Justices Say Stun-Gun Ban May Be Unconstitutional

For the professional edge in your day-to-day practice, rely on the most timely, objective reporting on significant developments, trends, and emerging patterns in criminal law today—Criminal Law...

By Lance J. Rogers

March 21 — A state law making it illegal to carry stun guns or tasers for self-defense may violate the Second Amendment, the U.S. Supreme Court ruled March 21.

The decision revives Jaime Caetano's claim that she had a constitutional right to carry a stun gun in her purse to protect herself from a violent ex-boyfriend and casts doubt on the constitutionality of other laws and ordinances that make electric taser-like weapons illegal.

Flat Ban May Be Unconstitutional

The justices stopped short of ruling that the Massachusetts law violated the Second Amendment and instead sent the case back to the Massachusetts Supreme Judicial Court with instructions to give the categorical ban a second look.

The Massachusetts high court used flawed reasoning when it held that Second Amendment protections are limited to the types of arms that were around when the Bill of Rights was ratified in 1791, the court said in its per curiam opinion.

That conclusion is at odds with the landmark 2008 decision in District of Columbia v. Heller (554 U.S. 570), which said that the Second Amendment protects all bearable arms, even those that didn't exist at the time of the country's founding or aren't readily adaptable for military use, the court said.

That 5-4 decision was written by the late Justice Antonin Scalia.

Police discovered the weapon in this case when they searched Caetano's purse while investigating a shoplifting complaint .

‘Nonlethal Weapon.'

Justice Samuel A. Alito Jr. wrote a concurrence fleshing out the defects in the Massachusetts opinion.

The pertinent inquiry under the Second Amendment “is whether stun guns are commonly possessed by law-abiding citizens for lawful purposes today,” he wrote.

Alito also criticized the “grudging” per curiam decision because it doesn't resolve the question and just remands the case to the same court that affirmed her conviction “on the flimsiest of grounds.”

This “nonlethal weapon” likely saved Caetano's life when she scared off her abusive ex-boyfriend by brandishing it, he said.

“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,” Alito said. Justice Clarence Thomas joined the concurrence.

Other States' Laws at Risk

Massachusetts is one of just five states that make it illegal to possess weapons that deliver an electronic shock.

The others are:

  • Hawaii;
  • New Jersey;
  • New York; and
  • Rhode Island.

    A number of other states, like Wisconsin, don't ban tasers and other “electric weapons” outright, but have licensing restrictions.

    The Massachusetts Attorney General's Office represented the state. The Committee for Public Counsel Services filed the petition for certiorari on behalf of Caetano.

    To contact the reporter on this story: Lance J. Rogers in Washington at lrogers@bna.com

    To contact the editor responsible for this story: C. Reilly Larson at rlarson@bna.com