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TASER Pulse (courtesy

NRA-ILA Press release [via]

On Monday, the U.S. Supreme Court caught both friends and foes of the Second Amendment off guard with a summary opinion in the case of Caetano v. Massachusetts, ordering the state’s highest court to reconsider its decision that stun guns are not protected under the Second Amendment. While a clear rebuke to the Massachusetts Supreme Judicial Court for its superficial treatment of the case, it is not, as at least one gun control advocate opined, a “signal” by the Supreme Court’s liberal justices “that they are not eager to overturn Heller” . . .

Significantly, Caetano was released on the same day the Supreme Court issued another order refusing to hear an appeal in the case of Bonidy v. USPS, which challenged a broad ban on the possession of firearms on postal property, even by customers in their own cars on public parking lots. We detailed that case in an earlier article, which explained that after enforcement of the regulation was limited by the trial court, a divided panel of the U.S. Court of Appeals for the Tenth Circuit upheld the regulation in its entirety in an opinion that was remarkably hostile toward the Second Amendment.

Also significant is that Caetano concerned a non-lethal type of “arm” and featured very sympathetic facts, in this case a homeless victim of domestic violence who possessed a stun gun to prevent further abuse by her former spouse. Even so, the Caetano opinion does not actually invalidate the Massachusetts law. It simply notes the state court’s reasoning “contradicts [Supreme Court] precedent” and directs the state court to reconsider its conclusions based on a proper understanding of the law.

Specifically, the Court held that the state court cannot use the fact that stun guns did not exist at the time of the Second Amendment’s adoption to find that they are not “in common use” or that they are too “unusual” to receive Second Amendment protection. The Court also faulted the state court for relying on the theory that stun guns are not “readily adaptable to use in the military” to find that they fall outside the Second Amendment’s ambit.

Adding intrigue to the Supreme Court’s sudden reengagement with the Second Amendment, Caetano was issued “per curiam,” or “by the court.” Traditionally, this type of unsigned opinion has been reserved for uncontroversial cases that were easily resolved by well-established law, with the assent of the entire court.

The question of stun guns’ status under the Second Amendment presented a novel issue of law in the Supreme Court.  This is not an issue that is usually resolved without the briefing or argument typically involved in appellate proceedings. Moreover, Justice Samuel Alito, joined by Justice Clarence Thomas, wrote separately to elaborate on the Massachusetts court’s numerous departures from District of Columbia v. Heller. This indicates a lack of unanimity that would ordinarily make a “per curiam” disposition inappropriate.

Significantly, Justice Alito’s opinion not only argues that the Massachusetts stun gun ban is clearly unconstitutional under Heller, it does so in a way that defeats the reasoning of prior lower court decisions upholding so-called “assault weapon” and “large capacity” magazine bans.  

He states, for example, that “the relative dangerousness of a weapon is irrelevant when the weapon belongs to a class of arms commonly used for lawful purposes” and that if “Heller tells us anything, it is that firearms cannot be categorically prohibited just because they are dangerous.” Alito also admonishes that a state cannot use relative numbers to establish that a weapon is “unusual” when large numbers (in the case of stun guns, “hundreds of thousands”) are already in use by private citizens for defensive purposes.

Finally, Alito preempts the argument that some popular arms can be banned as long as others remain available: “the right to bear other weapons is ‘no answer’ to a ban on the possession of protected arms.”

Unfortunately, while instructive to the lower court, the Alito opinion did not gain enough votes to carry the force of law.

Some pundits are using the Caetano decision as evidence that the Heller decision, even without Justice Scalia’s support, already survives with at least five votes. This in turn would suggest that neither the appointment of Merrick Garland, President Obama’s would-be successor to Justice Scalia, nor even the election of Hillary Clinton, threatens the Second Amendment.

Don’t be fooled. As one article after another has chronicled, the Supreme Court has refused to hear Second Amendment cases involving firearm regulations in the wake of Heller and McDonald v. Chicago.

These include cases raising such fundamental questions as the applicability of the Second Amendment outside the home, state bans on America’s most popular rifle, bans on handgun purchases by young adults from federally licensed dealers, or whether cities can require firearms to be locked up and disassembled in the home.

Justices Thomas and Scalia bitterly dissented in some of those decisions, detailing the lower courts’ blatant disregard for Heller’s clear directives.

Moreover, four of the eight sitting justices joined dissents in McDonald, arguing that the court was wrong to recognize an individual right under the Second Amendment and even if that right exists, it is neither “fundamental” nor applies to the states.

Finally, Justice Ginsburg, the leading liberal voice on the court, publicly cited Heller as in league with Dred Scott, one of the most notorious cases in American law in its disregard for the humanity or citizenship of African American slaves and their descendants.

Whatever dynamics underlie the surprise decision in Caetano, it offers no reassurance that Heller would survive if a fifth justice joins the Supreme Court’s liberal wing.  And even if they allowed it to stand in theory, they would certainly not attempt to enforce it against the defiance of lower courts. As recent history has shown, even narrowly limiting Heller to its facts allows gun control advocates to pursue their prohibitionist agenda through a variety of persecutory and oppressive means.

Second Amendment advocates should stay vigilant and not be lulled into a false sense of security by Caetano.

