Stun Gun Ruling Casts Doubt on Other States and Cities' Laws

by | March 22, 2016

By David G. Savage

The Supreme Court effectively extended the reach of the Second Amendment Monday, saying the constitutional right to "bear arms" is not limited to handguns and other firearms, and may include an electric stun gun.

In a brief unanimous opinion, the justices set aside a ruling that upheld the criminal conviction of Jaime Caetano, a Massachusetts woman who kept a stun gun to defend herself against an abusive ex-boyfriend.

It marked the first time in six years that the justices have said anything about the meaning of Second Amendment.

In 2008, the high court struck down a District of Columbia ordinance that banned the private possession of guns, including a handgun kept at home for self-defense. Two years later, a similar ordinance from Chicago was struck down, extending such protections to all states.

Since then, the justices have refused to hear appeals from gun rights advocates hoping to broaden individuals' rights to bear arms. In December, they let stand a ban on a semi-automatic "assault rifles" in the Chicago suburb of Highland Park.

Monday's terse decision calls into doubt laws in several states, including New York, New Jersey, Rhode Island and Hawaii as well as cities such as Baltimore and Philadelphia, which forbid keeping or carrying stun guns.

In upholding its law, the Massachusetts high court had described stun guns as "dangerous and unusual weapons" which are quite unlike the muskets and other "weapons of warfare ... used by the militia" of the 18th century. "We hold that a stun gun is not the type of weapon that is eligible for Second Amendment protection," the state justices said.

Lawyers for Caetano, with the backing of Second Amendment advocates such as UCLA Law professor Eugene Volokh, appealed her conviction on the grounds that she had a constitutional right to defend herself, particularly when using a non-lethal weapon.

"The ability to possess non-lethal weapons is an important aspect of the right to keep and bear arms," Volokh argued on behalf of a group called Arming Women Against Rape & Endangerment. Tasers and other stun guns can deliver a powerful electric shock that can disable an attacker.

Caetano's appeal had languished at the court for more than four months and was unresolved when Justice Antonin Scalia, its foremost champion of the Second Amendment, died suddenly in February.

Monday's unsigned opinion cited Scalia's 2008 opinion in D.C. v. Heller and said it made clear the weapons protected by the Second Amendment were not limited to "weapons useful in warfare." The justices concluded the state court's reasons for upholding the ban on stun guns "contradict this court's precedents."

Her case was sent back to the state court, but Volokh said it will almost surely lead to a ruling striking down the law. "Once you conclude the Second Amendment covers stun guns, the government's argument becomes very, very difficult," he said.

Justice Samuel A. Alito Jr. wrote a much stronger concurring opinion setting out the reasons why the Second Amendment protects the right to carry a non-lethal stun gun.

"Countless people may have reservations about using deadly force, whether for moral, religious or emotional reasons _ or simply out of fear of killing the wrong person," he wrote. "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 rather than keeping them safe." Justice Clarence Thomas said he agreed with Alito.

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