In a brief, unsigned per curiam opinion released today (PDF), the US Supreme Court basically told the Massachusetts Supreme Judicial Court (SJC) that it got the 2nd Amendment analysis completely wrong in the course of upholding the conviction of a woman found in violation of MA’s anti-stun gun law. But it did not foreclose the possibility that the conviction could ultimately stand.
Here’s what happened. Jaime Caetano was found in possession of a stun gun, which all agree is prohibited by a Massachusetts law that makes possession of such devices illegal except for law enforcement personnel or dealers. She appealed her conviction, claiming that her possession of the device was protected by the 2nd Amendment, especially as interpreted by the Supreme Court in District of Columbia v. Heller (which held that the 2nd Amendment is a personal right to bear arms) and McDonald v. Chicago (which held that states as well as the federal government are bound by the 2nd Amendment).
The SJC upheld Caetano’s conviction. In an opinion by Justice Spina, the SJC said that its task was to “determine whether a stun gun is the type of weapon contemplated by Congress in 1789 as being protected by the Second Amendment.” Already, you can see the seeds of where the SJC went wrong: it’s perfectly self-evident that nothing like a stun gun was contemplated in 1789, so that doesn’t seem like a very sensible question on which to base your analysis. The SJC went on to conclude that stun guns were “dangerous and unusual” weapons, that they therefore were excluded by Heller from 2nd Amendment protection, and that the Mass. statute was constitutional so the conviction should stand.
The US Supreme Court had very little trouble concluding that the SJC had gotten the analysis wrong. Here’s what it said:
The [SJC] 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 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 [of Heller‘s] “important limitation[s] on the right to keep and carry arms.” 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.
Oof. Shorter version: you blew it. Try again, and get it right this time.
Here are some important things to notice about this opinion. First, it does not create a constitutional right to possess stun guns. This is already being reported incorrectly – for instance, Bloomberg News said that “SCOTUS unanimously backs the rights of individuals to carry stun guns for self-defense.” Wrong. It did no such thing. Do you really think an opinion doing that would have been 8-0 6-0 [edited: Justices Alito and Thomas did not join the Court’s per curiam; instead, Justice Alito issued a separate opinion that Thomas joined]? The proof of this is the Court’s actual judgment. If the Court were really creating a constitutional right to possess stun guns, Caetano’s conviction would have been reversed, not vacated. Because the conviction was vacated, if the SJC reconsiders the case under the correct test and still concludes that the Second Amendment doesn’t apply, it can reinstate the conviction.
Second, this case was decided without full briefing or oral argument. It’s what is called a “summary reversal,” in which the Court (usually, as in this case, unanimously) agrees that it knows all it needs to know from the paper record in order to conclude that the lower court made a mistake. It is exceedingly rare for a summary reversal to break new legal ground. Rather, the Court uses summary reversals to correct obvious errors and to clarify what its precedent means. That is why all eight Justices six of eight Justices, including all the liberals, signed the opinion: even the ones who don’t like Heller could agree that the SJC misapplied it.
So, again: the Supreme Court did not just create a nationwide right to possess stun guns. What it did do is tell the SJC that just because stun guns weren’t around in 1789 doesn’t mean they’re not protected by the 2nd Amendment. They might be; then again, they might not. The SJC will have to reconsider the case, hopefully with a bit more attention to what Heller and McDonald actually say, and then we will see.
I like when you bring the lawyer stuff.
Heller created the individual right to bear arms, correct? What does McDonald say?
says that the 2nd Amendment applies with equal force to the states as to the federal government. Since Heller was about the DC government, the states weren’t involved, so the question remained open.
I would have argued that a stun gun is not an “arm” at all within the meaning of the 2nd amendment and therefore the Constitution says nothing one way or the other. As such, the state has plenary authority to ban their possession as they would any other dangerous item, just ’cause.
that’s essentially what the SJC held. The Supreme Court ruled that the SJC went about answering that question in the wrong way.
