Massachusetts High Court: Stun Guns Are Protected Under the Second Amendment

Massachusetts being Massachusetts, legislators there had passed a law banning stun guns. Why? Because they could and besides, why should Bay Staters have any more personal protection options than their elected representatives can possibly get away with prohibiting?

Jaime Caetano was arrested for carrying a stun gun because she feared an abusive boyfriend. The Massachusetts high court upheld her conviction, ruling that stun guns weren’t protected under the Second Amendment because they didn’t exist when the Bill of Rights were drafted.

Her conviction was appealed and in 2016, the US Supreme Court, in an unusual unanimous decision, reversed that judgement, ruling that the Second Amendment protects more than just flintlocks and blunderbusses. SCOTUS sent the case back to the Massachusetts high court for more arguments.

Now the Massachusetts high court has ruled that, in fact, stun guns qualify as “arms” and, as such, are protected under the Second Amendment.

As Eugene Volokh reports,

Today’s decision doesn’t really much discuss the other arguments — e.g., the argument that stun guns are “dangerous and unusual,” because they aren’t common these days, or the argument that stun gun bans pass heightened scrutiny as public safety measures — but just concludes that,

Having received guidance from the Supreme Court …, we now conclude that stun guns are “arms” within the protection of the Second Amendment. Therefore, under the Second Amendment, the possession of stun guns may be regulated, but not absolutely banned. Restrictions may be placed on the categories of persons who may possess them, licenses may be required for their possession, and those licensed to possess them may be barred from carrying them in sensitive places, such as schools and government buildings. But the absolute prohibition … that bars all civilians from possessing or carrying stun guns, even in their home, is inconsistent with the Second Amendment and is therefore unconstitutional.

As Volokh points out, since the Heller decision, stun gun bans have been invalidated or repealed in about a dozen cities, states and territories around the US.

Stun gun bans remain in effect, to my knowledge, in Hawaii, New York, Rhode Island, and Wilmington (Delaware), plus some smaller towns. The Hawaii and New York laws are being challenged in court.

Established case law would seem to to be firmly on the side of those suing to overturn the bans.

The tradeoff: since they’re protected under the 2A, that means states and local governments can, just like firearms, ban prohibited persons from owning stun guns, designate no-go areas like hospitals and public transportation, and otherwise regulate their use. You takes the good with the bad.

 

 

comments

  1. avatar LarryinTX says:

    Got some problems, but nonetheless excellent. Wonder why I never heard about this unanimous SCOTUS decision?!

    1. avatar binder says:

      I known! That SCOTUS decision has some very interesting tidbits in it.

      But here is why no one is bothering with the decision:

      SCOTUS steered away from the “dangerous” term as the Massachusetts Court only classified them the stun guns as unusual. That pretty much kills it usefulness in any case were the State is claiming that the weapon is “dangerous”.
      I think SCOTUS also gave Massachusetts an out of they were willing to make an argument that a stun gun is a “dangerous” weapon. But I do not think that Massachusetts wanted any SCOTUS decision on what exactly constituents “dangerous”, not with a stun gun as your case example.

      https://www.supremecourt.gov/opinions/15pdf/14-10078_aplc.pdf

    2. avatar binder says:

      Also Volokh go it wrong. the argument was not ” dangerous and unusual” just “unusual”

    3. avatar Rick the Bear says:

      1) I believe that this case was decided by the SJC, not the SCOTUS.

      2) a Federal judge in MA just ruled that AR-style rifles are NOT covered by Heller.

      3) the “win” was that the statist SJC who, along with the AG, have been ignoring Heller, and yet, they ruled the correct way.

      4) this case is from almost 2 years ago.

      1. avatar binder says:

        Follow the link

    4. avatar 2aguy says:

      Because in Caetano v. Massachusetts Justice Alito destroys the “dangerous and unusual” argument against the AR-15 rifle…..they don’t want people to realize that the Supreme Court in Heller and Caetano already protect Semi automatic rifles….From Caetano….As to “dangerous,” the court below held that a weapon is “dangerous per se” if it is “ ‘designed and constructed to produce death or great bodily harm’ and ‘for the purpose of bodily assault or defense.’” 470 Mass., at 779, 26 N. E. 3d, at 692 (quoting Commonwealth v. Appleby, 380 Mass. 296, 303, 402 N. E. 2d 1051, 1056 (1980)).