Despite its willingness to consider stun guns as an “arm” under the Second Amendment, the Supreme Court’s recent posture regarding Second Amendment cases is cause for great concern.  Unless Justice Scalia is replaced by someone who shares his philosophy and worldview when it comes to our right to keep and bear arms, we may not have that right much longer.

Established in 1975, the Institute for Legislative Action (ILA) is the “lobbying” arm of the National Rifle Association of America. ILA is responsible for preserving the right of all law-abiding individuals in the legislative, political, and legal arenas, to purchase, possess and use firearms for legitimate purposes as guaranteed by the Second Amendment to the U.S. Constitution. Visit: Twitter | Ammoland on Facebook

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  1. And pigs may fly some day.
    There is no way to know. You cant suppose whats in a persons mind till it comes up.
    Look at how even Roberts wavers on a lot of things and writes law. As in Obamacare and same sex marriage.
    Who knows what the new number 9 will do??

    • “Who knows what the new number 9 will do??”

      Please. If a Progressive President nominates a justice, it’s guaranteed their position on the 2A.

      That is their #1 single issue…

      • Depends on who #9 is. It will not be Obamas current pick. He is dead in the water before even getting in it. Defeatist attitudes wont get the right Republican in office to appoint #9. I still have faith that our next president will naturally have baalz.
        The Conservative republicans cant be willing to commit suicide by having a brokered convention or their being a 3rd party candidate. While I am pissed off. Hilary will be indicted. Trump is not our savior.

  2. The liberal judges are raising a false flag to lure Gun Rights folks into thinking a Hillary appointee will be their friend.

    Hillary’s proposed Australian-Style Gun Control will neuter Americans. It’s much worse than even UK-Style gun control. Anything looking even remotely military is a no-no.

    • That’s a good point. I see the leftist hierarchy getting together with the 4 liberal justices and ordering them to allow a few pro 2A cases go through, to try to keep from stirring the pot until the queen is crowned.

  3. “Finally, Justice Ginsburg, the leading liberal voice on the court, publicly cited Heller as in league with Dred Scott,…”


    Pulling the proverbial ‘race card’ on the 2A.

    This is my (not) surprised face.

    The next election has devastating consequences for the 2A…

  4. One might say that the Progressive/Statist half of The Court does not want to appear to be overturning Heller and McDonald, but rest assured that they’re plenty willing to see those decisions overturned or at least overlooked in actual practice.

  5. It’s the republican establishment that is going to be responsible for the end of our county as we know it. They are doing everything they can to deny Trump and Cruz the nomination. Once they nominate one of their own, republican and indipendent turn out will be at the lowest level in our history. Not one Trump supporter will vote – thats 40% of the republican voters. Hilary or Sanders is basically guantarteed a win. It’s all over folks. Thanks to the republican establishment..the trojan horse.

    • I fear you may be correct. However, I will vote for whomever the Republicans nominate because, no matter how bad their candidate is, the Democratic alternative will be even worse.

      It’s too late now but I wish Trump would think with his brain instead of his ego. Every needless insult turns off plausible Trump voters. Cruz is actually the more radical candidate but hasn’t alienated as many people. According to some polls, Hillary is so unpopular that she would lose to all but one Republican. Unfortunately for us, that Republican is Trump.

  6. The point that this is not an invalidation is key and has been missed by so many articles I’ve seen. This is basically just the court telling the lower justices to come up with another reason to ban them.

  7. Any ban on the possession of fire arms on postal property (even in your own vehicle) is a direct violation of the 2nd Amendment. The Postal service can stick that ban up the ASS sideways.

  8. Umm, Robert? This is Texas, do you really think us good ‘ole boys are going to understand what a “damp squib” is?

  9. I submit this country no longer exist as I knew it. Millions of men & women defeated communism, in return we have religious nut jobs murdering across the world, 10% of the population are illegals empowered to vote democrat, rampant drug use the 70’s could not imagine, people paid 1 trillion annually not to work, government selectively enforcing laws, IRS actively suppressing political groups, 1.5 million black men dead or incarcerated. State prison systems dumping convicts onto counties, early release of criminals, politicians ignoring laws for personal gain. And a legislative / judicial working to systematically remove a right which all others are preserved.

  10. Wait what? They justify a ban on stun guns because they have no military value yet raise a hissy fit about large cap mags and AR/AK rifles. Is that legal double speak or what?

    • Great observation of a great contradiction, MattG.

      I wouldn’t mind holding a concealed stun gun.

      I hate to have to use deadly force as a first option when responding to some idiot, one maybe too young or too drunk to realize the mistake of getting physically aggressive with me.

      • And while you fumble around in the second or maybe two seconds you have to evaluate the threat and respond accordingly, you get that sinking feeling in your stomach that you just wasted the last two seconds of your life trying to grab the wrong gun. SMH. Seen too many situations go south in a fraction of a second. The predator (idiot, too young, too drunk) will read your lack of resolve like the proverbial book.

        • I’ve got two hands and can pull a trigger with each, so I’ve got the situation covered.

          That doesn’t mean I don’t usually have deadly force ready, one in the chamber, concealed, but finger off the trigger.

          It’s just that I’ve been in more confrontations that didn’t need deadly force than one’s that did.

          I never had to kill anyone (except by aerial bombardment). Maybe you have.

        • I’m not playing with aerial bombs for a living anymore but I do deal with more than my fair share of fools/predators on a regular basis. Stay safe!

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