Who’ll Shoot First? How Relaxed Gun Rules Fuel a ‘Small Arms Race’

A handful of high-profile cases has sparked a larger public debate about the impact of self-defense laws.  The acquittal of teenager Kyle Rittenhouse of homicide charges stemming from his killing of two people who allegedly threatened him during a protest, and the conviction of three men for murdering Ahmaud Arbery because they believed he was a robber, have fueled fears that certain states’ gun-use and self-defense laws effectively invite malicious individuals — “including vigilantes and white supremacists” — to kill with impunity.

According to law professors Guha Krishnamurthi of the University of Oklahoma College of law and Peter Salib of the University of Houston Law Center, this public concern is warranted.

Generous open-carry firearm policies, relaxed assault threat rules, and weak or nonexistent “duties to retreat” create real danger, they argue in their forthcoming paper for the University of Chicago Law Review online. .

“Together, such rules generate incentives for ordinary, rational individuals to issue progressively escalating threats of deadly violence for the sake of their own protection,” the authors write.

“The result is a scaled-down version of the brinkmanship that characterized mid-century nuclear strategy: a small arms race,” the authors explain.

Vigilante Justice Firearm Laws

 The law professors detail that the small arms race arises from three main “troubling” legal implications, and it’s looking at the examples of Wisconsin and Georgia’s laws that “exemplify this perilous confluence.”

“Under gun control regimes like Wisconsin’s and Georgia’s, even perfectly rational actors can easily find themselves committing deadly acts—no ill will required,” the authors begin, noting that Wisconsin residents don’t need any permits to purchase a firearm, and that their laws have a high standard for imposing liability for assaultive threats — “even a literal threat to shoot someone may not be forbidden, so long as there is not actual intent to do so.”

Because of this, individuals are incentivized to threaten others because of the lack of consequences, the researchers warn.

Like Wisconsin, Georgia has permissive gun laws where residents don’t need permits to possess firearms or for open carry. Georgia also has a stand-your-ground self-defense law, imposing no duty to retreat, and it has robust citizens arrest laws, the authors of the paper detail.

Modeling the Small Arms Race

Arms races are defined by the authors as “particularly pernicious because small, incremental steps that seem low-risk and high-reward can set off cascading series of escalation, triggering disaster.”

Looking at a scaled down version of mid-century nuclear strategy, a vignette of two people encountering one another in a low-lit side street late at night details how these relaxed vigilante justice laws can turn deadly.

The authors create a scenario of two men, Lee and Jesse, both of whom are sporting firearms on hip holsters. As one man approaches the other late at night, they both grow nervous. Although each man has benign intentions, they perceive one another as a threat.

Eventually in this vignette, one says to the other: “Stop, I have a gun. I will shoot,” and the other responds “Don’t try anything. I’m also armed.”

The two enter into a stand-off and since force is mentioned, neither retreat, and as one person prepares to shoot, the other reacts by preparing to shoot even faster until the arms race results in deadly violence.

In states like Georgia and Wisconsin, where having the gun, threatening, brandishing, and deadly use of force based on objectivity are all protected by the law, this small arms race turns deadly, “and the law does nothing to stop it,” the authors write.

While not all of these stories will necessarily turn deadly, the authors caution that the spiral of escalation is a true cause for concern.

 Legal Solutions

“All practicable solutions involve breaking the cycle of escalation by imposing penalties on escalatory acts by one or more actors,” the researchers begin.

As an overall note, the researchers discuss how in a “very safe world where crime was extremely rare” the lack of handguns alone could collapse potential arms races, considering encounters among people who are both armed and feel threatened would be nearly none.

However, they add that our current circumstances needs more legal intervention to short circuit small arms races, including repealing “stand your ground” rules or at least re-imposing a duty to retreat as a way to efficiently diffuse many small arms races.

“For similar reasons, another potential solution might be to expand assault liability to more readily cover brandishing of guns. Contra Wisconsin’s rule, many states — past and present — have held that pointing a gun at someone is an assault, even if one does not intend to shoot,” the authors continue.

This would not diminish true self-defense, the authors explain, noting that under McDonald v. City of Chicago, the majority approved safety-promoting gun restrictions.

Other solutions to the small arms race problem might, as mentioned above, include  further conditioning the commercial sale of firearms to make their acquisition more costly, as well as limiting the use of firearms in sensitive places.

Guha Krishnamurthi is an Associate Professor of Law at the University of Oklahoma College of Law. His research interests are in criminal law, criminal procedure, constitutional law, and jurisprudence. Prior to being a professor, Krishnamurthi clerked for the California Supreme Court.

 Peter Salib is an Associate Professor of Law at The University of Houston Law Center. His research interests include understanding problems at the intersection of public law, economics, and artificial intelligence. Before joining the University of Houston Law Center, Salib was a Climenko Fellow and Lecturer on Law at Harvard Law School.

The forthcoming paper can be accessed here.

Andrea Cipriano is associate editor of The Crime Report