. 16, 2005), http://abcnews.go.com/GMA/Technology/story?id=501101&page=1&singlePa

ge=true. More recently, Taser International has developed a weapon that has a removable

cartridge, and the weapon itself can be used as both a taser and stun gun, as the weapon can

be used as a stun gun after the user has fired the taser’s darts. See T

ASER INT’L, INC., TASER

X26C OPERATING MANUAL 10 (2007), available at https://www.taser.com/images/support/do

wnloads/downloads/mk-inst-x26c-001_rev_a_x26c_manual.pdf (stating the device can be used

as a “traditional stun gun-type device” after its probes have been fired). But the company

does not sell weapons with stun gun or direct-contact features as the primary function

anymore. See Self Defense Products, T

ASER INT’L, INC., http://www.taser.com/products/self-

defense-products (last visited Mar. 30, 2014). Only Hawaii, Massachusetts, New Jersey, New

York, and Rhode Island prohibit the use of electronic weapons by the general public. See

AW. REV. STAT. ANN. § 134-16 (LexisNexis 2013); MASS. GEN. LAWS ANN. ch. 140, § 131J

(West 2002 & Supp. 2013); N.J.

STAT. ANN. § 2C:39-3.h. (West 2005); N.Y. PENAL LAW

§ 265.01(1) (Consol. 2000 & Supp. 2013); R.I.

GEN. LAWS § 11-47-42 (2002 & Supp. 2013).

Additionally, Michigan and Wisconsin provide an exception for the general public if they

have a concealed carry permit. See M

ICH. COMP. LAWS ANN. § 750.224a(2)(b) (West Supp.

2013); W

IS. STAT. §§ 175.60(1)(d), 941.295(2g) (2011–2012).

57.See Personal Defense, supra note 43 (selling a Taser C2 Gold Kit for $399.99).

58. A

MNESTY INT’L, supra note 34, at 2 (summarizing AMNESTY INT’L, ‘LESS THAN

LETHAL’? THE USE OF STUN WEAPONS IN US LAW ENFORCEMENT 1 (2008)).

59.Id. After research, the Department of Justice claimed that more than 15,000 law

enforcement and military agencies use electric weapons. G

EOFFREY P. ALPERT ET AL.,

NAT’L INST. OF JUSTICE, POLICE USE OF FORCE, TASERS AND OTHER LESS-LETHAL

WEAPONS 1 (2011), available at https://www.ncjrs.gov/pdffiles1/nij/232215.pdf.

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five seconds, thus in conflict with recommended use.

Electric weapon manufacturers warn against the use of their devices

on small children and those who are physiologically or metabolically

compromised, pregnant, infirm, or elderly, as well as individuals with

heart conditions or pacemakers, or with low body-mass index.

secondary hazard can occur if the victim falls after being stunned and is

injured.

Although these injuries seem severe, when individuals are

properly trained, non-lethal weapons such as electronic weapons can

significantly reduce lethality.

C. Irritant Sprays

Irritant sprays are meant to disable an individual by shooting a foam

or spray containing an irritant capable of causing temporary blindness,

intense pain, and trouble breathing.

Oleoresin Capsicum (OC),

commonly called “pepper spray,”

can be varied in its strength and

delivery system.

Methods of delivery include fog, stream, foam, gel,

60.See GEOFFREY P. ALPERT ET AL., supra note 59, at 16; see also AMNESTY INT’L,

supra note 34, at 2 (noting that more than 330 people have died in the United States after

being stuck by police tasers since 2001). Unfortunately, the use of electrical weapons is not

without risk, but when compared with the fatality rate among gunshot victims, the risk is

incredibly low. See ACLU

OF S. CAL., supra note 34, at 27 (noting that seven people in

California who had been sprayed with OC died either in police custody or while struggling

with police between January 5 and September 9, 1993); Volokh, Nonlethal Self-Defense, supra

note 19, at 205 (explaining that the death rate from gunshot wounds is about 20% and the

death rate from knife wounds is roughly 2%).

61.See, e.g., T

ASER INT’L, INC., TASER CEW WARNINGS, INSTRUCTIONS, AND

INFORMATION: CITIZEN 2–3 (2013). However, it is virtually impossible to tell if some of

these conditions exist, especially when one is being attacked or threatened.

62.Id.

63.See, e.g., G

EOFFREY P. ALPERT ET AL., supra note 59, at ii; see also Taser Saves

Man’s Life, TVNZ (June 13, 2012, 2:46 PM), http://tvnz.co.nz/national-news/taser-saves-man-

s-life-4927748 (reporting that a man who stabbed himself in the stomach and barricaded

himself in his home was tasered when police were unable to disarm the man and transport

him for medical treatment).

64.What Is Pepper Spray? Is Pepper Spray Dangerous?, M

ED. NEWS TODAY (Nov. 25,

2011, 12:00 AM), http://www.medicalnewstoday.com/articles/238262.php.

65. A

RESEARCH GUIDE FOR CIVIL LAW ENFORCEMENT, supra note 40, at app. B at

64.

Pepper spray, or oleoresin capsicum, is a derivative of a food product from different chili

peppers that have been dried, ground, and combined with a liquid, allowing it to be sprayed

through the air. Id.

66.See, e.g., Jeanne M. Ditter & Charles S. Heal, Application and Use of Riot Control

Agents, in R

IOT CONTROL AGENTS: ISSUES IN TOXICOLOGY, SAFETY, AND HEALTH 17, 17–

20 (Eugene J. Olajos & Woodhall Stopford eds., 2004); D

AVID NANCE, SEC. EQUIP. CORP.,

SABRE O.C. P

EPPER SPRAY STUDENT PROGRAM, available at http://www.doc.nv.gov/sites/d

oc/files/training/south/2013_academy/week_6/SABRE_End_User_Training_PPT_1_1_13/Stu

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866 MARQUETTE LAW REVIEW [97:3

and powder.

Each delivery system has its own advantages and

disadvantages

but should be used properly for the intended effect.

Additionally, Ortho Chlorobenzylidene Malononitrile (CS),

Chloroacetophenone (CN or Mace),

Diphenylarenamine Chloroarsine

(DM),

Hexachlorethane (HC),

and calmative or sedative agents

are

all forms of irritant sprays.

dent_OC_Powerpoint.pdf (presentation on pepper spray by David Nance, Vice President of

Security Equipment Corp.).

67. D

AVID NANCE, supra note 66; WEAPONS & PROTECTIVE SYS., supra note 42, at 4-

14.

68.See D

AVID NANCE, supra note 66.

69. S

TEVEN L. HOENIG, COMPENDIUM OF CHEMICAL WARFARE AGENTS 138–39

(2007). CS gas can be dispensed by burning, aerosol, or explosion and immediately come into

contact with the lungs, eyes, skin, and nasal linings causing irritation, burning, coughing, and a

runny nose (this description of effects is greatly understated—personal experience of the

author at Ft. Jackson during Basic Training). Id.

70. Peter G. Blain, Tear Gases and Irritant Incapacitants: 1-Chloroacetophenone, 2-

Chlorobenzylidene Malononitrile and Dibenz[B,F]-1,4-Oxazepine, 22 T

OXICOLOGICAL REV.

103, 104–08 (2003) (discussing the makeup of tear and irritant gases). CN is similar to CS, but

is the most toxic of irritant gases and at high concentrations has caused deaths resulting from

pulmonary injury, asphyxia, or both. Id.

71. N

AT’L RESEARCH COUNCIL, REVIEW OF THE ARMY NON-STOCKPILE CHEMICAL

MATERIEL DISPOSAL PROGRAM: DISPOSAL OF CHEMICAL AGENT IDENTIFICATION SETS

15 & tbl.1-1 (1999). Commonly known as Adamsite, this aerosol is a vomiting agent and

causes many of the same effects as CN and CS gas but is slower to develop and can last many

hours. Id. at 15 tbl.1-1, 16 tbl.1-2.

72. U.S. EPA, C

HEMICAL NAME & SUMMARY FACT SHEET: HEXACHLOROETHANE

(2012), available at http://www.epa.gov/wastes/hazard/wastemin/minimize/factshts/hexchlet.pd

f. HC is a gas that is used by the military in the production and use of smoke grenades and

other weapons that produce smoke. Id. Although not formally a non-lethal weapon in the

traditional sense, HC is used to blind and disorient an enemy and can therefore at times be

considered a non-lethal weapon. W

EAPONS & PROTECTIVE SYS., supra note 42, at 4-16.

When employing HC gas to distract, confuse, or otherwise psychologically distress the enemy,

it is no longer being used as a non-lethal weapon and, in some instances, may be classified as

an act of psychological warfare.

73. See J

OAN M. LAKOSKI ET AL., THE ADVANTAGES AND LIMITATIONS OF

CALMATIVES FOR USE AS A NON-LETHAL TECHNIQUE 15 & tbl.2 (2000). Different types of

drugs have been examined for potential use as a calming agent, such as opiates, anti-

psychotics, neurolept anesthesia, ketamine, benzodiazepines, rohypnol (date rape drug), and

non-benzodiazepines (Ambien). Id. at 13 tbl.1; Nat’l Inst. of Justice, Community Acceptance

Panel—Riot Control Agents, NIJ.

GOV (July 11, 2008), http://nij.gov/topics/technology/less-

lethal/Pages/riot-control-agents.aspx. Russian Special Forces used fentanyl, a potent opium-

based narcotic, on Chechen terrorists and hostages during the 2002 siege on the Dubrovka

Theatre in Moscow, resulting in the deaths of over 119 civilians. Russia Names Moscow Siege

Gas, BBC

NEWS (Oct. 31, 2002, 2:25 PM), http://news.bbc.co.uk/2/hi/europe/2377563.stm.

74. See W

EAPONS & PROTECTIVE SYS., supra note 42, at 4-13–4-16. While these agents

are not typically available to civilians, their availability to military and law enforcement may

trigger their acceptance as “commonly used” and therefore must be kept in mind when

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Irritant sprays can be less effective than tasers because the target

may be able to withstand the type of irritant used. The target can

quickly evade the spray, or worse yet, the spray can accidently blow

back in the user’s face, putting the user at a substantially higher risk

than before the spray was employed.

Sprays can be used multiple

times, unlike tasers, and do not require contact with the target at arm’s

length, like stun guns.

Additionally, irritant sprays are relatively cheap

and compact and can be easily stored in a pocket or purse, or placed on

a key-chain.

While the use of non-lethal weapons is not without its critics,

the

three main varieties that would be most common and available to

ordinary citizens are blunt-force objects, electric weapons, and irritant

sprays. All three weapon types can be used as arms in the functional

sense and they constitute another type of weapon suited to self-defense.

This general description of non-lethal weapons, as well as their function

and use, should provide the context for discussing the legal framework

that surrounds arms and how the Court determines what weapons

qualify as arms.

III.

THE SECOND AMENDMENT GENERALLY, “ARMS” DEFINED, AND

THE

RECENTLY CREATED RIGHT TO SELF-DEFENSE

In order to discuss whether non-lethal weapons are protected by the

Constitution, the Second Amendment must be described with a

particular focus on arms and how the Court determines whether those

discussing definitions and decisional rules for the Second Amendment. See discussion infra

Part III.A–B.

75.See Volokh, Nonlethal Self-Defense, supra note 19, at 206.

76.Id. at 207.

77.See Personal Defense, supra note 43 (selling a multitude of pepper sprays, the least

expensive being $6.99, most of which have key rings for portability).

78.See, e.g., D

AVID W. HAGY, NAT’L INST. OF JUSTICE, STUDY OF DEATHS

FOLLOWING ELECTRO MUSCULAR DISRUPTION: INTERIM REPORT 1–4 (2008), available at

https://www.ncjrs.gov/pdffiles1/nij/222981.pdf (surveying the medical consequences that result

from the use of electric weapons such as tasers); David P. Fidler, The International Legal

Implications of “Non-Lethal” Weapons, 21

MICH. J. INT’L L. 51, 63–65 (1999) (describing

various ethical, legal, medical, and political problems with non-lethal weapons such as: non-

lethal weapons violating principles of international law, causing unintended health

consequences, and putting law enforcement officers, military forces, and civilians in greater

danger); Stephen Coleman: The Moral Dangers of Non-Lethal Weapons, TED

TALKs (Feb.

2012), http://www.ted.com/talks/Stephen_coleman_the_moral_dangers_of_non_lethal_weapo

ns.html (describing moral issues related to the use of non-lethal weapons such as

indiscriminate use, death, the use of non-lethal weapons as a “lethal force multiplier,” and

poor training to use such weapons).

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868 MARQUETTE LAW REVIEW [97:3

weapons are protected. The historical context that led up to the Court’s

ruling in District of Columbia v. Heller, and its subsequent incorporation

in McDonald v. City of Chicago,

will show why the current decisional

rules were created and how they create shortcomings when evaluating

arms.

The Second Amendment provides: “A well regulated Militia, being

necessary to the security of a free State, the right of the people to keep

and bear Arms, shall not be infringed.”

While the relevant portion of

the Amendment to this discussion is arms, one brief point must be

made. For quite some time, there have been two general theories about

what the Second Amendment protects: (1) an individual right; or (2) a

group or militia based right.

Heller settled that question: The Second Amendment provides an

individual right.

The question remains: What are arms under the

Second Amendment?

