Good Guy With A Gun, Bad Guy With A Gun, and those in between

A lot has been written recently about the proverbial “Good Guy With A Gun.”  Some say this is essentially a myth, that it is rare for a person to actually use a gun in lawful self-defense or defense of another.  Others cite multiple examples and say that it shows the importance of allowing people to have guns for defense of themselves and their families.  I don’t have a horse in that particular race, though it seems clear now that the Second Amendment protects a right to have a gun for lawful self-defense in the home, regardless of how often it is needed.  My concern, rather, is that the labels – “Good Guy” and “Bad Guy” – are usually not very helpful in determining before the fact whether guns should be subject to more or less control. And I think we should abandon, or at least be more cautious about using, those labels.

It’s not as if people walk around wearing state-approved signs that say “I’m One of the Good Guys – Give Me A Gun.”  The truth is, sometimes – not always, but sometimes – even a person who may seem to be one of the Good Guys can turn out to be one of the Bad Guys; or, at least, not as much of a Good Guy as we hoped.  A person with no criminal history and no obviously bad motive can lawfully purchase a firearm, even if he – unbeknownst to the seller or anyone else – plans to use the gun to kill someone unlawfully.  We would not know at the time that this is a Bad Guy as opposed to a Good Guy.  This is among the reasons why we need stronger background checks and a strong federal straw purchaser statute.  The straw purchaser presents as a Good Guy, though he very much is not. Sometimes, the distinction turns on what the person’s intentions and motives are, but that is typically an unknown before the fact – a killer typically does not announce to a gun dealer that he is planning to use the gun to commit a murder.  And sometimes it simply turns on whether the person is acting lawfully, regardless of motives; but again, we do not typically know this until after he uses the gun.  We have a descriptor for people who fire their guns without any legal justification, and it isn’t “Good Guy With A Gun.”

I was reminded of this as I read a local story that has since gone national.  It is here, concerning a citizen, who was licensed to carry a concealed pistol in Michigan, who apparently believed that a theft had occurred in the Auburn Hills Home Depot and then allegedly fired at a fleeing vehicle in the store parking lot (disclosure: my wife and I frequent this specific Home Depot – which is to say, my wife is there almost every day).  On these facts, this does not appear to be legally permissible, and the shooter has been charged by the Oakland County Prosecuting Attorney.  Thankfully, no one was injured.  The shooter, of course, is presumed innocent at this time.

It may well be true that these kinds of incidents are rare.  But the fact that they happen at all is a reminder of how the “Good Guy/Bad Guy” dichotomy is not so simple.  Imagine that I asked you to describe a person who, hypothetically, pulled out a 9 mm handgun in a store parking lot and fired it at an occupied vehicle, without any legal justification and without any evidence that the person in the vehicle was armed or that the vehicle posed an imminent threat to the shooter or any other person.  You might well want more information before calling them a criminal.  But my guess is that you wouldn’t describe that person as a “Good Guy,” either.  Now, even if we insert into that story the fact that the shooter believed that the vehicle was being driven by an alleged shoplifter, that does not change any of the other facts already given.  It might alter your view of the shooter’s motive (e.g., to help catch a bad guy), but that alone does not transform the shooting into one that the law would protect.  Nor should it.  Is this Good Guy With A Gun, then, really a Good Guy?  Or just a mitigated version of a Bad Guy?  Or something in between?

The common law of self-defense has been complicated by the demise of the retreat rule and the emergence of “Stand Your Ground” laws (which really are just extensions of the modern no-retreat principle, which is pervasive in the United States).  Still, the core of self-defense remains intact: a person is privileged to use deadly force only when he reasonably believes that such force is necessary to meet the imminent use of deadly force upon him.  We don’t typically allow people to fire their weapons at fleeing suspects, absent an imminent threat of death or serious bodily harm.  That is true of law enforcement officers as well as citizens.  See Tennessee v. Garner.  We don’t typically allow people to use deadly force to defend property.  And we strictly limit the ability to use deadly force in defense of one’s habitation.

Ours is a gun culture.  To some that is good; to others it is troubling.  But in a culture committed to the possession and use of firearms, we should at the very least insist that people who own guns know the law, particularly the law of self-defense, defense of another, and defense of property and of habitation.  And we should be prepared to punish them when they use their guns in ways that are contrary to that law, even if they proudly claim the label of Good Guy With A Gun.  I know that these are complex legal rules and that even legal professionals struggle with them.  But when one takes on the burden of firearm ownership and use, and thus could use the law as both a sword and shield in killing or seriously harming someone, he or she has a special obligation to understand what the law permits.  Remember that unlike other constitutional rights, the Second Amendment right is conditioned upon lawfulness; no one has a constitutional right to keep, bear, or use firearms for unlawful confrontational purposes.  Without understanding how and when to use the gun lawfully, the Good Guy With A Gun can be just as much of a menace as the Bad Guy With A Gun.

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