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.