While writing my book The Future of the Gun I interviewed a lot of firearm designers at major gun companies, and a handful of mavericks using the software program SolidWorks to build guns of the future they might sell to manufacturers, and at some point all of these engineers would inevitably turn the conversation to the exciting possibilities of nonlethal self-defense weapons. First they’d mention the robust and growing marketplace of stun guns—Amazon, for example, sells stun guns in all shapes and sizes—and then they’d transition to alternate means of delivering a nonlethal dose of electricity to an attacker. It would get pretty sci-fi at that point, but then one of us would point out that iPhones would seem pretty sci-fi if you’d mentioned their development way back in the ancient days we call the 1990s.
The thing about any marketplace is it needs consumer freedom to fund R&D so that innovators can develop a product. The marketplace for nonlethal self-defense weapons looks big, but it can only move forward if government doesn’t make these products illegal.
To see how big this market is consider that there are now more than 12 million people in the U.S. who have concealed-carry permits for handguns—and this doesn’t count all those handgun owners in states that don’t require permits. With that in mind it seems probable that some percentage of these handgun owners, perhaps numbering in the millions, would like the option of carrying a viable nonlethal alternative. Also, isn’t it likely that some of those who don’t want to carry a gun might like to carry a nonlethal weapon that’s proven to work?
That seems logical, but you guessed it, some lawmakers don’t want citizens to have this option; as a result, the courts have been tasked with answering whether the Second Amendment to the U.S. Constitution protects the peoples’ right to own stun guns.
Last March the Massachusetts Supreme Judicial Court held in Caetano v. Massachusetts that stun guns, including Tasers and contact stun guns, aren’t protected by the Second Amendment. The Court said these weapons can be outlawed under the “dangerous and unusual weapons” caveat. This case started when Jaime Caetano, a resident of Massachusetts, was convicted of possessing a stun gun in violation of a statewide ban. She carried the stun gun in her purse to protect herself from an ex-boyfriend.
Not all judges think the Second Amendment doesn’t protect a citizen’s right to own a stun gun. The Michigan Court of Appeals ruled in 2012 that stun guns are protected by the Second Amendment. This court found that a ban was unconstitutional. Also, as the Volokh Conspiracy reported, the Connecticut Supreme Court held last year that the Second Amendment protects dirk knives and police batons, so this would seem to protect stun guns, too. In fact, the Connecticut decision cited the Michigan one to back up its ruling.
A number of states and cities don’t want their citizens to legally carry stun guns. States such as Massachusetts, New York, New Jersey and Rhode Island have banned them, as have the cities of Baltimore, New Orleans, Philadelphia and Washington D.C.
Despite these bans hundreds of thousands of Americans now possess stun guns. Actually, some people can get a carry permit for a handgun, but not for a stun gun—this is the odd position I’m in in New York State.
So let’s look at the Massachusetts court’s rational for why stun guns aren’t protected by the Second Amendment. The Court says these nonlethal weapons fit within the “dangerous and unusual weapons” exclusion. The U.S. Supreme Court recognized this exception in D.C. v. Heller (2008). But are stun guns really dangerous and unusual?
As nonlethal weapons—they are, of course, potentially lethal if used on someone with a heart condition—they certainly aren’t more dangerous than a modern semiautomatic pistol; in fact, they are less dangerous than a flintlock pistol George Washington might have carried.
So they are not exceptionally dangerous, but are they unusual?
We’ve already noted that Amazon and many other retailers sell stun guns in all shapes and sizes. Some stun guns and Tasers have built in flashlights, others can also be used as batons; some look like guns, others look like flashlights…. It is unclear just how many people currently carry them, as there is no state-by-state licensing system to track them with, but they are hardly uncommon. In the Michigan case (People v. Yanna) the court found that “[h]undreds of thousands of tasers and stun guns have been sold to private citizens, with many more in use by law enforcement officers.”
Many people prefer to carry a handgun for self-protection because a handgun gives them multiple shots and can be used at a greater distance than a Taser or stun gun. But if this marketplace is allowed to continue to grow, and if enough consumers push companies to compete and therefore innovate, stun guns could become an even more viable alternative to guns that use gunpowder. How can that be a bad thing?
Eugene Volokh is reporting that the U.S. Supreme Court will likely consider hearing Commonwealth v. Caetano this fall.
