Legally Speaking


By Karen L. MacNutt,
Contributing Editor
It has been difficult to report on gun cases decided after the Supreme Court’s landmark decisions in District of Columbia v. Heller and McDonald v. Chicago because District Court cases are usually appealed to the Circuit Courts of Appeals but the Supreme Court has declined to take further appeal. The result is a patchwork of differing results that are only valid in the jurisdictions in which they were decided, not nationwide.
There are members of our judiciary who simply hate guns. Some are willing to bend whatever laws are involved to fit their own political views. They do this because they have the power to do so; and, deep down, they respect neither the law nor the Constitution. Likewise, those who push for gun restrictions do not seem to respect any civil right if it protects gun ownership. The gun haters push imaginary fears into the public’s mind.
The public, which has little experience with guns, believes what they are being told. The “ghost gun” furor is a prime example. For as long as the United States has existed, detailed drawings on how to make guns have been available from the U.S. Patent Office. Hundreds of different books readily available in thousands of libraries, explain the process. Anyone with a modest assortment of machine tools (costing much less than a 3D printer) can make his or her own gun. Even if you could make a practical all plastic gun, which you cannot do because some parts still need to be metal, a cartridge with a brass case and a lead bullet are still visible to metal detectors.
The Massachusetts Supreme Judicial Court (called the SJC) appears to be one of those Courts that tries to ignore the Heller and McDonald cases. In the past, the SJC ruled that the State Constitution’s provision for keeping and bearing arms did not create an individual right. They said that the 2nd Amendment only referred to the militia. After Heller, they said that the 2nd Amendment would never be applied to the states. Since McDonald, which held the 2nd Amendment does apply to the states, the SJC has ignored a state law that requires you to have a discretionary handgun permit to possess a handgun in your home. This is different from the “shall issue” license that is required to own a rifle or shotgun in your home.
Until 2014, the rifle license was required to possess mace or pepper spray. Before 1998, the rifle permit allowed you to have a handgun in your home; but, since 1998, you need to have the more restricted pistol permit to even have a handgun in your home. Under Massachusetts law, just about everything designed to be a practical means of self-defense is illegal or licensed. The SJC has refused to acknowledge the clear requirement of statute that you needed a pistol permit to own a pistol in your home, because if it did, it would have to acknowledge that the process by which those licenses are granted and revoked does not meet any Constitutional standard. In its attempt to limit the Second Amendment, however, the SJC set the stage for a positive explanation of the Second Amendment by the United States Supreme Court.
The Massachusetts legislature seldom avoids an opportunity to make something illegal. Stun guns, designed to be a non-lethal means of self-defense, were made illegal per se almost as soon as the product hit the civilian market.
Our heroine is Jamie Caetano. At the time her story began, state law required a license to possess mace or tear gas. The two minimum things required for a license is a residence and $100.
According to court records, Jamie was in an abusive relationship. She tried to end the relationship but the ex-boyfriend was violent. Almost 100 lbs. heavier than Jamie, she was afraid of him. He had put her in the hospital. She had multiple restraining orders against him; but, as any honest police officer or lawyer will tell you, restraining orders are almost useless against someone who is violent and out of control.
Although Jamie had a job, it did not pay much and she had become homeless in an attempt to get away from her abusive boyfriend. At her wits end, a friend gave her a stun gun which was legal in other New England states but not, at the time, in Massachusetts. The boyfriend continued to stalk Jamie. One night when she was getting out of work, the boyfriend was waiting for her. He started screaming at her. He did not want her working. He wanted her to be dependent upon him, trapped in the abusive relationship.
“I’m not gonna take this anymore.. “ she called out, “I don’t wanna have to [use the stun gun which she then displayed] but if you don’t leave me alone, I’m gonna have to.”
The boyfriend got scared and left.
Sometime later, while sitting in her car in a store parking lot, she was approached by the police who said they were investigating a shoplifting incident. There is no record that she was involved; but, when the police asked if they could search her handbag, she agreed. They found the stun gun and charged her with the illegal possession of a stun gun. The crime was a misdemeanor by state law but it carried a potential of two and one half years in jail making it a felony under federal law. If convicted, Jamie would be disqualified from owning a modern rifle, shotgun, or handgun.
At her trial in the lower court, Jamie argued that the stun gun was an “arm” within the meaning of the Second Amendment, that it was used primarily for self-defense (the purpose for which she kept it) and, except for Massachusetts and one or two other states, it was in common use throughout the United States for that purpose. Therefore, she argued, the banning of stun guns in Massachusetts was a violation of her Second Amendment rights.
The SJC focused its attention on a couple of things. One was that stun guns could not have been contemplated by the authors of the Constitution. Another was that the Heller decision was about having a gun in your home. Of course, this was difficult for Jamie as she did not have a home. That same fact would have prevented her from applying for a handgun or rifle permit as one needs a “residence” in Massachusetts to apply for a license.
