This is not a hypothetical case. Caetano v. Massachusetts is on the US Supreme Court’s doorstep. It offers constitutional questions for resolution — several of them — presenting issues SCOTUS has been dodging for more than five years.
Jaime Caetano is a homeless woman who was carrying a stun gun for self defense against an allegedly abusive and violent ex-partner. Massachusetts law makes the possession of stun guns a crime (with a few exceptions). Ms. Caetano was convicted.
The Supreme Court of Massachusetts upheld her conviction and held the Massachusetts statute did not violate the Second Amendment.
Disclaimer Nothing in this diary constitutes legal advice and it is not to be acted upon as legal advice. Civil and criminal law are specialties. If you need advice on these matters, get it from a professional skilled in the law of your state.
Comments are welcome, even argumentative ones that are civil and advance understanding of the issues the lawsuit raises.
The Facts
On a September afternoon in 2011, the manager of a supermarket called police about a suspected shoplifting and pointed them to the parking lot where Ms. Caetano was sitting in a car. She consented to a search. Police found a stun gun in her purse and arrested her for violating a Massachusetts statute which made possessing a “portable device or weapon from which an electrical current, impulse, wave or beam may be directed … [which] is designed to incapacitate temporarily, injure or kill ...” a crime punishable by fine and/or imprisonment.
At trial, the prosecutor and Caetano’s counsel stipulated that her stun gun — to be effective, its two prong must be in direct physical contact with the target — met that statutory definition. However, she argued it was necessary for self defense against a violent and physically abusive boyfriend from whom she had restraining orders in the past. According to Caetano’s court papers, “The prosecutor did not cross-examine [her] and, indeed, urged the trial judge to credit her testimony.”
The judge found her guilty but placed the conviction “on file”, imposing no fine or sentence. The Massachusetts Supreme Judicial Court upheld the conviction:
The conduct at issue falls outside the “core” of the Second Amendment, insofar as the defendant was not using the stun gun to defend herself in her home and involves an “unusual and dangerous weapon” that was not “in common use at the time” the Second Amendment was enacted [in 1791] .…
The defendant does not articulate any basis for challenging the statute under the rational basis test. Nevertheless, we note that stun guns deliver a charge of up to 50,000 volts. They are designed to incapacitate a target by causing disabling pain, uncontrolled muscular contractions, and general disruption of the central nervous system. … Stun guns can deliver repeated or prolonged shocks without leaving marks. … The Legislature could rationally ban their use in the interest of public health, safety, or welfare.
The Arguments
Caetano’s counsel argues that the Second Amendment, as J. Scalia applied it in the seminal 2008 case of DC v. Heller, is not limited to guns or even types of guns available in 1791: it is not “a fossilized relic trapped in amber.”
“[T]he core of the Second Amendment is the individual right to keep and carry a bearable instrument — such as a stun gun — for self-defense in case of confrontation, and that this right may exist outside the home.”
When restraining orders did not work, she carried a stun gun — a nonlethal instrument designed for self-defense, and typically possessed by law-abiding citizens in states other than Massachusetts for that purpose. She had displayed the stun gun to successfully fend off her abuser when he confronted her outside her job. The [Massachusetts Court’s] approach would render all of these undisputed facts irrelevant for Second Amendment purposes on the rationale that the petitioner happened to be arrested in the marking lot of a supermarket rather than in a “home” she did not have.
In a parting shot, counsel argued that by virtue of the conviction, Caetano was disabled from owning a gun, thereby rendering other self defense alternatives “infeasible” for her.
The Commonwealth responds that stun guns are not “Arms” such as an individual would use in a militia (using the terms of the Second Amendment) and are not entitled to protection. They are “a thoroughly modern invention” without any analogs in Colonial times and in terms of Heller, a stun gun is a “dangerous and unusual weapon.”
Massachusetts also argues that this case involves the “difficult question” of carrying a weapon outside a home by someone who is homeless. It is “especially fact-bound” with “an atypical factual scenario”, making this particular case “a poor candidate” for SCOTUS to decide how far the Second Amendment extends.
