Using A Gun For Self Defense: Laws And Consequences

The U.S. Supreme Court has emphasized on several occasions that individual self-defense is a central component of the Second Amendment's right to keep and bear arms. (N.Y. State Rifle & Pistol Assn. v. Bruen, 597 U.S. 1 (2022).) Yet, at the same time, all states have self-defense laws that spell out when you're allowed to use deadly force—including a gun—to defend yourself or someone else.

If you intend to carry or keep a gun for self-defense, you should follow your state's gun laws, including the statutes on carrying concealed weapons. And even if you lawfully possess a gun, using it to shoot someone can result in a conviction for any number of very serious felony charges—including murder—if the shooting isn't in self-defense.

In This Article

• Is It Legal to Carry a Gun for Self Protection?
• When Is It Legal to Use a Gun in Self-Defense?
• Do You Have to Retreat Before Using a Gun in Self-Defense?
• What Happens If You Shoot Someone in Self-Defense?
• What Criminal Charges Can You Face After a Self-Defense Shooting?
• Consult an Attorney

Is It Legal to Carry a Gun for Self Protection?

All states have laws prohibiting certain people, such as convicted felons and domestic violence offenders, from having guns. Some states altogether outlaw certain types of weapons, such as automatic rifles or firearms with silencers.

If you want to carry a firearm or keep a gun in your home for protection, you should choose a weapon that's legal in your state. If you intend to carry a concealed firearm (for instance, in your purse, inside a jacket, or under your car seat), you should check whether your state permits "concealed carry" and whether you need a permit or license.

Depending on the circumstances and the law in your state, the fact that you possessed or carried a gun illegally might not prevent you from arguing self-defense if you're facing criminal charges for brandishing (displaying or pointing) a gun or shooting someone. But even if you're allowed in the first place to try that defense, illegal gun possession could cast you in a suspicious light with the jury (or judge) if the case goes to trial. (Not to mention the fact that you could be convicted of illegal gun possession or a similar offense.)

When Is It Legal to Use a Gun in Self-Defense?

Self-defense laws don't excuse all violent acts merely because another person struck the first blow or made a violent threat.

Deadly Force Against Deadly Force

Under traditional self-defense laws, the act of brandishing or firing a gun is evaluated like any other use of force. The main question is whether using a gun was reasonably necessary and proportional to an imminent threat of unlawful force.

For instance, when an attacker raises a fist or throws a punch, the victim can't just pull a gun and shoot. A gunshot in these circumstances would normally be more force than necessary for self-protection from non-deadly force. Before using deadly force, a victim must reasonably fear deadly force, which most states define as the threat of being gravely injured or killed or subject to a violent felony (rape, kidnapping, or robbery).

What If the Aggressor Doesn't Have a Gun?

In some situations, using a gun in self-defense could be legal even if the aggressor doesn't have a gun. For instance, if an attacker has another deadly weapon such as a knife, metal bar, or baseball bat, using a gun might be reasonable if the victim can't access any other weapon.

Depending on the circumstances, even if an aggressor has no weapon but is threatening or attacking with fists, a victim might be justified in showing a weapon and warning that they will shoot if necessary. Use of a gun might also be justified if the strength, size, and physical abilities of the attacker are much greater than that of the victim.

Do You Have to Retreat Before Using a Gun in Self-Defense?

Given the gravity and stakes involved, states traditionally required a person to try to retreat to safety when possible before resorting to deadly force, unless the person was protecting their home. Under the castle doctrine, a person facing a home invasion has no duty to retreat. Outside the home, states split on this issue (and still do). A minority of states have kept the traditional duty-to-retreat law, while a majority has removed the retreat requirement. These latter states are commonly known as "stand-your-ground" states.

Duty to Retreat

It's important to understand that duty-to-retreat states don't require a person to run away in every attack situation. These laws typically state that retreat is only required if the person can do so "in complete safety." If the attack was ongoing, the defendant was trapped, or the defendant tried to leave but was followed by the aggressor, the defender could still make a self-defense argument because retreat in complete safety was not an option.

Castle Doctrine

In most (if not all) states, people who are under attack in their own homes don't need to retreat or try to escape, even if they can do so safely. Instead, they can typically use force—even enough force to kill—if they are in apparent danger of serious injury. The theory is that people shouldn't have to run from (or within) their own homes, and should be free to defend their "castles."

Stand Your Ground

Many states have adopted "stand-your-ground" laws that expand traditional self-defense rules and extend the castle doctrine to include confrontations outside a person's home. Depending on state law, you may be allowed to use a gun against someone you believe is about to kill or seriously hurt you, even if you're not in your home and could have retreated. Stand-your-ground laws only protect a defender if they are in a place where they have a right to be.

What Happens If You Shoot Someone in Self-Defense?

If you shoot in self-defense and the other person dies or is injured, officers will investigate the incident, and from there, a number of possible things could happen.

Best Case Scenario: No Charges

After the police investigation, the local prosecutor will likely review the case. If the prosecutor determines the killing or injury was in self-defense, no charges will be filed.

Possible Charges If the Case Moves Forward

If the prosecutor believes the killing wasn't in self-defense, the defendant could be charged with a number of offenses, several of which are covered below. A wide range of outcomes are possible from this point forward, from dismissed charges to a plea bargain to a conviction after a jury trial.

Self-Defense Raised as an Affirmative Defense

If it comes to a trial, the defendant can raise self-defense as an affirmative defense to the charges. State procedures differ, but typically, the defense must present some evidence of self-defense and then the prosecution bears the burden of disproving it. A successful self-defense claim results in an acquittal.

What Criminal Charges Can You Face After a Self-Defense Shooting?

Shooting and injuring or killing a person in self-defense could result in the following charges.

Murder

A person who shoots and kills someone can be charged with first-degree or second-degree murder. Both offenses are very serious and carry long prison sentences (potentially life), but second-degree murder is less serious than first-degree. A shooting that happens during an altercation will often be a second-degree murder if the jury finds that the defendant killed in response to the other person's provocation.

Voluntary Manslaughter

The prosecutor could also choose to file a charge of voluntary manslaughter (which might be known as third-degree murder or something else in some states). Voluntary manslaughter is a serious charge, but it's considered less blameworthy than murder.

Voluntary manslaughter results from a killing in "imperfect self-defense," which occurs when the defendant's fear of the aggressor was unreasonable or the defendant used too much force for the circumstances. This charge also results when the defendant kills rashly in a "sudden quarrel" or in the "heat of passion" (a highly emotional state), which could happen when the other person's threat or assault reasonably enrages the defendant.

Attempted Murder, Assault, and Mayhem

When a defendant shoots but doesn't kill someone, and the prosecutor doesn't believe the shooting was in self-defense, the defendant could be charged with a crime like attempted murder, assault with a deadly weapon, or mayhem.

Consult an Attorney

If you've brandished or fired a gun at someone, you should contact a lawyer immediately, whether or not you've been charged with a crime. Be sure to choose a local attorney with a lot of criminal defense experience. Ask the court for a public defender if you can't afford a private attorney.

An attorney can advise you whether to speak with the police about the incident (usually, the advice is not to). If the prosecution files charges, an experienced lawyer can protect your rights in what's normally a stressful and complicated process.