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The Right to Bear Stun Guns (and arms)

In 2016, in Caetano v. Massachusetts, the United States Supreme Court – in a unanimous (per curium) decision – struck down a decision of the Supreme Judicial Court of Massachusetts that upheld a woman’s conviction for possession of a stun gun.

The woman obtained the stun gun from a friend, after allegedly suffering from abuse from the father of her children; abuse that apparently did not stop even after she obtained a 209A abuse prevention order (restraining order) against him.  At some point, the police discovered the stun gun in her purse, and she was charged with unlawful possession of a stun gun in violation of Massachusetts General Laws Chapter 140, section 131J, as then existing.[1]

The woman appealed her conviction to the SJC, which affirmed her conviction, holding that “a stun gun is not the type of weapon that is eligible for Second Amendment protection.”

The SJC based its decision on its finding that stun guns are both “dangerous and unusual,” and therefore not protected by the Second Amendment to the United States Constitution.  The SJC reasoned that since the stun guns that were banned by section G.L. c. 140, § 131J were those “portable device[s] or weapon[s] from which an electrical current, impulse, wave or beam may be directed, which current, impulse, wave or beam is designed to incapacitate temporarily, injure, or kill,” therefor such stun guns were dangerous per se (as opposed to dangerous as used).

As for finding that stun guns were “unusual,” the SJC reasoned that since stun guns are not suitable for militia or military use, and since they were not in common use (in fact did not exist) at the time of the enactment of the 2nd Amendment (two findings that the SJC considered interrelated), therefore they were unusual.

The SJC, having found that stun guns were dangerous and unusual, then held that the possession of stun guns was therefore not a right protected by the Second Amendment.  Consequently, the Massachusetts statute banning the possession of stun guns and tasers was lawful so long as it passed “rational basis” scrutiny, which of course it did.  Having found the statute lawful, the SJC then affirmed the woman’s criminal conviction.

The woman, Jaime Caetano, then appealed to the U.S. Supreme Court, which unanimously vacated the decision and remanded the case back to Massachusetts, where she was found not guilty after a jury-waived trial, and her record was sealed.

The Massachusetts statute was subsequently amended by the legislature, and it now states that it “shall not apply to stun guns.”

Although the United States Supreme Court’s decision was unanimous, Justices Alito and Thomas took the trouble to issue a separate, concurring opinion, which was particularly scathing and critical of the Massachusetts SJC’s decision.  A few choice passages follow, viz.:

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 boyfriend, 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” anymore 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.

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 District of Columbia v. 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.

The argument “that only those arms in existence in the 18th century are protected by the Second Amendment” is not merely wrong, but is “bordering on the frivolous.” Instead, we 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.” It is hard to imagine language speaking more directly to the point. Yet the Supreme Judicial Court (of Massachusetts) did not so much as mention it.

Electronic stun guns are no more exempt from the Second Amendment’s protections, simply because they were unknown to the First Congress, than electronic communications are exempt from the First Amendment, or electronic imaging devices are exempt from the Fourth Amendment.

The lower court’s ill treatment of District of Columbia v. Heller cannot stand. 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.

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.

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.

That’s the good stuff.  Thanks, Supreme Court.  Thanks for protecting our right to protect ourselves.

Happy Independence Day,

Attorney Kevin D. Quinlan

At Uxbridge, Massachusetts

July 3, 2020

[1] The statue as originally enacted in 1986 banned all possession of stun guns and tasers.  An amendment in 2004 authorized their possession only by law enforcement and corrections officers, and by sellers.