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Do Battered Women Have a Right to Bear Arms?

    Sayoko Blodgett-Ford[+]

    .../I found an

    announcement/not the woman's
    bloated body in the river/floating
    not the child bleeding in the
    59th street corridor/not the baby
    broken on the floor/
    "there is some concern
    that alleged battered women
    might start to murder their
    husbands and lovers with no
    immediate cause"[1]

    Today, tragedies such as the shooting of a kindergartner riding the bus home from school[2] are widely reported by the press and lead many people to believe that gun controls[3] are desperately needed.[4] Gun control opponents, on the other hand, are equally fervent in their belief that such measures would infringe the right to bear arms.[5] Left out of this debate almost entirely, however, is the right of women to bear arms for self-defense. When women are described as arms bearers in the debate over gun control, they are typically (p.510)characterized as potential rape victims and the rapists are presumed to be strangers.[6] This picture is not accurate. Unlike men, women are sexually assaulted, severely beaten, and/or killed by someone they know more often than by a stranger.[7] Domestic batterers in particular are responsible for a significant amount of violence against women.[8] Given these differences, it is not enough simply to extend the same form of analysis used to evaluate arms-bearing by men to the situation of women. In this Note I hope to broaden the debate over gun control by analyzing the situation of battered women.

    In Part I, I will argue that regardless of the original meaning of the Second Amendment, the Privileges or Immunities Clause of the Fourteenth Amendment and provisions in many state constitutions[9] grant individual citizens a right to bear arms for defensive purposes. In Part II, I will discuss the need of battered women to bear arms for protection. In Part III, I will argue that gun control statutes--such as lengthy waiting periods to purchase (or carry) a firearm and firearm permit/license requirements--that generally may be reasonable for others, may be unconstitutional as applied to battered women. (p.511)Finally, in Part IV I will argue that battered women may be constitutionally entitled to a jury instruction regarding their right to bear arms for self-defense in two circumstances: first, if they are charged with violating a gun control law, such as a waiting period; second, if they shoot their abuser and are charged with violating one of the more general criminal laws, such as laws against murder or assault.

    I. Constitutional Rights to Bear Arms

    The academic and legal debate over gun control has centered on whether the Second Amendment to the United States Constitution guarantees an individual or a collective right to bear arms. In Section A, I will sketch this debate only briefly, because I conclude that the original meaning of the Second Amendment is largely irrelevant to most gun controls that affect battered women. In Section B, I will argue that the framers of the Fourteenth Amendment intended to guarantee an individual right to bear arms for self-defense as a privilege or immunity of citizens that, at a minimum, no state can abridge. Because my conclusion is contrary to Supreme Court precedent, I will discuss the evidence for my claim, including statements of members of the Thirty-ninth Congress and historical background, in some detail. In Section C, I will analyze some of the provisions in state constitutions that guarantee an individual right to bear arms.

    A. The Second Amendment

    The debate over the meaning of the right to bear arms has focused on the Second Amendment to the U.S. Constitution, which provides that:

    A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

    The Supreme Court has held that the Second Amendment applies only to the federal government[10] and that it protects only arms that bear a "reasonable (p.512)relationship to the preservation or efficiency of a well regulated militia."[11] Some authors argue that the decisions of the Court support their view that the Second Amendment guarantees only a collective right to maintain state militias.[12] Others disagree and argue that the Second Amendment guarantees the right of each individual to bear arms for defense of self, family, property, and the state.[13]

    Although it does not conclusively resolve the debate, the historical background of the Second Amendment indicates that the protection of the state militias was a major concern of many of the framers of the Constitution. When the Constitution was adopted, anti-federalists fiercely opposed the creation of a federal standing army, which they viewed as a dangerous threat to liberty.[14] The framers reached a compromise in Article I, Section 8, which allows the federal government to maintain a standing army but gives state governments a large degree of control over the militia.[15] However, some of the framers were still concerned that Congress could use its power to disarm the state militias.[16] Thus, they sought a guarantee that the state militias could be preserved as a check on the federal government.[17] The Second Amendment, at (p.513)a minimum,[18] provided such a guarantee.[19]

    The debate over the original meaning of the Second Amendment is interesting and important.[20] However, for the purposes of this Note, it is not necessary to attempt to resolve the debate. Most gun controls that affect battered women originate at the state level[21] and most criminal trials of battered women who shoot their abusers are held at the state level.[22] I contend that regardless of the original meaning of the Second Amendment, the framers of the Fourteenth Amendment intended to guarantee an individual right to bear arms as a privilege or immunity of citizenship that could not be infringed by the (p.514)states.[23] The framers of the Fourteenth Amendment may have wrongly believed that the Second Amendment guaranteed such a right. Nevertheless, when their vision became part of the Constitution it took priority over the intent of the framers of the Second Amendment, at least with respect to actions by the states.

    B. The Fourteenth Amendment

    Section 1 of the Fourteenth Amendment to the U.S. Constitution provides that:

    All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which Shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.[24]

    In Subsection 1 below, I will note that the framers of the Fourteenth Amendment repeatedly stated that the right to keep and bear arms was one of the privileges or immunities of citizenship, which the states could not infringe.[25] In Subsection 2, I will discuss some of the history of the Fourteenth Amendment, specifically the plight of Black freedmen and abolitionists in southern states. I contend that this historical context demonstrates that the framers of the Fourteenth Amendment considered the right to bear arms to be an individual right to bear arms, not a collective right to serve in state militias. In Subsection 3, I will argue that the Supreme Court incorrectly neutralized the Privileges or Immunities Clause of the Fourteenth Amendment in the Slaughter-House Cases[26] and in Bradwell v. State.[27] In 1931, the Court began (p.515)to selectively incorporate certain provisions of the Bill of Rights through the Due Process Clause of the Fourteenth Amendment.[28] I conclude that, even if it is not prepared to reexamine its treatment of the Privileges or Immunities Clause, the Court should incorporate the Second Amendment as an individual right to bear arms.

    1. Congressional Intent

    The framers intended that the Civil War Amendments[29] would repudiate the infamous Dred Scott[30] decision and allow the federal government to enforce laws such as the Freedman's Bureau bill of 1866.[31] The bill gave Blacks, among other things, "full and equal benefit of all laws and proceedings for the security of person and estate, including the constitutional right of bearing arms."[32]

    Four prominent legislators explicitly demanded that the states not be allowed to infringe the right of all citizens to bear arms. Senator Pomeroy of Kansas, an abolitionist, believed that one of the essential safeguards of the Constitution was the right to bear arms.[33] Congressman Roswell Hart of New York demanded that the rebellious southern states establish "a government whose citizens shall be entitled to all privileges and immunities of other citizens" and specifically mentioned the Second Amendment in his demand.[34] Congressman Sidney Clarke of Kansas wanted Congress to provide "a more perfect freedom and a grander nationality" and "an enlarged liberty to the citizen."[35] He believed that Alabama and other rebellious states had violated the Second Amendment by denying Blacks the right to bear arms.[36] Senator Sumner of Massachusetts presented a petition "from the colored citizens of the State of South Carolina" asking for "constitutional protection in keeping arms, in holding public assemblies, and in complete liberty of speech and of the press."[37]

    Two prominent figures in the framing of the Fourteenth Amendment--(p.516)Representative John A. Bingham, who drafted the Amendment, and Senator Jacob Howard, who presented the Fourteenth Amendment on behalf of the Joint Committee formed to decide whether the southern states should be readmitted--both believed that the Amendment would prevent state governments from infringing the right to keep and bear arms.

    Representative Bingham described the Fourteenth Amendment as follows:

    The proposition pending before the House is simply a proposition to arm the Congress of the United States, by the consent of the people of the United States, with the power to enforce the bill of rights as it stands in the Constitution today.[38]

    Senator Howard described some of the privileges and immunities of citizens as follows:

    To these privileges and immunities, whatever they may be--for they are not and cannot be fully defined in their entire extent and precise nature--to these should be added the personal rights guaranteed and secured by the first eight amendments of the Constitution; such as ... the right to keep and bear arms....[39]

    Senator Howard and other Republicans believed the Fourteenth Amendment was needed to enable Congress to enforce the Civil Rights bill without being thwarted by the courts. As Senator Howard stated:

    Now ... here is a mass of privileges, immunities, and rights, some of them secured by the second section of the fourth article of the Constitution, ... some by the first eight amendments of the Constitution; and it is a fact well worthy of attention that the course of decision of our courts and the present settled doctrine is, that all these immunities, privileges, rights ... do not operate in the slightest degree as a restraint or prohibition upon State legislation.[40]

    The statements of Senator Howard, Representative Bingham, and the other legislators mentioned above demonstrate that the framers of the Fourteenth Amendment clearly intended that the Second Amendment should apply to the states.[41] The question then becomes, what did Republicans see as the fundamental right guaranteed by the Second Amendment? Was it the right of the people to keep and bear arms as part of state militias, or was it the right of every citizen to keep and bear arms in order to defend his[42] person and property? (p.517)The historical context of the Fourteenth Amendment makes it clear that the framers preferred the latter interpretation.

