Jaime Caetano’s conviction for carrying a stun gun in her car for protection against an abusive ex-partner has energized the US Supreme Court. In a unanimous per curiam opinion issued this morning, the Court accepted the case for argument.
Caetano v. Massachusetts is the classic hard case — very simple facts, a compelling personal story, no intricate legal issues — that can make bad law ... or good, depending. It had been listed on the justices’ conference calendar nine times, close to a record for SCOTUS.
Keeping a handgun in one's home for self defense is a settled constitutional right (in DC v. Heller). But Ms. Caetano was homeless. And she couldn’t get a permit to carry her stun gun because Massachusetts law makes it illegal to have stun guns in public (with certain exceptions). The prosecutor did not contest her testimony. The trial judge did not impose a sentence or even a fine, but simply placed the matter “on file." The highest court of Massachusetts denied her appeal, saying it was not a Second Amendment case.
Her case has been in the courts since 2011. Up until March 21, 2016, every court to touch it seemed uncomfortable with it.
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.
SCOTUS’s opinion this morning (at the end of the Order List) was brief and direct. It listed three “explanations” the Massachusetts court used in rejecting Caetano’s appeal:
1. Stun guns were not in common use when the Second Amendment was enacted.
2. Similarly, stun guns are “unusual” weapons, a thoroughly modern invention.
3. Stun guns aren’t fit for military use, and therefore ostensibly aren’t covered by the Second Amendment.
“The explanation the Massachusetts court offered for upholding the law contradicts this Court’s precedent. Consequently, the petition for a writ of certiorari and the motion for leave to proceed in forma pauperis are granted.”
(Note: On first look, this list seems to me to be a carped reading of the Massachusetts’ court’s opinion.)
How this case came to be was covered in a previous article, “Homeless Domestic Abuse Victim Convicted of Carrying Stun Gun. Second Amendment Anyone?”
On its face, there are two basic questions:
(1) Are stun guns (dangerous, but ostensibly non-lethal) “Arms” protected by the Second Amendment?
(2) Can stun guns be carried in public?
As the briefs showed, the case presents dilemmas. In its friend-of-the-Court amicus brief, AWARE (Arming Women Against Rape and Endangerment) supported Caetano’s argument, that non-lethal weapons should also be entitled to Second Amendment protection:
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.
Caetano would extend the “carry” concept — that weapons for self-defense should be constitutionally protected outside one’s home as well as within it.
Massachusetts initially waived its right to file a response but SCOTUS urged it to respond. It argued that stun guns were unusual and dangerous weapons capable of delivering disabling pain, uncontrolled muscular contractions and disruption of the nervous system and leave no trace of their use. They were not “Arms” in existence at the time of the Bill of Rights and therefore, under the language of J. Scalia’s opinion for the majority in Heller, MA argued they were not within the purview of the Second Amendment.
Moreover, the Commonwealth emphasized that this particular case was “especially fact-bound” with “an atypical factual scenario,” making it “a poor candidate” for SCOTUS to decide how far the Second Amendment extends.
SCOTUS has not decided the Second Amendment since its seminal rulings in Heller (2008) and McDonald (2010), which applied the Heller ruling to the states. One other case has been argued this term: Voisine v US, which presents the question whether misdemeanor charges amounting to “reckless” conduct should bar a gun owner from possessing a firearm? This was the case that energized Justice Clarence Thomas to ask his first set of questions from the bench in ten years.
Reports and analysis of this case will be full of views on what the Court is likely to do with this case. How to think about a unanimous opinion to take the case? Does taking the case portend expansions of the Second Amendment? How will the justices on what is viewed as a 4-4 liberal/conservative Court decide this case? If they deadlock or split on rationale, will the array of opinions decide anything dispositive?
Stay tuned!
Daily Kos's Firearms Law and Policy group studies actions for reducing firearm deaths and injuries in a manner that is consistent with the Supreme Court's application of the Second Amendment. To see our list of original and republished diaries, go to the Firearms Law and Policy diary list. Click on the ♥ or the word "Follow" next to our group name to add our posts to your stream.