Alan Gottlieb
By Dave Workman
Senior Editor
When the US Supreme Court reversed and remanded a Massachusetts Supreme Judicial Court ruling that upheld the state ban on “stun guns,” it opened the door to considerable speculation that such bans might violate the Second Amendment right to keep and bear arms.
While the high court did not nullify the Bay State ban outright, it did raise questions about the law’s constitutionality. The unsigned per curiam decision ran only two pages, but a concurring opinion from Justices Samuel Alioto and Clarence Thomas ran ten pages, and seemed to lament that the Supreme Court didn’t go farther.
The case involves a woman named Jaime Caetano, who was arrested for carrying a stun gun in her purse in 2011, claiming it was for defense against an abusive ex-boyfriend. Newspaper accounts at the time said Caetano had been beaten by the ex-boyfriend. Allegedly, when she showed him the stun gun at one point, he fled.
The Second Amendment Foundation issued a statement applauding the high court’s action.
“This ruling shows that the United States Supreme Court is not happy with lower courts ignoring the Heller and McDonald decisions affirming the individual right to keep and bear arms for self-defense,” said SAF founder and Executive Vice President Alan M. Gottlieb. “It is also an important ruling because the gun in question is a modern type and was used in public outside the home.”
In their concurring opinion, Alito and Thomas noted, “While less popular than handguns, stun guns are widely owned and accepted as a legitimate means of self-defense across the country. Massachusetts’ categorical ban of such weapons therefore violates the Second Amendment.”
The two justices quickly added, “The lower court’s ill treatment of Heller cannot stand. The reasoning of the Massachusetts court poses a grave threat to the fundamental right of self-defense.”
The Massachusetts court had contended that because stun guns were not in use at the time of the founding, they are not protected by the Second Amendment. But Gottlieb, following along with something contained in the Alioto-Thomas concurrence, explained why that reasoning is all wet under Heller.
“Just because something didn’t exist at the time the Constitution was ratified doesn’t mean it isn’t protected,” Gottlieb noted. “By that same reasoning, no modern newspaper, online publication, or broadcast media would be protected by the First Amendment in the Bay State, and we all know that’s nonsense.”
Alito and Thomas noted in their concurrence that, “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.”
Massachusetts is one of five states that ban “stun guns.” Now that the state court has been essentially drubbed for its Caetano ruling, it may have to void the statute on Second Amendment grounds, or craft a narrow ruling that only applies to this specific case, say some observers.
But the per curiam ruling opened with this line, which seems to leave little wiggle room for the Massachusetts court: “The Court has 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.”