    2. Historical Context

    Before the Civil War, many state laws restricted arms-bearing by freed Blacks and/or slaves.[43] A Florida Act of 1825 is a particularly disturbing example. The Act provided that white citizen patrols "shall enter into negro houses and suspected places, and search for arms and other offensive or improper weapons, and may lawfully seize and take away all such arms, weapons, and ammunition ...."[44] Violence against Blacks during such searches was common.[45]

    Mob violence against Blacks was prevalent in northern cities as well, where racism was fed by economic competition between Blacks and whites, and massive segregation made Black communities easy to target.[46] In response, Black men formed private militia groups and experienced some success in preventing or halting riots, at least until they were disarmed by state authorities.[47]

    After the Civil War, many Confederate states attempted to reenslave Blacks through the use of statutes commonly referred to as the Black Codes. The basis for such laws was illustrated by the notorious prerevolutionary decision Scott v. Sandford,[48] in which Justice Taney explained why freed Blacks could not be citizens of the United States.

    [If black people were] entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police regulations which [Southern states] considered to be necessary for their own safety. It would give the persons of the negro race, who were recognized as citizens in any one State of the Union ... the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went. And all of this would be done in the face of the subject race of the same color, both free and slaves, inevitably producing discontent and (p.518)insubordination among them, and endangering the peace and safety of the State.[49]

    Justice Taney's parade of "horribles" is an example of the widely held view that free Blacks were dangerous and local authorities were benevolent protectors.[50] According to this view, Blacks could not be allowed to bear arms. Thus, the subjugation of Blacks continued after the Civil War through state laws that denied Blacks basic rights, such as the freedom to move, to contract, to own property, to assemble, and to bear arms.[51] For example, a Louisiana Statute of 1865 provided that:

    No Negro who is not in the military service shall be allowed to carry fire-arms, or any kind of weapons, within the parish, without the special permission of his employers, approved and indorsed by the nearest and most convenient chief of patrol. Any one violating the provisions of this section shall forfeit his weapons and pay a fine of five dollars, or in default of the payment of said fine, shall be forced to work five days on the public road, or suffer corporal punishment as hereinafter provided.[52]

    The violence used to perpetuate the subjugation of Blacks caused many people to believe that Blacks and abolitionists needed to arm themselves in order to defend against local authorities and mobs of "upstanding" citizens. For example, at an 1866 constitutional convention in New Orleans convened for the purpose of giving Blacks the right to vote in state elections:

    [t]he police and white Louisianans, in a paroxysm of hatred and fear, mobbed the delegates. Ignoring white handkerchiefs that [delegates] ran up the flagpole and waved from the windows of the [Mechanics] Institute, the mob fired into the building, shot loyalists as they emerged, and pursued them through the streets, clubbing, beating, and shooting all they caught. Forty of the delegates and their supporters were killed, another one hundred and thirty-six wounded.[53]

    Unlike the framers of the Second Amendment, the framers of the Fourteenth Amendment were not concerned with protecting state militias, which were often the greatest culprits in the violence against Blacks and abolitionists. As Senator Lyman Trumbull stated in debates over the Freedmen's Bureau bill, "[n]early all the dissatisfaction that now exists among the freedmen is caused by the abusive conduct of [the Mississippi] militia[,]" which would often "hang some freedman or search negro houses for arms."[54] Representative Henry J. Raymond explained, during debate over the Civil Rights Bill, that a citizen "has a defined status; he has a country and a home; a right to defend himself (p.519)and his wife and children; a right to bear arms."[55]

    Thus, the framers of the Fourteenth Amendment clearly intended to prevent the states from abridging the privileges or immunities of citizens, including the individual right to bear arms for defense of person and property. For a brief period, they were successful.

    3. The Fourteenth Amendment in the Courts

    In one of the first decisions to interpret the Fourteenth Amendment, a federal court held that no state could abridge the rights contained in the first eight amendments, which were the privileges or immunities of citizens.[56] Two years later, however, in two of its decisions, the Supreme Court construed the Privileges or Immunities Clause so narrowly as to remove it from the Constitution for most practical purposes.[57] These decisions were followed by the congressional abandonment of civil rights.

    Over sixty years after the ratification of the Fourteenth Amendment, the Supreme Court finally began to apply some of the provisions of the Bill of Rights to the states through the Due Process Clause of the Amendment.[58] Thus far, the Second Amendment is one of the few provisions of the Bill of Rights that has not been incorporated.[59] I contend that the Second Amendment should be applied to the states to guarantee that every citizen has the right to keep and bear arms, just as the framers of the Fourteenth Amendment intended.

    In United States v. Hall,[60] one of the first federal cases involving the Fourteenth Amendment, the defendants were convicted, under a federal statute, of conspiring to deny other citizens their rights of freedom of speech and assembly. The defendants had argued that such rights were not privileges or immunities of citizens of the United States and that the federal government therefore lacked the power to punish them. The court rejected this argument and held that the statute was constitutional because the Fourteenth Amendment gave citizens of the United States all the privileges and immunities secured by the first eight amendments.(p.520)

    By the original constitution citizenship in the United States was a consequence of citizenship in a state. By [the privileges and Immunities] clause this order of things is reversed. Citizenship in the United States is defined; it is made independent of citizenship in a state .... What are the privileges and immunities of citizens of the United States here referred to? They are undoubtedly those which may be denominated fundamental; which belong of right to the citizens of all free states .... Among these we are safe in including those which in the constitution are expressly secured to the people, either as against the action of federal or state governments.... We think, therefore, that the right of freedom of speech, and the other rights enumerated in the first eight articles of amendment to the constitution of the United States, are the privileges and immunities of citizens of the United States.[61]

    The evidence presented in Sections 1 and 2 above demonstrates that this is an accurate description of the intent of the framers of the Fourteenth Amendment. The Supreme Court, however, did not read the Privileges or Immunities Clause so broadly.

    The Court first considered the meaning of the Privileges or Immunities Clause in the Slaughter-House Cases,[62] which involved a Louisiana law requiring all butchering in the New Orleans area to be performed in a single slaughterhouse run by a private corporation. The plaintiffs were independent butchers who claimed that the law would put them out of work. The Court held that the statute was constitutional. Justice Miller, writing for the majority, explained that the "most cursory glance" at the Civil War Amendments disclosed "a unity of purpose, when taken in connection with the history of the times," to prevent discrimination against Blacks, but not to protect fundamental rights of a citizen of a state against the legislative power of his own state.[63] As for the privileges or immunities guaranteed citizens of the United States by the Fourteenth Amendment, the Court stated that these included the right to go to and from the seat of government, free access to the seaports, protection on the high seas or when under the jurisdiction of foreign governments, and the right to use navigable waters.[64] This explanation was completely inconsistent with the many statements of the framers of the Fourteenth Amendment that the privileges or immunities of citizens included the rights listed in the first eight amendments to the Constitution.

    The Slaughter-House decision was further cemented in Bradwell v. State.[65] In Bradwell, the Supreme Court rejected Myra Bradwell's claim that (p.521)the Illinois bar's refusal to admit women violated the Fourteenth Amendment. The Court held that the right to practice law in state courts was not a privilege or immunity of citizens of the United States but instead related to state citizenship. Thus, the Court concluded that the states had unfettered power to regulate the practice of law.

    The holdings in the Slaughter-House Cases and Bradwell could possibly be justified by the fact that those cases involved butchers and a female lawyer rather than former slaves.[66] However, even in an area in which the framers had expressly stated that the Fourteenth Amendment would apply--protection of the rights of Black freedmen--the Supreme Court refused to recognize or give effect to their intent.

