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Title: Unanimous pro-Second-Amendment stun gun decision from the Supreme Court
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Published: Mar 22, 2016
Author: By Eugene Volokh
Post Date: 2016-03-22 20:12:32 by tpaine
Keywords: None
Views: 12537
Comments: 77
Unanimous pro-Second-Amendment stun gun decision from the Supreme Court By Eugene Volokh March 22 at 8:16 AM In Commonwealth v. Caetano, The Massachusetts high court upheld Massachusetts’ total ban on stun gun possession. Yesterday’s Caetano v. Massachusetts decision from the Supreme Court reversed that Massachusetts decision and sent the case back to the Massachusetts court for further review (presumably to consider, for instance, whether the ban may still be justified by some sufficiently important government interest): The Court has held that “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding,” and that this “Second Amendment right is fully applicable to the States.” In this case, the Supreme Judicial Court of Massachusetts upheld a Massachusetts law prohibiting the possession of stun guns after examining “whether a stun gun is the type of weapon contemplated by Congress in 1789 as being protected by the Second Amendment.” The court offered three explanations to support its holding that the Second Amendment does not extend to stun guns. First, the court explained that stun guns are not protected because they “were not in common use at the time of the Second Amendment’s enactment.” This is inconsistent with D.C. v. Heller‘s clear statement that the Second Amendment “extends … to … arms … that were not in existence at the time of the founding.” The court next asked whether stun guns are “dangerous per se at common law and unusual,” in an attempt to apply one “important limitation on the right to keep and carry arms,” Heller; see ibid. (referring to “the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons’”). In so doing, the court concluded that stun guns are “unusual” because they are “a thoroughly modern invention.” By equating “unusual” with “in common use at the time of the Second Amendment’s enactment,” the court’s second explanation is the same as the first; it is inconsistent with Heller for the same reason. Finally, the court used “a contemporary lens” and found “nothing in the record to suggest that [stun guns] are readily adaptable to use in the military.” But Heller rejected the proposition “that only those weapons useful in warfare are protected.” For these three reasons, the explanation the Massachusetts court offered for upholding the law contradicts this Court’s precedent. Consequently, the petition for a writ of certiorari and the motion for leave to proceed in forma pauperis are granted. The judgment of the Supreme Judicial Court of Massachusetts is vacated, and the case is remanded for further proceedings not inconsistent with this opinion. A few thoughts (note that I co-filed an friend-of-the-court brief supporting review in this case): 1. This is a unanimous decision, unlike the court’s earlier Second Amendment cases — D.C. v. Heller and McDonald v. City of Chicago — which were 5-4. I doubt that Justices Stephen Breyer, Ruth Bader Ginsburg and Sonia Sotomayor, who were in the dissent in McDonald, are reconciled to those cases; I suspect they would be willing to overrule them if they had five votes to do so. But in this case, they were willing to accept them as given. 2. It was also a decision handed down without oral argument and without full briefing on the merits. (The parties filed a petition for certiorari, a brief in opposition, and a reply brief, but those formally dealt just with the question whether the court should hear the case.) The court thus seemed to view this as a very easy case. 3. The summary reversal also helps explain why the justices reversed only the Massachusetts high court’s conclusion that stun guns were definitionally excluded from Second Amendment protection: Whether the stun gun ban may still be justified is a more complicated question, which many justices may hesitate to resolve without oral argument and full briefing; and those justices might have thought that there’s no need to devote such resources to the case now, since the matter might go away if the Massachusetts high court on remand holds in Caetano’s favor. 4. Caetano’s petition and our amicus brief argued that there was a split between the reasoning of this decision and the Connecticut Supreme Court’s decision in State v. DeCiccio (which held that the Second Amendment protects dirks and police batons), as well as between this decision and the Michigan Court of Appeals’ decision in State v. Yanna, which struck down the Michigan stun gun ban. But the majority mentioned neither case, and Justice Samuel Alito’s concurrence in the judgment mentioned only Yanna, and that just in passing. The justices thus didn’t seem interested in the presence of this sort of disagreement among lower courts, though the presence of such a disagreement is often seen as a very important factor in the Supreme Court’s deciding whether to grant review. The justices just seemed to think the reasoning of the decision was plainly wrong, and that was reason enough to reverse — something the justices very rarely do (at least setting aside cases where a state government lost below). 5. Justices Alito and Clarence Thomas would have gone further and would have held outright that the Massachusetts ban was unconstitutional; their opinion was fairly long, but here’s an excerpt from the end: The reasoning of the Massachusetts court poses a grave threat to the fundamental right of self-defense. The Supreme Judicial Court suggested that Caetano could have simply gotten a firearm to defend herself. But the right to bear other weapons is “no answer” to a ban on the possession of protected arms. Moreover, 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. Countless people may have reservations about using deadly force, whether for moral, religious, or emotional reasons — or simply out of fear of killing the wrong person. “Self-defense,” however, “is a basic right.” 