BREAKING: US Supreme Court Throws Out Massachusetts Stun Gun Ban

In the first example of the Court’s post-Scalia jurisprudence on guns, the United States Supreme Court today threw out a Massachusetts Supreme Judicial Court decision that stun guns were not covered under the meaning of the Second Amendment’s protection of the individual right to keep and bear arms because they are “dangerous and unusual” devices that didn’t exist at the time the 2A was drafted . . .

The case at bar, Jamie Caetano v. Massachusetts involved a defendant — a 4’11” woman residing in the Commownealth of Massachusetts — who had been given a stun gun by a friend for the purposes of protecting herself against an abusive ex-paramour, who was also the father of her two children. Caetano had allegedly been beaten previously by her ex so severely as to require medical attention.

Her acquisition of the stun gun apparently saved her from further injury.

One night after leaving work, Caetano found her ex-boyfriend “waiting for [her] outside.” He “started screaming” that she was “not gonna [expletive deleted] work at this place” any more because she “should be home with the kids” they had together. Caetano’s abuser towered over her by nearly a foot and outweighed her by close to 100 pounds. But she didn’t need physical strength to protect herself. She stood her ground, displayed the stun gun, and announced: “I’m not gonna take this anymore. . . . I don’t wanna have to [use the stun gun on] you, but if you don’t leave me alone, I’m gonna have to.” The gambit worked. The ex-boyfriend “got scared and he left [her] alone.”

Caetano v. Massachusetts, 577 U.S. ___ (2016) (Alito, J., concurring) (citations omitted).

Caetano was subsequently arrested by the police for possession of a stun gun in violation of Massachusetts General Law ch. 140, §131J, which bans “electric-based weapons” in the Bay State. At the time of her arrest, she was effectively homeless, living in a rented motel room. She was convicted of being in violation of the statute, which carries a minimum penalty of a fine between $500 to $1000 or a prison sentence of between 6 months to 2.5 years.

The Massachusetts Supreme Judicial Court, in unintentional affirmation of Charles Dickens’ famous dictum, held last year that the conviction would stand because stun guns weren’t protected by the Second Amendment, which protects the individual right to “keep and bear arms.” A decision which surprised virtually no one.

The U.S. Supreme Court’s per curiam opinion issued today overturned that ruling, holding that the Massachusetts court’s reasoning on the question of whether or not stun guns were protected by the Second Amendment failed for three reasons:

(1) The Massachusetts Court held that stun guns were not protected by the 2A because stun guns “were not in common use at the time of the Second Amendment’s enactment”. The Supreme Court rejected this as a direct affront to the landmark Heller decision, which explicitly holds that the 2A “extends…to…arms…that were not in existence at the time of the founding.”
(2) The Massachusetts Court’s holding that stun guns were “dangerous and unusual” devices in part because they were “a thoroughly modern invention” fell for a similar reason. The Supreme Court noted that “[b]y equating ‘unusual’ with ‘in common use at the time of the Second Amendment’s enactment,’ the [Massachusetts] court’s second explanation is the same as the first; it is inconsistent with Heller for the same reason.”
(3) Finally, the Massachusetts Court’s holding that stun guns were not “readily adaptable to use in the military” fell because “Heller rejected the proposition ‘that only those weapons useful in warfare are protected.’”

As a result, the Court vacated the Massachusetts court’s holding, and remanded the case “for further proceedings not inconsistent with this opinion.” In other words: try this one again, guys, and this time follow what the damned Heller decision said, not what you wish it said.

The Court’s opinion was issued per curiam, which means that the opinion was issued in the name of the Court, rather than being issued in the names of any particular justice. As the Cornell Legal Information Institute describes it, per curiam opinions generally “deal with issues the Court views as relatively non-controversial.” These opinions don’t have to be unanimous; dissenting opinions can be offered if people feel strongly about it (as happened in a little case over some election in Florida a long time ago known as Bush v. Gore.)

In this case, no dissenting opinions were offered. No one wanted to go to bat for the Massachusetts court’s specious, jury-rigged reasoning on the meaning of the Second Amendment.

Justice Samuel Alito did issue a concurring opinion, joined by Justice Clarence Thomas, going even further than the per curiam opinion, taking the Massachusetts court to task. He recounted the world more about Caetano’s story (quoted above) and further dismantling the Massachusetts court’s reasoning. He asserted that the underlying purpose of the Massachusetts decision was to undermine the right of an individual to keep and bear any kind of ‘modern’ armament:

the court seized on language, originating in United States v. Miller, that “‘the sorts of weapons protected were those “in common use at the time.”’” That quotation does not mean, as the court below thought, that only weapons popular in 1789 are covered by the Second Amendment. It simply reflects the reality that the founding-era militia consisted of citizens “who would bring the sorts of lawful weapons that they possessed at home to militia duty,” and that the Second Amendment accordingly guarantees the right to carry weapons “typically possessed by law-abiding citizens for lawful purposes….” While stun guns were not in existence at the end of the 18th century, the same is true for the weapons most commonly used today for self-defense, namely, revolvers and semiautomatic pistols. Revolvers were virtually unknown until well into the 19th century, and semiautomatic pistols were not invented until near the end of that century.