    One of the purposes of the Fourteenth Amendment was to give Congress the power to stop violence against Blacks, and, for a very short period of time, it was successful. The Ku Klux Klan was extremely powerful in the 1870s and frequently was responsible for the assassination of Black leaders and Republicans.[67] In response, Congress passed the anti-Klan statutes[68] and President Grant suspended the writ of habeas corpus in nine South Carolina counties.[69] More than 5000 Klansmen were arrested under the new statutes and fifty-five were found guilty of violating civil rights.[70]

    In United States v. Cruikshank,[71] however, the Supreme Court held one of the anti-Klan statutes unconstitutional. The defendants were white men who had killed more than sixty Blacks. They were charged with conspiring to prevent Blacks from exercising their right to assemble and their right to bear arms, among other rights.[72] The Court dismissed the charges, holding that the Bill of Rights restricted the power of Congress but not of private individuals: "For their protection in its enjoyment, the people must look to the States."[73] The sad consequences of this turn of events is reflected by the (p.522)lynchings of at least 3446 Blacks between 1882 and 1960.[74]

    It seems safe to conclude that the framers would have enthusiastically approved of the analysis in Hall and disapproved of the Court's narrow construction of the Privileges or Immunities Clause in the Slaughter-House Cases, Bradwell and perhaps Cruikshank.[75] Yet, despite the fervor Republicans initially brought to the cause of equality, the promise of the Civil War Amendments was abandoned only a few years after Hall was decided. Michael Kent Curtis describes the political forces at work.

    In 1876 the Democratic presidential candidate won a majority of the popular vote. The electoral vote was close and hung on the outcome in disputed southern states. By the compromise of 1877 the election was given to the Republicans. In return, federal troops were to be withdrawn from the South, leaving blacks and southern Republicans to their own devices.

    For a brief shining moment during and after the Civil War, protection of blacks had been associated with the cause of the Union. By the mid-1870s protection of blacks seemed to disrupt national unity, and the commitment to protection of their rights faded away as quickly as it had come.[76]

    Curtis concludes that "[m]ore and 'more Republicans began to emphasize the issue of states' rights.'"[77] Consistent with these political forces and the evisceration of the Privileges or Immunities Clause in the Slaughter-House Cases and Bradwell, in Presser v. Illinois,[78] and Miller v. Texas,[79] the Court continued to hold that the Second Amendment did not apply to the states through the Fourteenth Amendment.[80](p.523)

    The Fourteenth Amendment eventually was given new life in a series of Supreme Court decisions holding that certain provisions of the Bill of Rights deemed "fundamental to the American system of justice" applied to the states through the Due Process Clause.[81] Nevertheless, the Second Amendment right to bear arms, the Third Amendment's protection against quartering of soldiers in private homes, the Fifth Amendment's grand jury guarantee, and the Seventh Amendment's guarantee of a jury trial in civil cases have not been applied to the states.[82]

    The framers of the Fourteenth Amendment intended to prevent the states from infringing the privileges or immunities of citizens, including the right to bear arms. Thus, according to Professor Akhil Amar, the Second Amendment should be incorporated, but not mechanically:[83]

    [T]he very same words "the right ... to keep and bear arms" take on a different coloration and nuance when they are relabeled "privileges or immunities of citizens" rather than "the right of the people," and when they are severed from their association with a well-regulated militia.... [T]he core applications and central meanings of the right to keep and bear arms and other key rights were very different in 1866 than in 1789. Mechanical incorporation obscured all this, and, indeed, made it easy to forget that when we "apply" the Bill of Rights against the states today, we must first and foremost reflect on the meaning and the spirit of the Amendment of 1866, not the Bill of 1789.[84]

    Until the Supreme Court gives effect to the intent of the framers and applies the Second Amendment to the states,[85] battered women must look to state constitutions for protection of their right to bear arms.(p.524)

    C. State Constitutions

    While the federal right to bear arms has, as yet, remained illusory, thirty-one states have constitutional provisions that can be read to guarantee an individual right to bear arms.[86] For example, Article I, Section 15 of the Connecticut Constitution provides that: "Every citizen has a right to bear arms in defense of himself and the state."[87] Delaware's right-to-bear-arms provision is phrased in gender-neutral language: "A person has the right to keep and bear arms for the defense of self, family, home and State, and for hunting and recreational use."[88]

    These constitutional provisions are not absolute. Generally, the right to bear arms is subject to reasonable restrictions by the state under its police power, i.e., the power to protect the public health, safety, and welfare.[89] State v. Reid[90] provides an early example of these limits. In Reid, the Supreme Court of Alabama upheld the conviction of a sheriff for carrying a concealed weapon. The court noted, however, that the state legislature did not have unbridled discretion to regulate arms-bearing: "A statute which, under the pretence of regulating, amounts to a destruction of the right, or which requires arms to be so borne as to render them wholly useless for the purpose of defence, would be clearly unconstitutional."[91]

    This case indicates that some state courts may be willing to take seriously an individual right to bear arms.[92] However, the reasonableness of restrictions on that right has thus far been judged according to a male standard, i.e., where the attacker is a stranger and the attack comes as a surprise.[93] The needs of battered women have been ignored.(p.525)

    

    II. Battered Women and Firearms

    The Fourteenth Amendment was, in part, an attempt to address the needs of an oppressed group--Black freedmen--by making it clear that, as citizens of the United States, they had a right to bear arms. Since the Nineteenth Amendment gave women the right to vote in 1920, women also are citizens of the United States.[94] As citizens, women should have a federal (and often a state) constitutional right to bear arms.[95] Yet, even in 1993, the right to bear arms often is described in the same masculine terms used in 1866.[96] Specifically, the need of many women to bear arms to defend themselves against attacks by people they know has not yet been addressed. Below I will argue that battered women are particularly vulnerable to attack when they attempt to separate from an abuser. Because such women expect violence from a person they know well, a firearm can be especially useful for self-defense. Thus, I contend that statutes preventing a battered woman from obtaining a firearm under such circumstances may violate her constitutional right to keep and bear arms.

    A. Home Is a Danger Zone

    

    Man is, or should be, woman's protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life.... The paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator.[97](p.526)

    Contrary to this rosy picture of domestic harmony, man often is the very thing woman needs protection from. In fact, home is a very dangerous place for many women.

    1. The Prevalence and Nature of Domestic Violence

    Estimates of the number of families that will experience some form of domestic violence range from eleven to fifty-two percent.[98] Women in general are four times as likely as men to be victims of a crime of violence committed by a relative. In contrast, men are at least three times as likely to be victims of a crime of violence committed by a stranger.[99] According to one estimate, "between 1.5 and two million women seek medical treatment each year because of an assault by a male partner."[100] In a 1978 study of 900 cases of family violence, women were victims in ninety-four percent of the cases and offenders in three percent of the cases.[101] Yet, in 1984, 1310 women were killed by their husbands and 806 husbands were killed by their wives.[102] The vast majority of women who killed their husbands had been battered by those men.[103]

    There is disagreement about the exact definition of battering and battered (p.527)women.[104] For the purposes of this Note, I define battered women as women who are intimately involved with someone who repeatedly uses physical or sexual violence to achieve and maintain dominance and control in the relationship, and who threatens to kill or seriously injure the woman, her relatives, or her children if she attempts to leave the relationship.[105]

    In addition to general assaults, rape and other abusive sexual acts often are part of battering.[106] For example, Dr. Angela Browne compared forty-two battered women who had killed their abusers with 205 battered women who had not.[107] Dr. Browne found that "76 percent of the homicide group and 59 percent of the control group reported [forced sexual intercourse]."[108] In addition, "[w]ell over half (62 percent) of the women in the homicide group, and 37 percent of the comparison group, reported that their husbands had forced or urged them to perform other sexual acts that the women considered abusive or unnatural," including "the insertion of objects into the woman's vagina, forced oral and anal sex, bondage, forced sex with others, and sex with animals."[109] In one disturbing case, a battered woman was sexually assaulted by her husband, a police officer, who used such objects as a wine bottle, a broom handle, and his gun.[110]

    Until very recently, most states did not prohibit marital rape.[111] Consistent (p.528)with this legal regime, many battered women do not characterize forceful sexual acts by their husband as rape. For example, many battered women in a 1980 study who reported they had not been raped "still said that they had submitted to sexual demands in order to prevent beatings, or out of fear of their partner. Some of these women even reported physical assaults during sexual activity so severe that they were injured or lost consciousness, yet did not define these as sexual assaults."[112]

    2. A Profile of Battering

    Dr. Angela Browne recognized a pattern in the experiences of battered women who killed their batterers.[113] Although not all battering relationships fit this pattern, particularly because most bettered women do not kill their abusers, it is a useful tool for analyzing the situation many battered women face.

