dick-heller-at-the-supreme-court-courtesy-seattletimes-com_

On 21 March of 2016, the Supreme Court issued a remarkable and, apparently to the Supreme Court, non-controversial decision. In the Caetano per curiam decision (pdf):

The Court has 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,” District of Columbia v. Heller, 554 U. S. 570, 582 (2008), and that this “Second Amendment right is fully applicable to the States,” McDonald v.Chicago, 561 U. S. 742, 750 (2010).

While the decision, which was unanimous, it has far reaching implications beyond mere stun guns. And stun gun bans have started falling like dominoes.

Massachusetts, perhaps surprisingly, has done nothing about their law, leaving it in limbo. Prosecutions remain unlikely. New Jersey is now in the process of reforming its ban on stun guns. And the city of New Orleans is facing a lawsuit aimed at its ban on stun guns.

From theadvocate.com:

A New Orleans man has taken aim at a city ordinance that forbids the possession and sale of stun guns, claiming the little-known ban violates his Second Amendment right to self-defense.

The legal challenge comes amid a mounting push to lift similar restrictions in the handful of jurisdictions around the country that outlaw Tasers and other electroshock weapons, including a case in New Jersey in which authorities recently acknowledged that state’s ban “would likely not pass constitutional muster.”

A lawsuit filed last week in U.S. District Court in New Orleans asks a judge to declare the city ordinance unconstitutional, calling the law “arbitrary and irrational.”

The New Orleans ban ordinance includes a number of other banned weapons as well. From municode.com:

It shall be unlawful for anyone knowingly to:
(1)
Sell, manufacture, purchase, possess or carry any blackjack, sandclub, metal knuckles, switchblade knife or spring knife, iron buckle, zip gun or stungun;

All of these instruments appear to be “bearable arms.” as covered by the Caetano decision.  Some, such as “sand clubs” might be viewed as “unusual”, though it’s hard to see how they are more dangerous than the common blackjacks or saps sold to law enforcement. It’s no different than a foot-long lenth of 3/4-inch galvanized pipe that’s sold in every hardware stores for less than three dollars.

I expect to see more bans on stun guns and other common bearable arms to fall. Currently, Hawaii, Massachusetts, New York, and Rhode Island have such bans in place. It’s likely there are a number of local bans on various weapons, such as the one in New Orleans. All are now ripe for challenge in the courts.

The Caetano ruling is sure to be cited far into the future.

©2016 by Dean Weingarten: Permission to share is granted when this notice and link are included.
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31 Responses to Caetano Ruling Used to Challenge Another Stun Gun Ban

  1. Is it a good thing, or bad, that the SC decisions must be further litigated in states in order to obtain enforcable results? Is this a matter of “states rights” vs. federal law? Apparently, if the SC were to issue a ruling stating that 2A is absolute, than no form of weapon can be regulated by the federal governnment AND the individual states and subdivisions, citizens of the several states would need to go into federal court to seek a federal injunction against states who have any sort of weapon control on the books. Is this a constitutional republic in action, or states invoking the 10th, or just lawlessness wherein states refuse to alter laws until facing federal court action (and maybe US Marshals)?

    • Having the laws on the books is not in and of itself unconstitutional – most Southern states still have sodomy laws on the books even after Lawrence v. Texas decision. It’s the attempt to actually enforce those laws that would be refusal to abide by the Supreme Court ruling.

      If we were talking about a different court, refusal to abide would be considered contempt of court. I’m actually curious as to how this applies wrt SCOTUS, and what enforcement mechanisms exist. Can SCOTUS use the Supreme Court Police as a lower federal court would use marshals, for example?

      • Federal Marshal Service is the para-military arm of the SC (and all federal courts). U.S. Marshals were how federal courts enforced law in territories that were not states (think Wyatt Earp).

        • Can you provide a source?

          Looking around, I can’t find any references to an agency known as “Federal marshal service”. I see US Marshals Service:

          https://www.usmarshals.gov/

          about which Wikipedia says, among other things:

          “Not to be confused with Marshal of the United States Supreme Court.”

          “The Marshals Service is attached to the Judicial branch of government, and is the enforcement arm of the federal courts. ”

          And the only other mention of SCOTUS is in this snippet from the Judiciary Act:

          “And be it further enacted, That a marshal shall be appointed in and for each district for a term of four years, but shall be removable from office at pleasure, whose duty it shall be to attend the district and circuit courts when sitting therein, and also the Supreme Court in the district in which that court shall sit;. And to execute throughout the district, all lawful precepts directed to him, and issued under the authority of the United States, and he shall have the power to command all necessary assistance in the execution of his duty, and to appoint as shall be occasion, one or more deputies.”