A. “Arms” under Miller?

Post-Heller, the Second Amendment provides for an individual right

to keep and bear arms for self-defense.

In McDonald, the Court

incorporated the individual right against the states via the Fourteenth

79. McDonald v. City of Chicago, 130 S. Ct. 3020, 3050 (2010).

80. U.S.

CONST. amend. II.

81.See STAFF OF S. SUBCOMM. ON THE CONSTITUTION, S. COMM. ON THE JUDICIARY,

97TH CONG., THE RIGHT TO KEEP AND BEAR ARMS (Comm. Print 1982); STEPHEN P.

HALBROOK, THAT EVERY MAN BE ARMED: THE EVOLUTION OF A CONSTITUTIONAL

RIGHT 3–6 (1984); JOYCE LEE MALCOLM, TO KEEP AND BEAR ARMS: THE ORIGINS OF AN

ANGLO-AMERICAN RIGHT ix–xi (1994); H. RICHARD UVILLER & WILLIAM G. MERKEL,

THE MILITIA AND THE RIGHT TO ARMS, OR, HOW THE SECOND AMENDMENT FELL SILENT

1–5 (2002); Roy G. Weatherup, Standing Armies and Armed Citizens: An Historical Analysis

of the Second Amendment, in 3 GUN CONTROL AND THE CONSTITUTION: SOURCES AND

EXPLORATIONS ON THE SECOND AMENDMENT 1, 1–3 (Robert J. Cottrol & Paul Finkelman

eds., 1993); William Van Alstyne, The Second Amendment and the Personal Right to Arms, 43

DUKE L.J. 1236, 1236–38 (1994); Clayton E. Cramer & Joseph Edward Olson, What Did

“Bear Arms” Mean in the Second Amendment?, 6 GEO. J.L. & PUB. POL’Y 511, 511 (2008);

Don B. Kates, Jr., Handgun Prohibition and the Original Meaning of the Second Amendment,

82 MICH. L. REV. 204, 206–07 (1983); Sanford Levinson, The Embarrassing Second

Amendment, 99 YALE L.J. 637, 640 (1989); Glenn Harlan Reynolds, A Critical Guide to the

Second Amendment, 62 TENN. L. REV. 461, 466–71 (1995); Eugene Volokh, “Necessary to the

Security of a Free State,” 83 NOTRE DAME L. REV. 1, 2–3 (2007); Eugene Volokh, The

Commonplace Second Amendment, 73 N.Y.U. L. REV. 793, 793–94 (1998); Randy E. Barnett,

Was the Right to Keep and Bear Arms Conditioned on Service in an Organized Militia?, 83

TEX. L. REV. 237, 237 (2004) (reviewing UVILLER & MERKEL, supra).

82. District of Columbia v. Heller, 554 U.S. 570, 592 (2008).

83.Id. at 592, 636; see also McDonald, 130 S. Ct. at 3036, 3050.

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Amendment and elucidated that the right to keep and bears arms is

“among those fundamental rights necessary to our system of ordered

liberty.”

The Court made clear that the right was not unlimited but

declined to provide an analytical framework to evaluate regulations of

arms in the future.

A looming question that remains after Heller and McDonald is

whether non-lethal weapons are arms that are protected by the Second

Amendment. The majority opinion in Heller spent considerable time

discussing United States v. Miller

and its holding that the Second

Amendment does not provide an individual right, but a right to arms

that have a “reasonable relationship to the preservation or efficiency of

a well-regulated militia.”

Miller holds that arms are protected under

the Second Amendment if the weapon is in “common use” at the

present time and is ordinarily a military-related piece of equipment.

To determine whether a weapon is protected as an arm under Miller,

the weapon must be reasonably related to the purpose of the Second

Amendment.

In Miller, the defendant transported an unregistered

sawed-off shotgun across state lines, violating the National Firearms Act

of 1934.

The Court evaluated whether the sawed-off shotgun matched

the purpose of the Second Amendment, a collective right that must be

reasonably related to the militia, to determine whether the weapon

84.McDonald, 130 S. Ct. at 3042, 3050.

85.Id. at 3047.

86. United States v. Miller, 307 U.S. 174 (1939).

87.Heller, 554 U.S. at 622–24 (quoting Miller, 307 U.S. at 178).

88.Miller, 307 U.S. at 178–79.

89.See id. at 178.

90.Id. at 175. The National Firearms Act (NFA) of 1934 created a tax on the

production and transfer (to sell and purchase) of certain firearms that were listed under the

Act. National Firearms Act, ch. 757, 48 Stat. 1236 (1934) (codified as amended at 26 U.S.C.

§§ 5801–5872 (2006)). Additionally, the production and transfer of NFA weapons requires

registration with the Commissioner of the Internal Revenue. National Firearms Act, 48 Stat.

at 1237–38. The Act was created in response to the high gang-based crime of the era and was

supposed to reduce and ultimately prevent the transmission and production of certain Class

III weapons. See, e.g., Bureau of Alcohol, Tobacco, Firearms, & Explosives, U.S. Dep’t of

Justice, National Firearms Act, ATF.

GOV, http://www.atf.gov/content/firearms/firearms-

industry/national-firearms-act (last visited Apr. 1, 2014); S

AUL CORNELL, A WELL-

EGULATED MILITIA: THE FOUNDING FATHERS AND THE ORIGINS OF GUN CONTROL IN

AMERICA 259 n.69 (2006). The original weapons subjected to the Act were shotguns and

rifles with barrels that were less than eighteen inches in length and certain firearms described

as “any other weapons” (i.e., machine guns and silencers, sometimes called mufflers).

National Firearms Act, 48 Stat. at 1236.

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870 MARQUETTE LAW REVIEW [97:3

would be protected.

The Miller Court ultimately held that the sawed-

off shotgun was not reasonably related to the militia purpose.

This

militia “end in view” application was used until Heller.

The Court in Heller stated that the militia purpose is not the limit on

the legislature’s ability to restrict and regulate private weapons

and, in

dicta, that “Miller stands only for the proposition that the Second

Amendment right, whatever its nature, extends only to certain types of

weapons.”

An explanation of the end in view approach and the

differing interpretations that have been used is explained in an article by

Michael P. O’Shea,

who argues that there are three interpretations of

Miller’s end in view rule: weak Miller

; intermediate Miller

; and strong

Miller.

Each view purports to demonstrate the nexus needed between

the weapon and purpose (militia use), required to satisfy constitutional

scrutiny. Under weak Miller, protection for possessing and using

firearms is only for service connected to a state militia.

Intermediate

Miller allows for many uses as long as they have some relation to the

militia; this view necessarily prohibits use for personal self-defense.

100

Finally, strong Miller encompasses the lower Miller interpretations, but

it protects possession and use for other “traditionally legitimate

purposes, such as private self-defense.”

101

Strong Miller is where defining arms becomes critical because not all

types of personal weapons qualify as arms; only arms that are

91.Miller, 307 U.S. at 178. On appeal, Miller presented no appellate brief and his

counsel failed to show for oral argument. See Brian L. Frye, The Peculiar Story of United

States v. Miller, 3 N.Y.U. J.L. & LIBERTY 48, 66–67 (2008). The Court, in Heller,

emphatically argued that the fact that no party argued against the governmental action is a

fairly strong reason to doubt the Miller analysis. See Heller, 554 U.S. at 623 (arguing “reason

enough, one would think, not to make [Miller] the beginning and the end of this Court’s

consideration of the Second Amendment”). While the argument that lack of an adversary is

strong evidence of a reason to doubt the analysis of Miller may have merit, it is not clear that

the Court would have come up with a better or more well-reasoned analysis.

92.Miller, 307 U.S. at 178.

93.Heller, 554 U.S. at 622.

94.Id. at 623.

95. Michael P. O’Shea, The Right to Defensive Arms After District of Columbia v.

Heller, 111 W.

VA. L. REV. 349, 354–62 (2009).

96.Id. at 354–55.

97.Id. at 355–57.

98.Id. at 358–62.

99.Id. at 354–55.

100.Id. at 355–57.

101.Id. at 358–59.

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reasonably related to militias are protected. The threshold question in

Miller and under strong Miller is whether the weapon under scrutiny is

“part of the ordinary military equipment” and is “of the kind in common

use at the [present] time.”

102

This approach provides a litany of

problems when advances in technology put new weapons—that can be

more or less lethal—in the hands of soldiers.

103

According to this

approach, weapons like fully automatic assault rifles, grenade launchers,

and light machine guns could be in common use when used by soldiers,

and certain state and federal limits could be unconstitutional.

104

B. “Arms” under Heller and McDonald?

The Miller approach was, in some senses, all but obliterated by

Justice Scalia’s holding in District of Columbia v. Heller.

105

In Heller, a

police officer brought suit to enjoin a longstanding District of Columbia

ban on handguns.

106

Justice Scalia, after a lengthy historical analysis,

107

invalidated the ban on the grounds that it violated the Second

Amendment individual right to keep and bear arms for self-defense of

“hearth and home.”

108

To prevent outright overruling Miller, the Court

created an exception for Miller and held that Miller was not based on

the right but the weapon because sawed-off shotguns can never be used

for any law-abiding purpose.

109

The Court in Heller defined arms as “[anything] that a man wears for

his defence, or takes into his hands, or useth in wrath to cast at or strike

102.Id. at 358 (alterations in original) (quoting United States v. Miller, 307 U.S. 174,

178–79 (1939)) (internal quotation marks omitted). This approach protects personal-defense

arms that are connected to a militia purpose. Id. at 358–59 (citing David T. Hardy, A Well-

Regulated Militia: The Founding Fathers and the Origins of Gun Control in America, 15 W

& MARY BILL RTS. J. 1237, 1237 (2007) (reviewing CORNELL, supra note 90)). In a footnote

to Saul Cornell’s commentary on the mind frame of the Court during the Miller decision, he

argues that the Court wanted to maintain flexibility in dealing with the Second Amendment

because of two concerns of the time: (1) the passage of federal gun control laws in response to

the growth of organized crime; and (2) Hitler’s rise in Europe. See C

ORNELL, supra note 90,

at 259 n.69.

103.See O’Shea, supra note 95, at 380–83.

104.See, e.g., 18 U.S.C. § 922(b)(4) (2012) (prohibiting the sale of any destructive

device, as defined in § 921(a)(4), or machinegun).

105. District of Columbia v. Heller, 554 U.S. 570, 624–25 (2008).

106.Id. at 575–76.

107.See id. at 576–619.

108.See id. at 635.

109.See id. at 622–25.

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872 MARQUETTE LAW REVIEW [97:3

another”

110

—a very broad definition. More important, “the Second

Amendment extends, prima facie, to all instruments that constitute

bearable arms, even those that were not in existence at the time of the

founding.”

111

The Court did not go on to declare the District of Columbia ban

unconstitutional solely on the grounds that the home is the most

protected place and that there is a right to self-defense within the home

for arms, but it added that the fact that the ban was against handguns

was significant:

The handgun ban amounts to a prohibition of an entire class of

“arms” that is overwhelmingly chosen by American society for

that lawful purpose [of self-defense]. The prohibition extends,

moreover, to the home, where the need for defense of self,

family, and property is most acute. Under any of the standards

of scrutiny that we have applied to enumerated constitutional

rights, banning from the home “the most preferred firearm in the

nation to ‘keep’ and use for protection of one’s home and

family,” would fail constitutional muster.

112

The concern is that a statement banning all restrictions on the ability

of individuals to defend themselves will allow homeowners to use any

means (e.g., machineguns and grenades) for self-defense. To clarify, the

opinion merely protects handguns for self-defense within the home and

does not address what types of arms are protected in the home and

whether the self-defense granted under the Second Amendment extends

beyond the home to cover other residences, self-owned businesses, or

properties.

113

The Court then goes on to explain that Miller is read only for the

proposition “that the Second Amendment does not protect those

weapons not typically possessed by law-abiding citizens for lawful

purposes, such as short-barreled shotguns.”

114

And, in dicta, the Court

110.Id. at 581 (quoting 1 T. CUNNINGHAM, A NEW AND COMPLETE LAW DICTIONARY

(2d ed., London, W. Flexney 1771) (unpaginated, definition of “Arms”)).

111.Id. at 582. This certainly supports the idea that non-lethal weapons, such as

electronic weapons, are prima facie protected.

112.Id. at 628–29 (footnote omitted) (internal citation omitted) (quoting Parker v.

District of Columbia, 478 F.3d 370, 400 (D.C. Cir. 2007)). It could be the case that this is dicta

and that Heller could have been completely dealt with on the right to self-defense grounds,

leaving the Court free to reconfigure its decisional rules for arms.

113.See id. at 635.

114.Id. at 625.

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indicated that the long standing bans on possession of arms by certain

people (such as felons and the mentally ill), and in certain places, is not

in question.

115

What the Court in Heller does is change the purpose of

the Second Amendment. The Second Amendment under Miller

protects only those arms that had a nexus to the militia and under Heller

the nexus is to self-defense.

116

One of the fundamental problems with

this approach is that Heller does not abandon Miller’s common use

test.

117

Once Heller changed the purpose, and therefore the nexus, the

common use test should have been adjusted for the self-defense

purpose.

The current common use test for militias is not abandoned and is

used as an argument that legislative bans on “dangerous and unusual

weapons” are sufficient to meet constitutional scrutiny.

118

Justice Scalia

includes, as a list of the weapons deemed dangerous and unusual, the

short-barreled shotgun and machine gun.

