Thursday, March 24, 2016

SCOTUS Adding Stun Guns to 2nd Amendment Precedent?

Originally published by John Floyd.

A stun gun is more commonly known as a Taser. It is a device or weapon from which an electrical current may be fired through wires with the ability to incapacitate, injured or even kill someone.


In 2014, the State of Massachusetts enacted a law that prohibited anyone from buying, possessing, selling or using a stun unless they are a law enforcement officer or a merchant selling to a law enforcement officer. The penalty for violating this law is six to 30 months in jail, a fine of $500 to $1000, or both.


Massachusetts Criminalizes Possessing Stun Gun


A Massachusetts resident named Jaime Caetone was arrested, tried, and convicted for possessing a stun gun.


She appealed the conviction to the Supreme Judicial Court of Massachusetts. Caetone’s argument on appeal was that the stun gun law violated her Second Amendment right to keep and bear arms. The state’s high court disagreed, upholding the stun gun ban.


The state Supreme Court took note of two significant U.S. Supreme Court cases: District of Columbia v. Heller which held that “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding;” and McDonald v. Chicago which held that this “Second Amendment right is fully applicable to the States.”


Mass. Court Finds Heller Doesn’t Apply to Stun Gun


The Massachusetts court, however, found that the principles of Heller did not apply to a stun gun ban.


First, the court explained that stun guns are not constitutionally protected because they “were not in common use at the time of the Second Amendment’s enactment.”


Not So Fast


The U.S. Supreme Court rebuffed this finding by saying it was inconsistent with the Heller rule that the Second Amendment “extends … to … arms … that were not in existence at the time of the founding.”


Second, the Massachusetts court addressed whether stun guns are “dangerous per se at common law and unusual.”


In an attempt to carve out a Second Amendment exception for stun guns, the state court pointed to the “historical tradition” of prohibiting the carrying of “dangerous and unusual weapons.” The court reasoned that inasmuch as stun guns are “a thoroughly modern invention,” they are “unusual” to the weaponry in existence at the time of Second Amendment’s enactment.”


The Supreme Court rejected the state court’s equation of “unusual” with the “in common use at the time of the Second Amendment’s enactment” for the same reason as the first: it is inconsistent with Heller.


Court Rejects Proposition that Only Weapons Useful in Warfare Protected by 2nd Amendment


Lastly, the U.S. Supreme Court found that the Massachusetts court incorrectly applied “a contemporary lens” to find that stun guns are “readily adaptable to use in the military.” The nation’s high court pointed out that Heller rejected the proposition “that only those weapons useful in warfare are protected” by the Second Amendment.


The Supreme Court vacated the Massachusetts court’s upholding of the stun gun ban, finding that the ban violated the court’s Heller precedent.


Justice Alito, with Justice Thomas joining, expressed this view in more strident terms in his concurring opinion. The justice pointed out that Caetano possessed the stun gun to protect herself from a “violent ex-boyfriend.”


Alito said the Massachusetts court decision did “a grave disservice to vulnerable individuals like Caetano who must defend themselves because the State will not.”


Justice Alito carried this unnecessary criticism of Massachusetts’ highest court throughout his concurring opinion. He finished off his highly partisan and unnecessary diatribe with this observation:


“ … 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.”


There was no evidence that Massachusetts authorities, or the authorities of any other state, are more concerned about taking away its citizens’ guns than “keeping them safe.”


This is a political assertion rooted in right-wing conservatism of the justice, not a rational legal conclusion based on any evidence in the record before him.


Case Goes Back to Massachusetts with Conviction Intact


The case will now go back to the Massachusetts Court for rehearing in light of Heller and McDonald.

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Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

from Texas Bar Today
via Abogado Aly Website

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