    Women who killed their batterers were involved with these men for an average of 8.7 years.[114] The men were extremely attentive and kind during the courtship. They took care to hide their past from the woman by isolating her from the man's friends and relatives and by asking many questions about the woman's background in order to divert her attention away from their own. In fact, most batterers had a history of using violence against others and, as children, had witnessed the use of violence by one family member against another. The men apparently needed an unrealistic amount of attention and devotion, but also needed to keep a distance from their partners and to anticipate betrayal. The women could not serve both of these conflicting needs, yet whenever battering occurred, the women were told that it was their fault. Alternatively, stress, job problems, alcohol, or drugs would be blamed. The batterers would express regret, and the women would initially accept these explanations, which were especially plausible because they knew nothing of the batterer's past.

    It is very important to note, however, that battered women do not accept such explanations because they are mentally impaired in some way, as the (p.529)common description of "battered women's syndrome" suggests.[115] Eventually, the batterer's explanations become grossly insufficient to justify the violence inflicted, and many battered women seek help from others and/or separate from their abuser. For example, one study, which involved over 6000 intake and exit interviews of women in fifty Texas battered women's shelters, found that more than seventy percent of the women had previously left home before becoming shelter residents and fifty-three percent had called the police at least once.[116] Unfortunately, battered women frequently face the greatest danger when they attempt to separate from an abuser.

    B. Leaving Can Be Deadly

    Professor Martha Mahoney argues that the legal understanding of the situation of battered women should be reformulated in terms of "separation assault," which she defines as

    the attack on the woman's body and volition in which her partner seeks to prevent her from leaving, retaliate for the separation, or force her to return. It aims at overbearing her will as to where and with whom she will live, and coercing her in order to enforce connection in a relationship. It is an attempt to gain, retain, or regain power in a relationship, or to punish the woman for ending the relationship. It often takes place over time.[117]

    Professor Mahoney finds that battered women often face a dramatically increased risk of being killed or seriously injured by their abusers after they attempt to separate.[118] Further confirmation of this trend can be found in a 1977 study conducted by the Women's Correctional Center in Chicago. In this (p.530)study, "all the women who had killed abusive mates reported that they called for police help at least five times before taking the life of the man; many said the violence they endured became more, rather than less, severe after their attempts at gaining assistance."[119]

    One woman's story illustrates the danger of separation assault:

    We had been separated nine months. I came home late one night with a date. I was sitting in the living room playing backgammon with this man, when I saw the car drive up. I thought of sending [my date] home, but I didn't, maybe because I knew I needed help. Maybe I was just defiant.

    He knocked. I kept the chain lock on the door, and I told him to go home. He wouldn't leave. He rang the bell for fifteen minutes without stopping. I woke up my roommate, and she disconnected the doorbell.

    He started pounding on the door. He broke it in and started a fight with this man. I'm sitting there in horror, watching it--the door broken down, them crashing around the living room .... The kids woke up. I sat them on the couch with me.

    Then--he was very drunk--the fighting stopped. It was pretty short. But it took two hours to try to get him to leave. He ran around with a butcher knife ... he left the house with it. Finally, I could call the police. Then I don't know if he came back in with the knife--I think he came back after the police were called. The kids were on the couch screaming and crying, I was trying to take care of them.

    The police saw the door leaning in the middle of the room, the room trashed and crashed.... They told me to get a TRO the next day.[120]

    Separation assault occurs because battering is a method of dominating a woman and separation threatens the control the batterer seeks.[121] Thus, even the slightest effort to leave can trigger an attack.[122] In a Florida study of spousal homicides, for example, researchers found that killings of wives by husbands most often were triggered by "a walkout, a demand, a threat of separation [which is] taken by the men to represent intolerable desertion, rejection and abandonment. Thus ... the threat of separation is usually the trigger for violence in these cases."[123]

    Professor Mahoney notes, however, that each relationship is different, and, in some cases, "a threat to leave the batterer may be very effective at ending the violence."[124] Because this depends on the particular context of the situation, the battered woman is in the best position to evaluate the likelihood that the violence will escalate when she attempts to separate. As Professor Mahoney (p.531)notes:

    [T]he instrumental nature of [the batterer's] violence makes [the battered woman], the target, the closest observer. She has more resources to measure his violent potential than any outside observer and ... is best placed to assess the man's potential dangerousness, because she is most aware of the times and manner in which violence may occur.[125]

    Although a battered woman should not have to leave her home to find safety for herself or her children,[126] that is often her only choice. Unfortunately, if she leaves, she cannot depend on others to protect her from violence from her abuser.often her only choice. Unfortunately, if she leaves, she cannot depend on others to protect her from violence from her abuser.

    C. Lack of Protection by Police, Friends, or Neighbors

    Despite the increased danger a battered woman often faces when she attempts to separate from her abuser, she cannot rely on neighbors, friends, family, or the police for protection.[127] For example, one battered woman's ex-husband who was supposed to be visiting the children, instead was in a bar fight near her house. He showed up at the house at 9 p.m., bleeding. He began pounding on the door and eventually broke one of the door's glass panes. He continued to hammer on the door. When she opened the door, he fell on the floor and told her the police were after him. She then sought help:

    I went to the phone ... and called my closest friends, a couple who lived a few (p.532)blocks away. The man answered the phone. I said urgently that my husband was there and that I needed this friend to come over right away. He said OK and hung up. Fifteen or twenty minutes passed, and then his wife showed up. She said, "Allen wasn't going to come. He didn't see why you were bothering us. But I figured, if you had called, someone ought to check up and see what was going on."

    The police arrived. They had traced his car to our house and followed a trail of blood to our door. They weren't going to arrest him. When I asked, they waited for his brother-in-law to come pick him up.... Finally everyone went home.

    It was so frightening that a man I had known for five years, who knew how my ex-husband had been, had actually lied to me and said he was coming, then been willing not to show up. They lived four blocks away! My mother told me I should talk to the neighbors, try to line up more help for next time. So I went to my next door neighbor the next day and began, "About the noise last night.... " He looked at me very fiercely. "What noise? We didn't hear anything!"[128]

    As Don Kates has pointed out, the traditional function of the police has been to deter crime in general with patrols and apprehension of criminals after a crime has occurred.[129] "[T]he fact is that the police do not function as bodyguards for individuals."[130] Courts have frequently held that the police have no duty to protect individual citizens.[131]

    An exception to this rule may be developing in cases like Thurman v. Torrington,[132] in which Tracey Thurman, a battered woman, was awarded $2.3 million in a suit against the City of Torrington and officers of its police department based on the Department's policy of nonintervention in domestic cases. This policy led to Thurman's partial paralysis as a result of a brutal attack by her husband in the presence of idle police officers. This probably is only a narrow exception, however, to a policy of nonintervention that denies protection to women as a class, a policy which is significantly different from a failure to respond due to a lack of police resources.[133] Thus, the Torrington police probably are not obligated to respond to all cases of domestic violence, as long as their failure to do so is due to understaffing rather than intentional (p.533)discrimination against women.

    Sarah Buel persuasively argues for the adoption of mandatory arrest statutes in more states.[134] She offers as evidence of their effectiveness the fact that "arrested offenders were about half as likely as non-arrested offenders to repeat their violence over a six-month follow-up period."[135] She notes that one study found that eighty-two percent of battered women requested that their batterer be arrested but police arrested only fourteen percent of these batterers.[136] One battered woman's story provides a compelling example of this problem:

    He beat me up on our wedding night. I wound up with a black eye, a very bad black eye, and split lip. He was almost arrested that night .... I ran out of the house in my nightgown and flagged down a passing car and got them to take me to my father-in-law's house. When my father-in-law came back, the neighbors had called the police and the police were there. My father-in-law talked them out of taking him in.[137]

    While it seems clear that mandatory arrest statutes should be adopted,[138] the approximately 500,000 police officers in America cannot possibly protect all the women who are at risk of severe violence from their batterers every year.[139] Thus, battered women must be allowed to protect themselves.