119

A problem is that all

weapons are inherently dangerous, so allowing bans on “dangerous

weapons” could allow a ban on all weapons. An “unusual weapon”

designation is not helpful either: Weapons that are not normally used by

the militia today, such as a musket, could be banned because it is

currently unusual. It is certain that the Founders would have argued

strenuously against the regulation of muskets.

115.Id. at 626–27 (stating, in dicta, that “nothing in our opinion should be taken to cast

doubt on longstanding prohibitions on the possession of firearms by felons and the mentally

ill, or laws forbidding the carrying of firearms in sensitive places such as schools and

government buildings, or laws imposing conditions and qualifications on the commercial sale

of arms”).

116.Compare United States v. Miller, 307 U.S. 174, 178 (1939) (holding that arms need

to have “some reasonable relationship to the preservation or efficiency of a well regulated

militia”), with Heller, 554 U.S. at 635 (holding that citizens have the right to possess a firearm

in their homes for the purpose of self-defense).

117.See Heller, 554 U.S. at 627.

118.See id. Justice Scalia holds that the limitation on “dangerous and unusual” weapons

is “supported by the historical tradition of prohibiting the carrying of ‘dangerous and unusual

weapons.’” Id. However, there is no precedential support beyond Miller, which has been

effectively overruled because society today lacks traditional militias and the limitation uses

the logical flow of weapons associated with militias used in Miller to continue a prohibition on

dangerous and unusual weapons not based on self-defense within the home. Unfortunately,

this mix-and-match use of decisional rules provides for more confusion than consistency. See

discussion infra Part IV.

119.See Heller, 554 U.S. at 625, 627. Although Justice Scalia did not use the term

“machine gun,” he was likely referring to the M16A-1 rifle, which has fully automatic

capabilities. See id.

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874 MARQUETTE LAW REVIEW [97:3

Aside from an issue of circularity,

120

the presumption that arms are

prima facie protected conflicts with the requirement that they be in

common use. This is not to mention the issue that arises when advances

in technology create new and innovative ways to protect us. Just as the

First Amendment protects new forms of speech, the Second

Amendment should protect new forms of arms, and the current test

does not do this.

121

Additionally, the current test sets certain weapons up to fail to gain

constitutional protection because Congress restricted those weapons in

the past, preventing those weapons from being in common use.

Unfortunately, this approach partly harkens back to the analysis under

Miller and neglects to recognize that the National Firearms Act of 1934

effectively caused weapons to be removed from common use because of

pricing and regulation.

122

In Heller, arms do not include weapons that

are not commonly possessed for lawful purposes.

123

Again, this

decisional rule is problematic. Heller further concludes that to “bear

arms” means to “wear, bear, or carry [weapons] upon the person or in

the clothing or in a pocket, for the purpose . . . of being armed and

ready . . . in a case of conflict with another person”;

124

there is an

individual right to carry “in case of confrontation.”

125

This definition

begs the question: Do citizens ordinarily wear, bear, or carry weapons

upon their person, in their clothing, or pocket, being armed and ready

120.See O’Shea, supra note 95, at 381, 384–86 (arguing that using a constitutional rule

that bases protection on the “presence or absence” of certain arms “runs a serious risk of

harmful circularity”).

121.See Nat’l Rifle Ass’n of Am. v. Bureau of Alcohol, Tobacco, Firearms &

Explosives, 700 F.3d 185, 197–98 (5th Cir. 2012) (adopting a two-step framework for Second

Amendment challenges based on guidance from the First Amendment); Ezell v. Chicago, 651

F.3d 684, 699 (7th Cir. 2011) (holding that the Second Amendment “protects similarly

intangible and unqualifiable interests” as the First Amendment). The Ezell Court goes on to

explain that Second Amendment infringements are not the kind that can be compensated by

damages. Id.

122.See National Firearms Act, ch. 757, 48 Stat. 1236 (1934) (codified as amended at 26

U.S.C. §§ 5801–5872 (2006)); Craig S. Lerner & Nelson Lund, Heller and Nonlethal Weapons,

60 H

ASTINGS L.J. 1387, 1393 (2009). Lerner and Lund explore the idea that but for the NFA,

many of the weapons that are “unusual” would not be unusual today, and Justice Scalia’s

failure to address this issue “empowers Congress to create its own exceptions to the Second

Amendment so long as the Supreme Court waits awhile before it checks to see whether

particular weapons are in common civilian use.” Lerner & Lund, supra, at 1392–93.

123.Heller, 554 U.S. at 625.

124.Id. at 584 (alterations in original) (quoting Muscarello v. United States, 524 U.S.

125, 143 (1998) (Ginsburg, J., dissenting)) (internal quotation marks omitted).

125.Id. at 592.

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for conflict inside their abode?

126

No—of course not. To “bear arms”

based on the Heller definition suggests that there is a right to self-

defense outside the home because people do not bear arms inside their

house, they only possess them.

127

Two questions remain unclear by the

Court’s decision: (1) What are lawful arms; and (2) What is commonly

possessed?

In McDonald v. City of Chicago, the Court held that the individual

right to self-defense recognized in Heller is applicable to states via the

Due Process Clause of the Fourteenth Amendment.

128

McDonald

presented a very similar factual scenario to Heller but failed to add any

significant discussion about arms. In McDonald, the City of Chicago

banned private ownership of handguns within the city, and plaintiffs

were Chicago residents who desired to possess a handgun for self-

126.See Moore v. Madigan, 702 F.3d 933, 936 (7th Cir. 2012).

127.See Peruta v. County of San Diego, 742 F.3d 1144, 1166 (9th Cir. 2014) (holding that

the Second Amendment extends outside the home); Moore, 702 F.3d at 936 (holding that

Illinois’ ban on concealed weapons was unconstitutional). The Seventh Circuit was the first

circuit to suggest that the Second Amendment right to self-defense extends outside the home

when it held that the right to practice with firearms at a range is an ancillary of the right.

Ezell v. Chicago, 651 F.3d 684, 704–10 (7th Cir. 2011). Additionally, state courts in Illinois,

Ohio, Oregon, Michigan, and a plurality in Georgia have found a right to carry in public.

Hertz v. Bennett, 751 S.E.2d 90, 96 (Ga. 2013) (Blackwell, J., concurring); People v. Aguilar, 2

N.E.3d 321, 327 (Ill. 2013); People v. Yanna, 824 N.W.2d 241, 246 (Mich. Ct. App. 2012);

State v. Christian, 307 P.3d 429, 443 n.11 (Or. 2013). On the other hand, the Second and

Third Circuits have both failed to recognize an absolute right to carry in public spaces. Drake

v. Filko, 724 F.3d 426, 431 (3d Cir. 2013), petition for cert. filed, 82 U.S.L.W. 3449 (U.S. Jan. 9,

2014) (No. 13-827); Kachalsky v. County of Westchester, 701 F.3d 81, 96 (2d Cir. 2012), cert.

denied, 133 S. Ct. 1806 (2013). And the state courts that do not extend the right to carry

outside the home are California, D.C., Maryland, Massachusetts, and New York. People v.

Dykes, 209 P.3d 1, 43–44 (Cal. 2009); Little v. United States, 989 A.2d 1096, 1101 (D.C. 2010);

Williams v. State, 10 A.3d 1167, 1177, 1179 (Md. 2011); Commonwealth v. McCollum 945

N.E.2d 937, 954 (Mass. App. Ct. 2011); People v. Perkins, 880 N.Y.S.2d 209, 210 (App. Div.

2009). Thomas Jefferson listed an individual right to self-defense with other individual

freedoms:

The constitutions of most of our States assert, that all power is inherent in the

people; that they may exercise it by themselves . . . or they may act by

representatives, freely and equally chosen; that it is their right and duty to be at all

times armed; that they are entitled to freedom of person, freedom of religion,

freedom of property, and freedom of the press.

Letter from Thomas Jefferson to Major John Cartwright (June 5, 1824), in 16 T

HE WRITINGS

THOMAS JEFFERSON 42, 45 (Andrew A. Lipscomb & Albert Ellery Bergh eds., 1903)

(emphasis added).

128. U.S.

CONST. amend. XIV; McDonald v. City of Chicago, 130 S. Ct. 3020, 3050

(2010).

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876 MARQUETTE LAW REVIEW [97:3

defense.

129

The statute banning weapons was almost the same as the ban

in Heller.

130

The issue on appeal only dealt with the application of the

Court’s holding in Heller and whether the individual right to keep and

bear arms for self-defense within the home was applicable to the states

via the Fourteenth Amendment.

131

Justice Alito’s plurality opinion focused mainly on the issue of

incorporation but held, in line with Heller, that there is an individual

right to bear arms for self-defense within the home.

132

The opinion

adopted the exceptional language from Heller that “prohibit[s] . . . the

possession of firearms by felons and the mentally ill” and “forbid[s] the

carrying of firearms in sensitive places such as schools and government

buildings, or . . . impos[ed] conditions and qualifications on the

commercial sale of arms” and applied it to the states.

133

The plurality

merely adopted the Heller language and failed to provide further

decisional rules or guidance on arms and what is sufficient to qualify a

weapon as “commonly possessed.” Further, the Court failed to provide

an analytical framework for firearm challenges.

IV.

NON-LETHAL WEAPONS STATUES & REGULATIONS TODAY

Non-lethal arms statutes and regulations are typically governed by

individual states and are so complex that average citizens are generally

unable to follow or comprehend the laws. States certainly have a right

to regulate within their borders, to be sure, but a state’s ability to

regulate pales in comparison to the monumental task that interstate

travelers will face when attempting to follow state and local laws while

moving through multiple states. Additionally, the federal government

has statutes governing firearms but lacks any individual or

129.See McDonald, 130 S. Ct. at 3026.

130.Compare Heller, 554 U.S. at 630 (“Except for law enforcement personnel . . . , each

registrant shall keep any firearm in his possession unloaded and disassembled or bound by a

trigger lock or similar device unless such firearm is kept at his place of business, or while

being used for lawful recreational purposes within the District of Columbia.” (alterations in

original) (quoting D.C.

CODE § 7–2507.02 (2001))), with McDonald, 130 S. Ct. at 3026 (noting

that the “City ordinance provides that ‘[n]o person shall . . . possess . . . any firearm unless

such person is the holder of a valid registration certificate for such firearm.’ The Code then

prohibits registration of most handguns, thus effectively banning handgun possession by

almost all private citizens who reside in the City.” (alterations in original) (internal citation

omitted) (quoting C

HI., ILL., MUN. CODE § 8-20-040(a) (2009))).

131.McDonald, 130 S. Ct. at 3036, 3050.

132.Id.

133.Id. at 3047 (quoting Heller, 554 U.S. at 626–27) (internal quotation marks omitted).

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2014] SECOND AMENDMENT DECISION RULES 877

comprehensive statute governing non-lethal weapons. This section will

help illustrate the problems that are associated with the convoluted

nature of the state-by-state non-lethal weapons scheme, which leaves

many travelers without the opportunity for self-defense.

A. The Upper Mid-West: A Complicated Array of State-by-State Non-

Lethal Weapons Statutes

One of the major problems that interstate travelers, especially truck

drivers and families taking vacations, face when attempting to carry or

use non-lethal weapons for self-defense is the plethora of varying and

sometimes confusing statutes that make up state and local laws. To

comply with each state’s law, the traveler would have to spend an

extraordinary amount of time—or hire an attorney, something that

individuals traveling cross-country likely cannot afford—researching

law, and possibly interpreting it incorrectly, creating a heavy burden on

the traveler. One only needs to look at a couple of articles to

understand the complexity and utter frustration that trained legal

professionals, let alone non-legally trained citizens, will find when

attempting to properly follow and categorize the array of state non-

lethal weapons laws.

134

1. State-by-State

The primary objective of this state-by-state review is to show that

the current statutory scheme in an increasingly mobilized country can

create major problems for travelers and result in self-defense threats

with little recourse. In particular, truckers and families traveling cross-

134.See, e.g., Volokh, Nonlethal Self-Defense, supra note 19, 199 app. 2 (listing the vast

array of different non-lethal weapons statues throughout the states and various provisions of

such statues that do not always make clear whether a particular defensive weapon, device, or

implement is banned or not); Steven W. Kranz, Comment, A Survey of State Conceal and

Carry Statutes: Can Small Changes Help Reduce the Controversy?, 29 H

AMLINE L. REV. 637,

646–47, 654–56, 637 app. (2006) (discussing the complexity of “shall-issue” licensing, the

problems associated with inconsistent statutory schemes among states, and listing thirty-eight

pages of state concealed carry laws); see also Ryan S. Andrus, Note, The Concealed Handgun

Debate and the Need for State-To-State Concealed Handgun Permit Reciprocity, 42 A

RIZ. L.

REV. 129, 155–56 (discussing the need for consistency and supporting a nation-based solution,

but also acknowledging federalism concerns). Another layer of complexity that occurs with

shall-issue licensing is that the statutes mainly address handguns and are not always clear

whether licensing applies to handguns alone or includes concealable weapons. Unlike most

states, Illinois’ new concealed carry statute explicitly excludes electric weapons, among

others. 430 I

LL. COMP. STAT. ANN. 66/5 (West 2014) (“‘Handgun’ does not include . . . a stun

gun or taser . . . .”).