Here’s the coup de grace:

Electronic stun guns are no more exempt from the Second Amendment’s protections, simply because they were unknown to the First Congress, than electronic communications are exempt from the First Amendment, or electronic imaging devices are exempt from the Fourth Amendment.

(Citations and footnotes omitted.)

Justice Alito also heaped scorn on the Massachusetts court’s attempt to argue that stun guns were exempt from the 2A because they were both ‘dangerous and unusual’.

A weapon may not be banned unless it is both dangerous and unusual. Because the Court rejects the lower court’s conclusion that stun guns are “unusual,” it does not need to consider the lower court’s conclusion that they are also “dangerous.” But make no mistake — the decision below gravely erred on both grounds….
[A] weapon is “dangerous per se” if it is “ ‘designed and constructed to produce death or great bodily harm’ and ‘for the purpose of bodily assault or defense.’” That test may be appropriate for applying statutes criminalizing assault with a dangerous weapon. First, the relative dangerousness of a weapon is irrelevant when the weapon belongs to a class of arms commonly used for lawful purposes. Second, even in cases where dangerousness might be relevant, the Supreme Judicial Court’s test sweeps far too broadly. Heller defined the “Arms” covered by the Second Amendment to include “‘any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another.’” Under the decision below, however, virtually every covered arm would qualify as “dangerous.”

Yes, kind of funny the way the Massachusetts decision leads us to the conclusion that every arm is ‘dangerous’, and therefore liable to be banned, no? (Also, for my money, we don’t useth the word ‘useth’ nearly enough nowadays.)

Justice Alito also went on to point out that military and law enforcement can, indeed, use stun guns for crowd control purposes, a point that somehow escaped the attention of the esteemed justices in Boston.

He concluded his concurring opinion by calling out the Massachusetts court for suggesting that the defendant could have simply acquired a firearm for self-defense purposes. Citing Heller again, Alito pointed out that “the right to bear other weapons is ‘no answer’ to a ban on the possession of protected arms.” He also pointed out something that could have been from the Col. John Cooper school of self-defense:

“a weapon is an effective means of self-defense only if one is prepared to use it, and it is presumptuous to tell Caetano she should have been ready to shoot the father of her two young children if she wanted to protect herself. Courts should not be in the business of demanding that citizens use more force for self-defense than they are comfortable wielding…. I am not prepared to say that a State may force an individual to choose between exercising that right and following her conscience, at least where both can be accommodated by a weapon already in widespread use across the Nation.”

Thus, Alito stands up for a woman’s right to choose. Good for him.

The only thing I would have added to Justice Alito’s opinion here is that the Commonwealth of Massachusetts has erected several barriers against the carriage of firearms by its residents. Not only is there a $100 fee for application and a requirement that the applicant take a training course, but the local authorities appear to have a degree of discretion in the issuance of these licenses. Do you think the local police in Massachusetts would be energetic in issuing a license to a woman who is an itinerant, living in a motel room, with no fixed address?

Alito’s closing statement should be taken as a warning to all of us concerned about civil liberties:

A State’s most basic responsibility is to keep its people safe. The Commonwealth of Massachusetts was either unable or unwilling to do what was necessary to protect Jaime Caetano, so she was forced to protect herself. To make matters worse, the Commonwealth chose to deploy its prosecutorial resources to prosecute and convict her of a criminal offense for arming herself with a nonlethal weapon that may well have saved her life. The Supreme Judicial Court then affirmed her conviction on the flimsiest of grounds. This Court’s grudging per curiam now sends the case back to that same court. And the consequences for Caetano may prove more tragic still, as her conviction likely bars her from ever bearing arms for self defense.
If the fundamental right of self-defense does not protect Caetano, then the safety of all Americans is left to the mercy of state authorities who may be more concerned about disarming the people than about keeping them safe.

I have to admit I was afraid of what the first post-Scalia decision on the 2A might look like. Given the manner in which the Court studiously avoided taking any more 2A cases, I was afraid that Scalia, Thomas, and Alito were barely holding the line against what might have been an unstoppable left-wing anti-gun flood. This decision is, on its face…surprisingly not bad.

No one stepped up to dissent. The Alito concurrence put to bed a lot of arguments that have been proffered post-Heller by the anti-gun crowd. It would have been far better if the Court had issued the opinion by Alito, and his line about the decision being “grudging” does not indicate that more awesomeness is in the hopper…but I guess beggars can’t be choosers.

In my more paranoid moments, it almost makes we wonder if, given the controversy surrounding potential replacements for Scalia and the sometimes heated rhetoric in this election year if there is a bit of political ‘strategery’ going on here by someone. Or, maybe I should just relax. Sometimes a win is just a win. And make no mistake: the good guys won today.

[h/t Sebastian @ Shall Not Be Questioned]

DISCLAIMER: The above is an opinion piece; it is not legal advice, nor does it create an attorney-client relationship in any sense. If you need legal advice in any matter, you are strongly urged to hire and consult your own counsel. This post is entirely my own, and does not represent the positions, opinions, or strategies of my company or its clients.

Originally published at on March 21, 2016.