    D. The Value of Firearms for Defense and Deterrence

    Overall, it is difficult to determine whether the dangers of accidental death or homicide outweigh the potential benefits of firearms ownership for the general population. There is some evidence, however, that a handgun may be an effective and relatively safe means of defense or deterrence for a battered woman who is attempting to separate from her abuser. When combined with the fact that police, friends, and neighbors often cannot or will not take action to protect a battered woman, this evidence makes it reasonable for a battered woman to choose to own and/or use a handgun for self-defense. A meaningful (p.534)constitutional right to bear arms would allow her to make this choice.

    1. Benefits

    A firearm (and training in how to use it) may be the only way a battered woman can save her life and/or the lives of her children. Women generally cannot defeat male batterers in unarmed physical combat, because male batterers on average are forty-five pounds heavier and four to five inches taller than their victims.[140] In addition, "[i]n our society women suffer from a conspicuous lack of access to training in and the means of developing skills necessary to effectively repel a male assailant without resorting to the use of deadly weapons."[141]

    A handgun can equalize the physical disparity between a woman and her attacker.[142] Possession of a firearm may be particularly valuable to a battered woman because she is more likely to be prepared for an attack.[143] A battered woman typically has

    "a hypervigilance to cues of any kind of impending violence [and is] a little bit more responsive to situations then somebody who has not been battered might be." A woman who has been battered and then is threatened with more abuse is more likely to perceive the danger involved faster than one who has not been abused.[144]

    Thus, a firearm could be valuable to a battered woman as a means of defending against or deterring her abuser.

    2. Costs

    The authors of a widely reported recent study in the New England Journal of Medicine undoubtedly would dispute the conclusion that a firearm could be a valuable tool for protection.[145] After conducting an extremely sophisticated analysis of homicides occurring in the homes of victims,[146] the authors concluded (p.535)that "[p]eople who keep guns in their homes appear to be at greater risk of homicide than people who do not."[147] In addition, the authors "did not find evidence of a protective effect of keeping a gun in the home ...."[148] Despite the authors' complicated analysis, there are several major flaws in this study which cast doubt on the usefulness of their conclusions.

    First, the study does not distinguish justifiable homicides--for example, when a battered woman killed her abuser in self-defense--from unjustifiable homicides--when a battered woman is killed by her abuser, for example. The authors state without explanation that only 3.6% of the cases involved a homicide under legally excusable circumstances.[149] There is no way of telling, however, from the information given, whether those cases involved women who killed their abusers. This is important because, in over thirty percent of the cases the authors studied, the victim was killed by a spouse or an intimate.[150] Other studies have shown that, when a woman kills her husband, it is almost always the case that he abused her before he was killed.[151] Homicides that involve women who kill their abuser should be counted as evidence of the protective effects of gun ownership. Because there is no evidence that Dr. Kellermann and his colleagues considered these incidents as evidence of the protective effects of gun ownership, their study is not particularly useful for analyzing the benefits of gun possession for battered women.

    A second problem with the study is that it only measures the correlation between gun ownership and homicide in the home. It does not take into account the fact that guns are not even fired in at least half of the cases where they are used in self-defense.[152] Even in cases where guns are fired in self-defense, over ninety-eight percent are merely warning shots or misses that do not wound the assailant.[153] In addition, assailants who are wounded by the shot survive eighty-five percent of the time.[154] The Kellermann study therefore only covers cases where the assailant was not disabled by a wound or deterred by a warning shot and subsequently killed the victim.[155] By definition this would be a case of unsuccessful use of a firearm for self-defense. (p.536)Cases where the firearm use was successful and the assailant was disabled or deterred would not have been included in the study. Contrary to their claim that their methodology "was capable of demonstrating significant protective effects of gun ownership as readily as any evidence of increased risk,"[156] by limiting their study to cases involving homicides, the authors excluded the vast majority of situations where guns are used in self-defense. Thus, the study probably could not have accurately measured the protective effects of gun ownership.

    In addition to the concerns raised by the New England Journal of Medicine study, there are several other possible risks that must be examined in order to determine whether it is reasonable for a battered woman to choose to possess a firearm for protection. One disturbing possibility is that an attacker could take a handgun away from a battered woman even if she knew how to use the gun and intended to use it.[157] Although this may be a significant risk for police officers confronting several attackers,[158] it is unlikely to occur often in the general population. As Professor Gary Kleck has noted, "[i]n the 1979-1985 [National Crime Survey] sample, it was possible to identify crime incidents in which the victim used a gun for self-protection and lost a gun to the offender(s). At most, one percent of defensive gun uses resulted in the offender taking the gun away from the victim ...."[159] Yet, it is reasonable to assume that the risk of losing a gun to an attacker would be greater for a battered woman who had not been able to separate from her abuser than for someone who had moved away, because the batterer could find the weapon in the house.

    When risks are being addressed, it must also be noted that the value of a handgun for defense or deterrence cannot be estimated without considering the risk that someone could be shot accidentally. Firearms can be dangerous, particularly if they fall into the hands of an adolescent.[160] There were approximately 190 million guns in the United States in 1985,[161] and 1649 people were accidentally killed by guns that year.[162] The highest number of fatal (p.537)gun accidents in 1980 involved adolescents ages fifteen to nineteen.[163] The danger for children is dramatically less than that for adolescents. In 1980, 316 children under fourteen were involved in fatal gun accidents.[164] Professor Kleck estimated that, in 1980, the probability of a child under age ten being involved in any kind of fatal gun accident in a gun-owning household was approximately one in 135,000.[165]

    After exhaustively surveying the statistics on gun accidents,[166] Professor Kleck concluded:

    Gun accidents are generally committed by unusually reckless people with records of heavy drinking, repeated involvement in automobile crashes, many traffic citations, and prior arrests for assault.... Consequently, it is doubtful whether, for the average gun owner, the risk of a gun accident could counterbalance the benefits of keeping a gun in the home for protection--the risk of an accident is quite low overall, and is virtually nonexistent for most gun owners.[167]

    Although there is some possibility that an accidental death could occur, a battered woman who chooses to obtain a firearm is not placing her family at a significant risk of being involved in a fatal gun accident, at least as long as she does not live in the same household as the batterer. If she does live in the same household as the batterer, perhaps because of the heightened danger she may face if she attempts to separate, the presence of the batterer, who may have a history of reckless behavior, could increase the likelihood of an accidental gun injury or death. However, it still may be reasonable for her to conclude that the risk of accidental death is outweighed by the risk that the batterer will intentionally kill or seriously injure her.

    Given the potential value of gun ownership for a battered woman as a means of protection against extreme violence, I believe that it is reasonable for a battered woman to decide that she needs a firearm to protect herself and/or her children. If that is the case, she has a constitutional right to obtain such a weapon. The best thing society can do is to permit her to carry a firearm while also providing increased police protection; laws that will result in the lengthy imprisonment of her batterer; more shelters so that she has a place to stay when she leaves her abuser; a judicial system that will not take her children away because she is living in a shelter; and training in how to use (p.538)and store the firearm[168] so that her children[169] (especially adolescents) cannot use it.[170] Currently, however, many battered women do not own a firearm. This must be taken into account when designing gun controls.

    E. Battered Women Often Do Not Own a Firearm

    In 1987, the last year for which statistics on firearm ownership by gender were reported by the U.S. Department of Justice, forty-six percent of those responding to a survey had a pistol, shotgun, or rifle in their home or garage.[171] Those who reported having a gun or revolver in their home were then asked whether any of the guns personally belonged to them. Forty-seven percent of the men said that they owned a firearm while only fourteen percent of the women did.[172]

    Battered women who do not own a firearm but need one for self-defense have two choices. First, they can use someone else's weapon. Second, they can plan ahead and apply for a permit, purchase a handgun, and keep it hidden from their abuser, yet still accessible in case of a sudden escalation of violence. It seems highly unlikely that many battered women could accomplish such a feat before they were able to leave their home. It is far more likely that they would use their abuser's gun or a friend or relative's gun obtained at the last minute.[173] This is common in the case histories of battered women who kill their batterers.

