SUPREME COURT OF THE UNITED STATES
JAIME CAETANO v. MASSACHUSETTS
ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME
JUDICIAL COURT OF MASSACHUSETTS
No. 14–10078. Decided May 6, 2016
JUSTICE delivered the opinion of the Court.
We are called upon to consider whether a stun gun is an arm for Second
Amendment purposes and whether Massachusetts’s general ban on the possession of such
devices violates the Second Amendment of the United States Constitution. The Court
holds that stun guns are Second Amendment arms and any general ban on such devices
violates the Second Amendment.
I.
On September 29, 2011, police officers responded to a call reporting a possible
shoplifting at a store in Ashland, Massachusetts. The manager of the store directed the
officers to Caetano, and the officers approached Caetano and requested to search her
purse. Caetano consented, and the search revealed no evidence of shoplifting; but it did
reveal a stun gun, which is prohibited in Massachusetts. Caetano was charged with
possession of a stun gun in violation of Mass. Gen. Laws, ch. 140, §131J (2014) (131J).1
The law forbids the private of a “portable device or weapon from which an electrical current, impulse,
wave or beam may be directed, which current, impulse, wave or beam is designed to incapacitate
temporarily, injure or kill” except by specified public officers or suppliers of such devices, if possession is
“necessary to the supply or sale of the device or weapon” to agencies utilizing it. Mass. Gen. Laws, ch.140,
§131J (2014).
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Before trial, Caetano moved to dismiss the charge challenging the
constitutionality of 131J. Caetano argued that a stun gun is an arm for purposes of the
Second Amendment; that it is a weapon primarily for self-defense and in common use in
the United States for that purpose; and that she kept her stun gun for purposes of selfdefense. As such, she maintained that the Second Amendment of the United States
Constitution protected her right to possess the stun gun. That motion was denied.
The parties agreed that a stun gun was prohibited by 131J, and the trial court
judge found Caetano guilty of violating the statute. Caetano appealed to the
Massachusetts Supreme Judicial Court (SJC), which rejected her Second Amendment
argument. Commonwealth v. Caetano, 26 N.E.3d 688, 689 (2015). The SJC reasoned that
stun guns are ineligible for Second Amendment protection because they are a dangerous
and unusual weapon that was not in common use at time of the Second Amendment’s
enactment. Id. at 692 (citing District of Columbia v. Heller 554 U. S. 570, 627 (2008).
Because stun guns are not eligible for Constitutional protection, the SJC only
needed a rational basis to uphold 131J’s constitutionality. The Massachusetts legislature
saw banning a devise that can “deliver a charge of up to 50,000 volts” to immobilize a
target in the “interest of public health, safety, or welfare.” Caetano, 26 N.E.3d, at 782.
The SJC viewed this reasoning as a “classic legislative basis supporting rationality.” Id.
Thus, the SJC found that 131J easily passed the rational basis test and was constitutional.
Id. at 694.
Unfortunately for Caetano, this meant she was still guilty of violating 131J and
pursuant to 28 USCS § 1257(a), she petitioned this Court for a writ of certiorari
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challenging her final judgment of the highest court in Massachusetts. We granted
certiorari to review the SJC’s finding that stun guns are not Second Amendment Arms.
II.
We initially turn to the main controversy, whether a stun gun is an arm for Second
Amendment purposes. Caetano prays that it is, while the Commonwealth believes the
inapposite—stun guns are not Second Amendment Arms. This is a question of pure
Constitutional law; therefore, our review is de novo. See Pierce v. Underwood, 487 U.S.
552, 558 (1988). This Court has previously addressed limitations on a citizen’s Second
Amendment right to keep and bear arms. See District of Columbia v. Heller, 554 U.S.
570 (2008); McDonald v. City of Chicago, 561 U.S. 742 (2010). Concerning Second
Amendment “arms,” we have 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[,]” Heller, 554 U.S. at 582 (2008), this “right is fully applicable to
the States[,]” McDonald v. City of Chicago, 561 U.S. 742, 750 (2010), but, the right also
has limits supported by the “historical tradition of prohibiting the carrying of dangerous
and unusual weapons.” Heller, 554 U.S. at 625.
A.