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878 MARQUETTE LAW REVIEW [97:3

country are particularly vulnerable to the different state laws they must

follow regarding the purchase, use, and possession of non-lethal

weapons.

135

This section will start by explaining the varied and

complicated non-lethal weapons statutes in Illinois, Michigan,

Wisconsin, Indiana, and Minnesota. While evaluating the different

statutes, it will be easy to demonstrate that individuals who travel from

state-to-state will become overwhelmed by trying to figure out and

comport with the laws and will do one of two things: (1) forgo carrying a

weapon altogether and thus subject themselves to increased risk of

harm; or (2) carry the weapon illegally, recognizing that they would

rather protect themselves and their family and risk potential liability

than go unarmed. This section will also demonstrate that that if one

state in a line of states prohibits the carrying of non-lethal weapons, it

can make it incredibly difficult to carry and use those weapons in

bordering states.

Before forging on, it is critical to have a brief understanding of

concealed carry laws and reciprocity. Concealed carry laws in each state

vary, but generally speaking, they provide for an application process

that a citizen will complete in order to obtain and carry a weapon.

136

Each state has different requirements, such as a minimum amount of

training, or disqualifiers, such as a conviction for an act of violence.

137

Reciprocity allows a non-resident to carry within that state, subject to

certain requirements and restrictions.

138

The most typical requirement is

that the non-resident has a concealed carry permit from his home

state.

139

Each state decides whether or not to offer reciprocity to other

states and vice-a-versa.

140

Throughout the multiple state surveys,

reciprocity arrangements may arise.

a. Illinois

Before July 9, 2013, Illinois was the last state to enact legislation that

135. These two types of travelers, families on vacation and truckers, were picked

because they are most likely to travel interstate and would be the most likely to need

protection because they spend so much time on the road and would be required to comply

with varying state and local laws before entering each state.

136.See, e.g., W

IS. STAT. § 175.60 (2011–2012).

137.See, e.g., id. § 175.60(3)–(4).

138.See, e.g., id.

§ 175.60(18).

139.See, e.g., W

IS. ADMIN. CODE JUS § 17.13 (May 2013).

140.See, e.g., id.

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allows citizens to conceal and carry weapons.

141

Two cases provided the

impetus for this legislation: a Seventh Circuit case and an Illinois

Supreme Court case.

142

After a tumultuous round of legislating and

negotiating, and a looming deadline, the state passed a new concealed

carry law that allows citizens to carry handguns.

143

While the state of

Illinois passed a shall issue concealed carry statute in response, the law

explicitly exempts a stun gun or taser.

144

The criminal code prohibits the

carry and possession of a “bludgeon, black-jack, slung-shot, sand-club,

sand-bag, metal knuckles or other knuckle weapon regardless of its

composition, throwing star, or any knife,” or any stun gun or taser if it is

carried with an intent to use it against another “unlawfully,” unless

“when on his land or in his own abode, legal dwelling, or fixed place of

business, or on the land or in the legal dwelling of another person as an

141.See Firearm Concealed Carry Act, Ill. P.A. 98-63 (2013) (codified at 430 ILL. COMP.

STAT. ANN. 66/1–999 (2014)); Brenden Moore, Illinois Gears Up for Concealed Carry,

EPAULIA (Jan. 12, 2014, 9:01 PM), http://www.depauliaonline.com/nation-world/illinois-

gears-up-for-concealed-carry-1.3129740#.UuKz19LnaM8; William Spain, Illinois Allows

Concealed Firearms to Be Carried, USAT

ODAY.COM (Jan. 8, 2014, 6:52 PM),

http://www.usatoday.com/story/news/nation/2014/01/08/illinois-concealed-guns-carry-chicago/

4379409/.

142.See Moore v. Madigan, 702 F.3d 933, 942 (7th Cir. 2012), reh’g en banc denied, 708

F.3d 901, 902 (7th Cir. 2013) (holding that Illinois’ concealed carry ban was unconstitutional

and giving the state 180 days to enact legislation); People v. Aguilar, 2 N.E.3d 321, 328 (Ill.

2013) (holding that the state’s aggravated unlawful use of a weapon statute, which prohibited

concealed carry, violated the Second Amendment).

143. Ray Long et al., General Assembly Overrides Governor's Veto of Concealed Carry

Bill, C

HI. TRIB. (July 9, 2013 10:10 PM), http://www.chicagotribune.com/news/local/breaking/

chi-illinois-concealed-carry,0,4356935.story. Illinois’ Governor, Pat Quinn, was attempting to

provide more stringent regulation of handguns in the bill: to include a ban on carrying

firearms in places that sell alcohol, to restrict magazine capacity, and to limit the carrying of a

concealed firearm to one at a time. Id. Although Governor Quinn attempted to change the

bill through an amendatory veto, the legislature overrode the altered bill. Id.; Bill Status of

HB0183, ILGA.

GOV, http://www.ilga.gov/legislation/billstatus.asp?DocNum=0183&GAID=1

2&GA=98&DocTypeID=HB&LegID=69231&SessionID=85&SpecSess=#actions (last visited

Apr. 6, 2014).

The amendatory veto process is a power granted to Illinois governors allowing them

to make changes to bills that have passed. If a simple majority in each chamber

accepts the governor's changes, the altered bill becomes law. If three fifths of each

chamber (36 of the state's 59 senators, and 71 of the 118 representatives) vote to

override the veto, the original bill becomes law. If neither happens, the bill is dead.

Kurt Hofmann, Governor Quinn Violates U.S. and Illinois Constitutions Simultaneously,

XAMINER.COM (Aug. 1, 2012), http://www.examiner.com/article/governor-quinn-violates-u-

s-and-illinois-constitutions-simultaneously; see also I

LL. CONST. art. IV, § 9.

144.See Firearm Concealed Carry Act, Ill. P.A. 98-63 § 5 (2013) (codified at 430 I

LL.

COMP. STAT. ANN. 66/5 (West 2014)) (“‘Handgun’ does not include . . . a stun gun or

taser . . . .”).

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880 MARQUETTE LAW REVIEW [97:3

invitee with that person’s permission, any pistol, revolver, stun gun or

taser or other firearm.”

145

It is legal to carry a non-lethal “liquid gas or

substance” that is designed for personal use (i.e., irritant sprays).

146

b. Wisconsin

Under Wisconsin law, an individual who possesses or uses electric

weapons is guilty of a Class H felony unless the individual is a licensee

or is carrying in his own dwelling, place of business, or on his own

land.

147

The most recent exception allowed by state law for the carry of

concealed electric weapons is that the individual is a licensee.

148

For

concealed carry purposes, a “weapon” is “a handgun, an electric

weapon, . . . a knife other than a switchblade knife . . . or a billy club.”

149

A licensee must be at least twenty-one years of age, pass a background

investigation, and provide proof of training.

150

Additionally, the

145. 720 ILL. COMP. STAT. ANN. 5/24–1(a)(1)–(4) (West 2010). However, the exception

for abode does not apply to or affect the transport of such weapons unless they (1) “are

broken down in a non-functioning state”; (2) “are not immediately accessible”; or (3) “are

unloaded and enclosed in a case, firearm carrying box, shipping box, or other container by a

person who has been issued a currently valid Firearm Owner’s Identification Card.” Id. 5/24–

1(a)(4).

146.Id. 5/24–1(a)(3).

147. W

IS. STAT. § 941.295(1m), (2g) (2011–2012). This excludes police officers, armed

forces on duty, or corrections personnel. Id. By contrast, individuals who carry a concealed

handgun are guilty of a Class A misdemeanor. W

IS. STAT. § 941.23(2). A Class H felony

subjects the convicted to “a fine not to exceed $10,000,” imprisonment not exceeding six

years, or both. Id. § 939.50(3)(h). A Class A misdemeanor subjects the convicted to a fine

not to exceed $10,000, imprisonment not exceeding nine months, or both. Id. § 939.51(3)(a).

By the logic of the Wisconsin statutes, the penalty for possessing an electric weapon subjects

one to a substantially higher maximum penalty than the concealed carry of a pistol,

potentially five years and three months more imprisonment.

148. 2011 Wis. Act 35 § 38 (codified at W

IS. STAT. § 175.60(1)(j), (2g)).

149. W

IS. STAT. § 175.60(1)(j).

150.Id. § 175.60(3)(a), (4)(a), (9)(g). The training requirement according to Wisconsin

Act 35 is a copy of a document that the applicant completed training for any of the following:

hunter safety program; firearm safety course conducted by a state or national organization,

law enforcement agency, or school; military training; or unrevoked concealed carry license

from another state. 2011 Wis. Act 35 § 38 (codified at

WIS. STAT. § 175.60(4)(a)); CCW

Training Requirements,

WIS. DEP’T OF JUSTICE, http://www.doj.state.wi.us/dles/cib/conceal-

carry/training-requirements (last visited Feb. 3, 2014). After Wisconsin Act 35 was passed,

the Wisconsin Department of Justice and Attorney General, J.B. Van Hollen, were given

authority to promulgate rules regarding training and decided that four hours training was

sufficient to meet statutory requirements. 2011 Wis. Act 35 § 22 (codified at W

IS. STAT.

§ 165.25(12m)); Mark R. Hinkston, Wisconsin’s Concealed Carry Law, WIS. LAW., July 2012,

at 10, 15. The governor of Wisconsin, Scott Walker, approved the DOJ’s temporary four-

hour training requirements until permanent rules were written. Patrick Marley, Concealed

Weapons Rules Signed, M

ILWAUKEE J. SENTINEL, Oct. 15, 2011, at B1. In November, the

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individual must be legally able to own and possess a handgun.

151

Interestingly, the concealed carry statute does not restrict devices

that contain and deploy OC. Tear gas, UV dye, or combination sprays

are not permissible, while OC spray is legal, subject to Wisconsin

Department of Justice regulations.

152

These regulations provide that the

device cannot contain more than 10% OC,

153

the entire weight of

ingredients must not exceed sixty grams,

154

and if it is sold in Wisconsin,

it must have an effective range of at least six feet, but not more than

twenty feet.

155

It is less clear what blunt force weapons can be possessed

or carried on one’s person, concealed, or in the vehicle.

156

Like most

states, possessing these devices within your own home, on your own

land, or within your place of business, is legal.

157

Legislature’s Joint Committee for Review of Administrative Rules overruled J.B. Van Hollen

and, by a 7-3 split, removed the hourly training requirement from the rules. Patrick Marley,

Need for 4 Hours of Gun Training Tossed, M

ILWAUKEE J. SENTINEL, Nov. 8, 2011, at A1.

151. W

IS. STAT. § 175.60(3).

152. Id. § 941.26(4)(a), (4)(i)(2); W

IS. ADMIN. CODE JUS § 14.05 (Feb. 2014).

153. J

US § 14.05.

154.Id. § 14.07.

155.Id. § 14.06.

156. Weapons for concealed carry purposes are handguns, electric weapons, knives

other than switchblades, or billy clubs. W

IS. STAT. § 175.60(1)(j). However, these weapons

only seem to apply to concealed carry because there is a special statute that restricts the

possession of electric weapons for everyone except permit holders, Id.

§ 941.295, while there

are no other possession statutes for other blunt objects. However, Wisconsin does restrict

“dangerous weapons” for those under eighteen. Id.

§ 948.60(2)(a). That statute has a special

definition for dangerous weapons that only applies to that section and includes:

[A]ny firearm, loaded or unloaded; any electric weapon, as defined in s.

941.295(1c)(a); metallic knuckles or knuckles of any substance which could be put to

the same use with the same or similar effect as metallic knuckles; a nunchaku or any

similar weapon consisting of 2 sticks of wood, plastic or metal connected at one end

by a length of rope, chain, wire or leather; a cestus or similar material weighted with

metal or other substance and worn on the hand; a shuriken or any similar pointed

star-like object intended to injure a person when thrown; or a manrikigusari or

similar length of chain having weighted ends.

Id. § 948.60(1). The ultimate conclusion is that if the weapons are specifically listed under

section 948.60 and not listed under section 175.60, then all the other weapons are okay for

concealed possession.

157. W

IS. STAT. § 941.295(2g)(b). Prior to the passage of Wisconsin Act 35, Wisconsin

did not protect one’s ability to carry weapons in one’s place of business and, up until 2003,

private business owners were unable to conceal weapons at their places of business. See 2011

Wis. Act 35 § 55 (codified at W

IS. STAT. § 941.23(2)(e)); State v. Hamdan, 2003 WI 113, ¶¶ 3–

4, 84, 264 Wis. 2d 433, 665 N.W.2d 785 (holding that private store owners have a

constitutional right to concealed carry). Wisconsin does not recognize concealed carry in a

vehicle for those without a license. See, e.g., State v. Fisher, 2006 WI 44, ¶¶ 32, 65, 290 Wis.

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882 MARQUETTE LAW REVIEW [97:3

c. Michigan

The state of Michigan allows electric weapons to be openly carried

in public,

158

possessed in the home,

159

or concealed carry with a license.

160

A licensee (whether resident or non-resident) is required to carry a valid

driver’s license and concealed carry license anytime they are carrying.

161

Additionally, if someone who is carrying a concealed weapon is stopped

by a peace officer, he must “immediately disclose to the peace officer

that he or she is carrying a pistol” or other weapon.

162

Further, a peace

officer can request to see the person’s license and at that time, the

person must show the peace officer his license to carry a concealed

pistol and his driver’s license.

