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In the first example of the Court’s post-Scalia jurisprudence on guns, the United States Supreme Court today threw out a Massachusetts Supreme Judicial Court decision that stun guns were not covered under the meaning of the Second Amendment’s protection of the individual right to keep and bear arms because they are “dangerous and unusual” devices that didn’t exist at the time the 2A was drafted . . .

The case at bar, Jamie Caetano v. Massachusetts involved a defendant — a 4’11” woman residing in the Commownealth of Massachusetts — who had been given a stun gun by a friend for the purposes of protecting herself against an abusive ex-paramour, who was also the father of her two children. Caetano had allegedly been beaten previously by her ex so severely as to require medical attention.

Her acquisition of the stun gun apparently saved her from further injury.

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” any more 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.”

Caetano v. Massachusetts, 577 U.S. ___ (2016) (Alito, J., concurring) (citations omitted).

Caetano was subsequently arrested by the police for possession of a stun gun in violation of Massachusetts General Law ch. 140, §131J, which bans “electric-based weapons” in the Bay State. At the time of her arrest, she was effectively homeless, living in a rented motel room. She was convicted of being in violation of the statute, which carries a minimum penalty of a fine between $500 to $1000 or a prison sentence of between 6 months to 2.5 years.

The Massachusetts Supreme Judicial Court, in unintentional affirmation of Charles Dickens’ famous dictum, held last year that the conviction would stand because stun guns weren’t protected by the Second Amendment, which protects the individual right to “keep and bear arms.” A decision which surprised virtually no one.

The U.S. Supreme Court’s per curiam opinion issued today overturned that ruling, holding that the Massachusetts court’s reasoning on the question of whether or not stun guns were protected by the Second Amendment failed for three reasons:

(1) The Massachusetts Court held that stun guns were not protected by the 2A because stun guns “were not in common use at the time of the Second Amendment’s enactment”. The Supreme Court rejected this as a direct affront to the landmark Heller decision, which explicitly holds that the 2A “extends…to…arms…that were not in existence at the time of the founding.”

(2) The Massachusetts Court’s holding that stun guns were “dangerous and unusual” devices in part because they were “a thoroughly modern invention” fell for a similar reason. The Supreme Court noted that “[b]y equating ‘unusual’ with ‘in common use at the time of the Second Amendment’s enactment,’ the [Massachusetts] court’s second explanation is the same as the first; it is inconsistent with Heller for the same reason.”

(3) Finally, the Massachusetts Court’s holding that stun guns were not “readily adaptable to use in the military” fell because “Heller rejected the proposition ‘that only those weapons useful in warfare are protected.'”

As a result, the Court vacated the Massachusetts court’s holding, and remanded the case “for further proceedings not inconsistent with this opinion.” In other words: try this one again, guys, and this time follow what the damned Heller decision said, not what you wish it said.

The Court’s opinion was issued per curiam, which means that the opinion was issued in the name of the Court, rather than being issued in the names of any particular justice. As the Cornell Legal Information Institute describes it, per curiam opinions generally “deal with issues the Court views as relatively non-controversial.” These opinions don’t have to be unanimous; dissenting opinions can be offered if people feel strongly about it (as happened in a little case over some election in Florida a long time ago known as Bush v. Gore.)

In this case, no dissenting opinions were offered. No one wanted to go to bat for the Massachusetts court’s specious, jury-rigged reasoning on the meaning of the Second Amendment.

Justice Samuel Alito did issue a concurring opinion, joined by Justice Clarence Thomas, going even further than the per curiam opinion, taking the Massachusetts court to task. He recounted the world more about Caetano’s story (quoted above) and further dismantling the Massachusetts court’s reasoning. He asserted that the underlying purpose of the Massachusetts decision was to undermine the right of an individual to keep and bear any kind of ‘modern’ armament:

the court seized on language, originating in United States v. Miller, that “‘the sorts of weapons protected were those “in common use at the time.”’” That quotation does not mean, as the court below thought, that only weapons popular in 1789 are covered by the Second Amendment. It simply reflects the reality that the founding-era militia consisted of citizens “who would bring the sorts of lawful weapons that they possessed at home to militia duty,” and that the Second Amendment accordingly guarantees the right to carry weapons “typically possessed by law-abiding citizens for lawful purposes….” While stun guns were not in existence at the end of the 18th century, the same is true for the weapons most commonly used today for self-defense, namely, revolvers and semiautomatic pistols. Revolvers were virtually unknown until well into the 19th century, and semiautomatic pistols were not invented until near the end of that century.