      That test may be appropriate for applying statutes criminalizing assault with a dangerous weapon. See ibid., 402 N. E. 2d, at 1056. But it cannot be used to identify arms that fall outside the Second Amendment. First, the relative dangerousness of a weapon is irrelevant when the weapon belongs to a class of arms commonly used for lawful purposes. See Heller, supra, at 627 (contrasting “‘dangerous and unusual weapons’” that may be banned with protected “weapons . . . ‘in common use at the time’”).

      Second, even in cases where dangerousness might be relevant, the Supreme Judicial Court’s test sweeps far too broadly.

      Heller defined the “Arms” covered by the Second Amendment to include “‘any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another.’” 554 U. S., at 581.
      Under the decision below, however, virtually every covered arm would qualify as “dangerous.” Were there any doubt on this point, one need only look at the court’s first example of “dangerous per se” weapons: “firearms.” 470 Mass., at 779, 26 N. E. 3d, at 692.

      If Heller tells us anything, it is that firearms cannot be categorically prohibited just because they are dangerous. 554 U. S., at 636. A fortiori, stun guns that the Commonwealth’s own witness described as “non-lethal force,” Tr. 27, cannot be banned on that basis.——-

      1. avatar Sam I Am says:

        If Heller tells us anything…..

        It tells us that lower courts continue to bend, twist or ignore the ruling.

        As you interpret the ruling, it should be a silver bullet to stop dead any legislation that attempts to regulate semi-automatic weapons into uselessness. Not seeing where that is the outcome.

        And we cannot look to the SC to take on the major 2A issues that will be petitioned.

  2. avatar Survivordude1090 says:

    They can’t be protected! There’s no way to Founding Fathers could have imagined portable electric weapons! They weren’t around during the 1700’s therefore they can’t be protected!

    sarcasm*

    1. avatar Indiana Tom says:

      Well, if you flew a kite in a thunder storm and shot a guy with small arrows with wires from your bow….never mind.

    2. avatar Bloving says:

      Funny you should mention that: from some research I did on the history of electrically primed weapons none other than Benjamin Franklin had patented and marketed an early electric primer for detonating gunpowder. Not one of his more famous inventions but still…
      🤠

    3. avatar tmm says:

      I read the headline, was going to post some snarky comment about stun guns not being around when the founders were alive, and then I read the first two paragraphs of the story detailing that the Massachusetts high court had indeed made that argument. For a “living and breathing” document, it can sure stagnate, I guess. Relativism is rampant.

  3. avatar Warlocc says:

    Nice to win something now and then, here in the birthplace of the revolution…

  4. avatar Indiana Tom says:

    Now the Massachusetts high court has ruled that, in fact, stun guns qualify as “arms” and, as such, are protected under the Second Amendment.
    Geee….I cannot wait until real semi auto guns with box magazines are protected by the 2A. So a Ruger 10/22 with an overcapacity magazine is an “Assault Rifle”?

    1. avatar Rickster A-15 says:

      Yep mine is , in Good old N.Y. state. 10 round mag is the max. Use of any larger capacity magazine is a felony. Grab as many 10 round man’s as you can. While you still can.

  5. avatar TommyG says:

    Funny how the courts stop reading at the point where the 2nd says “the right of the people to keep and bear arms SHALL NOT BE INFRINGED”. Its the most strongly worded text in the whole bill of rights, yet they conveniently seem to ignore that part.

    1. avatar Baldwin says:

      “Therefore, under the Second Amendment, the possession of stun guns may be regulated…” Under the Second Amendment??? Shall. Not. Be. Infringed. Words mean things. Except, of course, when you’re legislating from the bench!

