One of the popular arguments in the gun rights/gun control debate is that the Second Amendment covers only those firearms in use at the time the Bill of Rights was adopted.
Since most people on the gun control side have a limited knowledge of firearms history, this is often interpreted to mean muskets.
Unfortunately for that popular idea, it isn’t true. Even in the Revolutionary War, when British troops were generally armed with the Brown Bess musket, American forces were using rifles, which gave them an edge in range and accuracy. Furthermore, by the time the war ended, there was already a repeating rifle, the Girardoni, that could fire eleven rounds per minute. This was the first repeating rifle adopted by a military force and Thomas Jefferson bought a pair of them for the Lewis and Clark Expedition.
A more recent blow to the musket meme came from the U.S. Supreme Court, which vacated a decision by the Supreme Judicial Court of Massachusetts in the case of Jaime Caetano v. Massachusetts that said because stun guns weren’t in common use in the early days of the nation they didn’t count as “arms” under the Second Amendment.
In a per curiam opinion (one that is delivered by the court rather than individual justices), the Supreme Court said that this opinion is inconsistent with the decision in the Heller case. In that case, the Court stated that the Second Amendment does apply to arms “that were not in existence at the time of the founding.”
The case revolves around Jaime Caetano, 33, a 4-foot, 11-inch-tall woman. After her husband beat her so severely that she required hospital treatment, Ms. Caetano left him.
Despite multiple restraining orders, the ex-husband continued to harass her and would continually show up at her workplace. In fear for her life, Ms. Caetano got a “stun gun” from a friend to defend herself.
Ms. Caetano never had to use the gun, but in 2011, Caetano was detained on suspicion of shoplifting. Police searched her purse and arrested her for possession of a the weapon. Massachusetts has a near-total ban on all electric-based weapons.
As might be expected, Ms. Caetano was was convicted. She appealed but the Massachusetts Supreme Judicial Court upheld the conviction. With the Supreme Court’s action, she now has a chance to clear her record.
In a note concurring with the Supreme Court’s action, Justice Samuel Alito wrote a stinging rebuke:
“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.”
Incidentally, it might surprise some to learn that a real musket is not considered a firearm under current federal law as long as it was produced prior to 1898 or is a replica of such a gun. As such, it is exempt from federal gun control laws. You can actually mail- order a replica of a Short Land Pattern Brown Bess musket, the type used by the British in the Revolutionary War. You can even add a replica bayonet to your order.