In the Court’s “first in-depth examination of the Second Amendment,” Heller
“held that the Second Amendment protected an individual right to possess a firearm
unconnected with service in a militia and to use that firearm for traditionally lawful
purposes[.]” 554 U.S. 570, 573. The issue in Heller was the District of Columbia’s
general prohibition on handgun possession. Id. at 576. This Court had to decide between
“very different interpretations” of the Second Amendment. Id. The District of Columbia
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argued that Second Amendment protections only extended to an individual’s right to
possess and carry a firearm in connection with militia service. Id. While the respondent
argued the very antithesis: the Second Amendment protects a person’s “right to possess a
firearm unconnected with service in a militia.” Id.
To decide the issue, this Court explored the textual origins of the Second
Amendment “right to keep and bear arms.” Before addressing the meaning of the verbs
“keep” and “bear.” Justice Scalia sought and found the meaning of “arms” in several 18th
century dictionaries. Id. at 583. Timothy Cunningham, in his 1771 legal dictionary,
defined “arms” as, “any thing that a man wears for his defence, or takes into his hands, or
useth in wrath to cast at or strike another.” Id. at 581 (citing 1 A New and Complete Law
Dictionary). Likewise, Samuel Johnson’s 1773 dictionary defined “[w]eapons of offense,
or armour or defense” as “arms.” Id. (citing 1 Dictionary of the English Language 106
(4th ed.) (reprinted 1978). Guided by “the principle that “[t]he Constitution was written
to be understood by the voters; its words and phrases were used in their normal and
ordinary as distinguished from technical meaning,” Heller, 554 U. S. at 576 (citing
United States v. Sprague, 282 U.S. 716 (1938)), Justice Scalia analyzed these 18th
century dictionaries and found that the term “was applied, then as now,” to weapons -that were neither connected, nor designed for use in military or militia service. Id. at 581.
We further noted that the 1689 English Bill of Rights explicitly protected a right
to keep arms for self-defense, Id. at 593, and that by 1765, the right to keep and bear arms
was “one of the fundamental rights of Englishmen,” which was shared by the American
Colonist. Id. at 594. After putting the Amendment’s textual elements together, this Court
found they “guarantee the individual right to possess and carry weapons in case of
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confrontation,” irrespective of militia service Id. at 592, because this “inherent right of
self-defense has been central to the Second Amendment right.” Id. at 628.
Not only two years after the Court historic analysis of the Second Amendment,
McDonald gave Justice Alito the opportunity to reaffirm Justice Scalia’s Heller holding,
and apply it to all fifty states. 561 U.S., at 750. There, we held that self-defense was a
“basic right“ id., at 767, and “the central component” of the right to bear arms. Id.
(quoting Heller, 554 U.S., at 599).
B.
The argument before the Court today, is the same one this Court considered
“bordering on the frivolous” in Heller. 554 U.S. at 582. The respondent argues that the
Second Amendment only provides protection for arms which where “in existence in the
18th century.” Id. As we explained in McDonald, “[o]ur decision in Heller points
unmistakably to the answer.” 561 U.S., at 767 (emphasis added). The Second
Amendment protects an individuals right to keep and possess weapons “that did not exist
at the time of our founding.” Heller, 554 U.S. at 582.
C.
Pointing out--quite correctly--that this Court has recognized a “historical tradition
of prohibiting the carrying of dangerous and unusual weapons,” Id. at 625 the SJC
incorrectly used the Court’s “historical tradition” to find that stun guns are “dangerous
per se at common law and unusual,” and thus constitutionally prohibitable. Caetano, 26
N.E.3d, at 694 (emphasis added). Stun guns were dangerous per se, according to the SJC,
because they were designed “for the purpose of bodily assault or defense.” Id. at 692
(quoting Commonwealth v. Appleby 402 N.E. 2d 1051, 1056 (1980)), and they are
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unusual because they are “a thoroughly modern invention.” Caetano, 26 N. E. 3d, at 69394.
It is laudable for the SJC to conclude that Caetano’s stun gun was dangerous per
se because it was designed for the purpose of bodily defense. This is precisely why
Caetano obtained the stun gun; for defense from abuse. It is equally courageous for the
SJC to claim that “questions whether a weapon is ‘unusual’ and whether the weapon was
‘in common use at the time’ of enactment are interrelated.” Id. at 693 (quoting Heller,
554 U.S. at 627-28. Of course, they are interrelated--they are wrong for the same reasons
as well. They are misunderstandings of how we interpret Constitutional rights. Modern
forms of communication are not exempt from First Amendment protection and modern
forms of search are not except from Fourth Amendment protection, See Reno v.