Here’s the coup de grace:

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.

(Citations and footnotes omitted.)

Justice Alito also heaped scorn on the Massachusetts court’s attempt to argue that stun guns were exempt from the 2A because they were both ‘dangerous and unusual’.

A weapon may not be banned unless it is both dangerous and unusual. Because the Court rejects the lower court’s conclusion that stun guns are “unusual,” it does not need to consider the lower court’s conclusion that they are also “dangerous.” But make no mistake—the decision below gravely erred on both grounds….

[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.’” That test may be appropriate for applying statutes criminalizing assault with a dangerous weapon. First, the relative dangerousness of a weapon is irrelevant when the weapon belongs to a class of arms commonly used for lawful purposes. 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.’” Under the decision below, however, virtually every covered arm would qualify as “dangerous.”

Yes, kind of funny the way the Massachusetts decision leads us to the conclusion that every arm is ‘dangerous’, and therefore liable to be banned, no? (Also, for my money, we don’t useth the word ‘useth’ nearly enough nowadays.)

Justice Alito also went on to point out that military and law enforcement can, indeed, use stun guns for crowd control purposes, a point that somehow escaped the attention of the esteemed justices in Boston.

He concluded his concurring opinion by calling out the Massachusetts court for suggesting that the defendant could have simply acquired a firearm for self-defense purposes. Citing Heller again, Alito pointed out that “the right to bear other weapons is ‘no answer’ to a ban on the possession of protected arms.” He also pointed out something that could have been from the Col. John Cooper school of self-defense:

“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…. I am not prepared to say that a State may force an individual to choose between exercising that right and following her conscience, at least where both can be accommodated by a weapon already in widespread use across the Nation.”

Thus, Alito stands up for a woman’s right to choose. Good for him.

The only thing I would have added to Justice Alito’s opinion here is that the Commonwealth of Massachusetts has erected several barriers against the carriage of firearms by its residents. Not only is there a $100 fee for application and a requirement that the applicant take a training course, but the local authorities appear to have a degree of discretion in the issuance of these licenses. Do you think the local police in Massachusetts would be energetic in issuing a license to a woman who is an itinerant, living in a motel room, with no fixed address?

Alito’s closing statement should be taken as a warning to all of us concerned about civil liberties:

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.

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.

I have to admit I was afraid of what the first post-Scalia decision on the 2A might look like. Given the manner in which the Court studiously avoided taking any more 2A cases, I was afraid that Scalia, Thomas, and Alito were barely holding the line against what might have been an unstoppable left-wing anti-gun flood. This decision is, on its face…surprisingly not bad.

No one stepped up to dissent. The Alito concurrence put to bed a lot of arguments that have been proffered post-Heller by the anti-gun crowd. It would have been far better if the Court had issued the opinion by Alito, and his line about the decision being “grudging” does not indicate that more awesomeness is in the hopper…but I guess beggars can’t be choosers.

In my more paranoid moments, it almost makes we wonder if, given the controversy surrounding potential replacements for Scalia and the sometimes heated rhetoric in this election year if there is a bit of political ‘strategery’ going on here by someone. Or, maybe I should just relax. Sometimes a win is just a win. And make no mistake: the good guys won today.


[h/t Sebastian @ Shall Not Be Questioned]


DISCLAIMER: The above is an opinion piece; it is not legal advice, nor does it create an attorney-client relationship in any sense. If you need legal advice in any matter, you are strongly urged to hire and consult your own counsel. This post is entirely my own, and does not represent the positions, opinions, or strategies of my company or its clients.

