Caetano v. Massachusetts and the stun gun that defended a mother's rights

Suppose a court told you that the First Amendment protects the town crier and the printing press, but not the radio, the telephone or the internet, because none of them existed in 1791. You would assume you had stumbled into a satire. The judge who wrote it would be a figure of fun in every law school in the country.

Now suppose the same reasoning is applied to the Second Amendment, and a state's highest court actually writes it down, in an opinion, in a case about a woman who wanted to protect herself from a man who had abused her. That happened, and the Supreme Court of the United States had to explain, unanimously, why it was wrong.

The facts

The case is Caetano v. Massachusetts, 577 U.S. 411 (2016). The petitioner was Jaime Caetano, a woman who had been in an abusive relationship. According to Justice Alito's concurrence, a "bad altercation" with an abusive boyfriend put her in the hospital, after which she found herself homeless and "in fear for [her] life." She obtained multiple restraining orders against him, but they proved futile.

A friend gave her a stun gun for self-defense against her former boyfriend. A stun gun is an electric weapon that delivers a shock on contact, and it is designed to incapacitate rather than kill. One night after leaving work, Caetano found her ex-boyfriend waiting for her outside. He towered over her by nearly a foot and outweighed her by close to a hundred pounds. She displayed the stun gun and told him to leave her alone, and he got scared and left. She did not have to use it.

Some time later, in September 2011, police responding to a shoplifting report at a supermarket in Ashland, Massachusetts, searched her purse with her consent. They found no evidence of shoplifting, but they saw the stun gun, and they arrested her under a Massachusetts law that banned entirely the possession of an electrical weapon. The officers believed her explanation, but she was tried and convicted, and she appealed.

The state in question is worth noticing. Massachusetts had banned stun guns for private persons, subject to narrow exceptions, while permitting their use by law enforcement. The question was whether that ban could be applied to a woman who kept the device to defend herself against a known threat.

The Massachusetts high court's three reasons

The Massachusetts Supreme Judicial Court upheld her conviction in 2015. It reasoned that stun guns are not protected by the Second Amendment, and the Supreme Court's per curiam opinion identified three explanations, each of which it rejected.

First, stun guns were not in common use at the time of the Second Amendment's enactment. The reasoning was that the weapon did not exist in 1791, so the Amendment could not cover it.

Second, stun guns are "dangerous and unusual." The court asked whether stun guns are "dangerous per se at common law and unusual," and concluded that they are "unusual" because they are "a thoroughly modern invention." That quietly equates "unusual" with "not in common use at the time of enactment."

Third, stun guns are not readily adaptable to military use. The court used what it called a contemporary lens and found nothing in the record to suggest that stun guns are readily adaptable to use in the military.

Look at what the three reasons share. Each treats the Second Amendment as a museum label, not a right: it covers the muskets and flintlocks of the 1790s, and nothing since. If that were the rule, the state could ban every handgun designed after the Revolution, and every cartridge, and for that matter every revolver. It would turn a constitutional right into a historical reenactment society.

The per curiam opinion

The Supreme Court acted without hearing argument. On March 21, 2016, it issued a short unsigned opinion, a per curiam, granting the petition, vacating the Massachusetts decision and sending the case back. No justice dissented.

The Court opened with what it had already 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 the right is fully applicable to the States. It then took the three explanations in turn.

On the first, the Court said the idea that stun guns are unprotected because they were not in common use at the time of enactment is inconsistent with Heller's clear statement that the Amendment extends to arms not in existence at the founding. Heller had put the point bluntly, in the passage the per curiam relies on:

Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way.

On the second, the Court noted that Heller refers to a historical tradition of prohibiting the carrying of "dangerous and unusual weapons," but said that by equating "unusual" with "in common use at the time of the Second Amendment's enactment," the Massachusetts court's second explanation was the same as the first and was inconsistent with Heller for the same reason.

On the third, the Court said Heller rejected the proposition that only those weapons useful in warfare are protected.

For these three reasons, the Court said, the explanation Massachusetts offered contradicts the Court's precedent. It vacated and remanded for further proceedings not inconsistent with its opinion. The per curiam did not decide whether the ban could be defended on other grounds. It said only that the reasons the Massachusetts court had given were unsound, and that the case should be reconsidered.

Justice Alito's concurrence

Justice Alito concurred in the judgment, joined by Justice Thomas. He agreed with the result but would have gone further, and he wrote that the Massachusetts reasoning "defies" Heller and does "a grave disservice to vulnerable individuals like Caetano who must defend themselves because the State will not."

He observed that the "dangerous and unusual" test is conjunctive: a weapon may not be banned unless it is both dangerous and unusual. He then said the Massachusetts court erred on both. On "dangerous," a test that would sweep in virtually every covered arm, including firearms, cannot identify weapons outside the Amendment. On "unusual," the pertinent inquiry, he wrote, is whether stun guns are commonly possessed by law-abiding citizens for lawful purposes today. The Massachusetts court had noted that the number of stun guns is "dwarfed by the number of firearms," which Alito called beside the point, since otherwise a state could ban all weapons except handguns. The more relevant statistic, he said, is that hundreds of thousands of Tasers and stun guns have been sold to private citizens, who may lawfully possess them in 45 states, and he cited a figure of approximately 200,000 civilians owning them as of 2009. Stun guns, he concluded, are widely owned and accepted as a legitimate means of self-defense across the country, so the categorical ban violates the Second Amendment.

He also made a point about the facts. Caetano's encounter, he wrote, showed that by arming herself she was able to protect against a physical threat that restraining orders had proved useless to prevent, with a weapon that posed little if any danger of permanently harming either herself or the father of her children. And he rejected the Massachusetts court's suggestion that she could simply have gotten a firearm: the right to bear other weapons is no answer to a ban on protected arms, and it is presumptuous to tell her she should have been ready to shoot the father of her two young children.

