Second Amendment threatens state stun gun bans

By John Grimm
Guest contributor

Last week, in a short per curiam opinion, the U.S. Supreme Court vacated a Massachusetts woman’s conviction for possessing a stun gun, holding that it violated her Second Amendment rights. Caetano v. Massachusetts, No. 14-10078, — S. Ct. — (2016). For Maryland lawyers (and clients), the case is no mere academic matter; at least three jurisdictions have laws on the books banning stun guns: Defendants can get up to six months in jail for possessing a stun gun in Baltimore and Howard Counties, or 60 days in Baltimore City. It’s hard to imagine these ordinances surviving Caetano, at least as applied to simple possession of a stun gun without some additional element (such as possession by a minor or someone with a prior conviction for a crime of violence, which are both illegal in Maryland).

Jamie Caetano was a domestic-abuse victim who carried a stun gun for protection against her violent ex-boyfriend. In 2011, police searched Caetano’s purse after a store owner thought she was shoplifting. They didn’t find any evidence of shoplifting, but they did find her stun gun, and she was prosecuted and convicted under a Massachusetts statute that bans the possession of electronic weapons. On appeal, the Supreme Judicial Court of Massachusetts rejected her argument that the Second Amendment entitles her to carry a stun gun for protection, reasoning that stun guns were not in common use when the Second Amendment was enacted. The Supreme Court reversed and remanded because the Massachusetts decision is inconsistent with the Court’s recent Second Amendment cases.

Caetano marks only the second time the Court has applied the Second Amendment since 2008’s landmark District of Columbia v. Heller established an individual right to bear arms, and it is the Court’s first post-Heller decision dealing with arms other than firearms. Caetano is also the first Second Amendment case decided since the death of Heller’s author, Justice Scalia (although it was briefed in the fall before he died), and the Court seems to be hewing to its Second Amendment precedent even without his vote. The Court made clear that Heller itself supplies all the reasoning needed to reach its holding; in particular, the Court relied directly on Heller to reject three arguments the Massachusetts court put forward: that stun guns were not in common use at the time the Second Amendment was enacted, that stun guns are “unusual” because they are a modern invention (and therefore subject to regulation even under Heller), and that nothing suggests stun guns can be readily adapted to military use. The Court showed that Heller anticipated and refuted each of these arguments, and it pointed to specific language in Heller that the Second Amendment “extends … to arms … that were not in existence at the time of the founding.” Slip Op. at 1 (quoting Heller, 554 U.S. 570, 582 (2008)).

Aside from the two-page per curiam, Justice Alito wrote a substantial concurrence, joined by Justice Thomas, which reads very much like a majority opinion and provides much more detailed facts and legal analysis. Justice Alito describes the majority opinion as “grudging,” suggesting there may be some reluctance on the Court to wade deeper into Second Amendment questions. Indeed, despite Justice Alito’s alarm at sending the case back to the court that rejected Caetano’s Second Amendment arguments in the first instance, the Supreme Court didn’t explicitly strike down the Massachusetts stun gun ban — it just rejected the Massachusetts court’s explanation for upholding it and vacated the decision.

On remand, there seems to be little to do but overturn the law. As such, here in Maryland, prosecutors looking to save local stun gun bans may try to distinguish them from the Massachusetts law and argue that Caetano does not apply. If they do, Maryland’s appellate courts may ultimately have to weigh in on the issue.

Getting the question before them, however, may be complicated by the fact that stun gun charges are often brought in the District Court, where appeals go to the circuit court, not the Court of Special Appeals. It will take either a circuit court conviction or a certiorari grant from the Court of Appeals to get a reported decision on whether Maryland’s stun gun bans violate the Second Amendment. In the meantime, defense lawyers and prosecutors no doubt have their work cut out for them as they prepare to grapple with Caetano at the trial level.

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