Introduction
Gun rights supporters appear to be on the cusp of achieving a decades-long goal: defanging licensing laws nationwide for carrying handguns in public. More than twenty states have removed all licensing requirements for concealed carry, and most of the others now require little more than a background check. 1 At oral argument in New York State Rifle & Pistol Ass’n v. Bruen, meanwhile, the Supreme Court seemed poised to strike down policies in the remaining states that limit licenses to those who can show a heightened need, or “proper cause,” to carry a gun.2 If that happens, what comes next?
More people carrying guns in public3 can have negative consequences. Among other things, additional gun carriers might engage in more serious crimes than they otherwise would4 and might threaten the public sphere in ways beyond deaths and injuries.5 Under those circumstances, regulation will remain a priority in much of the country. With strong licensing regimes off the table, a key focal point will be how criminal law otherwise governs gun carry and use.
This Essay highlights two intersections between criminal law and public carry beyond licensing: the “he was going for my gun” defense invoked in several recent, high-profile trials and the deadly weapon doctrine. These intersections show how criminal law can both grant legal benefits to and erect legal hurdles for those who chose to carry a gun in public. On one hand, the “he was going for my gun” defense advantages armed defendants with greater legal leeway to use deadly defensive force, lest they be disarmed. On the other hand, the deadly weapon doctrine disadvantages such defendants by allowing juries to infer requisite mens rea for murder from the use of a gun in a homicide. If the ability to restrict public carry directly through meaningful licensing regimes becomes politically or constitutionally infeasible, judges, policymakers, and scholars will need to consider the propriety and efficacy of criminal law mechanisms like these to achieve optimal outcomes in a world where many more people will be armed.
I. The “He Was Going for My Gun” Defense
Criminal law can afford a doctrinal advantage to gun carriers as evidenced by what this Essay terms the “he was going for my gun” defense. Consider two hypotheticals.
In the first, an unarmed man decides to surveil racial justice protesters, so he parks his car near the scene of the protest and patrols a city’s streets on foot. After several hours, he decides to leave, and as he walks back to his vehicle, one of the protesters follows him. The man sees and correctly believes that the protester is unarmed. The man and the protester have a heated exchange about the protest, and the protester shoves the man against his car. At that moment, the man reaches through an open car window, retrieves a lug wrench off a seat, and swings it as hard as he can at the protester’s head with the purpose of killing him, which he does with a single blow.
The facts in this hypothetical would provide a strong case for a murder prosecution — the man, after all, purposely caused the death of another human being, the protester.6 As a defendant, however, the man would almost surely assert the affirmative defense of self-defense. But a major weakness for the defendant relates to the self-defense element of proportionality.7 In a widely publicized 1806 case, Commonwealth v. Selfridge,8 the judge instructed the jury that “I doubt whether self-defense could in any case be set up, where the killing happened in consequence of an assault only, unless the assault be made with a weapon which if used at all, would probably produce death.”9 Today, “[a]ll authorities agree” that the use of deadly defensive force can only be lawful self-defense in response to a threat of unjustified “death or serious bodily injury.”10 The defendant in our hypothetical deployed deadly force,11 and a jury could reasonably conclude that such force was disproportionate to the threatened harm.12
Now consider a second hypothetical, in which the man is armed with a rifle. The unarmed protester shoves the man, just as in the first hypothetical, but this time the man fires his gun with the purpose of killing the protester, which he does with a single shot.
The only thing that has changed is the man’s choice to arm pre-emptively with a rifle. But that fact has profound legal implications because it converts the threat presented by the protester from a likely nonlethal threat to an arguably lethal one. In particular, the defendant can argue that he feared he would be disarmed and shot with his own gun. He might be able to point out that the risk of, and the need to prevent, disarmament was a component of gun-carry training he received.13 Indeed, ill-intentioned people take others’ guns with some frequency.14 A jury is more likely to find the defendant’s deadly force proportional in hypothetical two than in hypothetical one.
