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The Right to Bear… Stun Guns: Second Amendment Protections Expanded?

The State of Massachusetts prohibits the possession of any “portable device or weapon 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.”  Mass. Gen. Laws, ch. 140 §131J (2014). In September of 2011, Jaime Caetano was stopped by police and she consented to a search of her purse.  During that search, police discovered a stun gun, which Caetano had borrowed from a friend for protection against an abusive boyfriend.

Caetano was arrested, and despite moving to dismiss the charge on Second Amendment grounds, she was tried and convicted of possessing the stun gun.  On appeal, the United States Supreme Court issued a per curiam opinion firmly vacating the judgment against Caetano and remanding the case back to the trial court for retrial consistent with the Supreme Court’s opinion.  Caetano v. Massachusetts, 577 U.S. ___ (2016).

The Massachusetts Supreme Judicial Court contended that the Second Amendment did not apply to stun guns for three reasons.  First, stun guns were not in common use at the time of the Second Amendment’s enactment.  Second, the stun gun fell within the Second Amendment limitation of prohibiting dangerous or unusual weapons.  Finally, the Massachusetts Court opined that stun guns are not designed for military use, and therefore, are not subject to Second Amendment protections.

In summarily vacating the Massachusetts Court’s decision, the Supreme Court highlighted its prior opinion in District of Columbia v. Heller, 554 U.S. 570 (2008).  In response to the Massachusetts Court’s first two theories, the Supreme Court affirmed that the Second Amendment “extends… to… arms that were not in existence at the time of the founding.”  Id. at 582.  With regard to the Massachusetts Court’s third rationale, the Supreme Court repeated its holding in Heller that rejected the suggestion “that only those weapons useful in warfare are protected” by the Second Amendment.  Id. at 624-625.

While the Caetano opinion appears to expand the reach of the Second Amendment, this opinion should not be considered a definitive expansion of Second Amendment protections.  First, the Supreme Court decided Caetano without full briefing or oral arguments.  Second, the scope of the opinion was extremely limited, as noted in Thomas and Alito’s concurrence.  Finally, while the judgment was vacated, the Supreme Court’s instructions on remanded could be considered unclear – leaving open the door for additional briefing both for and against Massachusetts’s limited interpretation of Second Amendment protections and stun guns.

Matthew A. Barley