    In State v. Norman,[174] Judy Norman tried to leave her husband many times to escape his incredible brutality. In addition to beating and raping her, he forced her to engage in prostitution daily, eat dog food, bark like a dog, and sleep on the concrete floor like a dog.[175] He also threatened to kill her, cut out her heart, and cut off her breast.[176] Each time she left, he found her, took her home, and beat her.[177] The court's description of the two-day period (p.539)before she shot him illustrates the difficulty many battered women face in getting assistance:

    On the evening of 11 June 1985, at about 8:00 or 8:30 p.m., a domestic quarrel was reported at the Norman residence. The officer responding to the call testified that defendant [Judy Norman] was bruised and crying and that she stated her husband had been beating her all day and she could not take it any longer. The officer advised defendant to take out a warrant on her husband, but defendant responded that if she did so, he would kill her.[178] A short time later, the officer was again dispatched to the Norman residence. There he learned that defendant had taken an overdose of "nerve pills," and that Norman was interfering with emergency personnel who were trying to treat defendant. Norman was drunk and was making statements such as, "'if you want to die, you deserve to die. I'll give you more pills,'" and "'Let the bitch die.... She ain't nothing but a dog. She don't deserve to live.'" Norman also threatened to kill defendant, defendant's mother, and defendant's grandmother. The law enforcement officer reached for his flashlight or blackjack and chased Norman into the house. Defendant was taken to Rutherford Hospital.

    ....

    On the advice of the [hospital] therapist, defendant did not return home that night, but spent the night at her grandmother's house.

    The next day, 12 June 1985, the day of Norman's death, Norman was angrier and more violent with defendant than usual. According to witnesses, Norman beat defendant all day long....

    Later that day, one of the Norman's daughters ... reported to defendant's mother that her father was beating her mother again. Defendant's mother called the sheriff's department, but no help arrived at that time. Witnesses stated that back at the Norman residence, Norman threatened to cut defendant's throat, threatened to kill her, and threatened to cut off her breast. Norman also smashed a doughnut on defendant's face and put out a cigarette on her chest.[179]

    When Mr. Norman fell asleep, Mrs. Norman shot him with a gun she had taken from her mother's house.[180] Mrs. Norman was indicted for first degree murder, convicted of voluntary manslaughter and sentenced to six years in prison. The North Carolina Court of Appeals granted a new trial but the Supreme Court reversed, characterizing her fears as "indefinite ... concerning what her sleeping husband would do at some time in the future."[181]

    Joyce E. McConnell discusses a case in which another woman also endured severe physical and sexual abuse.[182] The woman's husband often engaged (p.540)in a murder-suicide ritual with his loaded gun. He would force the woman to beg him not to kill them and then set the gun down and walk away. Later, he would order her to bring the gun to him and he would unload it. During the six weeks after their son was born, her husband increasingly went through the ritual, threatening their son and daughter as well. One day he changed the ritual by actually cocking the gun and acting more upset than normal. As she handed him the gun, she shot and killed him.[183] The woman was convicted of first degree murder and sentenced to life imprisonment.[184]

    As a citizen, a battered woman has a right to bear arms. The possibility that most battered women will not own a firearm yet may desperately need one must be taken into account in evaluating gun controls that appear to be otherwise reasonable. Additionally, the fact that a battered woman carried a gun for some time before she shot her abuser must not be used as proof that she acted aggressively rather than in self-defense.

    III. Battered Women and Gun Controls

    As citizens, battered women are entitled to a right to keep and bear arms. As discussed above, when a battered woman attempts to separate from her abuser, she faces an incredible risk of being killed or seriously injured. Because of this danger, a battered woman often needs access to a firearm with very short notice. In this Part, I will argue that gun control statutes, such as lengthy waiting periods and certain permit/license requirements, that prevent a battered woman from obtaining a firearm for self-defense may violate her constitutional right to bear arms.

    Many types of gun controls exist, ranging from waiting periods to purchase a firearm, to bans on certain types of firearms. Some of these laws, such as bans on assault rifles, are not relevant to the situation of battered women. Others, however, could make the difference between a battered woman's life and death.[185]

    For wealthy or middle-class men, permit requirements and waiting periods (p.541)may be reasonable, because their enemies typically will be strangers.[186] The delay involved in applying for a permit usually would not subject them to an increased risk of death, and they can easily secure references from friends and neighbors. Yet, lengthy waiting periods to purchase a firearm leave battered women dependent on the police, who cannot possibly provide twenty-four-hour protection.[187] Additionally, a permit/license statute may force battered women to risk alerting their abuser to the fact that they intend to leave the home. If the police are not careful in conducting a background investigation, the abuser could learn the new address of a woman who had separated. Thus, such statutes may be unconstitutional as applied to battered women.

    A. Waiting Periods

    Twenty-one states have established a mandatory waiting period (or effectively implement a waiting period)[188] to purchase a pistol or handgun. The length of time involved ranges from less than one day (in Virginia) to six months (in New York).[189]

    Waiting periods serve a different purpose than the background checks that usually accompany them, which can be completed in a few hours.[190] Waiting periods are designed to prevent violence by allowing someone who is upset to "cool off" before she can obtain a firearm and impulsively shoot at the (p.542)object of her anger.[191] After analyzing a 1982 study of Florida prison system inmates and the underlying premises supporting arguments for waiting periods, Professor Kleck concluded that "it is highly unlikely that waiting periods, by themselves, could prevent even as many as one in 200 gun killings."[192] If no harm resulted from waiting periods, and if their enforcement was not a burden on the limited resources of the criminal justice system, then even such a low rate of success would justify the imposition of waiting periods.

    Battered women, however, may be harmed if they are forced to wait to purchase a firearm. A waiting period may prevent a battered woman who has separated from her batterer from arming herself, thereby leaving her to depend on family, friends, neighbors, and the police, who often cannot or will not protect her.[193]

    A woman in California is a tragic example of this problem.[194] She wears a steel-plated jaw because her six-foot-three-inch, 200-pound husband shattered her jaw while she was holding their baby in her arms.

    [She] tried to press charges after she left the hospital, but sheriff's deputies and county mental health workers persuaded her not to because her husband had promised to attend counseling sessions. After two sessions, his mental health counselor refused to see him again out of terror; he threatened to kill her, and the counselor believes he meant it.

    When his wife tried to reinstitute charges, the deputies told her it was too late to do so. This [wa]s untrue, she has at least three years to press charges on felonious assault. While the police refused to arrest him, he entered her property daily, prowled around the outside of her house, slept on her lawn at night and telephoned persistently, often 30 times a day.[195]

    The police refused to arrest the woman's husband for violating the restraining order, so she decided to purchase a pistol to protect herself. Under California law, however, she had to wait fifteen days. While she was waiting to obtain the permit, her husband repeatedly assaulted her at home and at work. Eventually, she obtained the handgun and told her abuser that she had it. Since then, he has not assaulted her, although he still telephones her and steals her mail.[196] Thus, the waiting period harmed her by forcing her to endure repeated assaults by such a dangerous person. It is doubtful that she "cooled off" during such assaults, or that she even needed to "cool off" at all.

    A lengthy waiting period can infringe a battered women's federal and, in (p.543)many cases, state constitutional right to bear arms. Ideally, a battered woman would be able to obtain a handgun quickly when she needed to defend herself against her abuser,[197] because a battered woman faces a higher risk of violence than most members of the general public, especially when she attempts to separate from her abuser. In addition, unlike most people, a battered woman usually knows her potential attacker very well and therefore can estimate her risk more accurately than other people. Thus, it makes sense to defer to her judgment in deciding how long she can safely wait to obtain a handgun.

    An exception to the recently approved national waiting period is one step in the right direction toward protecting battered women's right to bear arms. This exception would be available to people who could prove to the police that their life was threatened. For example, the legislation approved by the House provides, in relevant part, that a person can obtain a handgun without waiting if

    the [person who wants the handgun] has presented to the transferor a written statement, issued by the chief law enforcement officer of the place of residence of the transferee during the 10-day period ending on the date of the most recent proposal of such transfer by the transferee, stating that the transferee requires access to a handgun because of a threat to the life of the transferee or of any member of the household of the transferee.[198]

    This would require that a battered woman locate the chief law enforcement officer for her area and persuade that officer that her life is threatened by her abuser. Yet, it provides no guidelines for the officer to use in making such a determination, and no means for review of the officer's determination. It also does not mandate that the officer make a determination within a certain period of time. Thus, although the proposal is a step in the right direction, I believe that it is inadequate for battered women. Battered women should be able to obtain a handgun simply by completing an application form and stating that they are in immediate danger from someone they can identify.

