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Columbia Missourian

Personal Tasers ban might become Second Amendment issue

By Dan Claxton
October 14, 2010 | 6:23 p.m. CDT

“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.”

 — Second Amendment, United States Constitution.

Ballot Language

This is the ballot language for Proposition 2 as it will appear on the Nov. 2 ballot:

Shall the proposed initiative ordinance pertaining to tasers and other conducted electrical devices be passed?

The proposed ordinance would make it a Class A misdemeanor for individuals, including police officers, to use or threaten to use tasers, stun guns or any other conducted electrical device against any person within the city.

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COLUMBIA — If Columbia voters decide on Nov. 2 to outlaw Taser use in the city by approving Proposition 2, private residents as well as law enforcement would be prohibited from using them.

Tasers and stun guns are available for private use, and they can be purchased at sporting goods and electronics stores for $50 to $360, depending on the model.

Because they are sold as self-defense weapons, a ban on Tasers and similar devices could violate the Second Amendment, which has been interpreted to guarantee individuals the right to keep and bear arms for lawful uses such as self-defense.

Barry McKenzie, manager of Target Masters in Columbia, said that Tasers and stun guns are arms and that they are protected by the Second Amendment.

“We feel people have a right to defend themselves, and a lot of times they don’t want to go the extra step to a gun,” McKenzie said. “If that’s what they want to do, they should be able to have one.”

McKenzie said Target Masters sells 20 to 30 stun guns a year at $50 to $100 each, and “a couple” of Tasers a year at around $350.

“We don’t sell a lot. A lot of people consider them too expensive, so when the price gets up around that level, a lot of people will decide to buy a handgun.”

McKenzie said all kinds of people buy Tasers and stun guns. “Professors buy them, guys will buy them for their wives, people who go walking, just everyday citizens.” 

He said a large segment of his sales are to fathers buying protection for their daughters as they head off to college.

The United States Supreme Court's definition of "arms" may include Tasers. In the 2008 case District of Columbia vs. Heller, the court in a landmark decision struck down the District of Columbia's strict rules regarding handgun ownership. It ruled that federal enclaves cannot override federal law concerning Second Amendment rights. It stopped short in that case of ruling on whether states or municipalities could do so.

The Heller case for the first time brought a Supreme Court ruling — written by Justice Antonin Scalia — that actually defined “arms” in terms of the Second Amendment.

Scalia wrote that an “arm” must meet three criteria: First, it must be “bearable,” which means a person must be able to carry it around. Second, it must be used for lawful purposes, such as self-defense. And third, it must be in “common use.”

Legal analyst Ron F. Wright argued in a 2008 Albany Law Journal of Science and Technology article that Tasers fit all three of these definitions.

Between 1991 and 2007, TASER International sold an estimated 120,000 Tasers to private citizens, which Wright said meets the “common use” criterion.   

That, according to Wright’s rationale, could affect the Columbia ordinance.

“Tasers meet the criteria set forth in that case; Taser prohibitions would ultimately be invalidated.”

Columbia City Attorney Fred Boeckmann said Tasers “could be” considered arms in a Second Amendment context. “I can’t speak with authority on it, but I recognize it is a problem.”

The proposed ordinance in Columbia could avoid Second Amendment scrutiny because it bans only the use — and not possession — of Tasers.

The proposed ordinance would make it a class A misdemeanor to use or threaten to use a Taser or stun gun inside the city limits. 

But Boeckmann said that if someone were to use one in self-defense, that person might not be prosecuted. “It would depend on the prosecutor and whether he thought the case merited prosecution.”

Columbia attorney Ed Berg, who represents People for a Taser-Free Columbia, said self-defense is the key.

"If someone is in your house or car and threatening you, it would be self-defense. The only thing you would have to prove is self-defense,” Berg said. “I can’t imagine any prosecuting attorney prosecuting that.” 

The proposed Taser ban appears on the Nov. 2 ballot.