A public interest group —Arming Women Against Rape and Endangerment (AWARE) — forms the issue quite differently in its friend-of-the-court amicus brief:
Whether the Second and Fourteenth Amendments protect a right to keep and bear weapons that are less deadly (but also less common) than hand- guns .…
AWARE believes that law-abiding Americans should have the right to choose whether to defend themselves with lethal weapons or nonlethal weapons.
AWARE thereby argues that the choice not to use a traditional firearm for confrontational defense should be within Second Amendment protection, emphasizing that stun guns are not used for killing and are unlikely to be misused for suicide or by children.
So … the Questions
(1) Are stun guns "Arms”?
The easiest “out” for the Court — if SCOTUS were to accept this appeal — would be to find that the Second Amendment does not apply to non-lethal firearms. This would leave policy judgments about them to state legislatures and city councils, not courts.
However, if that is the likely outcome, it would seem to be more economical — and more sensible, in my view — for the Supreme Court simply not to take this case up.
(2) If stun guns are “Arms”, are they protected by the Second Amendment?
One conclusion does not follow from the other. Fully automatic machine guns are arms, yet Heller explicitly acknowledged that a Federal ban on them was reasonable. Caetano would open up the intriguing but somewhat bottomless area of protecting non-lethal “guns,” a host of new challenges for a Court that has dodged more than 60 Second Amendment cases in the years since Heller (2008) and McDonald (2010).
(3) Does 2A protect weapons that are being carried, not simply used in one’s home for self-defense?
This is the question the Massachusetts Supreme Judicial Court punted to SCOTUS:
“[W]e need not decide whether a hotel room may be treated as a home under the Second Amendment. Moreover, the stun gun was found not in defendant’s hotel room but on her person in a motor vehicle, outside the “core” of the Second Amendment.
The carry issue is much beloved by gun rights advocates. They emphasize the Second Amendment language “… the right to keep and bear Arms ...” and point out that bearing a weapon, as in a militia, is carrying a weapon. (Militia members also openly carry weapons, which would be a whole new area for SCOTUS to take on.) Many state laws extend the notion of self defense and Stand Your Ground territory beyond a residence to one’s place of business, vehicles (car or boat, for example) or basically anywhere the carrier of a gun may be.
The Seventh Circuit Federal Court of Appeals so held in Moore v. Madigan. In a 2-1 opinion met with considerable enthusiasm and criticism, Judge Richard Posner created a Second Amendment right applied to Chicago, the last jurisdiction in America to essentially ban concealed carry. J. Posner wrote:
Nor can we ignore the implication of the analysis [in Heller] that the constitutional right of armed self-defense is broader than the right to have a gun in one’s home. …
[A] Chicagoan is a good deal more likely to be attacked on a sidewalk in a rough neighborhood than in his apartment on the 35th floor of the Park Tower. A woman who is being stalked or has obtained a protective order against a violent ex-husband is more vulnerable to being attacked while walking to or from her home than when inside. She has a stronger self-defense claim to be allowed to carry a gun in public than the resident of a fancy apartment building (complete with doorman) has a claim to sleep with a loaded gun under her mattress.
Obvious as this argument was to J. Posner, carrying concealed weapons was not by any stretch an “implication” of J. Scalia’s opinion in Heller. And Posner’s declaration of what the law should be was a legislative rationale, not a judicial one. Following the decision as the appeals court invited, the state of Illinois passed a concealed carry statute (with a number of prominent exceptions) and the case was not appealed to the US Supreme Court.
Observations
(1) Initially, the Commonwealth of Massachusetts did not even answer Caetano’s request to appeal, probably trying to signal that this was not a significant case. But SCOTUS requested that the Commonwealth file a response. This does not mean the Court will grant certiorari (the legal term for bringing the record of the case to SCOTUS for review), but it does suggest that one or more members of the Court wanted to look at these arguments more closely.
(2) Wikipedia delivers the wisdom:
Hard cases make bad law is an adage or legal maxim. It means that an extreme case is a poor basis for a general law that would cover a wider range of less extreme cases. In other words, a general law is better drafted for the average circumstance as this will be more common. The word hard, as used here, may refer to those whose situations arouse sympathy.
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