    It is, of course, possible that some women could lie in order to take advantage of an exception to a waiting period. Even so, this type of fraud would defeat the purpose of a waiting period only in limited circumstances: (p.544)if the purchaser later impulsively used her weapon to shoot and she would not have used the gun had she been allowed to calm down. These two elements probably would not occur for more than one in 200 people.[199]

    Since battered women usually call the police and/or seek help from friends, neighbors, relatives, or medical centers before they use a firearm to shoot their abusers,[200] it may be possible for police to screen out many false applications. The police could ask the applicant to answer questions similar to the following:

    1. Are you in danger of being hurt by someone you know?

    2. Has that person injured you before?

    3. When?

    4. How many times?

    5. Did you tell anyone?

    6. Who?

    7. Can we call these people to talk to them?

    8. Did you go to a doctor?

    9. What did you tell the doctor had happened?[201]

    10. Did you call the police?

    11. When?

    12. What did the police do?

    If the applicant had separated from her abuser, the police could check her claims by calling the people she had told about the violence. In so doing, the officers would need to keep her current address confidential so that her abuser would not discover it by questioning the people the police talked to. The police could issue the permit before they checked her claims, but if it later appeared that she lied,[202] she could be subject to imprisonment or a fine.[203] The same system would apply to a male applicant who claimed to be in danger from someone he knew.

    Of course, this approach does give the police a certain amount of discretion, which individual police officers could use to avoid helping battered (p.545)women. In Schubert v. DeBard,[204] an Indiana court held that it was a violation of the state constitution[205] for a police superintendent to refuse to issue a license to carry a handgun because he believed that the applicant did not actually need the gun for self-defense. According to the court:

    Such an approach contravenes the essential nature of the constitutional guarantee. It would supplant a right with an mere administrative privilege which might be withheld simply on the basis that such matters as the use of firearms are better left to the organized military and police forces even where defense of the individual citizen is involved.[206]

    Because several former employers felt that the applicant had "mental problems," the court remanded for a new hearing.[207] The Schubert court probably also would have found an exception such as that contained in federal waiting period bills, for example, H.R. 1025,[208] unconstitutional because it places no limits on the ability of the police chief to refuse to waive the waiting period.

    Giving the police the ability to decide, based on relatively subjective criteria, who qualifies as an exception to the waiting period requirement may result in arbitrary application of the laws. New York's permit requirement provides a useful example of such arbitrary application. Although New York City has some of the strictest gun control laws in the country, many rich or famous people easily can receive a permit to carry a firearm, apparently regardless of whether they face more danger than people living in crime-ridden neighborhoods.[209]

    Los Angeles's concealed weapon license requirement provides another example of the abuse of police discretion. Although the Los Angeles Police Department is required to issue a license to carry a concealed gun to every applicant who has both good character and "good cause," during the past twenty years the Department did not issue a single concealed weapon permit.[210] Then, in 1992, it issued one permit--to its new police chief who had just arrived from Philadelphia and had not yet been certified as a California peace officer.[211]

    It is possible that an exception for battered women could not be administered in such a way as to minimize the opportunity for police discretion. In light of the extreme danger battered women face when they attempt to separate (p.546)from an abuser, and because of the small chance that waiting periods actually prevent crime, waiting periods longer than a few days should be struck down if they cannot be applied in such a way as to exempt battered women.[212]

    B. Permit Requirements to Carry or Own a Gun

    Some states have statutes that can be used to punish a person who carries or owns[213] a firearm without a permit or license. For example, in Connecticut, "[n]o person shall carry any pistol or revolver upon his person, except when such person is within his dwelling house or place of business, without a permit to carry the same."[214] The terms "pistol" and "revolver" refer to "any firearm having a barrel less than twelve inches in length."[215] The penalty for violating this permit law is a maximum fine of $1000 and imprisonment for one to five years.[216] New York, New Jersey, Massachusetts, North Carolina, Michigan, Indiana, and Hawaii also require a permit/license to own, carry, and/or purchase a handgun.[217]

    Although they are not required by statute to do so, local police departments often impose additional requirements for handgun permits. For example, the police department in New Haven requires applicants for a pistol permit to submit, among other things: three letters of reference "from persons [not relatives] who can testify as to [the applicant's] character and suitability to possess a pistol permit"; "a certificate of successful completion of a course in pistol safety, NRA certified"; notarization of the application; and a twenty-five dollar fee.[218] It could be very difficult for a battered woman who has separated from her abuser (or who intends to separate from her abuser) to (p.547)obtain such letters and complete an NRA pistol safety course without alerting her abuser to her current residence (or to her plans to leave). Even worse for a battered woman who is attempting to separate from her abuser, the New Haven Police Department states that "[t]he normal waiting period [for a permit] is between eight and ten weeks from [the] time [the] application is received by the firearms unit."[219] During this period a battered woman who attempts to separate from her abuser could face a heightened risk of death.[220]

    Just as lengthy waiting periods can prevent a battered woman from obtaining a firearm to defend herself, the permit/license requirements discussed above also can violate a battered woman's right to keep and bear arms, unless they are applied in such a way as to exempt battered women.[221]

    IV. Jury Instructions Regarding the Right to Bear Arms

    If there is no explicit exemption for battered women in the gun control statutes, a battered woman who shoots her abuser may be charged with violating a firearms statute, such as a permit/license requirement, and/or with a more general crime, such as murder, manslaughter, or assault. Many authors have discussed the inadequacy or misapplication of traditional doctrines of self-defense for battered women charged with murder or manslaughter.[222] Without entering this important discussion, I will argue that, under two different circumstances, a battered woman may be constitutionally entitled to a jury instruction regarding her right to bear arms. First, if she is charged with violating a gun control statute, the jury should be instructed that it must acquit her if it finds that she had to violate the statute in order to obtain[223] a firearm (p.548)for self-defense. Second, if she is on trial for shooting her abuser, the jury must be instructed that it cannot consider the fact that she armed herself as proof that she acted with offensive purpose.

    A. Violation of a Gun Control Law

    When a battered woman is charged with violating a gun control statute such as a waiting period or a license/permit requirement,[224] the jurors should be instructed that they must acquit her if she had to violate the statute because she was in danger of being attacked by her abuser at any time and needed to carry the firearm for self-defense. The immediacy requirement is appropriate for this charge because such statutes only delay the time when a woman can bear arms for self-defense but do not completely eliminate her right to do so.[225] Thus, a delay of a month in applying for a permit normally would be excessive.[226] There are cases holding (usually on statutory rather than constitutional grounds) that male defendants who were charged with violating a gun control statute were entitled to a jury instruction regarding their right to bear arms for self-defense.

    In People v. King,[227] the Supreme Court of California reversed a male defendant's conviction for possessing, following a prior felony conviction, a firearm capable of being concealed on the person. The defendant had been at a party at a friend's house when several drunk and disorderly men tried to break in and join the party after most of the guests had left. The woman who had accompanied the defendant to the party handed him a ".25 caliber Italian Burretta [sic]" automatic pistol that she had carried in her purse.[228] The defendant first shot in the air in an attempt to frighten away the invaders. They thought that he was firing blanks and charged toward the door. He then shot at the men and injured one, who reported him to the police. The defendant was (p.549)charged with two counts of assault with a deadly weapon and one count of violating the concealed firearm statute.

    The jury was instructed regarding self-defense on the assault counts and returned a verdict of not guilty on these counts. The trial court, however, refused to give a self-defense instruction on the firearm statute and the defendant was convicted on that count.

