The U.S. Supreme Court has held that the Second Amendment gives people the right to have guns and use them for self-defense. (New York State Rifle & Pistol Association v. Bruen, 597 U.S. __ (2022).)
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.
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.)
The law doesn't excuse all violent acts merely because another person struck the first blow or made a violent threat. Traditional self-defense laws require a person who's being attacked or threatened to:
In many states, when someone threatens or assaults another, the victim usually must retreat if possible, instead of responding with force. In these states, if the victim is charged with a crime and claims self-defense, the jury normally must consider whether the victim—now the defendant—had a reasonable opportunity to retreat and didn't take it. (But read below about the "castle doctrine" and "stand your ground.")
Usually, a successful self-defense argument in these states requires evidence that the defendant couldn't retreat—for example, because the attack was ongoing, the defendant was trapped, or the defendant tried to leave but was followed by the aggressor.
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 under the circumstances.
When an attacker raises a fist or throws a punch, the victim can't just pull a gun and shoot without trying another way to fend off the attack. A gunshot in these circumstances would normally be more force than necessary for self-protection. Before using deadly force, a victim must fear being gravely injured or killed, and that fear must be reasonable.
When an attacker waives or shoots a gun, pulling a gun or shooting back could well be legitimate self-defense. In some situations, using a gun in self-defense could also 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.
In most 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."
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.
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.
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.
If the prosecutor believes the killing wasn't in self-defense, the defendant could be charged with a number of offenses, several of which we cover 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.
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.
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. Another classic example of "heat of passion" is someone walking in on their partner having an affair and resorting to violence in a fit of rage.
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.
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.
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.