163

The possession and carrying of a “self-

defense spray or foam device” is allowed subject to certain device

requirements,

164

but is generally allowed for those over eighteen years of

age.

165

Finally, the possession and carry of dangerous weapons are

restricted to the home, place of business, or other land owned by that

2d 121, 714 N.W.2d 495 (using an “extraordinary circumstances” test for carrying in vehicles);

State v. Cole, 2003 WI 112, ¶¶ 49, 50, 264 Wis. 2d 520, 665 N.W.2d 328. The extraordinary

circumstances test created a rule that will almost always prevent concealed carry in a vehicle.

Unless the individual “reasonably believes that he or she is actually confronted with a threat

of bodily harm or death and that carrying a concealed weapon is necessary for protection

from the threat,” ordinary circumstances exist. Fisher, 2006 WI 44, ¶ 32 (emphasis added).

This process (or test) is devoid of realties in the real world. The problem is that individuals

are not given notice prior to an assault, robbery, rape, or murder. Justice Ann Walsh Bradley

(the author of the opinion) seems to be operating in an academic and legal world where all

criminals abide by basic presumptions of logic, which is wholly out of touch with the practical

effects of this test, and effectively prevents individuals from protecting themselves until it is

too late. See Fisher, 2006 WI 44. Robbers and rapists do not send you a formal memo giving

you sufficient notice to get some concealed carry permit or other self-defense weapon before

they strike—they operate on surprise.

158. People v. Yanna, 824 N.W.2d 241, 245–46 (Mich. Ct. App. 2012) (holding that

tasers and stun guns were arms sufficient for protection under the Second Amendment).

159.Id. at 246.

160. M

ICH. COMP. LAWS ANN. § 750.224a(2)(b) (West Supp. 2013). Additionally, non-

residents can carry concealed in Michigan if they are licensed by another state to carry. Id.;

ICH. COMP. LAWS ANN. § 28.432a(1)(h) (West 2012).

161. M

ICH. COMP. LAWS ANN. § 28.425f(1) (West 2012). This requirement applies to all

law enforcement personnel, including other state and federal officers. Id.

162. Id.

§ 28.425f(3).

163. Id.

§ 28.425f(2).

164.See M

ICH. COMP. LAWS ANN. § 750.224d(1)(a) (West Supp. 2013) (requiring the

device to contain “[n]ot more than 35 grams of [CS] and inert ingredients. . . . [or] not more

than 10% [OC]”).

165.Id. § 750.224d(4).

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2014] SECOND AMENDMENT DECISION RULES 883

person.

166

d. Indiana

The Indiana statute prohibiting an individual from carrying a

handgun on himself or in his vehicle without a license

167

applies to

electric weapons.

168

However, to carry or possess other dangerous

weapons seems legal because there is minimal regulation of those

objects. The only place in the statutes where “deadly weapon” is used is

where a predicate crime, like battery, was committed with a deadly

weapon.

169

Chemicals designed to incapacitate are considered deadly

weapons when used unlawfully, but there is no statute directly

prohibiting the purchase, possession, or carry of irritant sprays or their

subsequent use for self-defense.

170

166. MICH. COMP. LAWS ANN. § 750.227(1) (West 2004) (“A person shall not carry a

dagger, dirk, stiletto, a double-edged nonfolding stabbing instrument of any length, or any

other dangerous weapon, except a hunting knife adapted and carried as such . . . .”). A dirk is

a dagger. T

HE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE 513 (4th

ed. 2000). The 17th century Scottish dirk came from the medieval ballock dagger, a short,

thinner, more concealable weapon than the more modern dirk. See Chad Arnow, Spotlight:

The Scottish Dirk, M

YARMOURY.COM, http://www.myarmoury.com/feature_spot_dirks.html

(last visited Jan. 15, 2014). For an interesting history of the dirk and its development, see id.

The Imperial Japanese Navy officers carried and used the dirk, unlike the English officers

who carried a sword. F

RED. T. JANE, THE IMPERIAL JAPANESE NAVY 276 (1904). The

stiletto the statute references is not the stiletto heel (although some could certainly be used as

weapons), but a dagger-like knife intended to be used for stabbing as opposed to regular

daggers that can slash and cut. P

ETER LIMBURG, WHAT’S IN THE NAMES OF ANTIQUE

WEAPONS 78 (1973).

167.See I

ND. CODE ANN. § 35-47-2-1 (LexisNexis 2009).

168.Id. § 35-47-8-4. Minors are also prohibited from purchasing or possessing electric

weapons. See id. § 35-47-8-5(a).

169.See, e.g., id. § 35-42-2-1(a)(3). These statutes increase the felony level when

committing crimes with “deadly weapons,” which are defined as a “loaded or unloaded

firearm” or

A destructive device, weapon, device, taser . . . or electronic stun

weapon . . . equipment, chemical substance, or other material that in the manner

it . . . could ordinarily be used; or . . . is intended to be used; is capable of causing

serious bodily injury.

ND. CODE ANN. § 35-31.5-2-86(a) (LexisNexis 2012). However, this statue excludes law

enforcement officials when using the device according to their training and while engaged in

official duties. Id. § 35-31.5-2-86(b).

170.See id. § 35-31.5-2-86(a); supra notes 69–74 (discussing the use of chemicals

designed to incapacitate).

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884 MARQUETTE LAW REVIEW [97:3

e. Minnesota

In Minnesota, citizens may possess and use electric weapons and tear

gas compounds to defend themselves.

171

These weapons are subject to

multiple regulations, such as requiring that the device be labeled or

accompanied with instructions,

172

that local licensing requirements are

followed,

173

and that they cannot be sold to minors or to individuals who

have committed certain crimes.

174

However, minors under sixteen can

possess tear gas compounds with the permission of their parent or

guardian; minors under eighteen are prohibited from possessing any

electric weapons.

175

The use of blunt force objects takes a slightly tricky

trajectory: possessing and carrying most dangerous weapons is legal

unless done for an unlawful purpose.

176

Dangerous weapons do not

include metal knuckles or switch blade knives because a separate line in

that subsection specifically precludes the manufacture, possession, or

sale of those items.

177

Although minors are able to handle or use a

firearm, air gun, ammunition, or explosive (hopefully this means

fireworks) with their parent’s written permission, the statutes do not

clarify what other non-lethal weapons can be carried by minors.

178

2. State-by-State Problems

The problems inherent in a state-by-state system where individuals

are prevented from protecting themselves with non-lethal weapons are

171. MINN. STAT. ANN. § 624.731 subd. 2 (West 2009). Under this statute, authorized

tear gas compounds include “a lachrymator or any substance composed of a mixture of a

lachrymator including chloroacetophenone, alphachloroacetophenone; phenylchloromethylk-

etone, orthochlorobenzalmalononitrile or oleoresin capsicum, commonly known as tear gas.”

Id. § 624.731 subd. 1(1).

172.Id. § 624.731 subd. 2(a).

173.Id. § 624.731 subd. 5.

174.Id. § 624.731 subd. 3(a)–(b). Also, like most states, Minnesota law does not

prohibit the possession and use of these devices by local, state, and federal law enforcement

and the military. Id. § 624.731 subd. 6.

175.Id. § 624.731 subd. 3(a).

176. Id. § 609.66 subd. 1(1)–(5). Subsection 5 specifically forbids the possession of “any

other dangerous article or substance” used unlawfully. Id. § 609.66 subd. 1(5).

177.See id. § 609.66 subd. 1(4). The dangerous weapons definition is quite broad. Id.

§ 609.02 subd. 6 (“‘Dangerous weapon’ means any firearm, whether loaded or unloaded, or

any device designed as a weapon and capable of producing death or great bodily harm, any

combustible or flammable liquid or other device or instrumentality that, in the manner it is

used or intended to be used, is calculated or likely to produce death or great bodily harm, or

any fire that is used to produce death or great bodily harm.”).

178.See id. § 609.66 subd. 1b.

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heightened when individuals are traveling in their vehicles, especially

with their families. Traveling families and truckers spend most of their

time in vehicles driving, and they spend nights in motels, at truck stops,

or on the side of the road. While making these trips, these travelers are

particularly vulnerable to attacks in the form of hijackings, cargo thefts,

sexual assaults, and abductions.

179

The heightened use of roadways

throughout the country has increased roughly sixty-five percent in the

past twenty-five years,

180

underscoring the increasingly important need

for individuals to protect themselves within their own vehicles.

The problem of interstate non-lethal weapons statutes may be

demonstrated by imagining the different laws a trucker or family of four

traveling from Minnesota to Michigan (necessitating travel through

Wisconsin, Illinois, and Indiana) would encounter. In Minnesota, adults

and minors above sixteen can carry irritant spray, including tear gas

compounds, and adults can use electric weapons.

181

Moving to

Wisconsin, irritant sprays are allowed, except one must be eighteen

years of age

182

and all other weapons are unavailable to possess unless

one has a concealed carry license.

183

Additionally, a licensee must be

179.See Blake Morrison, Along Highways, Signs of Serial Killings—At Least 459

Believed Slain in the Past 40 Years, USA

TODAY, Oct. 5, 2010, at A1 (reporting 459 murders

by suspected serial killers who use the interstate highway system to find and dispose of the

bodies); Bruce C. Smith, Highway Hijackers Target Truckers’ Loot, I

NDIANAPOLIS STAR,

Feb. 25, 2010, at A1 (reporting the assault and hijacking of a truck driver in Indiana and the

rise of highway-based hijackings); Highway Serial Killings: New Initiative on an Emerging

Trend, F

ED. BUREAU INVESTIGATION, http://www.fbi.gov/news/stories/2009/april/highwayser

ial_040609 (last visited Feb. 19, 2014) (announcing the Highway Serial Killings initiative to

raise awareness among law enforcement and the general public regarding the issue); Man

Arrested in Multimillion-Dollar Car Theft Ring Based in Illinois, L

EADER (Oct. 8, 2012, 6:38

PM), http://leaderpub.com/2012/10/08/man-arrested-in-multimillion-dollar-car-theft-ring-base

d-in-illinois/ (reporting a multi-million dollar car theft ring that used the interstate highway

system). In response to crime on the interstate system, the National Crime Prevention

Council created a national Highway Watch system, similar to a neighborhood

watch. See Strategy: Highway Watch, N

AT’L CRIME PREVENTION COUNCIL, http://www.nc

pc.org/topics/home-and-neighborhood-safety/strategies/strategy-highway-watch (last visited

Feb. 8, 2014).

180. F

ED. HIGHWAY ADMIN., U.S. DEP’T OF TRANSP., TRAFFIC VOLUME TRENDS:

DECEMBER 2012 (2013), available at http://www.fhwa.dot.gov/policyinformation/travel_monit

oring/12dectvt/12dectvt.pdf (reporting the total travel in millions of vehicle-miles traveled in

1987 at 1,924,328, and in 2012 at 2,938,535).

181.See M

INN. STAT. ANN. § 624.731 subd. 2, 3.

182.See W

IS. STAT. § 941.26(4)(k) (2011–2012) (“Any person who has not yet attained

the age of 18 years and who possesses a device or container described in par. (a)[, a device or

container that contains OC,] is subject to a Class E forfeiture.”).

183.See id.

§ 175.60(1)(j), (2g).

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886 MARQUETTE LAW REVIEW [97:3

twenty-one years old, barring the possible possession of these weapons

for someone who is not yet twenty-one.

184

If a family was traveling

through Wisconsin, the only non-lethal weapon it could possess would

be an irritant spray, preventing travelers from possessing and carrying a

majority of non-lethal weapons options.

185

Once the travelers move into

Illinois, the issues become much more complicated. Although

concealed carry recently went into effect in Illinois, the legislation does

not authorize concealed carry of a stun gun or taser.

186

Additionally, if

one does not have a concealed carry permit, most weapons in a vehicle

must be in the trunk, locked up, disassembled, or have the batteries

removed.

187

This means that anyone who is not from the state of Illinois

must adhere strictly to the vehicle transportation laws and must be

lawful possessors in their home state.

188

Next, Indiana requires a license to concealed carry, but it is not clear

if the state prohibits the possession or use of certain non-lethal weapons,

whether one is walking about in public or in one’s vehicle.

189

Michigan

does allow the family to possess a weapon in the vehicle, but if pulled

over the family must immediately notify law enforcement that it is in

possession of a weapon, and the family is prevented from possessing and

carrying other dangerous weapons in the family’s vehicle.

190

Ultimately,

the practical reason for carrying non-lethal weapons in your vehicle—

self-defense—is rendered pointless when you travel through some of

these states because restrictions in one state can prevent the ability to

184.See id. § 175.60(3)(a).

185.See id. § 941.26(4)(a), (4)(i)(2); W

IS. ADMIN. CODE JUS ch. 14 (Feb. 2014).

186. Firearm Concealed Carry Act, Ill. P.A. 98-63 § 5 (2013) (codified at 430 I

LL. COMP.

STAT. ANN. 66/5 (2014). Illinois does allow non-residents to get a concealed carry permit, but

there is no reciprocity for those that currently have a concealed carry permit from another

state, except if individuals are driving through Illinois and the weapon remains in the vehicle.

See 430 I

LL. COMP. STAT. ANN. 66/40. This can create additional burdens for non-residents

driving through Illinois.

