by Lauren Baldwin, Contributing Author
A person is entitled to use a gun for self defense in the U.S., if necessary, but laws in every state establish when a person can use force to defend himself (or another), and whether a person can use a weapon. Someone who intends to carry or keep a gun for self defense purposes should follow state laws on gun ownership and carrying concealed weapons. (You can learn the laws in your state regarding gun permits and open and concealed carry laws by starting with Gun Possession and Use Laws and Concealed Weapon Laws.)
Laws Governing Gun Ownership and Use
All states have laws requiring that guns be registered, as well as laws prohibiting certain people, such as convicted felons, from owning guns. Some states outlaw certain firearms such as some types of automatic rifles or firearms with silencers. If you intend to carry a firearm or keep a gun in your home for protection, you should choose only a weapon that is legal in your state. If you intend to carry a concealed firearm—in your purse or inside a jacket and not in plain view—you should check on whether your state permits “concealed carry” and what permit or license you need.
While using an illegal weapon or not having a concealed carry permit will not prevent you from claiming self defense, it 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.
Traditional 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 and
- 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 man raises a fist or hits another able-bodied man, 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. If the victim could easily have left the room or walked away from the offender, the victim’s use of physical force might not constitute self defense. To support a successful self-defense argument, the evidence must show that the victim could not retreat—for example, that he could not get away because the attack was ongoing, he was trapped with the aggressor behind a locked door, the aggressor blocked the exit, or the victim tried to leave or walk away and the aggressor followed him.
If the victim could not retreat, the jury usually next must consider whether the victim was reasonably in fear for his physical safety and whether any force the victim used was reasonable. 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 to fend him off in some other way, because this amounts to using more force than was reasonably necessary to stop the attack. If a person uses deadly force to fend off an attack, he must have been in fear that he was about to be gravely injured or killed. The victim also must have had a reasonable basis for fearing for his life, such as dealing with an aggressor who was pointing a gun, wielding another deadly weapon, or acting in a way that could cause death or serious bodily harm.
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.
A victim also might be justified in showing a weapon and warning that he will shoot if necessary, even if the aggressor has no weapon and is threatening or attacking the victim with his fists or other parts of body. If the victim who brandished the gun is charged with threatening another person with a deadly weapon, he can present evidence that he showed the gun in self defense—to get the assailant to back off.
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 “stand their ground” and 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”
As many as 32 states recently have adopted “stand your ground” laws that expand traditional self defense laws and extend the castle doctrine to confrontations outside a person’s home. (For more information on the stand your ground defense, see "Stand Your Ground" New Trends in Self-Defense Law.)
The stand your ground defense may apply and permit a victim to brandish or use a firearm, depending on state law, in the following situations:
- Beyond the house. If a person is confronted in his vehicle or on his residential property including the driveway, swimming pool area, or land around the home, he may respond with a firearm.
- A public place. If an aggressor uses force or threatens violence against another in a public place, the person being attacked or threatened has no duty to choose an apparent safe way to retreat, and may instead use the amount of reasonable force necessary to fend off the attacker.
Consult an Attorney
If you are charged with a crime, you should contact an attorney who is familiar with the criminal law in your state. If you used a gun in self defense, you also should contact an attorney whether or not you have been charged with a crime. An experienced attorney can advise you of the law regarding guns and self defense and represent you in a criminal case, if necessary.