And to be sure, the “he was going for my gun” defense has been deployed in several recent cases. George Zimmerman, the neighborhood watchman who shot and killed an unarmed teenager, Trayvon Martin, in 2012, claimed that Martin appeared to reach for his gun at the time he pulled the trigger.15 Travis McMichael, who shot and killed Ahmaud Arbery, an unarmed man out for a jog, similarly said that Arbery was going for his gun.16 Kyle Rittenhouse likewise shot an unarmed man, Joseph Rosenbaum, which he explained by pointing to the risk of disarmament. “If I would have let [Rosenbaum] take my firearm from me, he would have used it and killed me,” he asserted.17 Zimmerman’s and Rittenhouse’s self-defense claims ultimately prevailed.18
Of course, determining the lawfulness of self-defense is a fact-intensive inquiry, and carrying a gun that can be seized by an aggressor is only one fact. The modest contention is that gun carry is, however, a legally important fact that in some cases can result in wider berth under the law to use deadly defensive force.
II. The Deadly Weapon Doctrine
While the criminal law can operate to grant advantages to gun carriers, it can also bestow disadvantages. One that has long existed in some jurisdictions is the “deadly weapon doctrine.” Under this doctrine, when a deadly weapon is used in a homicide, a jury is instructed that they can infer the requisite state of mind for murder, traditionally, malice aforethought.19
The logic and operation of the deadly weapon doctrine was set forth in a Harvard Law Review comment in 1962: “(1) a deadly weapon is one likely to cause death in the manner used; (2) use of such weapon in such manner is therefore likely to have been for a deadly purpose; (3) deadliness of purpose, and its derivative, ‘malice aforethought,’ may therefore be found from such use in the absence of rebutting circumstances.”20 The reasoning underpinning this doctrine dates at least to the 1604 Statute of Stabbing21 and was a staple of the common law.22 As one scholar put it, “[f]ew doctrines of the common law of crimes are as frequently encountered.”23
Many jurisdictions no longer adhere to the deadly weapon doctrine, but it persists in others. A pattern jury instruction in North Carolina, for example, provides that “[i]f the State proves beyond a reasonable doubt, (or it is admitted) that the defendant intentionally killed the victim with a deadly weapon or intentionally inflicted a wound upon the deceased with a deadly weapon that proximately caused the victim’s death, you may infer first, that the killing was unlawful, and second, that it was done with malice, but you are not compelled to do so.”24 Similarly, a recent Pennsylvania case noted that “[m]alice may be inferred from the use of a deadly weapon on a vital part of the victim’s body.”25
Of course, someone carrying a gun is more likely to trigger a deadly weapon instruction than someone who is not for the simple reason that he has ready access to a deadly weapon. But the doctrine also speaks to public-carry habits more directly: some jurisdictions grant an exception — and will not instruct a jury on the deadly weapon inference — if a defendant chooses to carry a gun only in response to a particularized threat. One court, for example, held that “one who has been threatened with murderous assaults and who has reason to believe that such assaults will be made, may arm himself for defense and in such case no inference of malice can be drawn from the fact of preparation for it.”26 In contrast, someone who arms with a gun “long before” a particularized threat arises can be denied the exception.27
Like self-defense, adjudicating murder can be a fact-intensive inquiry, and the deadly weapon doctrine addresses just one aspect. The point is not to assess the desirability of that doctrine but only to use it as an example of how the criminal law can work to the disadvantage of gun carriers regardless of licensing.
Conclusion
To return to the question posed in the introduction: What comes after Bruen? Until now, the focus with regard to public carry has been overwhelmingly about licensing. If the Supreme Court restricts “proper cause” licensing regimes in Bruen, however, that will divert attention to other available mechanisms to insulate gun carriers from liability or regulate gun use, and whether they are sufficient for changed circumstances. This Essay barely scratches the surface of the intersections between public carry and criminal law. How does criminal law grade crimes and punish convicted defendants more severely when a gun is involved?28 How has criminal law responded (if at all) to past variations in public armament?29 How might the criminal law be adjusted in novel ways to address the changed circumstance of increased public carry? Reform proposals are starting to arise, reflecting fertile ground for future exploration.30 Each proposal, meanwhile, is likely to raise new questions about the Second Amendment and criminal justice.31 Regardless of whether a jurisdiction skews toward encouraging or discouraging public carry, judges, policymakers, and scholars will need to grapple with the criminal law implications of increased gun carry.
* Assistant Professor, SMU Dedman School of Law; Fellow, Brennan Center for Justice at N.Y.U. School of Law. Many thanks to Joseph Blocher, Jake Charles, and Chris Jenks for helpful comments and suggestions. Douglass Brown provided excellent research assistance.