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  1. So this was decided while Alito was still alive then? In that case the premise of the article is misleading. This was not an opinion arrived at post-Alito.

    • Alito is alive to my knowledge. I think you may have meant Scalia who passed in February.

    • I know this may come as a shock to many Americans, but Justice Samuel Alito and Justice Antonin Scalia are actually two different people.

      • And of course in the time it took me to write my response 4 other replies pointing out your mistake were posted. Now I feel bad.

        • Don’t feel bad, get glad….
          We’re all only human, we all make mistakes.
          And in the grand scheme of things no one died as a result of your mistake.

    • This is not to anyone in particular, a comment about issue.
      She used a stun gun to protect herself from abuser. Not a send me automatic. Her intention was stop further abuse, not death.
      With stun gun 99% chance he would live. 100% chance she would not be beaten today.
      As for ruling: we don’t use any gun from era the Second amendment was written. It’s a no brainier. She was right as far as I’m concerned. She will get my vote all day.
      Heck, she could get gun permit and shoot him with less trouble.

  2. A small victory in the war to keep our rights from being forgotten by the government. One thing that bothers me about Heller “extends…to…arms…that were not in existence at the time of the founding.”. Where’s my full auto .300 black SBR with integrated suppression?(aka honey badger)

    • There might be even more to this decision Jeff. You may have noticed this text,

      … the Massachusetts Court’s holding that stun guns were not “readily adaptable to use in the military” fell because “Heller rejected the proposition ‘that only those weapons useful in warfare are protected.’

      Thus Heller affirmed protection for weapons useful in warfare. Of course that would include fully automatic (machine) guns. Is that our “in” for invalidating the infringements of our quest to own full auto firearms? How does that play with the “dangerous and unusual” caveat?

  3. As a Massachusetts resident, I would like to officially apologize on behalf of the kangaroo court that rendered this decision, but thank the Supreme Court for righting such a fundamental wrong.

    • We will thank you more if the Mass Supremes decide to do the right thing and overturn her conviction and the ban on the use of stun guns. But seeing Alito’s use of the adjective “grudging”, and despite the clarity of the ruling, I hold out only faint hope, as that Court may seek to gamble again by doing as little as possible to comply with the order.

      • I will just have to apologize once more for the activist kangaroo court that exists in this state.

    • As Justice Alito noted, SC did not overturn the conviction, it overturned the appellate court affirmation of the conviction. The appellate court is merely instructed to find IAW Heller. The state will do everything possible to find the defendant guilty under Heller. The SC decision only directs the appellate court to find different support for affirming the trial court decision. Who knows how long that will take. It is in the state’s best and long-lasting interest to never overturn the underlying conviction. Also, should the appellate court overturn trial court, the appellate court can direct a re-trial (because a vacated decision has the effect of no trial). Thus even one more opportunity to convict using different reasoning. SC did not rule that the Massachusetts law itself is unconstitutional and void. Not sure I would call this a win, more like a ‘time-out”.

      • It’s better than nothing, since they’re basically telling the appellate court that they have to overturn the decision because stun guns are okay to have. If the Supreme Court had wanted to, they could have issued a ruling stating unilaterally that stun gun bans are just unconstitutional everywhere. But they must have done this instead so that the state could get rid of or modify its stun gun law without messing with other states’ laws. I’m guessing that was a compromise between the four pro-gun justices and the four antis.

        • Lower courts have been quite successful ignoring SC rulings on gun rights/self-defense. The state wins so long as they can delay complying. The defendant continues to lose.

  4. On a side note, anyone catch this

    “Anything a man wears for his Defence”

    So… Would that mean body armor is thusly included as “arms” under the 2A?

    • That’s exactly what I was thinking when I read that. We’ll probably see it in court eventually.

    • It is. Arms is both offense and defense.

