Second Amendment Right to a Stun Gun

SCOTUS Supreme Court Building

The Supreme Court delivered a unanimous opinion that the Massachusetts Supreme Judicial Court got it wrong when it ruled that there was no constitutional right to a stun gun. You read that right: unanimous. Yeah, I’m shocked too. Gives me some hope that maybe with Scalia’s death we’re not doomed after all. This is the first Second Amendment decision from the SCOTUS since McDonald. The per curiam opinion is so short I can reprint it here:


The Court has held that “the Second Amendment ex- tends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding,” District of Columbia v. Heller, 554 U. S. 570, 582 (2008), and that this “Second Amend- ment right is fully applicable to the States,” McDonald v. Chicago, 561 U. S. 742, 750 (2010). In this case, the Su- preme Judicial Court of Massachusetts upheld a Massa- chusetts law prohibiting the possession of stun guns after examining “whether a stun gun is the type of weapon contemplated by Congress in 1789 as being protected by the Second Amendment.” 470 Mass. 774, 777, 26 N. E. 3d 688, 691 (2015).

The court offered three explanations to support its holding that the Second Amendment does not extend to stun guns. First, the court explained that stun guns are not protected because they “were not in common use at the time of the Second Amendment’s enactment.” Id., at 781, 26 N. E. 3d, at 693. This is inconsistent with Heller’s clear statement that the Second Amendment “extends . . . to . . . arms . . . that were not in existence at the time of the founding.” 554 U. S., at 582.

The court next asked whether stun guns are “dangerous per se at common law and unusual,” 470 Mass., at 781, 26 N. E. 3d, at 694, in an attempt to apply one “important limitation on the right to keep and carry arms,” Heller, 554 U. S., at 627; see ibid. (referring to “the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons’”). In so doing, the court concluded that stun guns are “unusual” because they are “a thoroughly modern invention.” 470 Mass., at 781, 26 N. E. 3d, at 693–694. By equating “unusual” with “in common use at the time of the Second Amendment’s enactment,” the court’s second explanation is the same as the first; it is inconsistent with Heller for the same reason.

Finally, the court used “a contemporary lens” and found “nothing in the record to suggest that [stun guns] are readily adaptable to use in the military.” 470 Mass., at 781, 26 N. E. 3d, at 694. But Heller rejected the proposi- tion “that only those weapons useful in warfare are pro- tected.” 554 U. S., at 624–625.

For these three reasons, 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. The judgment of the Supreme Judicial Court of Massachusetts is vacated, and the case is remanded for further proceedings not inconsistent with this opinion.

It follows with an opinion by Thomas and Alito excoriating the Massachusetts Supreme Judicial Court for flagrantly ignoring Heller. Also, this is fun:

Instead, Miller and Heller recognized that militia members traditionally reported for duty carrying “the sorts of lawful weapons that they possessed at home,” and that the Second Amendment therefore protects such weapons as a class, regardless of any particular weapon’s suitability for military use.

That pretty much puts to bed several arguments of our opponents, and a few from people on our side who still read Miller that way.

Section 131J allows law enforcement and correctional officers to carry stun guns and Tasers, pre­ sumably for such purposes as nonlethal crowd control. Subduing members of a mob is little different from “sup­ press[ing] Insurrections,” a traditional role of the militia. U. S. Const., Art. I, §8, cl. 15; see also ibid. (militia may be called forth “to execute the Laws of the Union”). Addition­ ally, several branches of the U. S. armed services equip troops with electrical stun weapons to “incapacitate a target without permanent injury or known side effects.”

Are we seeing the beginnings of my preferred “police use” test? Namely, if the cops routinely use a type of weapon it’s unquestionably a protected arm. Obviously this was an opinion by two justices, but let us hope this unanimous ruling sends a message to the lower courts. I don’t think this should be read as any kind of revelation on the part of the liberal justices. I still think they’d vote to uphold carry restrictions and assault weapons bans. But this is certainly a ray of sunshine considering the darkness I see on the horizon.

34 thoughts on “Second Amendment Right to a Stun Gun”

  1. My more cynical side wants to think “we let you have stun guns, you miserable peasants; now go away!”

    OTOH, this really does open up the ground that the 2A is not only about firearms. NYC’s lawyers working their knife law cases can’t be thrilled about it.

    1. I’d really love to see the knife bans fall. They are full of terrible reasons for their existence, such as “Did you see West Side Story!?!?”

  2. Some nicely scathing gems from the concurrence:

    “The lower court’s ill treatment of Heller cannot stand. The reasoning of the Massachusetts court poses a grave threat to the fundamental right of self-defense.”

    “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. […] And the consequences for Caetano may prove more tragic still, as her conviction likely bars her from ever bearing arms for self defense.”

    “If the fundamental right of self-defense does not protect Caetano, then the safety of all Americans is left to the mercy of state authorities who may be more concerned about disarming the people than about keeping them safe.”

    Ouch. Hopefully, that left a mark.

