Supreme Court Rules on Stun Guns—Sort Of

Following the March 21, 2016 United States Supreme Court decision reversing a Massachusetts court ruling that upheld a state law banning the possessing of stun guns, internet blogs blew up with stories that “stun guns are legal” or “the Supreme Court throws out bans on stun guns.”

Well, not so fast.

While it is true the Supreme Court reversed the Massachusetts court’s decision in Caetano v. Massachusetts, before one can jump to the conclusion that all other such bans on stun guns are now illegal, a careful analysis of the Supreme Court’s decision must be undertaken.

Background

In Commonwealth v. Caetano, the defendant, Jamie Caetano, was arrested for possession of a stun gun, claiming it was necessary to protect herself against an abusive former boyfriend, against whom she had obtained multiple restraining orders. Fearing for her   life, she obtained a stun gun for her own protection and threatened to use it upon her ex-boyfriend when he confronted her in a supermarket parking lot. He left, but the police arrested Ms. Caetano for possession of a stun gun in violation of a Massachusetts state law banning such possession. She was convicted and she appealed all the way to the Supreme Judicial Court of Massachusetts, which upheld the conviction. The case was then appealed to the U.S. Supreme Court in Caetano v. Massachusetts.

U.S. Supreme Court’s Decision

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, in basing its decision on the Supreme Court case D.C. v. Heller, 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.”

The court next proffered that 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 (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.”

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.”

The Supreme Court found the first argument to be meritless. “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.”

With regards to the second argument put forth, the Supreme Court stated “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.”

And finally, the Supreme Court dismissed the third argument because Heller rejected the proposition “that only those weapons useful in warfare are protected.”

The decision of the Supreme Court was unanimous and it issued an unsigned opinion. However, though it vacated the court’s decision, it sent the case back to the Massachusetts court for further review, presumably to consider whether the ban may still be justified by some sufficiently important government interest, just not the ones presented in its argument.

The unsigned opinion did not go so far as to strike down the law as being unconstitutional. It is giving the Massachusetts court another bite at the apple.

Analysis of Decision

This was a unanimous decision, unlike the two previous Second Amendment cases heard by this Court, D.C. v. Heller and McDonald v. City of Chicago, which were both 5-4 decisions.

It was also a decision handed down without oral argument and without full briefing on the merits, but based upon the petition for certiorari, a brief in opposition, and a reply brief. However, those formally dealt just with the question whether the Court should hear the case. The justices just seemed to think the reasoning of the decision was plainly wrong, and that was reason enough to reverse.

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, especially the four who dissented in Heller and McDonald; 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.

But only Justice Alito and Justice Thomas, in their concurring opinion, appeared to be willing to hold outright the Massachusetts’ ban was unconstitutional on its face.

Currently there is a stun gun case being litigated in the District of Columbia, and there are several states, cities and counties, that also ban stun guns that may find its laws being challenged in court, so the opportunity for the Supreme Court to address the constitutionality of such bans may find its way back before it in the near future.