          Which seems to imply that SCOTUS cannot use USMS country-wide. Then with respect to Marshal of SCOTUS, it says:

          “The Marshal of the United States Supreme Court is the person, similar to a bailiff, who attends the Supreme Court of the United States. The Marshal of the United States Supreme Court controls the United States Supreme Court Police, a security police service answerable to the court itself rather than to the president or attorney general. It handles security for the Supreme Court building and for the justices personally, and undertakes whatever other missions the court may require.”

          And quotes 28 U.S.C. § 672:

          “(c) The marshal shall:

          (2) Serve and execute all process and orders issued by the Court or a member thereof;”

          But then adds:

          “See also:
          United States Marshals Service – The United States Marshals Service also executes all lawful writs, processes, and orders issued under the authority of the United States, and shall command all necessary assistance to execute its duties.”

          So now I’m even more confused than before I read all this stuff. Can SCOTUS judges declare someone to be in contempt of SCOTUS? If so, what specific actions follow, and who performs them? Did it ever happen before, or is it all hypothetical?

        • Correct. I was trying to “thread the needle” between official nomenclature, and the association between marshals and federal courts.

      • Looked it up; SCOTUS has its own Marshal (Marshal of the Supreme Court), similar to a Baliff. There is a United States Supreme Court Police. Seems to be focused on security of the court and members (like Secret Service for POTUS). The USSCP also “undertakes whatever other missions the court may require.” This organization may have capability to “enforce” SC decisions (warrants), but is not an investigative agency. Should the USSCP arrest someone (other government official) for contempt of SCOTUS, not sure where a trial would be conducted, or by whom.

        • It feels like a rather gaping hole in the whole set of arrangements. And also one that could actually have bipartisan support to fix – there are constitutional issues that are important to either party, and that would strongly offend their voters if the states just started to ignore them.

  2. The states that ban legally-protected bearable arms simply do not care that they are violating the law. In fact, they revel in it, as there are no penalties for their violations. The worst that can happen is that their offending laws are reversed by a court with a conscience (and there aren’t many of those), after great cost and many years of litigation.

    Sure, there are times when the states and localities have to write a check, but why would they care? It’s not their money.

    Nothing will change until officials are escorted out of their taxpayer-paid offices in handcuffs. Which will never happen.

    • I am not as pessimistic as you, Ralph. Your description of the current situation is spot on, but things have been changing in 2A jurisprudence. They are likely to change a lot more if Trump gets a second Supreme Court pick. We are two justices away from giving Supreme Court teeth to the Second Amendment. We have serious possibility for federal legislation with penalties.

      • My understanding of current, and likely future, state actions is about the same as Ralph’s. Lower courts (federal and state) are unfazed by SCOTUS rulings when guns are involved. More pro-gun decisions out of the SC will not change that. Where states (legislatures) are moving toward more 2A freedom, courts are still packed with SJWs. Only jail time, or treasury bankrupting court orders for rebellious states will change things.

        • Fines and Jail time for violating rights could work, if penalties are put into effect for federal laws. The mechanisms are all in place. Only penalties need be added. We are already seeing changes in how the officials in Illinois are acting.

          It is a change that can happen. It may under a Trump administration.

      • “I am not as pessimistic as you, Ralph.”

        I am as pessimistic as Ralph. Grab from Wiki

        On February 27, 2014 California Attorney General Kamala Harris filed a petition for en banc review of the decision. As the state was not a formal party of the case, her action is not an appeal, but merely a request that the full court re-hear the case en-banc on its own initiative. The court denied Harris’ petition on November 12, 2014.[5][6][7][8][needs update]

        BUNCH OF LEGAL MANEUVERING Then…

        On June 9, 2016, the en banc court affirmed the lower court ruling, saying that “there is no Second Amendment right for members of the general public to carry concealed firearms in public.” [10] The en banc ruling did not address the constitutionality of restrictions on open carry, leaving that matter open to potential future litigation.

        The right to lawful self defense deined by California Attorney General Kamala Harris via petition to 9th Circuit is now Senator Harris, Boxer’s replacement in which no republican attempted to oppose during this election.

        Yeah left coast is getting the bone of 62% of democrats, with the help of 1 million illegal immigrants registered to vote. Lawful self defense will go the way of England in 10 years.

    • It depends where you are in the country. Some state and local governments actually do follow the law even if they disagree with it.