187. 430 I

LL. COMP. STAT. ANN. 65/2(a)(1), (b)(9) (West 2014). The Illinois Supreme

Court recently reversed the ban preventing non-residents from possessing a weapon or

ammunition unless they had a FOID card. See People v. Holmes, 948 N.E.2d 617, 624 (Ill.

2011). After this ruling, if one is moving from Milwaukee, Wisconsin to Gary, Indiana the

trip would normally take 120 miles or two hours (depending on Chicago area traffic);

however, under prior Illinois law, this same trip would have required a major detour in order

to comply—either through the upper peninsula of Michigan (747 miles or 12 hours) or out to

Iowa and down and around Illinois (1,124 miles or 18.5 hours).

188.See Holmes, 948 N.E.2d at 624; 430 I

LL. COMP. STAT. ANN. 66/40.

189.See I

ND. CODE ANN. §§ 35-47-2-1, 35-47-8-4 (LexisNexis 2009).

190. M

ICH. COMP. LAWS ANN. § 28.425f(3) (West 2012); MICH. COMP. LAWS ANN.

§ 750.227(1) (West 2004).

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possess in other states, even if your final destination allows for the

possession of those weapons. Additionally, this would create issues for

someone who owns and possesses these weapons legally in one state but

is moving to certain other states, like Illinois

191

or Michigan.

192

The

complicated nature of state-by-state statutes, coupled with the increased

need for individuals to protect themselves in their vehicles, underscores

the need for more constitutional clarity in regard to what qualifies as

arms and how far the right of self-defense extends.

B. Federal Non-Lethal “Arms” Statues & Regulations

There are two areas where the federal government has rules in

regard to arms: laws and regulations.

193

The Firearm Owners' Protection

Act (FOPA),

194

commonly cited in reference to interstate firearms

travel, protects persons traveling with firearms through states that would

otherwise prohibit them.

195

However, FOPA does not extend to non-

191.See supra Part IV.A.1.b. According to the Illinois State Police website, “[n]ew

Illinois residents have sixty calendar days after obtaining an Illinois driver’s license or Illinois

Identification Card to obtain a FOID card.” Firearm Owner’s Frequently Asked Questions,

LLINOIS ST. POLICE, http://www.isp.state.il.us/foid/firearmsfaq.cfm (last visited Feb. 5, 2014).

However, the answers on the website “are meant only to give general guidance” regarding

transporting firearms and ammunition. Id. “The answers do not and are not meant to

replace statutory language.” Id. And finally, individuals transporting weapons are still

required to follow all the state laws and local ordinances, of which, the City of Chicago and

other Chicago area suburbs have seemingly changed after McDonald v. City of Chicago. See

McDonald v. City of Chicago, 130 S. Ct 3020, 3047–50 (2010); Firearm Owner’s Frequently

Asked Questions, supra; see also Azam Ahmed, NRA Sues Chicago, 3 Towns to Repeal Bans

on Firearms, C

HI. TRIB., June 28, 2008, at 18; James Kimberly & Andrew L. Wang, Suburbs

with Gun Bans Split on Court Ruling, C

HI. TRIB., June 27, 2008, at 20. Although the City of

Highland Park, a suburb of Chicago, still has a handgun possession prohibition on its books

that would prevent non-residents from coming into the community with a handgun, it

provides exceptions for law enforcement, military, and a few others. H

IGHLAND PARK, ILL.,

CODE § 134.003 (1974), available at http://www.cityhpil.com/documents/21/31/CHAPTER%2

0134%20HANDGUN%20CONTROL_201310240852059539.pdf.

192.See supra Part IV.A.1.c.

193.See, e.g., 18 U.S.C. ch. 44 (2012); 27 C.F.R. pt. 479 (2013).

194. Firearm Owners’ Protection Act, Pub. L. No. 99-308, 100 Stat. 449 (1986) (codified

at 18 U.S.C § 921).

195. 18 U.S.C. § 926A. See, e.g., Coal. of N.J. Sportsmen v. Florio, 744 F. Supp. 602,

609–10 (1990). The safe harbor provision provides:

Notwithstanding any other provision of any law or any rule or regulation of a State

or any political subdivision thereof, any person who is not otherwise prohibited by

this chapter from transporting, shipping, or receiving a firearm shall be entitled to

transport a firearm for any lawful purpose from any place where he may lawfully

possess and carry such firearm to any other place where he may lawfully possess and

carry such firearm if, during such transportation the firearm is unloaded, and neither

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888 MARQUETTE LAW REVIEW [97:3

lethal weapons. Another set of laws deal with the Bureau of Alcohol,

Tobacco, and Firearms (ATF), under Chapter 44 of Title 18 of the

United States Code, which regulates federal gun laws.

196

The federal

firearms law covers five broad areas: prohibited persons;

197

acquisition

and manufacture;

198

interstate transportation;

199

antiques;

200

and unlawful

use.

201

Each of these areas revolves around the term “firearm,” which is

defined as “(A) any weapon (including a starter gun) which will or is

designed to or may readily be converted to expel a projectile by the

action of an explosive; (B) the frame or receiver of any such weapon;

device.”

202

Federal law does regulate the purchase, manufacture, or

possession of tasers because the ATF does not classify tasers as

firearms.

203

However, an argument could be made that a definitional

the firearm nor any ammunition being transported is readily accessible or is directly

accessible from the passenger compartment of such transporting vehicle: Provided,

That in the case of a vehicle without a compartment separate from the driver’s

compartment the firearm or ammunition shall be contained in a locked container

other than the glove compartment or console.

18 U.S.C. § 926A.

196. 18 U.S.C. ch. 44; 28 C.F.R. § 0.130(a)(1) (delegating the Attorney General’s powers

under 18 U.S.C. ch. 44 to the Director of the Bureau of Alcohol, Tobacco, Firearms, and

Explosives).

197. 18 U.S.C. § 931.

198.Id. § 923.

199.Id. § 922(a)(1)(A).

200.Id. § 921(a)(3)(D), (a)(16).

201.Id. § 922.

202.Id. § 921(a)(3).

203. B

UREAU OF ALCOHOL, TOBACCO, FIREARMS, & EXPLOSIVES, U.S. DEP’T OF

JUSTICE, ATF RULING 80-20 (1980) [hereinafter ATF RULING 80-20], available at

http://www.atf.gov/files/regulations-rulings/rulings/atf-rulings/atf-ruling-80-20.pdf; 27 C.F.R.

§ 478.11 (2013) (defining firearm). The Bureau originally determined that a taser, which used

gunpowder to fire the electrical barbs, was subject to the federal firearms law:

Held, a hand-held device designed to expel by means of an explosive two electrical

contacts (barbs) connected by two wires attached to a high voltage source in the

device is a “firearm” within the purview of 18 U.S.C. 921(a)(3)(A). It is also an

“any other weapon” under the National Firearms Act (26 U.S.C. 5845(e)).

UREAU OF ALCOHOL, TOBACCO, FIREARMS, & EXPLOSIVES, U.S. DEP’T OF JUSTICE, ATF

RULING 76-6 (1976), available at http://www.atf.gov/files/regulations-rulings/rulings/atf-

rulings/atf-ruling-76-6.pdf; 27 C.F.R. § 178.11 (1976). However, subsequent design changes to

tasers, specifically the mechanism used to release and expel the projectiles, changed from

gunpowder to a combination of electric battery and nitrogen, convinced the ATF that the new

models were not firearms and therefore not subject to federal regulations for the

manufacture, sale, and possession of these devices. See ATF

RULING 80-20, supra; 27 C.F.R.

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2014] SECOND AMENDMENT DECISION RULES 889

change to “firearm” would include non-lethal weapons under federal

law or the enactment of different legislation.

204

The federal government does regulate non-lethal weapons through

several federal agencies, such as the Transportation Security

Administration,

205

Department of the Army,

206

and many others that

regulate what civilians can bring beyond certain points.

207

Additionally,

§ 478.11 (2013) (defining firearm); U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-05-464,

ASER WEAPONS: USE OF TASERS BY SELECTED LAW ENFORCEMENT AGENCIES 18 (2005).

204. Congress could likely enact legislation governing criminal actions and the use of

non-lethal weapons. Most of the provisions listed under the federal firearms statutes could

apply to the regulation of non-lethal weapons. One interesting discussion would occur if

Congress attempted to regulate non-lethal weapons in or near schools. See Gun-Free School

Zones Act of 1990, Pub. L. No. 101-647, § 1702, 104 Stat. 4789, 4844 (codified at 18 U.S.C.

§ 922(q)(2)(A)(2012)). Although United States v. Lopez would be invoked by arms

advocates, it is likely that Congress would attempt to tie that regulation more closely to other

gun laws, similar to the re-written version of the Gun Free School Zones Act, which has not

been declared unconstitutional. See United States v. Lopez, 514 U.S. 549, 567 (1995) (holding

the Interstate Commerce Clause does not give Congress the power to regulate the acceptable

proximity of a gun to a school zone); Omnibus Consolidated Appropriations Act of 1997,

Pub. L. No. 104-208, § 657, 110 Stat. 3009, 3009-369–71 (codified at 18 U.S.C. § 922(q)(2)(A)).

205. 49 C.F.R. § 1540.111 (2013). However, there are some regulations that allow

certain airline personnel to carry non-lethal weapons on planes. See 49 U.S.C. § 44903(i)

(2006).

206. 32 C.F.R. §§ 552.101(a)(8), 552.127 (2013) (prohibiting the sale, possession, carry,

or transportation of certain weapons, including stun guns and tasers, on certain military

installations and facilitates).

207. See, e.g., T

RANSP. SEC. AGENCY, PREPARE FOR TAKEOFF: TSA’S PROHIBITED

ITEMS LIST (2014), available at http://www.tsa.gov/sites/default/files/assets/prohibiteditems_br

ochure.pdf. For most federal agencies, civilians are not admitted without clearance through

the organization and a pass through a metal detector. For example, the TSA screens civilians

for civilian travel by air and limits the objects that can be taken in the cabin and those that

can be checked and stored underneath the cabin. Id. Most air passengers are unfamiliar with

TSA regulations that allow travelers to check bags containing certain weapons. See id.

(allowing travelers to check box cutters, razors, scissors, swords, ammunition, BB guns,

firearms, flare guns, axes, hatchets, crowbars, cattle prods, billy clubs, black jacks, brass

knuckles, kubatons, martial arts weapons, night sticks, nunchucks, electric weapons, throwing

stars, and one four ounce self-defense spray as long as it has a safety mechanism and contains

less than 2% of CS or CN). The TSA recently proposed to allow small knives (no more than

2.36 inches in length and ½ inch wide) on planes, prompting widespread confusion, concern,

and opposition, which led to the abandonment of the proposal. Martin Hugo, Regulation:

Change Allowing Knives on Planes Is Delayed, L.A.

TIMES, Apr. 23, 2013, at B1; see also, e.g.,

Matt Hosford & Lauren Effron, American Airlines Joins Opposition to TSA Policy on Knives,

ABCN

EWS.GO.COM (Mar. 12, 2013), http://abcnews.go.com/Travel/american-airlines-joins-

opposition-tsa-policy-knives/story?id=18711518; Thom Patterson & Catherine E. Shoichet,

TSA Chief Faces Critics, Says New Knife Policy Will Stand, CNN.

COM (Mar. 15, 2013, 6:45

AM), http://www.cnn.com/2013/03/14/travel/tsa-knives-congress/index.html (discussing the

TSA Chief’s reasoning for allowing small knives in airline cabins); Opposition to Allowing

Small Knives on Planes Grows, CBSN

EWS.COM (Mar. 8, 2013, 7:02 AM), http://www.cbsnews.

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890 MARQUETTE LAW REVIEW [97:3

the Department of Commerce regulates the export sales of tasers.

208

However, the regulation in these cases is very specific and does not

touch on issues of states’ rights or the ability of individuals to be armed

for self-defense (because the places that prohibit weapons have armed

security for protection). The current federal scheme does not address

the issue of non-lethal weapons—nor should it. Federalism issues give

states most of the power to regulate weapons laws, leaving the Court in

a unique position to keep the power to regulate in the states’ hands and

simultaneously allow law-abiding citizens to use non-lethal weapons for

self-defense.

NON-LETHAL WEAPONS AS “ARMS” AND COMMON USE FOR SELF-

EFENSE: WHY PRECEDENT & PRACTICALITY SUPPORT THIS

APPROACH

The Second Amendment provides for an individual right to self-

defense in the home.

209

The Second Amendment also provides a right to

bear arms for self-defense.

210

The questions then become: Does the right

extend outside the home, and what arms can be used for self-defense?

Where the problem starts is not with the newly recognized right but with

the lack of decisional rules, leaving legal scholars and courts to

speculate: What are arms and what constitutes common use? This

problem is compounded by the overly burdensome state laws that

regulate—and in some cases prohibit—the possession and carry of non-

lethal arms.

211

Citizens attempting to use non-lethal weapons as a means

for self-defense are left without viable alternatives and in some cases

may carry lethal weapons instead. The Court has a unique opportunity

to remedy these problems by adopting a decisional rule that modifies

common use for new weapons by adding a reasonable use test for self-

defense to new weapons. Adopting this rule will also add a level of

com/8301-201_162-57573206/opposition-to-allowing-small-knives-on-planes-grows/ (reporting

opposition to allowing small knives in airline cabins from the flight attendant union, the

Federal Law Enforcement Officers Association (which represents federal air marshals),

pilots, and even insurance companies).