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. * * * 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 assume that Alito and Thomas are trying to (1) persuade lower courts, both the Massachusetts courts and other courts, that such bans are indeed unconstitutional and (2) to inform them that at least two justices are firmly against such stun gun bans — and the views of the six other justices are unknown, but might also ultimately align with Alito and Thomas, if the matter returns to the Court for full merits review. 6. Alito’s introductory paragraphs also struck me as quite rhetorically powerful — a fine example of the lawyer’s art: After a “bad altercation” with an abusive boyfriend put her in the hospital, Jaime Caetano found herself homeless and “in fear for [her] life.” She obtained multiple restraining orders against her abuser, but they proved futile. So when a friend offered her a stun gun “for self-defense against [her] former boy friend,” Caetano accepted the weapon. It is a good thing she did. 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.” It is settled that the Second Amendment protects an individual right to keep and bear arms that applies against both the Federal Government and the States. That right vindicates the “basic right” of “individual self-defense.” Caetano’s encounter with her violent ex-boyfriend illustrates the connection between those fundamental rights: By arming herself, Caetano was able to protect against a physical threat that restraining orders had proved useless to prevent. And, commendably, she did so by using a weapon that posed little, if any, danger of permanently harming either herself or the father of her children. Under Massachusetts law, however, Caetano’s mere possession of the stun gun that may have saved her life made her a criminal. When police later discovered the weapon, she was arrested, tried, and convicted. The Massachusetts Supreme Judicial Court affirmed the conviction, holding that a stun gun “is not the type of weapon that is eligible for Second Amendment protection” because it was “not in common use at the time of [the Second Amendment’s] enactment.” This reasoning defies our decision in Heller, which rejected as “bordering on the frivolous” the argument “that only those arms in existence in the 18th century are protected by the Second Amendment.” The decision below also does a grave disservice to vulnerable individuals like Caetano who must defend themselves because the State will not. 7. There’s a stun gun case being litigated now in D.C., and there are similar stun gun bans in New York, New Jersey, Hawaii and Rhode Island, as well as (as of 2009, when I wrote my “Nonlethal Self-Defense, (Almost Entirely) Nonlethal Weapons, and the Rights to Keep and Bear Arms and Defend Life,” article) the Virgin Islands, the Annapolis/Baltimore area counties, New Orleans, Philadelphia, Tacoma and several other cities. I expect there will be challenges to some of those laws as well. Connecticut, Illinois, Fargo, and Oklahoma City also ban carrying stun guns, though not possessing them at home; those laws might likewise be challenged. (Caetano herself was carrying a stun gun in public, but neither the Massachusetts ban nor the Massachusetts high court decision distinguished home possession of a stun gun from possession in public, so the Caetano Supreme Court opinion doesn’t decide whether the Second Amendment applies to possessing stun guns — or any other weapons — in public places Poster Comment: The Court has held that “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding,” and that this “Second Amendment right is fully applicable to the States."
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Begin Trace Mode for Comment # 26.
#5. To: tpaine (#0)
(Edited)
Prima facie, yes, but subject to further consideration and analysis. One cannot simply ban a weapon as not covered by the Constitutional protection. One has to have a defensible reason to do it. A suitcase nuke is a bearable weapon, but possession of one is not protected by the right to keep and bear arms.
suitcase nuke is a bearable weapon, but possession of one is not protected Forbidden by the 2nd. The constitution does NOT say that YOU get to decide. You'll need to get an amendment passed for your infringement schemes. Neighborhood Nuclear Superiority Now!
So hondo, you're another one. Tpaine and Hondo, two 2nd Amendment standard bearers who really believe that the 2nd Amendment protects their right to have a personal nuclear weapon in their basement. This is why you are losing your gun rights. Your absolutist position is nuts, and nuts shouldn't have weapons.
Poor vicomte, reduced to hyping a debate he's not smart enough to win. A personal nuclear weapon in the basement has never been at issue, -- as obviously, reasonable constitutionally based regulations can be written to solve that problem. The real problem with bearing arms has always been the insane opponents of the 2nd, like vicomte. -- They feel they have an inate power to prohibit their peers from enjoying life, liberty, and property. In a way, they're as fanatical as Muslims.
The problem is that folks like you, and apparently Hondo, will recognize no checks or balances on the 2nd Amendment. The question of nuclear weapons is a softball question, to which the obvious answer is "No". But the fact that you cannot bring yourself to answer "No" even to that is what makes you irrational. And your irrationality on the matter means that you're not included in the councils that have to set the boundaries on these things. You never get like-minded people on the Supreme Court, because crazy people don't get appointed to the Court. Unreasonable, irrational people who cannot simply acknowledge that, yes, there are in fact limits on the right to keep and bear arms, even when speaking of the obvious case of nuclear weapons, are not people who are allowed into positions of authority, because they demonstrate a lack of reality and judgment. Instead of just answering that "No, there's no right of individuals to keep and bear nuclear weapons" - the only possible right answer to the question - you resort to attacking my character and my intelligence. I'm not an opponent of the 2nd Amendment. I'm pretty neutral about it, or if anything inclined to support it. But I can't ally myself with nuts who call me a Muslim because they think that individuals have the right, guaranteed by the 2nd Amendment, to keep a nuke in their basement.