      My state used to limit CCW permits to US citizens but not legal resident aliens. After court decisions elsewhere struck down that distinction, my state changed its law to match. My city has a handgun registration ordinance that also was limited to US citizens. After a resident alien filed suit, the city amended the ordinance without forcing the plaintiff into a protracted court battle.

      The city just across the border in the adjacent state runs traffic cameras. One of the conditions for maintaining the cameras is that accidents at the site must go down after they are installed. I know of at least one camera that was taken down after the data failed to show that it enhanced safety.

      I know other states aren’t so honorable. It will take time and penalties that adversely affect politicians’ and bureaucrats’ lives to bring them around. I suspect we will see this happen with “sanctuary” cities.

    • In light of Caetano the only thing needed is that a sporting goods store, or any other legitimate business, start stocking and selling stun guns. If TPTB tries to enforce the law and bring criminal charges against the shop, the law is defeated by default, at no cost to the ‘criminal’ (“right to an attorney” and all that). I think.

      • Merchant companies are…..merchants; not 2A activists. The overwhelming majority of what we call “businesses” are risk-averse.

        Any entity deciding to defy state and local laws in order to create a legal challenge will incur all the direct and indirect costs getting to “success”. That could be a huge amount of money “at risk”, with no certainty of recovery.

        It will take individuals to bring states into compliance. Courts will come into compliance only upon expiration of large number of judges….assuming replacement with jurists, not activists.

  3. My daughter spent time in New York city. I was going to give her a Kimber Pepper Blaster and checked the laws there. You can’t legally provide it unless you purchase it from a licensed pharmacy and none of them actually sell it. Wow, what a surprise you can’t get a stun gun. This is just another reason I will never set foot in that f’ing city again.

    • fwiw, get a regular good quality pepper spray like fox labs or sabre red. The pepper blaster gives exactly 2 shots and if you miss you’re boned. A decent pepper spray, even a pen sized one, will give you 10 to 20 1 second bursts. Much better odds of hitting your target.

  4. Dean – thanks for listening. This is exactly the kind of thing I’m talking about:

    “I expect to see more bans on stun guns and other common bearable arms to fall. ”

    That’s totally appropriate. Had you worded it “More bans on stun guns and bearable arms will fall as well”, that would be opinion being stated as fact. But in this case, you worded it perfectly and professionally. Thanks for all the hard work you put in to bring us these stories, and thanks for listening and working to make them more accurate.

  5. “more dangerous than the common blackjacks or saps sold to law enforcement…”

    Blackjacks and saps are not ‘common’ to law enforcement (anymore!). I still see them marketed in ‘police’ magazines but I suspect the people buying them aren’t cops looking to carry them for work.

  6. Strangely enough, sand clubs are covered in some old military manuals.

    If anything, that would make them an arm sutable for military service.

  7. Had a look at Watson v Lynch and Hollis v Lynch this morning and both cases appearing to be referencing this case as well in an attempt to further their own.

    On a side note, they’re also using FOIA results from the ATF (information that was denied during discovery) to show machine guns are not “unusual” based on ATF’s own data showing nearly. 200k in legal possession.

  8. If the Marshals service has been around for well over a hundred years why do we need that F***ing bunch of idiots called the FBI? All they are is the Presidents SS tasked to harass the common citizen. They were not set up by our forefathers, who saw no need or had a desire for the “Kings agents” to violate the rights of the Free people of the Republic. They seem to act at the behest of the federal government and are not elected unlike our County and City sheriffs who are beholden to the Electorate.

  9. Love your work, Dean!

    Can’t believe that you didn’t mention Justices Alito and Thomas’ concurring opinion! Direct from the issued opinion on SCOTUS Blog:
    “Moreover, a weapon is an effective means of self-defense only if one is prepared to use it…Courts should not be in the business of demanding that citizens use more force for self-defense than they are comfortable wielding.”

    Now THAT’S as declarative as you get! Between Caetano, the concurrence, and the state mandate on reasonable force (Diffendal vs. Commonwealth), I expect the Virginia ban on switches, blackjacks, etc to collapse like the house of cards they are in the 2017 session. I’ll let you know how it turns out at GRPC in Dallas!

  10. The Supreme Court has no enforcement arm
    The Cherokee Indians won their lawsuit against the State of Georgia and President Jackson refused to enforce it
    He famously said “John Marshal has made his decision, now let him enforce it”
    This led directly to the Trail of Tears forced Indian removal from Georgia and the deaths of thousands of Cherokee

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