      “Speaking of definitions, maybe dictionaries from the times would help us understand the crucial terms in the Second Amendment. Johnson’s classic, ubiquitous, and immensely influential “Dictionary” of 1755 includes four definitions of “Arms,” only one of which can be what is meant in the Second Amendment: “Weapons of offence, or armour of defence.” Noah Webster’s 1828 Dictionary includes five definitions of “Arms” but the obvious choice is “1. Weapons of offense, or armor for defense and protection of the body.””

    • And “high capacity” magazines, grenades, man portable rocket/missile launchers, exo suits, etc etc. Your imagination will get you pretty far with what can be worn on ones person.

      It seems to me the framework has been laid for quite some time to have access to all the stuff your average infantry man might carry, previous comments have been getting at just that point and the specific wording I’m talking about. We simply haven’t had anyone in a position of power willing to properly apply and enforce that framework so the little guys out there can enjoy their full second amendment protections..

  5. Johannes, the police chief of a given town controls power over issuing Licenses to Carry. They can deny an LTC for any reason, and the courts have upheld that several times. There are a few promising cases working their way through the courts, but don’t hold your breath.

  6. “The Supreme Court rejected this as a direct affront to the landmark Heller decision, which explicitly holds that the 2A “extends…to…arms…that were not in existence at the time of the founding.”

    SCOTUS has just *affirmed* Heller?



    Worded as it is, does this make the Court less likely to reverse Heller in the future?

    • I think they’ll have a hard time reversing Heller without some kind of change to the 2A, which isn’t likely to happen. They may try to erode Heller one step at a time, I see that as more likely.

    • Under the doctrine of stare decisis, the USSCt is loathe to overturn any of its prior precedents, no matter how wrong members of the court may feel that prior decision to be. Prior rulings are RARELY overturned. If they are really bad, the Court finds an end run or “distinguishes” the case to the point that it is rarely applied.

      • I have a nagging feeling that stare decisis only applies to rulings that fit the Progressive agenda … rulings that are in line with the Conservative agenda are quite likely in jeopardy if Progressives get a majority on the court.

    • “Per curiam” means “by the court.” Other than Alito and Thomas, we really don’t know who voted in favor the ruling, other than Alito’s comment that there was “grudging” agreement that the Massachusetts Court got it dead bang wrong.

        • It has to be a strategic move then. A gasping proclamation of “Oh no, we’re ALL pro-Second Amendment – even us die-hard Liberals! Whoever replaces Justice Scalia won’t make any difference to our _continued_ defense of the Bill of Rights.”

          • The strategic move might be quite simple. Anti-gun people, politicians, and judges pretty much endorse “non-lethal” self-defense. Tasers are the perfect “out”, allowing for “armed self-defense” while not involving firearms. “See, you don’t need guns because you have an effective weapon in tasers and the like”. Accommodates those who demand guns for protection, and those who demand something be done about “gun violence”.

  7. This is the type of decision that may render other states’ prohibitions toothless, as well.

    • Yes, but…the Court let stand Highland Park’s ban of ARs. So it may not be as effective as it might have been had they reversed Highland Park as violating the dictates of Heller. With this difference, AR bans in California (which are going to get stricter this year), NY and Connecticut, to name the most obvious ones, will likely stand.

      • “Yes, but…the Court let stand Highland Park’s ban of ARs.”

        Spoken as a true attorney. The Supreme Court did not explicitly affirm the Highland Park ban … the Court simply refused to hear the case. That leaves the door open for both more bans and a future challenge.

    • Yes and no. Had the Supreme Court declared that the conviction be overturned due to the law being unconstitutional, then every other stun gun prohibition would immediately be on the chopping block even without a current pending case.
      The way they did it, they only remanded the decision back to the appellate court, to be re-heard (and presumably found in favor of the defendant), like a parent scolding a child to brush their teeth correctly and don’t make me ask again. I suspect that was a compromise between the justices.