Poor vicomte, reduced to hyping a debate he's not smart enough to win. A personal nuclear weapon in the basement has never been at issue, -- as obviously, reasonable constitutionally based regulations can be written to solve that problem. The real problem with bearing arms has always been the insane opponents of the 2nd, like vicomte. -- They feel they have an inate power to prohibit their peers from enjoying life, liberty, and property. In a way, they're as fanatical as Muslims. It's a leading question, as any lawyer would know, which I've answered on point ad nauseam. Then I went on to question your character and intelligence for trying to use it in the debate.. As is well deserved. Your own words posted above in many ways, prove the opposite. The 2nd doesn't guarantee anyone having a nuke in the basement, as I've said before, and as you're unable to understand, -- being the fanatic you are.
Ok. Now we're getting somewhere. You've acknowledged that there is a line drawing exercise to be done, that the "right to keep and bear arms, shall not be infringed" does not mean unlimited right to anything that is called an arm. Nuclear weapons are arms, and you've acknowledged that the 2nd Amendment doesn't guarantee anybody's right to own one. So, we're back in the land of sanity. As with any right, it's a line-drawing exercise. The freedom of speech, which "shall not be infringed", can, in fact, be infringed - and always has been - when it comes to telling secrets to the enemy, sedition, fraud and slander. And the Second Amendment's protections do not apply to private ownership of nukes, chemical weapons and bioweps. Those things are not included in "the right to keep and bear arms". Flintlocks and swords clearly are. The line-drawing exercise comes in the matter of semi- automatic and automatic guns, and in the question of registration of guns. And there, when the line is drawn to say no machine guns, and no semi-auto weapons with more than magazines of a certain size, I am inclined to say that once the limit of what is within the right - that there should be no registration, no sales permitting, no license to carry, and no restrictions on carrying, except in certain obvious places like airplanes. Nor do I think that the simple fact of a crime conviction should cause a man to lose his right to vote or to bear arms. That's what "shall not be infringed" means to me. I don't believe that the states have the right to erect different laws that effectively trammel the right to bear arms. It's a national right, and the states should not be able to vitiate the right by local rules. I am not a state's rights guy when it comes to individual rights = I think the Constitutional right crushes state law to the contrary. But I'm not the President and not a Senator or Congressman, or Supreme, so my view accounts for the same as yours or anybody else's.
A Personal nuclear weapon in the basement has never been at issue, -- as obviously, reasonable constitutionally based regulations can be written to solve that problem. The real problem with bearing arms has always been the insane opponents of the 2nd. -- They feel they have an inate power to prohibit their peers from enjoying life, liberty, and property. In a way, they're as fanatical as Muslims. No, I've acknowledged that reasonable constitutionally based regulations can be written to solve the problem of possessing nuclear materials and/or other such weapons. It's nice to see you backing off from your more fanatical opinions. Keep up the good work.
#27. To: tpaine, down the slippery slope (#26)
You're sliding down the slippery slope of arms bans. Pretty soon you'll have nothing but a set of Magic Mormon underwear for protection. Good luck, you're going to need it.
Top • Page Up • Full Thread • Page Down • Bottom/LatestThe Court has held that “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms,
#14. To: Vicomte13, buckeroo, *Bang List* (#5)
has to have a defensible reason to do it
#15. To: hondo68 (#14)
(Edited)
#16. To: Vicomte13, Y'ALL (#15)
Tpaine and Hondo, two 2nd Amendment standard bearers who really believe that the 2nd Amendment protects their right to have a personal nuclear weapon in their basement.
#17. To: tpaine (#16)
The real problem with bearing arms has always been the insane opponents of the 2nd, like vicomte. -- They feel they have an inate power to prohibit their peers from enjoying life, liberty, and property.
#21. To: Vicomte13 (#17)
Tpaine and Hondo, two 2nd Amendment standard bearers who really believe that the 2nd Amendment protects their right to have a personal nuclear weapon in their basement.
Instead of just answering that "No, there's no right of individuals to keep and bear nuclear weapons" - the only possible right answer to the question -
- you resort to attacking my character and my intelligence.
I'm not an opponent of the 2nd Amendment. I'm pretty neutral about it, or if anything inclined to support it.
But I can't ally myself with nuts who call me a Muslim because they think that individuals have the right, guaranteed by the 2nd Amendment, to keep a nuke in their basement.
#25. To: tpaine (#21)
The 2nd doesn't guarantee anyone having a nuke in the basement, as I've said before, and as you're unable to understand,
#26. To: Vicomte13 (#25)
Ok. Now we're getting somewhere. You've acknowledged that there is a line drawing exercise to be done, that the "right to keep and bear arms, shall not be infringed" does not mean unlimited right to anything that is called an arm. -- Nuclear weapons are arms, and you've acknowledged that the 2nd Amendment doesn't guarantee anybody's right to own one.
Replies to Comment # 26. No, I've acknowledged that reasonable constitutionally based regulations can be written to solve the problem of possessing nuclear materials and/or other such weapons.
I'm sticking with my God given and constitutionally protecetd rights, thank you.
End Trace Mode for Comment # 26.
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