Many American gun owners believe that the U.S. Supreme Court has been silent on gun rights since its rulings in District of Columbia v. Heller (2008), holding that the Second Amendment protects an individual right to keep and bear arms apart from militia service,[1] and McDonald v. Chicago(2010),[2] applying Heller to the States. But this overlooks another interesting Supreme Court Second Amendment ruling – the 2016 case of Caetano v. Massachusetts.[3]
Unlike most Second Amendment cases, Caetano involved a non-lethal weapon – an electric stun gun. In that case, the Massachusetts Supreme Judicial Court upheld the conviction of Jamie Caetano, a homeless woman living in a hotel, of possessing a stun gun – “[Massachusetts] bans entirely the possession of an electrical weapon with some exceptions not applicable here”[4] – which she “claim[ed] was necessary to protect herself against an abusive former boyfriend.”[5] “It is a good thing she did,” as Justice Alito explained in his concurrence to the U.S. Supreme Court opinion overturning the Massachusetts decision:
“One night after leaving work, Caetano found her ex-boyfriend ‘waiting for [her] outside.’ He ‘started screaming’ that she was ‘not gonna [expletive deleted] work at this place’ anymore because she ‘should be home with the kids’ they had together. Caetano’s abuser towered over her by nearly a foot and outweighed her by close to 100 pounds. But she didn’t need physical strength to protect herself. She stood her ground, displayed the stun gun, and announced: ‘I’m not gonna take this anymore.... I don’t wanna have to [use the stun gun on] you, but if you don’t leave me alone, I’m gonna have to.’ The gambit worked. The ex-boyfriend ‘got scared and he left [her] alone.’”[6]
As Justice Alito further explained,
“By arming herself, Caetano was able to protect against a physical threat that restraining orders had proved useless to prevent. And, commendably, she did so by using a weapon that posed little, if any, danger of permanently harming either herself or the father of her children … Under Massachusetts law, however, Caetano's mere possession of the stun gun that may have saved her life made her a criminal.”[7]
At trial Ms. Caetano argued that the stun gun he owned was an arm commonly used in the United States for self-defense and hence protected by the Second Amendment.[8] The Massachusetts Supreme Judicial Court disagreed. Relying on the Heller decision’s concession that rights under the Second Amendment are “not unlimited,”[9] the Court disagreed, finding stun guns to be “dangerous and unusual weapons” first patented in 1972 and first commercially available in the 1990s, and therefore not commonly used, or indeed conceived of, at the time of the Second Amendment’s enactment, and therefore outside the scope of its protection.[10] “Without further guidance from the Supreme Court on the scope of the Second Amendment,” the Massachusetts Court pronounced, “we do not extend the Second Amendment right articulated by Heller to cover stun guns.”[11]
Unfortunately for the Massachusetts Supreme Judicial Court, the U.S. Supreme Court promptly accepted this smug request for further guidance, issuing its own decision, Caetano v. Massachusetts, in 2016.[12] In a short, unsigned opinion, a unanimous Supreme Court declared that “[this] 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,” and that nothing in the Hellerdecision supported the lower Court’s view that only weapons useful in warfare are protected by the Second Amendment.[13] With that, the Supreme Court vacated the Massachusetts’ Court’s judgment and remanded the case for further proceedings.[14]
Justice Alito attached a vigorous concurring opinion, in which Justice Thomas joined, arguing in part that
“The pertinent Second Amendment inquiry is whether stun guns are commonly possessed by law-abiding citizens for lawful purposes today. The [Massachusetts] Supreme Judicial Court offered only a cursory discussion of that question, noting that the number of Tasers and stun guns is dwarfed by the number of firearms. This observation may be true, but it is beside the point. Otherwise, a State would be free to ban All weapons except handguns, because handguns are the most popular weapon chosen by Americans for self-defense in the home [but] … The more relevant statistic is that [h]undreds of thousands of Tasers and stun guns have been sold to private citizens, who it appears may lawfully possess them in 45 States … 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.”[15]
“The lower court’s ill treatment of Heller cannot stand,” Justice Alito continued:
“The reasoning of the Massachusetts court poses a grave threat to the fundamental right of self-defense. The Supreme Judicial Court suggested that Caetano could have simply gotten a firearm to defend herself. But the right to bear other weapons is no answer to a ban on the possession of protected arms. Moreover, a weapon is an effective means of self-defense only if one is prepared to use it, and it is presumptuous to tell Caetano she should have been ready to shoot the father of her two young children if she wanted to protect herself. Courts should not be in the business of demanding that citizens use more force for self-defense than they are comfortable wielding … A State’s most basic responsibility is to keep its people safe. The Commonwealth of Massachusetts was either unable or unwilling to do what was necessary to protect Jaime Caetano, so she was forced to protect herself. To make matters worse, the Commonwealth chose to deploy its prosecutorial resources to prosecute and convict her of a criminal offense for arming herself with a nonlethal weapon that may well have saved her life. The Supreme Judicial Court then affirmed her conviction on the flimsiest of grounds.”[16]
The Supreme Court’s ruling in Caetano was not perfect, as many observers have noted. As Eugene Volokh observed in the Washington Post, “[t]he Supreme Court … didn’t hold that the stun gun ban was unconstitutional — it simply rejected the arguments that the Massachusetts court had given for upholding the ban … The state could, for instance, argue that the statute might still pass intermediate scrutiny or strict scrutiny because it was sufficiently related to a sufficiently important government interest.[17] But the State of Massachusetts did not choose to go forward. Its stun gun ban now under a cloud, to borrow Volokh’s metaphor, Massachusetts instead dropped the charges and the trial court entered a judgement of acquittal – not guilty – and ordered Caetano’s record sealed to protect it from disclosure to future potential landlords or employers conducting background checks.[18]
Many people have criticized the Supreme Court for not going far enough in Caetano. Be that as it may, it remains an important affirmation of the right to keep and bear arms, with Justice Alito’s concurring opinion providing particularly valuable language that can be usefully deployed in future cases, such as those involving carry permits or semiautomatic rifles.
Dennis P. Chapman, a retired U.S. Army officer, practices law in Virginia. He is the author of The AR-15 Controversy: Semi-Automatic Rifles and the Second Amendment (Third Brigade Press, 2021), available online from Amazon and Barnes and Noble.
[1] District of Columbia v. Heller, 554 U.S. 570 (2008).
[2] McDonald v. Chicago, 561 U.S. 742, 791 (2010).
[3] Caetano v. Massachusetts, 136 S.Ct. 1027 (2016) [hereinafter Caetano (US)].
[4] Commonwealth v. Caetano, 470 Mass. 774 (2015) [hereinafter Caetano (MA)].
[5] Id.
[6] Caetano (US) (Alito, J., concurring).
[7] Id.
[8] Caetano (MA).
[9] Id., quoting Heller.
[10] Id.
[11] Id.
[12] Caetano (US).
[13] Id.
[14] Id.
[15] Id. (Alito, J., concurring).
[16] Id.
[17] Eugene Volokh. “Opinion: Charges dropped in Caetano v. Massachusetts Second Amendment stun gun case.” The Washington Post, July 7th, 2016.
[18] Id.
The Massachusetts Stun Gun Case: the U.S. Supreme Court’s Overlooked Second Amendment Precedent