Right to Bear Stun Guns

Yesterday, the U.S. Supreme Court ruled a Massachusetts woman just might have a 2nd Amendment right to carry a stun gun. She was originally arrested, charged, and convicted of carrying a stun gun in violation of Massachusetts’s law. All agreed she bought and carried the stun gun for protection from her abusive ex-boyfriend. The Court, setting aside her conviction, essentially expanded the 2nd Amendment “right to bear arms” by suggesting a woman has a right to carry a stun gun, or taser, in public to defend herself.

A few states, including Massachusetts, New York, New Jersey, Rhode Island, and Hawaii, as well as several cities have passed laws that generally forbid the carrying of tasers or other similar electronic shock devices. Now, those laws are in question. Without specifically saying stun guns are specifically protected by the 2nd Amendment, the per curium opinion (an opinion in the name of the court rather than a judge or judges) held the Massachusetts court misunderstood the Supreme Court’s prior rulings on how to determine whether a particular weapon is protected or not. In short, the Supreme Court told Massachusetts to come up with a better reason for its prohibition if it wants to keep the prohibition.

The Massachusetts court made three arguments for upholding its law which forbids carrying stun guns in public.

First, Massachusetts said stun guns are not protected because they “were not in common use at the time of the Second Amendment’s enactment.” The Supreme Court found this theory unpersuasive and against its prior rulings. Just because a particular technology was not available or common in the 1800’s, does not mean the 2nd Amendment cannot protect it. Specifically, in its prior rulings, the Supreme Court has said the 2nd Amendment extends to arms that were not in existence at the time of the founding of our Amendments. (Heller court opinion)

Next, the Massachusetts court relied on its position that stun guns were dangerous and unusual as a reason for upholding its ban. The Supreme Court again found this theory without merit. The Supreme Court said Massachusetts equated “unusual” with “in common use at the time the 2nd Amendment was enacted.” And again, the Supreme Court stated the state could not rely upon only those arms that existed at the time of the Amendment.

Finally, the Massachusetts court stated stun guns were not of the type of weapon which would be readily accessible to the militia. Massachusetts based this on the 2nd Amendment itself and its language regarding a well regulated militia being necessary to justify the right of the people to keep and bear arms. Again, the Supreme Court took exception and reminded Massachusetts that its prior rulings did not limit the 2nd Amendment protection to only those weapons used in warfare.

Finding each of Massachusetts’ reasons flawed, the Supreme Court vacated or cancelled the woman’s conviction and directed the Massachusetts court to reconsider in light of the Supreme Court’s rationale and prior rulings.

With the Supreme Court issuing a very brief opinion, Justices Alito and Thomas entered their own concurring opinion to better explain their position. After detailing the events surrounding the abusive ex-boyfriend and the state of Massachusetts failing to protect her, they take Massachusetts to task for failing Ms. Caetano yet again:

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.

It is clear from these opinions that the 2nd Amendment is alive and well in the United States. The Supreme Court is unwilling to change its prior positions and looks for the states to get in line with the right to keep and bear arms.


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