It seems to me that “arms”, as used in the Second Amendment, is synonymous with “guns”.
Even today, a “gun” is surely a weapon that causes a projectile to be directed towards a target with lethal velocity. It seems like a stretch to include BB guns, air-powered pellet guns, and so on, but perhaps that’s where we are. When I was a kid, we all had “air rifles” that used compressed air to make a “pop” when the trigger was pulled. We learned, on our first or second trip to the playground, that sticking the barrel into some mud would plug the tip with a clod of mud — that clod was then “shot” by the next trigger pull. When playing “army” or “cowboys and indians”, being hit by the clod eliminated all dispute about whether or not the shooter hit the mark. Are these protected by the Second Amendment? Similarly, Mattel corporation used to sell something called “Shootin’ shell” pistols and rifles that “fired” plastic “bullets” (using a spring in the “cartridge”). Are these also protected?
It seems to me that a key criteria that separates a real and toy gun is whether or not the weapon is lethal. A stun gun is, generally, not considered lethal.
I don’t see how a stun gun can be classified as a “gun”, and I therefore don’t see how the Second Amendment applies to it.
Taser refers to its weapons as “less lethal”.
in the SJC case asked that Court to hold that the total stun gun ban violates the right to keep and bear arms, “even if a reasonable regulation [rather than] a comprehensive ban would be constitutional.”
The statute at issue was enacted in 2004, before the Heller and McDonald decisions. Maybe the Lege will need to revisit stun guns and come up with a reasonable regulation.
I ask that question sincerely as I am unfamiliar with this issue. What is the rational to limit their application to law enforcement only from a public policy standpoint, constitutionality aside?
Seems to me there is an incongruity between allowing citizens to own deadly arms but preventing them from owning weapons that incapacitate rather than kill assailants. I know women, including some really liberal women, that conceal carry small guns or pepper spray in case they are attacked, stun guns seem like a potentially decent middle ground for them. I am open to hearing the contrary argument since I am genuinely curious.
In the underlying opinion:
Tell that to a grand jury anywhere in America.
Tell that to the NRA.
So my initial question remains unanswered. I didn’t ask if government can ban the stun guns I asked why it should? It seems to me if we can move the needle on the 30,000 deaths to 30,000 injuries from stun guns that’s a huge win. Even if we move it from 30,000 to 25,000 deaths and 5,000 were stunned instead that’s a huge win.
If a lawful gun owner perceives me to be a threat and kills me, there is little I can do about it after the fact. Recently there has been little juries, legislatures or high courts are apparently willing to do about it. But if I am stunned then I could conceivably sue. This seems to be a better outcome for all involved.
Mandating stun guns for cops would seemingly reduce police shooting deaths, and many here have supported that in other threads. Why not legalize them and wisely regulate them, especially since regulating them seems to fall into a nice constitutional grey area? Seems to take a big chunk of the self defense argument away from actual guns that actually kill people. Once again we seem to be missing the forest for the trees on this issue, but again, I am open to hearing why they are worse alternatives to lawful firearms.
carry a switchblade?
the SJC doesn’t know one of the most significant 2nd amendment decisions of the last 10 years. I think it’s a questionable decision, but it is a decision nevertheless.
And was the SJC trying to channel Scalia when they wrote, ” the SJC said that its task was to “determine whether a stun gun is the type of weapon contemplated by Congress in 1789 as being protected by the Second Amendment.” I almost wonder if they were trying to send a message.
the message was received and rejected.
The SJC clearly knew the 2nd amendment decisions. But if you listened to the SJC arguments on a number of 2nd amendment cases since Heller/McDonald – they also clearly think the Supreme Court decisions are just nuts. So perhaps they are going to just continue to try to make dents in those decisions and make the Supreme Court have to reject them each in turn. (of course the SJC will almost complete turn in the next 18 months or so – so the future is up for grabs)