Using a Gun for Self-Defense: Laws and Consequences
The U.S. Supreme Court has held that the Second Amendment gives individuals the right to have guns and use them for self-defense (District of Columbia v. Heller, 554 U.S. 570 (2008)). At the same time, all states have self-defense laws that spell out when you’re allowed to use deadly force—including a gun—to defend yourself or someone else. If you intend to carry or keep a gun for self-defense purpose, you should follow your state’s gun laws, including the statutes on carrying concealed weapons.
Laws Governing Gun Possession
All states have laws prohibiting certain people, such as convicted felons and domestic violence offenders, from having guns. Some states also outlaw certain types of weapons, such as automatic rifles or firearms with silencers. If you want to carry a firearm or keep a gun in your home for protection, you should choose a weapon that is legal in your state. If you intend to carry a concealed firearm (for instance, in your purse, inside a jacket, or under your car seat), you should check on whether your state permits “concealed carry” and whether you need a permit or license.Depending on the circumstances and the law in your state, the fact that you possessed, carried, or used a gun illegally may not prevent you from defending yourself against criminal charges by claiming that you needed it for self-defense. Even if you’re allowed to use that defense, illegal gun possession could cast you in a suspicious light with law enforcement or complicate an already potentially complicated case if you have to use the weapon in self-defense.
The law governing self-defense does not excuse any violent act just because another person struck the first blow or made a violent threat. Traditional self-defense laws require a person who is being attacked or threatened with imminent attack to:
- act reasonably
- retreat if possible without taking any physical action, and
- use only the amount of force reasonably necessary to fend off the attacker.
Retreat If Possible
If an able-bodied adult raises a fist or hits another able-bodied adult, under traditional self defense laws the victim must walk away if possible. If the victim is charged with a crime and claims self-defense, the jury must consider whether the victim had a reasonable opportunity to retreat and did not take it. To support a successful self-defense argument, the evidence must show that the victim could not retreat—for example, because the attack was ongoing, the victim was trapped, or the victim tried to leave but was followed by the aggressor.
If the victim could not retreat, the jury usually next must consider whether the victim was reasonably in fear for his or her physical safety and whether any force the victim used was appropriate. The test is often whether a reasonable person in similar circumstances would be afraid and would act as the defendant did.Under traditional self-defense laws, the act of brandishing or using a gun is evaluated like any other use of force. The primary question is whether using a gun was reasonable or reasonably necessary under the circumstances. A victim cannot instantly pull a gun and shoot an attacker who raises a fist or slaps or punches the victim without trying another way of fending off the attack, because that would be more force than was reasonably necessary. Before using deadly force, a victim must fear being gravely injured or killed, and that fear must be reasonable.
What If the Aggressor Doesn’t Have a Gun?
The facts of the situation are always very important when it comes to questions of self-defense. If an attacker waives or shoots a gun, pulling a gun or shooting back usually will constitute self-defense. In some situations, using a gun in self-defense also may be appropriate even if the aggressor does not have a gun. For instance, if an attacker has another deadly weapon such as a knife, a metal bar or a baseball bat, using a gun can be considered reasonable if the victim can’t access any other weapon.Victims also might be justified in showing a weapon and warning that they will shoot if necessary, even if the aggressors have no weapon but are threatening or attacking with their fists.
The “Castle Doctrine”
In general, people who are under attack in their own homes don’t need to retreat or try to escape, even if they can do so safely. Instead, they can typically use force—even enough force to kill—if they are in apparent danger of serious injury. The theory is that people shouldn’t have to run within or from their own homes—that they should be free to defend their “castles.”
“Stand Your Ground”
Many states have adopted “stand your ground” laws that expand traditional self-defense laws and extend the castle doctrine to confrontations outside a person’s home. Depending on state law, you may be allowed to brandish or use a gun against someone you believe is about to kill or seriously hurt you, even if you’re outside your home and could have retreated.
Consult an Attorney
If you used a gun in self-defense, you also should contact a lawyer, whether or not you have been charged with a crime. An experienced criminal defense attorney can advise you of the law regarding guns and self defense and represent you in a criminal case, if necessary.
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