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A handful of high-profile cases has sparked a larger public debate about the impact of self-defense laws.\u00a0 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\u2019 gun-use and self-defense laws effectively invite malicious individuals \u2014 \u201cincluding vigilantes and white supremacists\u201d \u2014 to kill with impunity.<\/p>\n
According to law professors Guha Krishnamurthi <\/strong>of the University of Oklahoma College of law and Peter Salib<\/strong> of the University of Houston Law Center, this public concern is warranted.<\/p>\n Generous open-carry firearm policies, relaxed assault threat rules, and weak or nonexistent \u201cduties to retreat\u201d create real danger, they argue in their forthcoming paper for the University of Chicago Law Review online<\/em>. .<\/p>\n \u201cTogether, such rules generate incentives for ordinary, rational individuals to issue progressively escalating threats of deadly violence for the sake of their own protection,\u201d the authors write.<\/p>\n \u201cThe result is a scaled-down version of the brinkmanship that characterized mid-century nuclear strategy: a small arms race,\u201d the authors explain.<\/p>\n \u00a0<\/strong>The law professors detail that the small arms race arises from three main \u201ctroubling\u201d legal implications, and it\u2019s looking at the examples of Wisconsin and Georgia\u2019s laws that \u201cexemplify this perilous confluence.\u201d<\/p>\n \u201cUnder gun control regimes like Wisconsin\u2019s and Georgia\u2019s, even perfectly rational actors can easily find themselves committing deadly acts\u2014no ill will required,\u201d the authors begin, noting that Wisconsin residents don\u2019t need any permits to purchase a firearm, and that their laws have a high standard for imposing liability for assaultive threats \u2014 \u201ceven a literal threat to shoot someone may not be forbidden, so long as there is not actual intent to do so.\u201d<\/p>\n Because of this, individuals are incentivized to threaten others because of the lack of consequences, the researchers warn.<\/p>\n Like Wisconsin, Georgia has permissive gun laws where residents don\u2019t need permits to possess firearms or for open carry. Georgia also has a stand-your-ground self-defense law<\/a>, imposing no duty to retreat, and it has robust citizens arrest laws, the authors of the paper detail.<\/p>\n Arms races are defined by the authors as \u201cparticularly pernicious because small, incremental steps that seem low-risk and high-reward can set off cascading series of escalation, triggering disaster.\u201d<\/p>\n 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.<\/p>\n 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.<\/p>\n Eventually in this vignette, one says to the other: \u201cStop, I have a gun. I will shoot,\u201d and the other responds \u201cDon\u2019t try anything. I\u2019m also armed.\u201d<\/p>\n 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.<\/p>\n 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, \u201cand the law does nothing to stop it,\u201d the authors write.<\/p>\n While not all of these stories will necessarily turn deadly, the authors caution that the spiral of escalation is a true cause for concern.<\/p>\n \u201cAll practicable solutions involve breaking the cycle of escalation by imposing penalties on escalatory acts by one or more actors,\u201d the researchers begin.<\/p>\n As an overall note, the researchers discuss how in a \u201cvery safe world where crime was extremely rare\u201d 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.<\/p>\n However, they add that our current circumstances needs more legal intervention to short circuit small arms races, including repealing \u201cstand your ground\u201d rules or at least re-imposing a duty to retreat as a way to efficiently diffuse many small arms races.<\/p>\n \u201cFor similar reasons, another potential solution might be to expand assault liability to more readily cover brandishing of guns. Contra Wisconsin\u2019s rule, many states \u2014 past and present \u2014 have held that pointing a gun at someone is an assault, even if one does not intend to shoot,\u201d the authors continue.<\/p>\n This would not diminish true self-defense, the authors explain, noting that under McDonald v. City of Chicago,<\/em><\/a> the majority approved safety-promoting gun restrictions.<\/p>\n Other solutions to the small arms race problem might, as mentioned above, include\u00a0 further conditioning the commercial sale of firearms to make their acquisition more costly, as well as limiting the use of firearms in sensitive places.<\/p>\n Guha Krishnamurthi <\/strong>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.<\/p>\n \u00a0<\/strong>Peter Salib <\/strong>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.<\/p>\n The forthcoming paper can be accessed here<\/a>.<\/p>\nVigilante Justice Firearm Laws <\/strong><\/h4>\n
Modeling the Small Arms Race<\/strong><\/h4>\n
\u00a0<\/strong>Legal Solutions<\/strong><\/h4>\n