      • SC merely told the appellate court, “You cannot use that reasoning for holding the taser gun illegal, rethink it.” Appellate court can either come up with new reasoning that is in line with Heller, or order the lower court to do so. Or, ignore SC and dither for as long as they like (SC does not control the docket schedule (shedule?) of lower courts.

    • Yeah, I was thinking how much legalese it requires for this kind of thing when a simple “you’re full of sh**” should have sufficed.

  8. There is a special place in hell for these pieces of sewer effluent that acclaim the state has no duty to individually protect the citizenry, but then twists themselves into legal knots to criminalize a woman for using non-lethal methods to defend herself from a proven violent spouse.

    • From what I read it’s setting a guideline for Massachusetts to look at the case again but following the guide they have set.

      • SC told the appellate court they could not use their reasoning for banning taser weapons, that was all. Remanding the case means the appellate decision is now void, as if never declared. Appellate court is given instruction to come up with a decision in line with Heller. That is not equivalent to a directed verdict. Appellate court can still concur with the lower court as to guilt/innocence, but must do so by reasoning within Heller. SC did not overturn the conviction. Appellate court has now not made a decision regarding lower courts decision. Thus the trial court verdict stands

  9. Alito’s CONCURRING opinion is just that HIS views.
    There is no Supreme Court ruling that Stun Guns are protected.
    The ONLY thing the PER CURIAM (unanimous) opinion decided
    was that the wrong standard of scrutiny (none at all) had been
    applied. That is why the Decision is NOT a plain “REVERSED”
    but rather “Vacated and REMANDED”. The Mass Supremes can
    still ban Stun Guns by applying Intermediate Scrutiny (under which
    any restriction can be up held). Save the Champagne.

    • While I am saving the champagne, I still find it worth celebrating that a unanimous Court reaffirmed “Heller’s clear statement that the Second Amendment extends to arms that were not in existence at the time of the founding,” and no one wrote separately to invite an attack on Heller or McDonald. While I would have preferred to see a stronger statement about Heller and McDonald being “established”—as was done by Alito’s concurrence—I take great pleasure in picturing certain of the Justices gritting their teeth and joining an opinion acknowledging Heller’s precedential force.

      The fight is not nearly over, but we still have a chance.

    • Under what level of scrutiny can the Massachusetts Supreme Court claim to tell a woman that she cannot use a less lethal instrument to defend herself from an estranged husband who already put her in the hospital one time in the past?

      What compelling “government interest” or “public safety objective” does the court advance when they tell a woman that she cannot use a less-lethal device to save her life from a clear-and-present danger?

      This is the problem with attorneys. Look, I totally get the whole bit that attorneys want to excel in their work — “vigorously defending” and “vigorously prosecuting” and all that is fine. What is utterly reprehensible is taking that competitive “spirit” so far that they usher in conditions which kill good people … for nothing other than being able to say that they “won” their case. That is a depth of depravity that I cannot recall seeing anywhere else in my lifetime.

      • Arguably, none of this is the attorneys’ fault. It is the fault of politicians, who think they know better, passing laws to ‘protect’ the people. It is only the attorney’s job to do whatever they can to prosecute using the laws available and to defend the ones on the books.

        • Nigil,

          The “just doing their job” excuse is no longer valid when doing their job transcends what is decent and right.

          BOTH the politicians and the lawyers share equal blame. The politicians get blame for passing laws that are indecent and wrong. And the lawyers get blame for pursuing/supporting/enforcing laws that are indecent and wrong.

  10. Stun guns… great.

    OK, so what about all the befallen brethren and… umm… sisteren… is that right… that doesn’t sound right…

    Anyways, what about the folks in Cali, NY, NJ, and all the other anti-gun states?

    It appears Heller was confirmed, which is awesome, but freakin’ stun guns… Stun guns?

    Was this some kind of freebie to try to convince R’s to confirm another liberal justice?

