Legal Commentary

Bans on Discharging Firearms, Without a Self-Defense Exception

By Eugene Volokh

A reader asked about a city code provision (Baltimore City Code Art. 19 § 59?2, but there are many others like it) that bans discharging firearms, with no self-defense exception. How can that be?

It?s common for criminal laws ? including laws prohibiting murder and assault, and not just the discharge of firearms ? to outlaw conduct without mentioning the possible defenses. There are, after all, lots of defenses that are generally available as to a wide range of crimes: self-defense, defense of others, defense of property, duress, insanity, necessity (recognized in some states), and more. It doesn?t make sense to list all of them in each statute.

Sometimes the defenses are set forth in general terms in other statutes. Sometimes they aren?t codified at all, and continue to exist as common-law defenses. But in any event, they can be raised as to a wide range of criminal offenses, even when the statute or ordinance defining the offense never mentions the defense. That would surely apply as to a discharge-of-weapons ordinance, just as it would apply to a statute that on its face bans all assaults or all intentional homicides. See, e.g., Jones v. State, 745 A.2d 396 (Md. 2000) (?when a defendant is charged with the statutory crime of reckless endangerment under § 12A-2(a)(1) and evidence is presented to generate an issue of common law perfect self-defense, the defendant is entitled to have the jury instructed regarding the application of self-defense to the charge of reckless endangerment?).

Full post as published by The Volokh Conspiracy on February 12, 2010 (boomark / email).