  6. avatar Sam I Am says:

    Ok. So the stun guns are protected by the second amendment. Stun gun bans still exist in various localities. What is the enforcement mechanism of the Supreme Court? What is the penalty for state and local governments completely ignoring the SC decision?

    Stun guns can be regulated into near uselessness (like firearms). Stun guns can still be classified as “dangerous” weapons.

    What was the actual “win” here?

    1. avatar binder says:

      Well they are not “unusual” and I think that no anti-gunner wants a Supreme Court case on what constitutes “dangerous” using a stun gun as the case example. But you are right, nothing.

    2. avatar Aaron M. Walker says:

      …Military comes to Massachusetts and drags treasonous corrupt Globalists in Massachusetts Government out of the halls of Government in chains…For “Infringing ” upon Freedom, Liberty 🗽, Life, and our very basic rights…And a restructuring of the Judiciary System in Massachusetts.. Since someone’s got to tell the judge there’s no such thing as a regulated, constitutional right… only infringement

      1. avatar Toni says:

        yes the big problem is the word regulated which they have changed the meaning of. in the days regulated meant “functioning properly” eg a clock that keeps time accurately. these days they have changed it to mean “as approved by law”. vast difference. these justices need to be dragged out of court and hanged at the very least if not given the centuries old treatment for treason of hang, draw and quarter with no burial but being scattered to the 4 winds out past national borders (preferably out to sea) and no memorial of any sort along with all record including birth records destroyed.

        there is good reason the punishment for treason was so harsh and that is that it had the capability to affect the whole nation not just for one generation but many generations to come

    3. avatar Gun Free School Zones are a crime against humanity says:

      Sam. I’m old enough to remember when southern states ignored the fed .gov and scotus on integration matters. The human and civil rights of the folks in question were enforced at bayonet point by army regulars and US marshals.

      All it would take is a potus that was tired of the bs to roll soldiers to enforce all our civil and human rights. And the scotus has the power to act thru the Marshals service.

      States ignoring or outright defying a scotus decision can carry a hefty penalty. All it would take is one bold(crazy?) move by Lord Trump and watch the defiant ones collapse.

      1. avatar Huntmaster says:

        Please don’t refer to him as Lord Trump.

        1. avatar Gun Free School Zones are a crime against humanity says:

          Lord Cheeto?

      2. avatar Sam I Am says:

        Brown vs. Board of Education had political support. SCOTUS did not roll soldiers into Little Rock to enforce the decision. The president ordered troops to enforce the ruling. “Gun rights” do not have widespread, or even powerful political support. No modern president is going to deploy troops to enforce pro-2A rulings from the SC.

        Considering the number of liberal controlled states (I include republicrats as “liberal”), there really would be an uprising if troops went to several states at once with the mission to enforce Heller, or whatever.

        1. avatar Gun Free School Zones are a crime against humanity says:

          It’s not a ‘gun’ thing, Sam. It’s a civil rights thing just like Brown. We need to keep that in the news.

        2. avatar Sam I Am says:

          It’s a civil rights thing just like Brown. ”

          No, it is a political thing, just like Brown. The political time had come. The prevailing notion was that segregation was unconstitutional, and ending “separate but equal” actually harmed no one, while extending the promises of the constitution to everyone. The SC recognized that nuances of law were only going to create more division and unrest.

          We have nothing like the conditions that ushered in Brown. The stark contrast is that Brown did not represent an ever present danger of death and injury to innocents. The second amendment is a boogyman for so much of the electorate.

  7. avatar TheUnspoken says:

    So when they ban the guns, we can keep the stun guns? Whew!

    But now you need your stun gun carry permit, stun gun purchase card, stun gun training class. May issue, must prove a need to stun?

    On side note, isn’t proving a need to likely kill someone almost admission of premeditated murder? “I need this gun because of the threats from my ex spouse.” “So your honor, the defendant had planned on killing their spouse…”

    2A absolutism or you get nothing. There are no common sense, reasonable regulations that do not devolve into infringements. By design.

    1. avatar IdahoBoy says:

      There are a limited number of people who should never, ever, ever, have access to a gun, knife, or pair of scissors.