  11. One quarrel I have with the HELLER opinion is that Justice Scalia was too gentle in saying “bordering on the frivolous” to describe the argument “that only those arms in existence in the 18th century are protected by the Second Amendment.” 
    He should have described such nonsense as “vacuous, childish, and just plain f’- ing stupid”.  
    Perhaps then, the “Mass-holes” on the state supreme court would have understood, and avoided having their judicial head handed to them by SCOTUS.
    The voters of Massachusetts should be looking into impeachment proceedings, in the hope of getting a state supreme court composed of competent jurists.

  12. Wow, this gives a lot of definition and clarity that Heller lacked IMO, even about things outside the firearms world such as knives. Hopefully this will encourage courts to do the right thing rather than what they feel is right. Maybe not though.

    • Regrettably, as Law Prof pointed out above, none of the clarity you see is actually binding on the Court. The per curiam opinion said only that the Massachusetts court’s reasoning ran afoul of Heller. While that’s a win, it’s a relatively small win and is the only part of the decision that counts. All of the good stuff from Justice Alito’s concurring opinion is not binding on any court.

      • It may not be but it’s likely to be considered as a watermark I would think. Maybe what I get for thinking though.

  13. The Massachusetts court’s ruling was so far afoul of settled law via Heller, that it constitutes not simply an adverse ruling, but rather official oppression under color of law. Those justices didn’t simply ignore the law, they tortured it until it confessed. That is such a gross miscarriage of justice, that it shocks my conscience.

    The fallout from this, in a just society, would only start with their impeachment and removal from office. It would continue through to criminal prosecution of these justices. The Massachusetts court’s ruling is as much a personal, illegal violation of Caetano’s civil rights as if the justices had donned their robes and wielded weapons, lethal or nonlethal, and physically attacked her themselves in the dark of night.

    • Oooooooohhh. That is interesting. Start applying 18 U.S. Code 242 to these son-of-a-b!tches … the justices on the Massachusetts Supreme Court and the lower state courts who affirmed the conviction, the prosecutor/s and/or attorneys who argued for the state, the cops who arrested the woman, and the state legislators who passed the law that criminalized her possession of the stun gun.

  14. 2A “extends…to…arms…that were not in existence at the time of the founding.”
    The ‘you can only have muskets’ argument is hereby rendered moot. I have always thought that anyone who brings up the ‘well, they didn’t have the weapons of today’ argument should be required to use a quill pen and parchment to make their case, as per the 1st amendment, ‘at the time of the founding’.

    • “The ‘you can only have muskets’ argument is hereby rendered moot.”

      You assume that the other side is not already deaf and actually has an open mind. When the left wants something, they consider it a right, even if it does not explicitly exist as a right. When they don’t like something, they will manufacture, deny or ignore anything other than what fits their narrative. No other facts matter because facts lead to conclusions that hurt their feelings so they cannot possibly be correct.

  15. Not to beat a dead horse, but, does this mean that in future, a new challenge against the anti-gun laws in place in California COULD use this PER CURIAM as its’ basis?

    I understand that things often get worse before they get better, but some slim ray of light at the end of this legislative black hole would be encouraging.

    thanks all, great article and hooray for the win!

  16. All this affirmed for me is that many courts are crooked as hell and use personal opinion over interpretation of the law. The lingual gymnastics MASS SC used to make their ruling is disgusting. They will do anything to rule with an agenda and pretty much throw out the law. The Law is neither blind nor balanced but has become nothing more than a political tool.

    This poor women and all that she went through and still going through is being used as a pawn by the MASS Liberals. This is why I always laugh when someone tells me that the Democrats stand for the little guy. Just one more case to show they don’t give a damn about the little guy if gets in the way of the false utopian ideals or the DNC platform. Politics has replaced religion and these guys pray to the party platform. The Borg in real life.

    Too bad it is not easier to get rid of bad judges. Activist judges suck!

    One more reason if the R’s loose in the fall, gun right are screwed.

    • Well there is a rather easy way to be rid of activist judges, unfortunately its highly illegal.

      • I have to wonder how long before people start applying the appropriate “remedy”.

        • Speaking for myself:
          Just as soon as a crack defense lawyer is retained and a get out of jail fund is established.