    The Supreme Court of California analyzed legislative intent[229] and held that the use of a concealable firearm in defense of self or others in an emergency situation was a defense to a charge of violating the concealed firearm statute.[230] The court went on to state that the trial court had erred in refusing to give a self-defense instruction on the concealed firearm charge.[231]

    In another case, Conaty v. Solem,[232] Patrick Conaty fought with a man named Woodhouse in Conaty's apartment. Woodhouse threatened to kill Conaty and the other tenants, including Conaty's girlfriend. Conaty called the police and told an officer that Woodhouse had threatened him and that he would shoot Woodhouse if he returned. After the officer left, Conaty borrowed a shotgun and shells from another tenant and, when Woodhouse returned and refused to leave the building, Conaty shot three feet to the side of Woodhouse. Conaty was convicted of possessing a firearm after having been convicted of a violent crime, and for recklessly discharging a firearm. He was sentenced to fifteen years in prison on the first count and one year on the second. Conaty claimed that he was denied effective assistance of counsel because his lawyer failed to request a self-defense jury instruction.[233] The court found that Conaty's Sixth Amendment rights were denied and granted his writ of habeas corpus:

    Simply because a defendant is not permitted to be in possession of a firearm does not mean he is necessarily guilty of violating a statute prohibiting possession of a firearm if he should come into control of the firearm for purposes of self-defense. This is especially true if the statute does not expressly demonstrate a legislative attempt to supersede the self-defense statutes by precluding such a person from claiming self-defense. Under the appropriate factual setting, this defense is available.[234]

    The court also cited Article VI, Section 24 of the South Dakota Constitution, which provides that: "The right of the citizens to bear arms in defense (p.550)of themselves and the State shall not be denied," and the South Dakota Code, which describes the availability of self-defense as a legitimate defense.[235]

    Jury instructions regarding a battered woman's right to bear arms are critical because, without such instructions, a conviction for violating a gun control statute is virtually assured. Lengthy sentences can be imposed for such crimes[236] and police or prosecutors cannot be relied upon to prevent battered women who shoot their abusers from being convicted of violating these statutes. The danger that arbitrary or inappropriate selection criteria will be used is too great.[237]

    B. Arms Bearing and Mens Rea

    The right to bear arms is related to the right to use arms in self-defense. When a society gives its citizens the right to bear arms for defensive purposes, it allows each citizen to decide ex ante that she needs a weapon for protection. The society does not waive its right to condemn ex post the citizen's use of that weapon if she shoots offensively or without proper justification. However, it would seriously weaken the right to bear arms if juries were allowed to use the sole fact that a person armed herself as proof of offensive purpose.[238] Thus, battered women who are charged with committing murder or assault also are entitled to a jury instruction regarding their right to bear arms for self-defense. Although this instruction is available in some states for male defendants, when a battered woman requested such an instruction, her request was (p.551)denied.

    In Summers v. State,[239] a male defendant was convicted of attempted murder and murder for shooting two men after a fight in a bar. The trial court refused the defendant's request that the jury be instructed as follows:

    You are instructed that the Wyoming Constitution absolutely entitles citizens of the State of Wyoming to bear arms in defense of themselves.

    ....

    One who has reasonable grounds to believe that another will attack him, and that the anticipated attack will be of such a character as to endanger his life or limb, or to cause him serious bodily harm, has a right to arm himself for the purpose of resisting such attack.

    If the Defendant armed himself in reasonable anticipation of such an attack, that fact alone does not make the Defendant the aggressor or deprive the Defendant of the right of self-defense.[240]

    Instead, the trial court gave the jury the following instructions regarding self-defense:

    [I]f the Defendant had reasonable grounds to believe and actually did believe that he was in imminent danger of death or serious bodily harm from which he could save himself only by using deadly force against his assailant, he had the right to use deadly force in order to defend himself. "Deadly force" means force which is likely to cause death or serious bodily harm.

    ....

    The claim of self-defense is not necessarily defeated if the Defendant used greater force in the heat of the fear generated in him by the alleged assault upon him than a reasonable person would have used while acting in a calm and rational manner.[241]

    The Supreme Court of Wyoming viewed the defendant's requested instructions favorably and held that the instructions actually given covered all of the principles embodied in the requested instructions, except the principle that the jury could not find premeditation based on the fact that the defendant had armed himself. However, because the defendant was convicted of second degree murder, which did not include an element of premeditation, the court found this error harmless.[242]

    Based on the court's analysis, a defendant charged with a crime that includes an element of premeditation, for example, a battered woman charged with murdering her abuser, would be entitled to such an instruction.

    An unsuccessful request for a right to bear arms instruction was involved (p.552)in Commonwealth v. Nelson,[243] which was an early case involving a battered woman. In that case, Mary Ellen Nelson was convicted of voluntary manslaughter for killing her husband and was sentenced to pay a fine of five dollars and be committed to the State Industrial Home for Women for an indeterminate sentence.[244]

    In Nelson, the defendant had been at home watching television when her husband came home and began arguing with her. He tried to hit her with a poker but missed. He then caught her and beat her. As she bent over to pick up her glasses, he hit her so hard with the poker that she went blind in one eye. She went to the upstairs bedroom and closed the door. When she thought it was safe, she opened the door. Her husband stuck his foot in the door and cut her arm with a knife. She managed to shut the door and block it with a dresser. She then took a pistol out of the dresser. She left the bedroom and started to go downstairs. Her husband heard her coming and started up the stares carrying the poker. She shot him in the head and he was killed instantly.

    The court stated that the defendant "could have telephoned the police or the neighbors, or could have called to the neighbors, or called out the window for help if she felt she needed help."[245] The court emphasized the fact that the defendant knew the gun was loaded and that she knew how to use it.[246]

    At trial, the history of violence in Mrs. Nelson's marriage was not fully developed. The defendant stated in direct examination that: "My husband ... and me got along fine until about a year ago, and then little arguments started, but they never amounted to too much."[247] On cross-examination, she admitted that they had had many arguments, and that during one of the arguments, a year before she killed her husband, she had shot him in the leg when "he had picked up a shoe and told her she had to go out with him drinking."[248]

    On appeal, the defendant challenged the trial court's failure to instruct the jury regarding her right to go downstairs for a legitimate purpose and her right to bear arms for her protection. The court held that this claim was adequately covered by the instructions given,[249] which were "eminently fair to the defendant, and clearly and correctly set forth the law of self-defense ...."[250] The court also noted that no objection was made to the charge.[251] However, it was a violation of Mrs. Nelson's right to bear arms if the jury used (as the (p.553)court apparently did) the fact that Mrs. Nelson knew the gun was loaded and knew how to use it as evidence of her criminal intent.[252] Mrs. Nelson should have been entitled to a Summers-type instruction.

    Because of the influence of cultural stereotypes, a jury instruction regarding the right to bear arms is even more important for a battered woman such as Mrs. Nelson than for a male defendant such as Mr. Summers. Nyla Branscombe, an assistant professor of psychology, studied some of the ways that cultural stereotypes influence the evaluation of violent social acts.[253] She found that in experiments involving stranger rape and date rape, women who behaved most inconsistently with the female stereotype, i.e., by resisting their assailant both verbally and physically, were perceived as having been more guilty of precipitating the attack.[254] Also, women who competently shot a burglar were blamed more than women who wielded the gun incompetently and made a lucky hit.[255] The reverse was true for male homeowners who shot burglars. She concluded that "men and women who act 'in character' with social expectations make it harder, by their conformity, to imagine any outcome other than what does occur. So they're held less responsible for it."[256]

    Under this model, juries would be more sympathetic to the male defendants in King or Summers because, unlike Mrs. Nelson, those defendants were conforming to societal norms by using firearms to protect themselves and "their women." When a battered woman is a defendant, the jury needs a right to bear arms instruction to help counteract societal bias against women who do not act stereotypically.[257]

    V. Conclusion

    The Fourteenth Amendment to the United States Constitution and many state constitutions guarantee each citizen an individual right to keep and bear (p.554)arms for self-defense. Although this right is not absolute, restrictions such as lengthy waiting periods and certain permit/license requirements are unreasonable unless they are modified or applied in a manner that incorporates the needs of battered women. In the meantime, if a battered woman is charged with violating such a statute, the jury should be instructed to acquit her if she had to violate the statute in order to obtain a firearm for self-defense.

    A battered woman who shoots her abuser also may be charged with violating a more general criminal law, such as murder, manslaughter, or assault. In that case, the jury may infer an offensive purpose from the mere fact that the woman armed herself. Thus, the jury should be instructed regarding the woman's right to bear arms for self-defense.

    There are risks in arguing for a real right to bear arms for battered women. This analysis could be used by gun control opponents to bolster challenges to otherwise reasonable restrictions on the right to bear arms[258] and could contribute to the tendency to view battered women as exceptions, rather than our mothers, sisters, friends, neighbors, and ourselves.

    Although the arguments presented in this Note may be misused, this does not mean that the needs of battered women should go unmentioned in the debate over gun controls. The right to bear arms is a constitutional right, and constitutional rights should not be ignored simply because they have troubling implications.

    In 1868, violence against Blacks and abolitionists helped spark a constitutional amendment to guarantee that the privileges and immunities of all citizens of the United States, including the individual right to bear arms, would not be infringed. Over seventy-two years ago the Nineteenth Amendment made women full citizens. It is past time for battered women to have a real right to bear arms.(p.555)

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