  3. Would this make tasers and stun guns de facto legal nation wide? Jersey for instance, also bans them by civilians.

    1. Yes. It would also include Philadelphia’s stun gun ban. All of them are now ripe for challenge in District Court, where they will almost certainly fall.

      1. Not necessarily. SCOTUS just sent it back for reconsideration because of bad arguments. The Mass court could come up with some other tortured thinking to support a ban.

        1. s/could/will/

          Given what I’ve seen of the Mass SJC, I’d be shocked at any other outcome.

    2. Sure, they will be legal in NJ, so long as you have a “justifiable need”.

  4. I’m thinking that even the progressives on the Supreme Court were pissed at flagrant defiance….the CLUMSY defiance of Heller. That it was SO obvious that they could not let it stand or the Supremes would lose authority.

    This was about the long term power of the Supreme Court more than it was the 2nd amendment.

  5. This is encouraging, but I note that the case was remanded only because the Massachusetts court offered an inadequate *explanation* for upholding the law; perhaps they’ll now come up with a “better” one.

    1. SCOTUS really doesn’t like to overturn itself. I would say that any such case would not even be granted cert for some time, especially given that this one was unanimous.

      This court has shown that it is willing to bend over backwards to get the decision they want, even advancing arguments that were not made by anyone during arguments, such as “Obamacare’s mandate is not a fine, it’s a tax.”

      If they wanted to uphold the stun gun ban, they would have, poor arguments be damned.

      1. “SCOTUS really doesn’t like to overturn itself” – understatement. They’ve done so explicitly a literal handful of times, and you can count the number of times they’ve done so implicitly without taking both shoes off.

  6. Think it’s more of a “respect my authortai!” move. SCOTUS is the big man and they know it. You can probably get away with generating any amount of stupid legal wiggling to get around their decisions, but they’re not going to flat out let you ignore it, even if half the court disagrees with it.

  7. As of 10:30 PST google news does not show this story when searching “gun control”. But does show it when searching “2nd amendment”.

  8. When searching “gun control” Google news also does not report the story that on Friday the Idaho legislature passed Constitutional Carry. But it does when searching “2nd amendment”.

    1. She’s a homeless domestic violence victim with a restraining order against her ex-husband which threatened to kill her.

      A rookie public defender handled her case.


      That has to leave a mark.

      I hope this helps her attorney have a long and successful career for arguing this case so well all the way to the highest court in the land. Her counsel went to Hell and back to find justice.

      1. Is the public defender the one who took it all the way to SCOTUS?

        Not only do they not usually do that, but a rookie public defender is very unlikely to be admitted to practice in SCOTUS. Among other things, one requirement is:

        To qualify for admission to the Bar of this Court, an applicant must have been admitted to practice in the highest court of a State, Commonwealth, Territory or Possession, or the District of Columbia for a period of at least three years immediately before the date of application;

        [From: SCOTUS Instructions for Admission to the Bar (PDF Warning). Emphasis mine.]

        If he’s been qualified to practice in front of the MA Supreme Judicial Court for 3 years, he’s not a rookie.

        1. I’m not sure where the ‘rookie’ came from, but note that he’s not necessarily a member of the SCOTUS bar. This case was decided at the cert petition stage, and anyone can file a cert petition (pro se prisoners do it all the time). If the petition had been granted and not summarily decided, and therefore moved on to merits briefing and argument at SCOTUS, it’s likely an experienced Supreme Court advocate would’ve been brought on.

  9. Did I see they said,”bearable arms”? That seems to be to perhaps extend beyond Heller and allowing the bearing of arms, Strange.

    1. I saw that, too. First in my mind was AR and AK patterned rifles, standard capacity magazines (for both rifles and pistols), and folding and “assisted-opening” knives.

      They certainly are all “bearable arms”, even if our right to own them is considered by some to be “unbearable”.

    2. Heller basically said the case for “…and bear” was not this one. And they haven’t taken up a “…and bear” case since.

  10. The “dangerous and unusual” analysis dicta in the Alito concurrence is GOLD. Probably the most valuable thing to come out of this case.

  11. Wrong. SCOTUS sent it back to MA Federal Court to re-evaluate their decision. SCOTUS did not turn over their decision.

  12. Can someone please explain the significance of this: “…The Supreme Judicial Court then affirmed her conviction on the flimsiest of grounds. This Court’s grudging per curiam now sends the case back to that same court.”

    Grudging per curiam? If this was unanimous why was it grudging? Did they not want to strike this down outright, or did some members of SCOTUS want this sent back to see if they could get the same results but using less tortured logic?

    1. I read that as it took a lot of convincing to bring the other justices along, even given the egregiousness of the case.

  13. I also ask this question with “Squall” that with this case any difference will be blowed out.

    Keeping self defense tools is not ill legal; well my question is what a person should do in such a case where cops or 911 help cannot reach on the spot.

    I feel self defense tools can help a lot in buying some time to protect ourselves from the unexpected attacker.

    I still feel what would be the end judgment given by the supreme court.

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