      • At least in Iowa, judges must stand for retention (keeping their job) periodically. I highly recommend this arrangement. Talk to your legislators.

          • Political judges do political things. That is the reason for non-elected judges. Nether method is perfect. Appointed judges get there because of political connections, elected judges get there because of political connections. It simply always depends on who’s ox is getting gored.

            • Then lets go for the compromise.
              Judges are appointed for life but could be removed at any general election.

  17. THIS looks great to me. I expect nothing good after the tragic death of Scalia. Maybe we aren’t as screwed as I thought…I hope.

  18. If the kind of people running Massachusetts today ran the state in 1775 would the revolutionary war gotten off the ground?

    • It would probably have started much faster. Than all the current generation apathetic residents who have allowed politcians and police to reason away their rights and liberties. If it were the same folks of colonial times. These so called officials would have been “Tarred and Feathered ” out of office, and the state. Probably as a Tory…..

  19. “Dangerous and unusual”…because a nonlethal/lesslethal weapon is much more dangerous than a .58 cal musket loaded with minie ball.

  20. What no more “stun guns”? Golly darns, how about high volt capacity, electrode discharging devices.

  21. The Supreme Court did no such thing. It did not overturn the law OR the conviction. It sent it back to MA so that the state can come up with a better reason for the law that doesn’t so clearly violate Heller. Which the state will.

    It’s good but only in the same way it’s ‘good’ that I got home from my commute without getting in an accident.

  22. “…it almost makes we wonder if, given the controversy surrounding potential replacements for Scalia and the sometimes heated rhetoric in this election year if there is a bit of political ‘strategery’ going on here by someone.”

    This. The justices who don’t like Heller aren’t about to cause a ruckus about it now; that would just make it harder to get another like-minded justice comfirmed to replace Scalia. Don’t think that bc its a per curium opinion that all 8 justices are now behind Heller. I think Alito’s “grudging” comment makes that clear.

  23. So let me get this straight….the Massachusetts supremes would rather that she had shot him with a gun, than threatened him with a stun gun? Simply amazing.

    • No guns of any kind. How hard is that to understand?

      It is morally superior to sacrifice people to brutal death than to be any part of endorsing the use of a gun. “We can’t stop all the different kinds of deaths at the hands of evil-doers, but we can absolutely end death by guns, except in the gang-infested and criminally hopeless inner-city, where we don’t go and are very unlikely to be hurt by anyone there, because we are the right sort of people and live and work in safe places.”

  24. I’m a Massachusetts resident. MA., and various townships are mini “Police-states”. Massachusetts has always been ripe with high taxes, sanctuary cites, crime, political, and police corruption. MA. is very anti-2nd amendment, thanks in part to RepubliCON /RINO governor’s warming the office chair for the DNC. Just like our current anti 2nd amendment governor, Charlie “Barker ” Baker. People outside of MA have to realize that Local police departments, and state police are almost as oppressive as NJ LEO’S, and have full control over a US citizens /Massachusetts residents 2nd amendment rights. Only recently in 2014, MA state Fiefdom deregulated pepper spray and Mace without a police permit. Never mind the issues of applying for a longarm, or Pistol LTC *(required to purchase, posess, and to own.)* Also My retired, vet dad has had an interesting development. His retirement home here in MA. sent out new leases to residents. Stating that all tenants would be required to sign a “leasing waiver” to effectively ban lawful exercise of a residents 2nd amendment rights. Lease says all weapons, collectable knives, firearms, etc. We’re banned by property management for residents to own! I called MA. GOAL, supposedly a pro 2@ group here. They gave me some fuzzy-logic nonsense stating they hear this all the time. They said a landlord, or management company could deprive a citizen of their rights because they live under their roof, and are not independent homeowners?!!! I was stunned, if that was the case..We’d have been disarmed a long time ago! How could this be America!