208. 15 C.F.R. pt. 774 supp. 1, 0A985 (2013).

209.See U.S.

CONST. amend. II; District of Columbia v. Heller, 554 U.S. 570, 635 (2008).

210.See U.S.

CONST. amend. II; Heller, 554 U.S. at 635.

211.See discussion supra Part IV. Undoubtedly, most states have significant laws

regarding weapons and new constitutional decisional rules will have a substantial impact on

those states attempting to comply. This is why it is so critically important to think about the

impact that a decisional rule will have for the type of arm and place that is protected by the

Second Amendment’s right to self-defense.

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2014] SECOND AMENDMENT DECISION RULES 891

protection for self-defense based on location and arm type in a fashion

similar to the protections provided by the expectation of privacy under

the Fourth Amendment. The discussion below provides the basic

framework for the actions the Court should take and sets forth the

precedential and practical support for these decisional rules.

Adjusting “Common Use”

The entire framework surrounding the determination of arms under

Heller provides a varied and complicated approach to determining what

weapons qualify as arms under the Second Amendment.

212

Some

commentators have been concerned about the common use test for

developments in new weaponry.

213

One of these commentators has

argued for a test that evaluates whether or not the weapon is “no more

practically dangerous than what is in common use among law-abiding

citizens.”

214

This test would use the elements of Heller: “[C]ommon use,

unusualness, dangerousness, and use by law-abiding citizens for lawful

purposes.”

215

While this test seems helpful, it still, as the author of the

test notes, is not a “perfect way of reading” Heller.

216

Understandably, the Court in Heller was constrained by Miller. The

common use test alone makes sense when weapons have been around

and are readily available to the public. However, the Court could not

have meant that anytime a weapon achieves common use status it would

achieve constitutionally protected status because a group like the

National Rifle Association could tell members to buy more of a

particular weapon in order to make it commonly used. This would allow

lawful possession of certain types of weapons that even the most strident

supporter of the Second Amendment would feel uncomfortable with.

And, as argued earlier, this test can prevent problems for those weapons

banned prior to Miller because some of the weapons have been

unavailable for the last seventy-five years.

217

These concerns can be remedied without reworking the entire

212.Heller, 554 U.S. at 625–27.

213.See O’Shea, supra note 95, at 380–84; Ron F. Wright, Comment, Shocking the

Second Amendment: Invalidating States’ Prohibitions on Taser with the District of Columbia v.

Heller, 20 A

LB. L.J. SCI. & TECH. 159, 181–84 (2010).

214. Eugene Volokh, Implementing the Right to Keep and Bear Arms for Self-Defense:

An Analytical Framework and a Research Agenda, 56

UCLA L. REV. 1443, 1482 (2009).

215.Id.

216.Id.

217.See supra note 122 and accompanying text.

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892 MARQUETTE LAW REVIEW [97:3

common use framework. Under the “common use for self-defense

purpose test,” the common use test merely incorporates the self-defense

purpose when evaluating whether a weapon is an arm. The test will

comport with the readings of Miller as merely a weapon issue and not a

determination of the right. The test, called the common use for self-

defense purpose test, does not evaluate whether the weapon,

numerically speaking, is commonly used, but whether the type of arm is

commonly used for a self-defense purpose. This test avoids the concerns

that Justice Scalia has about dangerous and unusual weapons such as

automatic weapons and sawed-off shotguns.

218

Explained another way,

the test for whether the arm is in common use is that the arm must be

tied to its self-defense purpose—there must be a nexus between the

weapon and its self-defense purpose. Like Miller’s test, which was tied

to common use for a militia-based purpose,

219

the arm must be

reasonably related to self-defense. The Court even alluded to this

concept when it explained why the handgun is “the most preferred

firearm in the nation . . . for protection of one’s home and family.”

220

Justice Scalia wrote that the handgun is:

[E]asier to store in a location that is readily accessible in an

emergency; it cannot easily be redirected or wrestled away by an

attacker; it is easier to use for those without the upper-body

strength to lift and aim a long gun; it can be pointed at a burglar

with one hand while the other hand dials the police.

221

218.See District of Columbia v. Heller, 554 U.S. 570, 625–27 (2008).

219. United States v. Miller, 307 U.S. 174, 178–79 (1939).

220. Heller, 554 U.S. at 628–29 (quoting Parker v. District of Columbia, 478 F.3d 370,

400 (D.C. Cir. 2007)) (internal quotation marks omitted).

221.Id. at 629. While Justice Scalia did not support this statement, Chris Costa, a well-

known figure and one of the top firearms instructors in the country, explains why his choice

for home defense is a handgun as opposed to a shotgun:

If I wake up in the middle of the night, half naked, needing to defend my family and

my home, I can shoot and employ my handgun one-handed while I grab my children

and maneuver around my house extremely quickly, all the while knowing that I have

17 rounds at my disposal. If you have to grab one of your kids because they’ve

popped out in between you and a threat, then you’re stuck trying to fire a 12 gauge

one-handed; it can be done (I do it all the time in my demonstrations), but not

without a lot of practice, and it’s certainly not ideal.

I also believe that trying to deal with a threat that you can’t see is a much greater

concern than one you can see. If there’s an intruder in my house that is visible, then

I am actually in the process of solving that particular problem. If there’s someone in

my house that I can’t see, that scares me much more. So imagine that you have

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2014] SECOND AMENDMENT DECISION RULES 893

This list merely needs modification. Implicit in this test is a

determination of whether the weapon is discriminate and whether the

individual can control the weapon in such a manner that there will be

minimal risk of collateral damage to innocent bystanders. The test

above will comport with Miller because Miller only dealt with whether

the sawed-off shotgun was a protected weapon, not whether the right

extends to individuals for self-defense.

222

This also complies with the

implicit concern that the Court does not want to allow particularly

dangerous and unusual weapons.

223

According to the common use test, the AK-47 (being one of the

most commonly used weapons in the world) could pass scrutiny, while

muzzle-loading weapons (relegated to use by historians, enactors, and

enthusiasts) would not be protected as arms.

224

Another example is a

grenade, which is commonly used by the military but is not specifically

tailored to self-defense and cannot reasonably be used against an

individual threat without killing multiple people and would therefore

someone in your house that you can’t see, you don’t have ear protection, and you

don’t have a suppressor and are not using a handgun (handguns naturally being

quieter than a shotgun)—if you fire that shotgun it’s going to be extremely loud, and

you will probably lose your hearing for a few minutes. Those few minutes can be

vital, because the intruder now knows where you are and you’re unable to be as

alert as you normally would. Having that suppressor addition is very important to

me; using a handgun with a suppressor means if it fires a foot and a half from my

ears, my hearing is still protected.

So to sum it up, if I clear my house during the night with a handgun, I can shoot

suppressed, I can white light, I can work one-handed if I need to grab one of my

kids, and if push came to shove I could pistol-punch an intruder with the muzzle of

my gun. I can’t do any of that with a shotgun.

Interview by Rem870.com with Chris Costa, Founder, Costa Ludas

(Apr. 27, 2012), available

at http://www.rem870.com/2012/04/27/full-interview-with-chris-costa/. Chris Costa spent

twelve years with U.S. Coast Guard special operations, seven years with Applied Marine

Technologies, Inc., and four years as President of Magpul Dynamics before building his own

company, Costa Ludas. About Us, C

OSTA LUDUS, http://www.costaludus.com/index.php?rou

te=information/information&information_id=4 (last visited Feb. 14, 2014).

222.See Miller, 307 U.S. at 175–78. Although it could be argued that a sawed-off

shotgun could be used for self-defense, is discriminate (which is much less likely with a sawed-

off shotgun), and can be handled by the individual user, the purpose is not usually self-

defense, but for unlawful activities, which was the big concern in Miller. Additionally, the

portion of the test that requires a “reasonable relation” to self-defense would give lower

courts some discretion deciding when a weapon is typically used for unlawful activity and not

self-defense.

223.See Heller, 554 U.S. at 627.

224.See Marina Koren, The Regrets of the AK-47 Creator, N

AT’L J. (Jan. 13, 2014),

http://www.nationaljournal.com/technology/the-regrets-of-the-ak-47-creator-20140113.

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894 MARQUETTE LAW REVIEW [97:3

fail the reasonably related to self-defense test that is proposed.

225

A practical problem with the common use test is that it can inhibit

the development of new technology—such as electric weapons, irritant

sprays, and blunt objects—that can sufficiently stop an attacker while

substantially reducing lethality.

226

Finally, making it more difficult for

individuals to protect themselves with non-lethal weapons will inevitably

lead individuals to use lethal weapons instead. This could lead to the

same types of restrictions on dangerous and unusual weapons that

prevent non-lethal weapons from being in common use, which is not the

desired result.

227

Said another way: If a new non-lethal weapon is not in

common use, it would lack protection as an arm and never be able to

achieve the status of commonly used, therefore preventing a weapon

that could be used for self-defense. The reasonable for self-defense test

would not inhibit development of non-lethal weapons and would likely

encourage the private development of such weapons for the market.

A modified decisional rule that provides the flexibility necessary to

increase protections for other arms, prevents citizens from walking

around with sub-machine guns and grenades, and allows private citizens

to protect themselves with non-lethal weapons in a responsible manner

can be resolved by adding to the current test for new weapons.

B. Under the “Common Use for Self-Defense Purpose Test,” Non-Lethal

Weapons Are “Arms”

Under the Court’s current analysis, a non-lethal weapon may not

receive the protection of the Second Amendment. Non-lethal weapons

need to be in common use, and according to statistical data, while the

numbers are increasing, owners of non-lethal weapons pale in

comparison to firearm owners.

228

One of the main concerns of Justice

Scalia and the Court is preventing dangerous and unusual weapons from

entering the market.

229

In order to fix this problem while simultaneously

225.See DEP’T OF THE ARMY, U.S. DEP’T OF DEF., GRENADES AND PYROTECHNIC

SIGNALS app. A at A-2 (2009) (stating that fragmentation grenades have an effective

casualty-producing radius of fifteen meters).

226.See N

UTLEY, supra note 35, at 2.

227.See supra note 208 and accompanying text.

228. Compare Karp, supra note 14, at 39 (finding that United States citizens own 270

million firearms), with Taser Maker Targets Civilian Sales, supra note 56 (reporting that Taser

International has only sold about 100,000 electric weapons since 1994).

229.See District of Columbia v. Heller, 554 U.S. 570, 627 (2008). Another significant

concern is the prevention of prohibited persons, such as felons, individuals adjudicated

incompetent, minors, unlawful users of drugs, and those convicted of domestic violence, from

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2014] SECOND AMENDMENT DECISION RULES 895

providing a right to self-defense, the Court employs the common use

test and a historical analysis of the necessity of banning dangerous and

unusual weapons, categorically rejecting protection for certain

weapons.

230

Arms for use in self-defense should be determined by their

usefulness as a self-defense weapon, which would provide significant

protection of non-lethal weapons as arms under the Second

Amendment. This test would adjust the common use test, functionally

separating lethal and non-lethal weapons—allowing the Court to give

heightened protection for non-lethal weapons. Further, the use of non-

lethal weapons should be reevaluated in light of the type of weapon

being used and the degree of protection afforded to the individual’s

location.

231

Arguments could be made that any item could be considered a self-

defense weapon, so long as the purpose is for self-defense. However,

virtually all of these can be eliminated through the traditional definition

of arms and the self-defense purpose.

232

The common use for self-

defense purpose test considers a number of factors to determine

whether the weapon should receive protection: (1) Can the weapons be

worn or carried; (2) Is the weapon discriminate and easy to control; and

(3) Is the weapon intended for self-defense? While there are only three

factors to the test, they provide reasonable flexibility in allowing new

weapons while not protecting others. For example, if someone sought

protections to utilize a dog for self-defense, he would fail to garner

Second Amendment protection for a variety of reasons: (1) The dog

cannot be worn or carried (unless it is a Pomeranian and in that case,

likely not useful for self-defense) and (2) dogs are hard to control and

are not always discriminate. While there is certainly room to argue

obtaining weapons. See Brady Handgun Violence Prevention Act, Pub. L. No. 103-159, § 102,

107 Stat. 1536, 1538 (1993) (codified as amended at 18 U.S.C. §§ 921–22 (2012)); 18 U.S.C.

§ 922(d). The proposed reasonableness to self-defense test should not alter or change the

analysis and result for those traditionally prohibited from obtaining arms. Although, an

argument could be made that those traditionally prohibited from carrying firearms should be

allowed to possess non-lethal weapons in certain limited circumstances because of the

reduced lethality.

230.See Heller, 554 U.S. at 625–27.

231. Location, for the purpose of this test, would be adjusted based on the need for self-

defense. Accordingly, your level of protection changes based on whether you are at home, in

a vehicle, or in the public. Ironically, the need for protection may be reversed compared with

the test for privacy. See infra notes 242–43 and accompanying text.

232.See Heller, 554 U.S. at 581 (quoting C

UNNINGHAM, supra note 110 (unpaginated,

definition of “Arms”)).

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896 MARQUETTE LAW REVIEW [97:3

under the third prong because dogs can be used for self-defense, the

other two prongs are not met.

The common use for self-defense purpose will remove weapons that

are entirely too dangerous but will allow the development of new

weapons, all while protecting non-lethal weapons and giving lower

courts the proper deference to resolve these issues.