      Other than that, any gun, any size, any make, any model, any giggle switch, for anybody.

  8. avatar Ranger Rick says:

    Tasers are the “hybrids” of the arms world. Air/gas fired and electrically charged. The “environmentally responsible” way to arm yourself….

  9. avatar 2aguy says:

    Caetano v. Massachusetts also body slams the idea that “dangerous and unusual” can be used to ban guns……any 2nd Amendment supporter should know this case for when some anti gunner tries to say AR-15s are dangerous and unusual…keep in mind, any vote for a democrat is a vote to end the 2nd Amendment. Only if the Republicans keep the Senate can Trump replace ginsburg, kennedy or breyer, and save Thomas’s seat if he retires….keep that in mind for November, along with all the other judicial nominees he can appoint.

    1. avatar TommyG says:

      Any non-vote for a Republican is a vote to end the 2nd amendment. The democrats will legislate firearms out of existence if they are able to obtain sizable majorities. I’m not saying their Republican opponents are roses, just that they are the best hope we have.

    2. avatar binder says:

      Read the actual decision, the ONLY thing that they judged on was that a “modern” weapon cannot be classified as UNUSUAL because it did not exist. NOTHING about dangerous

      https://www.supremecourt.gov/opinions/15pdf/14-10078_aplc.pdf

  10. avatar Green Mtn. Boy says:

    All arms,from spitwads out of straws,to well,name the arm and it’s covered by the Second Amendment and Shall Not Be Infringed !!!

  11. avatar DaveDetroit says:

    I’m shocked at the logic of the argument which would seem to validate that Free Speech includes technology not available when the 1st ammendment was written.

    Still, I don’t see the Free Speech being regulated, licensed or otherwise restricted. The only restriction should be punishment for actual crimes committed with “arms”. The 2nd ammendment is clear as written. Any artificial restrictions, are at best, unconstitutional, at worst a treason against the common citizen.

  12. avatar FedUp says:

    So, in their original decision, the Massholes declared that we have a right to M4s and M60s but no right to stun guns? I’d start carrying a select fire AR pistol if my state’s supreme court did that.

    https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/03/21/unanimous-pro-second-amendment-stun-gun-decision-from-the-supreme-court/

    Finally, the (Massachusetts) court used “a contemporary lens” and found “nothing in the record to suggest that [stun guns] are readily adaptable to use in the military.”

    1. avatar binder says:

      That is just because Massachusetts was grasping at straws. “select fire AR pistol” Really are you a Bloomberg troll?

      1. avatar FedUp says:

        Hey, they said, or at least strongly implied, that ‘military style’ weapons are the only ones protected by the 2A (which is in accordance with Miller). Then we could have a nice argument over whether a pistol length M4 was military enough for them.

        One word says it all: Massholes.
        Such people in positions of public power need to be humiliated on a daily basis until they resign their posts.

  13. avatar Ryan says:

    Nothing really surprises me anymore. Anyone who REALLY wants to know whats going on should definitely check this out, its a pretty scary warning from a history and religion professor. Pretty damn eye opening: https://ancientprophecy.weebly.com/

  14. avatar Jesse says:

    If they’re allowed, even though they weren’t around during the time the Bill of Rights was written, and they were given this guidance by the SCOTUS….

    Then why did the recent court in Massachusetts uphold a ban on AR-15s saying “they’re allowed to be banned because they weren’t around during the time the Bill of Rights was written”?

    Contradictory if you ask me unless I’m missing something

    1. avatar Binder says:

      “Caetano v. Massachusetts” They ONLY covered “unusual” and “old” and “not usefull for military”. “Dangerous” is still open.

      Read the court ruling, not what TAG and Volokh wrote and you will do better.

  15. avatar Hannibal says:

    Man I wish judges would have to face some sort of penalty for coming to such a ridiculous conclusion and having SCOTUS need to step in unanimously. They literally just ignored multiple Supreme Court cases to make that “well, they weren’t around back then” argument.

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