The strongest objection, stated fairly

The best argument for the Massachusetts position is not the "muskets only" reading. It is a more modest one. A state, the argument goes, has a legitimate interest in regulating weapons of any kind, and the Second Amendment does not stop it from banning devices that it reasonably thinks dangerous. Stun guns can be used to commit crimes, to incapacitate a victim, and to harm police. The Supreme Court's own cases say that the right is not unlimited, and that "dangerous and unusual" arms may be prohibited. A state that bans stun guns is making a judgment about public safety that legislatures are entitled to make, and the Court should be reluctant to second-guess that.

That is a fair statement, and I would not mock anyone for making it. Here is the answer, in four points.

1. The Court did not say the ban was unconstitutional. It said the three reasons were unsound. The state remained free to defend the ban on better grounds. The per curiam is narrow, and its narrowness is a reason to read it carefully.

1. The "dangerous and unusual" label is a legal category, not a convenience. Under Heller, a weapon is outside the Amendment if it is both dangerous and unusual, not typically possessed by law-abiding citizens for lawful purposes. A weapon owned in large numbers for self-defense is neither. A device whose whole design is to incapacitate without killing is a poor candidate for the label.

1. A complete ban is different from regulation. Heller says that regulation of arms is permitted in many ways: licensing, sensitive places, restrictions on certain persons. A flat ban on a whole category of defensive arms is another matter. The Court had held in Heller that a ban on handguns, the most popular defensive weapon, failed. A ban on stun guns raises the same structural problem.

1. The state's alternative does not answer the claim. Alito wrote that Caetano's restraining orders had proved futile and that the Massachusetts court's suggestion that she could have gotten a firearm instead is "no answer" to a ban on a protected arm. For someone with a threatening former partner and an order that is being ignored, a defensive tool within reach is a plain, practical thing.

What "muskets only" proves

Let me take on the "muskets only" argument directly, since it keeps resurfacing.

One. It proves too much. If a constitutional right covers only the technology of its day, then the First Amendment would not cover the telephone, the television or the internet, and the Fourth Amendment would not cover a thermal imager or a phone. The Court has never read the Constitution that way, and it has said so in cases about the Fourth Amendment and electronic communications.

Two. It misreads the text. The Second Amendment protects the right to keep and bear "Arms," a general term. In the eighteenth century, as Heller noted from founding-era dictionaries, "arms" meant weapons of offence and things that a man wears for his defence, or takes into his hands. It is a category, not a list.

Three. It overlooks the founders' own world. In 1791 the technology of arms was in rapid change. The founders knew about rifles, which were improving, and about weapons that did not exist a generation before. A founding generation that watched weaponry change had no illusion that it would stay the same.

Four. It would produce silly results. If the Second Amendment protected only flintlock muskets, the government could ban every modern pistol and every cartridge firearm, and the right to arms would be reduced to a hobby for historical reenactors. The people who adopted the Amendment did not think they were protecting a museum.

A little humor to season the point. The "muskets only" argument is the constitutional equivalent of saying that the freedom of the press covers only the hand-cranked press, so a newspaper printed on a modern machine may be seized at will. Those who make it are never willing to follow it to its other applications. I am still waiting for the first one to say the same thing about their own favorite amendment.

For more on the "common use" idea and how it applies to different weapons, see The weapons of war argument against the AR-15 fails on its own terms, and for the broader question of who most benefits from a defensive tool, the equalizer, why a firearm matters most to the smallest person in the room makes the argument. The ruling on what Heller decided is covered in Justice Stevens's Heller dissent, stated fairly and answered point by point.

What happened afterwards

The case went back to Massachusetts. In Ramirez v. Commonwealth, decided on April 17, 2018, the Massachusetts Supreme Judicial Court held that the state's absolute ban on civilian possession of stun guns violates the Second Amendment, while saying the Commonwealth may regulate them. I would ask readers to check the current Massachusetts statutes on the legislature's website for the details, since the law has changed. The broader point is that Caetano did its work: it forced a state court to stop treating the right as frozen in 1791.

I also want to say something about Jaime Caetano, who is a real person who went through real trouble. Her case was not a story about gun enthusiasts. It was about a woman who wanted a way to keep an abuser away, and a state that told her she could not have the tool. Whatever one thinks about gun policy generally, that is not an easy position to defend.

What this means for a family

The case teaches a rule of reading and a rule of life. The rule of reading is that constitutional rights are not limited to the technology of the founding. The rule of life is that when someone needs to protect himself or herself, the most practical tool is often the one that is lawfully within reach.

If you are in danger, call the police and seek protective orders through the courts, and speak to a lawyer in your own state about what is lawful for you to keep. This post is a description of a court decision, not legal advice.

The case in brief

1. In Caetano v. Massachusetts (2016), a woman who had been abused by a former boyfriend was convicted for possessing a stun gun, which she kept for protection.
2. The Massachusetts high court upheld the conviction on three grounds: stun guns were not in common use in 1791, were "unusual" because they were a modern invention, and were not adaptable to military use.
3. The Supreme Court vacated the decision in a per curiam opinion with no noted dissent, reaffirming that the Second Amendment covers arms that did not exist at the founding.
4. Justice Alito, joined by Justice Thomas, concurred and stressed that the right to a widely owned defensive weapon turns on common use today.
5. The "muskets only" argument would shrink every right to the technology of its day, which no court applies to the First or Fourth Amendment.

What you can do: look up your own state's laws on stun guns and other defensive tools on your legislature's website, and tell your representative if you think a ban goes too far.