233

C. Heightened Protections: The House, the Car, and the Public

The Court has moved from a collective right to an individual right.

234

As the current trend in the circuit courts suggests, the next big

decisional rule is not the types of arms protected but the degree of

scrutiny for their possession and whether the right extends outside the

home.

235

As mentioned earlier, Justice Scalia expressed concern for

weapons not in common use, which is likely his way of preventing

private citizens from attaining “dangerous and unsual weapons” like

automatic weapons, cannons, and grenades.

236

Although the decisional

rules on many of these issues have yet to be resolved, a common

consensus could be built around special protections for non-lethal

weapons outside the home, especially while in the vehicle.

No doubt critics of a right to concealed carry of lethal firearms, such

as pistols, may be reluctant to allow possession of non-lethal weapons

outside the home. The concern for the public is increased as the

possessor leaves the private and enters the public arena. However,

allowing for a scale that fluctuates with the location and type of weapon

possessed should be similar in nature to the Fourth Amendment’s

expectation of privacy.

237

Heller and McDonald stand for the

proposition that the most important and highly protected place is the

home.

238

This makes sense and should continue along a trajectory that

mirrors Fourth Amendment protections from unreasonable searches

and seizures.

233.See supra Part V.A–B.

234.Compare United States v. Miller, 307 U.S. 174, 178 (1939) (constructing the Second

Amendment as a collective right), with Heller, 554 U.S. at 592, 624–26 (constructing the

Second Amendment as an individual right), and McDonald v. City of Chicago, 130 S. Ct.

3020, 3050 (2010) (individual right incorporated against the states through the Fourteenth

Amendment).

235.See supra note 112 and accompanying text.

236.See Heller, 554 U.S. at 625–27; supra Part V.A.

237. U.S.

CONST. amend. IV.

238.See supra notes 108, 131 and accompanying text

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2014] SECOND AMENDMENT DECISION RULES 897

Under the Fourth Amendment, the home (or residence, owned

property, or place of business) is accorded the most stringent

protections, followed by the vehicle, and then public places.

239

However,

where there is a difference is the level of scrutiny one would receive

when leaving the home. There is also an undoubted right to privacy in

the home, say to have private sexual relations in one’s home.

240

Unlike

the right to privacy, which does not extend to private acts committed in

public places because the need for that right is lower, the need for bodily

integrity and protection from an attacker can occur (and is most

prevalent) in public.

241

As Judge Posner aptly put it “the interest in self-

protection is as great outside as inside the home,”

242

even though

Twenty-first century Illinois has no hostile Indians. But a

Chicagoan is a good deal more likely to be attacked on a

sidewalk in a rough neighborhood than in his apartment on the

35th floor of the Park Tower. A woman who is being stalked or

has obtained a protective order against a violent ex-husband is

more vulnerable to being attacked while walking to or from her

home than when inside. She has a stronger self-defense claim to

be allowed to carry a gun in public than the resident of a fancy

apartment building (complete with doorman) has a claim to

sleep with a loaded gun under her mattress.

243

However, the danger to the public when individuals have weapons

outside the home is the critical tension. Creating a sliding scale based

on location makes sense from a practical perspective and alleviates

much of the tension. The common use for self-defense purpose test

contemplates this same tension when it evaluates whether a weapon is

239.See Kyllo v. United States, 533 U.S. 27, 40 (2001) (home); United States v. Karo,

468 U.S. 705, 714–15 (1984) (home); Oliver v. United States, 466 U.S. 170, 178 (1984) (field);

Payton v. New York, 445 U.S. 573, 589–90 (1980) (home); Delaware v. Prouse, 440 U.S. 648,

662–63 (1979) (vehicle);

Katz v. United States, 389 U.S. 347, 353 (1967) (public areas);

Stephen P. Jones, Reasonable Expectations of Privacy: Searches, Seizures, and the Concept of

Fourth Amendment Standing, 27 U.

MEM. L. REV. 907, 957 (1997) (“The most sacred of all

areas protected by the Fourth Amendment is the home.”); Stephanie M. Stern, The Inviolate

Home: Housing Exceptionalism in the Fourth Amendment, 95 C

ORNELL L. REV. 905, 907

(2010) (“[P]rivacy in residential search and seizure receives comparatively stronger protection

than many other contexts, including commercial buildings, certain automobile searches,

computer databases, and public places.”).

240. Lawrence v. Texas, 539 U.S. 558, 578 (2003).

241.See id.

242. Moore v. Madigan, 702 F.3d 933, 941 (7th Cir. 2012).

243.Id. at 937.

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898 MARQUETTE LAW REVIEW [97:3

discriminate and can be controlled by the user. This is important

because once the user leaves his home the ability to properly and safely

use the weapon will reduce the risk of harm to bystanders. Having

higher protections for non-lethal weapons is also a viable alternative

that could be used to reduce the number of lethal weapons being

purchased and subsequently the number of gun-related deaths.

Increasing the constitutional protection for non-lethal weapons does not

guarantee decreases in homicide by guns, or accidental shootings, or the

number of weapons purchased, but it can certainly put a dent in those

numbers, and that is something worth seriously considering.

Additionally, some citizens are unwilling to protect themselves with

lethal weapons, such as guns or knives. Certain citizens are unwilling to

use lethal force for religious, ethical, or moral reasons.

244

Some citizens

are uncomfortable owning firearms because they do not know how to

use them or have children in the home. Others may be afraid to pull the

trigger,

245

and some may be concerned about missing their attacker and

accidently killing innocent bystanders. All of these concerns can be

solved with a non-lethal option. Additionally, women and children, who

may be the most vulnerable to violence as a class, are often the

individuals who are most reluctant to carry a gun.

246

Some have argued

that older minors should have a right to self-defense with non-lethal

weapons because there is an increased risk of violence being

perpetuated against them.

247

For adults, they should always be allowed

to possess and use non-lethal means to protect themselves; for young

244.See James B. Jacobs, The Regulation of Personal Chemical Weapons: Some

Anomalies in American Weapons Law, 15 U.

DAYTON L. REV. 141, 144 (1989); Volokh,

Nonlethal Self-Defense, supra note 19, at 207–08 & n.31 (mentioning Quakers and Buddhists).

245. Contrary to popular belief, most citizens, and even soldiers, are uncomfortable with

killing. See D

AVE GROSSMAN, ON KILLING: THE PSYCHOLOGICAL COST OF LEARNING TO

KILL IN WAR AND SOCIETY 4 (1996). For a phenomenally interesting and in depth look at

killing and the military’s psychological training to overcome the fear of killing, see generally

id. In his book, Lieutenant Colonel Dave Grossman specifically addresses the problem of

“nonfirers” during combat in the Civil War, World War I, and World War II and the

military’s attempts and eventual success at getting soldiers over their natural compulsion to

“turn away from that responsibility.” See id. at 1, 17–28 (quoting S.L.A.

MARSHALL, MEN

AGAINST FIRE: THE PROBLEM OF BATTLE COMMAND 79 (1947)).

246. Volokh, Older Minors, supra note 21, at 451 (stating that girls age fifteen to

seventeen are three times as likely to be rape or sexual assault victims than women over

eighteen, and boys of the same age are three times more likely to be victims of serious violent

crime than adults); see also Why Women Carry Stun-Guns, S

AFETY TECH., http://www.safety

technology.com/blog/why-women-carry-stun-guns/ (last visited Feb. 9, 2014) (stating that

some women are reluctant to carry firearms).

247. Volokh, Older Minors, supra note 21, at 449, 451.

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2014] SECOND AMENDMENT DECISION RULES 899

adults, over the age of sixteen, there should be the ability to take a class

and, with parental permission, to purchase and possess a non-lethal

weapon for their own protection.

To be sure, two concerns accompany the use of non-lethal weapons

in vehicles: road rage and law enforcement stops. The argument that

increasing the ability to possess non-lethal weapons in cars should not

deter law-abiding citizens from carrying their weapons. Certainly,

individuals who have road rage or are prone to anger can possess and

carry within their homes, so long as they are not a felon or convicted of

domestic abuse. While imperfect, allowing those with road rage to have

non-lethal weapons is certainly better than allowing them to have lethal

weapons. It would also be difficult, and possibly unconstitutional, to

regulate someone who gets angry more easily than others. Another

legitimate concern among law enforcement is the possibility that non-

lethal weapons could be used against them at a traffic stop. Law

enforcement is aware that individuals can have weapons and should be

on alert regardless because those who are willing to attack an officer do

not follow the law. Although officers could be victims of non-lethal

weapons, their chances of survival are much greater than when being

shot with a firearm.

248

A final option that should be considered is a

requirement that individuals carrying in a vehicle give notice when

stopped by law enforcement.

249

Again, though, this requirement seems

useless because those willing to give notice are not typically going to

attack a law enforcement officer.

Giving higher protection to non-lethal weapons outside the home is

sure to cause some controversy and is not without legitimate criticism.

250

However, the Heller Court confirmed the constitutional right of self-

defense in the home using handguns.

251

The Court should take it a step

further and give self-defense some teeth: Allow individuals to possess

and lawfully use non-lethal weapons outside their home. With increased

protection for non-lethal weapons in the vehicle and outside the home,

possible decreases in assault, rape, and other violent crimes may occur,

while also potentially reducing the instances that lethal self-defense is

248.See id. at 450.

249.See, e.g., M

ICH. COMP. LAWS ANN. § 28.425f(2) (West 2012).

250. See Kevin Reece, ACLU Urges Ban on Use of Tasers, Pepper Spray in Texas

Schools, KHOU.

COM (Feb. 13, 2014, 7:08 PM), http://www.khou.com/news/local/ACLU-

urges-ban-on-use-of-tasers-pepper-spray-in-Texas-schools-245463791.html; see also supra

note 78.

251. District of Columbia v. Heller, 554 U.S. 570, 635 (2008).

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900 MARQUETTE LAW REVIEW [97:3

used. And, decreasing the number of guns in homes would certainly

reduce the number of accidental deaths by children, a number alone that

is always worth reducing.

252

VI.

CONCLUSION

The Second Amendment should provide added protection for non-

lethal weapons; it should allow individuals to possess and carry non-

lethal weapons as a means to protect themselves. Non-lethal weapons

can reduce fatalities.

253

Additionally, these weapons provide those who

are uncomfortable with carrying a firearm the ability to defend

themselves. The Court should adjust its decisional rules based on

common use and add whether the weapon is reasonably related to the

purpose of self-defense and can encompass the risk of harm to the

individual and those near and around the user.

254

Further, the test

should not focus on whether the military does or does not have or use a

weapon because the test for reasonability is based on self-defense, not

causing insurrection or creating a private militia. This test should create

incentives for individuals to defend themselves with non-lethal instead

of lethal means.

Increasing the possible use of non-lethal weapons means decreasing

the number of guns purchased and used and ultimately decreasing the

number of deaths by firearms. One only needs to look at statistics by

police departments nationwide to understand how effective non-lethal

weapons can be in situations that could have quickly and easily turned

deadly.

255

Those who want individuals to have a right to self-defense

should agree with added protection for non-lethal weapons, especially

among those who are uncomfortable using lethal weapons for self-

defense. Finally, the public at large will feel much more comfortable

with individuals protecting themselves with non-lethal weapons than

252.See CHILDREN’S DEF. FUND, PROTECT CHILDREN, NOT GUNS: OVERVIEW (2013),

available at http://www.childrensdefense.org/child-research-data-publications/data/state-data-

repository/protect-children-not-guns-key-facts-2013.pdf; N

EW YORKERS AGAINST GUN

VIOLENCE, FACT SHEET: ACCIDENTAL SHOOTINGS (2013), available at http://nyagv.org/wp-

content/uploads/2013/05/Accidental-Shootings-NYAGV.pdf; Michael Luo & Mike McIntire,

Children and Guns: The Hidden Toll, N.Y.

TIMES, Sept. 29, 2013, at A1; Accidental Firearm:

Fact Sheet, N

AT’L MCH CTR. FOR CHILD DEATH R., http://www.childdeathreview.org/cause

saf.htm (last visited Feb. 6, 2014).

253.See Volokh, Older Minors, supra note 21, at 450.

254.See Heller, 554 U.S. at 627.

255. John M. MacDonald et al., The Effect of Less-Lethal Weapons on Injuries in Police

Use-of-Force Events, 99

AM. J. PUB. HEALTH 2268, 2270, 2272–73 (2009).

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2014] SECOND AMENDMENT DECISION RULES 901

toting guns.

Including non-lethal weapons in the definition of arms and providing

a common sense approach to self-defense will benefit the public and the

Court. Adopting a decisional rule that results in a coherent analysis

based on the purpose of self-defense makes sense; providing higher

protections and more scrutiny for non-lethal weapons outside the home

can provide a balance between the competing interests of gun restriction

and increased right to self-defense under the Second Amendment.

A.J. PETERMAN

The author would like to thank Professors Idleman and Oldfather, and the staff of the

Marquette Law Review, especially Andrew Swanson, Chris Penza, Brianna Schonenberg, and

Steve Kruzel, for their helpful feedback and work on this Comment. However, any errors are

mine alone. I would be remiss were I not to thank my three dogs, Brooklyn, Truman, and

Beauregard, for providing me with distraction and affection. I am most grateful to my wife,

Daryn, for her unyielding support in dealing with me generally, but specifically during the last

few years.