  25. I would hope that the SCOTUS would, at the very least, protect semiautomatic rifles with detachable box magazines as protected under the Second. That would mean that even if “assault weapons bans” can be upheld, that the state and local governments can only go so far in defining what constitutes an “assault weapon.” That they could not do as California is currently trying to do and outlaw semiautomatic long guns with detachable magazines period.

  26. I scrolled through most of the comments and didn’t see anything about this, so I have to respond. JOHN Cooper?! In a blog that purports to know something about firearms I find this to be a massive offense. ANY gun enthusiast over the age of 20 in America is likely to know the name JEFF Cooper. C’mon, guys!

  27. 1) the (federal) US Supreme Court is to review STATE laws and advise them on the Constitutionality of them!!
    2) the (federal) US Supreme Court is to review FEDERAL laws and contracts that concern the dealings with OTHER nations and advise Congress and the President on the Constitutionality of them!!
    3) the FEDERAL government should NEVER make laws that affect the PEOPLE – that is the responsibility of the individual STATES!!
    the (federal) US Supreme Court is NOT a ‘court’ as in having judges, jury, attorneys, and determining the innocence or guilty of ANY party!! WE need to STOP pretending that it is!! the STATE supreme court, of the state having jurisdiction, is the HIGHEST court with the Constitution being the LAW OF THE LAND!!

  28. This is so frustrating…I’m pretty anti-gun, but I understand people’s right to defend themselves, particularly the need for game-changers when you’re significantly smaller than your opponent. Hence, I am a huge fan of stun guns because you can incapacitate an attacker without the risk of shooting an innocent bystander, or your kids finding it and accidentally killing themselves or a relative with it. (Plus, the general philosophy of Don’t Take a Life Unless You Have No Choice).

    The argument that stun-guns should be banned because they’re “dangerous and unusual” is BS…HELLO, THEY’RE NOT AS DANGEROUS AS FIREARMS!!! THAT’S THE POINT!! People need more options between “leave alone” and “kill” for self-protection, and stun-guns nicely fit the bill.

    Give people other options for self-defense so we don’t have to rely on the lethal unpredictability of guns!

    • Hi Rachel.

      I’m pretty self-absorbed, so I don’t recognize the screen name. However, If you are new here, fasten your seat belt. Anti-gun (or sorta anti-gun) readers have a wild ride here.

      • I’ll be gentle Rachel, because it’s your first time.
        That said, you don’t actually understand. You come closer to comprehension than most, but being anti-gun means you miss the mark by definition.

        Have a nice day.

  29. President Barack Obama’s Supreme Court nominee, Merrick Garland, would have voted in favor of the Massachusetts Court decision.

    • All weapons are “dangerous” and “unusual”. They would not be “unusual” if every lefty/liberal/demoncrat had whatever it is.

  30. If the Supreme Court ruled that the stun gun wasn’t invented yet well then what about all the different types of guns made after the constitution was written . That means the only guns we can use is civil war type. This stupid ruling needs to b turned over. This just shows without Scalia on board r rights will no longer b protected. I had the privledge to meet the Honorable Scalia at LawDay a few years ago. Superb human being. Is it coincidence that the single most influential person on the Supreme Court in pristine health suddenly die right before the single most influential presidential election in history on Obama’s watch or is it just me???

    • The SC did overturn the appeals court finding inf favor of the lower court finding. The SC ruling is that stun guns are within the scope of the second. However, the lower court decision was not overturned. The appeals court is instructed to re-think their decision and find one way or the other to sustain or overturn the lower court within the scope of the Heller decision.

      BTW, if the SC rules that only small arms existing at the time of the ratification of the constitution are covered by the second amendment, then no small arms manufactured after 1789 would be permissible. The Civil War would have been fought with smooth bore muskets and some Kentucky long rifles.

  31. I came from an eastern block country when I was very very young. I watched as communist soldiers dragged my aunt into the yard and shot her dead. The rest of my family was taken away. How I got away is still obscure but the memory of watching my aunt die is burnt into my brain till I die. I can fully understand why the founders of America wanted citizens to be armed.

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