American Civil Liberties Union, 521 U.S. 844, 849 (1997), and Kyllo v. United States,
533 U.S. 27, 35–36 (2001)). Likewise, Caetano’s stun gun is not exempt from Second
Amendment protection.
D.
The SJC confined its starting analysis to Miller’s “another important limitation”
language deriving from Heller and would not stray from it -- ignoring this Courts holding
in Heller and McDonald in the process. This Court will correctly answer the question the
SJC unmistakably answered incorrectly. Caetano’s stun gun was an object she took into
her hands for self-defense, or as Cunningham and Johnson would define Caetano’s stun
gun, as an arm, one that receives Second Amendment protection. To be sure, the Court is
not casting any doubt on the long-standing bans on carrying a concealed gun or on gun
possession by felons or the mentally deficient, on laws barring guns from schools or
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government buildings, or laws putting conditions on gun sales. See Heller 554 U.S., at
627.
II.
Having determined that the Second Amendment covers stun guns, we next
consider the secondary issue before the court, whether 131J, with its complete ban on
stun guns, is in violation of the Second Amendment. The Second Amendment states in its
entirety; "[a] well regulated Militia, being necessary to the security of a free State, the
right of the People to keep and bear Arms, shall not be infringed." U.S. Const. amend. II
(emphasis added). The respondent, the Commonwealth of Massachusetts, attempts to
salvage the statute by suggesting that “any burden [131J places] on the exercise of
Second Amendment rights” is de minimis, and the stun gun ban easily passes the rational
basis test under the Constitution. Caetano, 26 N.E.3d, at 693-694. The respondent claims
that Caetano can acquire and use a “wide array of firearms.” Brief in Opposition at 20-21,
quoting Draper v. Healey, 98 F.Supp.3d 77, 85. (D. Mass. 2015). We submit that “even a
casual glance at the [the respondent’s suggestion] shows these conclusions to be entirely
fanciful.” (J. Clark, concurring, Baker v. Carr, 369 U.S. 186, 258 (1962). We
admonished Justice Breyer’s similar “interest-balancing” approach” in Heller suggesting
that “[t]he very enumeration of the right takes out of the hands of government...the power
to decide on a case-by-case basis whether the right is [really worth] insisting upon.
Heller, 554 U.S. 570, 634 (emphasis added). Yet, this does not end the Court’s analysis.
For the reasons that follow, this Court will not legislate from the bench by dictating how
lower courts should or should not enact its own gun regulations.
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A.
Heller has left lower courts in a tizzy--attempting to find the appropriate
analytical framework to analyze Second Amendment claims; but we also have seen and
recognized “the role of the States as laboratories for devising solutions to difficult legal
problems[.]" Oregon v. Ice, 555 U.S. 160, 171 (2009). State legislatures are in the best
position to analyze gun crimes, debate the various issues therein, and create gun
legislation that works best for each individual state. Despite the confusion this Courts
Heller ruling may have caused, Heller was not a get out of jail free card for persons
charged with a gun crime. Yet, it was for Caetano because we hold Mass. Gen. Laws, ch.
140, §131J unconstitutional.
B.
The Court will take a brief moment to address a question posed by Caetano -- she
asks the Court make clear the “core” of the Second Amendment applies outside the
home. The dicta of Heller arguably suggests that the right to keep and bear arms must
extend outside of the home. We held in Heller that the Second Amendment protects the
“individual right to possess and carry weapons in case of confrontation.” 554 U.S. at 592.
The Court understands how some may have read this as implying a “right to keep and
bear arms” outside the home. But in the same opinion, we also did not read the Second
Amendment as protecting the rights of “citizens the to carry arms for any sort of
confrontation.” Id., at 595 (emphasis in original).
In fact, Caetano was homeless at the time of her arrest. A homeless person may
indeed have a home for constitutional purposes. Likewise, the Constitution would protect
Caetano if she were arrested for possession of a Second Amendment arm in a hotel room.
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But Caetano’s Second Amendment arm was not found her hotel room, but in her purse in
a car -- outside the Second Amendment’s “core.”
For the abovementioned reasons, Caetano’s conviction for possessing a stun gun
is vacated.
It is so ordered,
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