The SJC said that the stun gun was a “dangerous” and “unusual” weapon, not in common use at the time the Constitution was enacted. The SJC broadly defined weapons and exempted things designed as tools. Because the stun gun was designed for self-defense, it was a “weapon.” It was not a “weapon” in use at the time the Constitution was written nor was it a “weapon” used by the militia. Therefore it was not protected by the Second Amendment. The ban on stun guns, the SJC held, did not burden the Second Amendment therefore it only needed to pass a “rational basis” test which the court found it did.
“It is immaterial,” opined the SJC, “that the Legislature has not banned weapons that are more lethal.”
The SJC noted the Second Amendment was about self-defense in the home. It acknowledged that the homeless presented special issues, but stated those issues were not raised in Jamie’s case because Jamie was clearly not in an area that could be considered her “home” when arrested. Adding insult to injury, the court casually noted that she could have applied for a gun license but did not explain how she could do that when Jamie did not have the first prerequisite, that is, a residence.
The state court hit many of the crutches relied upon by other Courts rendering unfavorable decisions relating to gun ownership.
The case was appealed to, and accepted by, the United States Supreme Court (USSC). In 2016 the United States Supreme Court unanimously decided in Jamie’s favor.
The USSC repeated that the Second Amendment applied to the states. It spoke in approving language of Jamie’s arming herself to protect her life from violence with a weapon that posed little danger of permanently harming her assailant.
The USSC noted that the state court had rested its opinion on the argument that the stun gun “is not the type of weapon that is eligible for Second Amendment protection” because it was “not in common use at the time . . .“ the Second Amendment was adopted.
“This reasoning…,” exclaimed the nation’s highest court, was rejected in Heller “‘as ‘bordering on the frivolous.’” The SJC’s decision does “grave disservice to vulnerable individuals like [Jamie] Caetano who must defend themselves because the State will not.”
Each step of the SJC reasoning, said the United States Supreme Court, “defied Heller’s reasoning.”
The state court, the USSC said, repeatedly framed the question as being whether or not a particular weapon was in common use at the time the Second Amendment was enacted.
“We emphatically rejected such a formulation…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. ….It is hard to imagine language speaking more directly to the point.”
Referring to the SJC’s quoting the earlier case of United States v. Miller to claim that only guns used by the militia were protected by the Second Amendment, the USSC explained that Miller reflected the reality that the militia consisted of citizens who brought their own guns from home to do militia duty…“and the Second Amendment accordingly guarantees the right to carry weapons ‘typically possessed by law-abiding citizens for lawful purposes.’”
“Electronic stun guns are no more exempt from the Second Amendment…than electronic communications are exempt from the First Amendment…”
The USSC went on to rip apart every bit of the state court’s reasoning saying, “the reasoning of the Massachusetts court poses a grave threat to the fundamental right of self-defense.”
Caetano v Massachusetts, 577 U.S. (2016) is a case everyone should read.
It answers several questions: 1) Even guns of a new design are protected by the Second Amendment; 2) The fact a gun is of new design and is dangerous, does not allow a state to ban it outright; 3) The Second Amendment protects other types of arms, not just guns; and 4) The Second Amendment protects the right of citizens to bear arms outside of their homes.
The USSC remanded the case to the SJC for orders in keeping with the ruling of the USSC. Normally a lower court would re-write its opinion to be in conformity with the high court’s ruling. The SJC did not correct its opinion. The prosecution dismissed all charges against Caetano leaving Massachusetts with a law on its books that was clearly unconstitutional. The legislature took no action to cure the problem.
In 2018, the issue was again before the SJC in the case of Ramirez v. Commonwealth. Mr. Ramirez was prosecuted for a number of crimes including possession of a stun gun, the very stun gun law challenged by Caetano. Much of the Ramirez holding was a re-statement of the rationale rejected by the USSC. The state high court did not want to let go, but it had to. It ruled that stun guns were arms under the Federal Constitution that could not be banned outright. The state stun gun law was invalid.
The SJC volunteered that, “Restrictions may be placed on the categories of persons who may possess them [stun guns], licenses may be required for their possession. And those licensed to possess them may be barred from carrying them in sensitive places…but [the law] that bars all civilians from possessing or carrying stun guns, even in their home, is inconsistent with the Second Amendment…”
Although the law was struck down, there was a petulance to the opinion that shadows the state court’s unwillingness to accept the United States Constitution. The state court tried to justify its original opinion. It broadly telegraphed its intent to accept restrictions on the right and gave the legislature 60 days to pass a new law.
The legislature acted swiftly to pass a new law. Stun gun ownership now requires a person to have a concealed carry handgun license. It is a discretionary license that requires an applicant show they are a “suitable person” and have a “proper purpose.” A general fear of crime is not enough to get the license. If denied, the applicant has to prove the police had “no reasonable ground” to deny the license, a difficult task. Applicants must have a residence and give the police a non-refundable $100 when they submit an application for the license. Under the new law, Caetano, a homeless person, would not have been given a license. The new law was intended to be restrictive.
Part of the money charged applicants goes back to the state to support other programs. Thus, the $100 charge is a tax, not a fee. It is also a tax because the license is for the benefit of the state, not for the citizen who would be entitled to the stun gun were it not for the state law.
What other Constitutional right is taxed? What other right can only be exercised if the police think you are suitable? What other right is placed beyond the means of those in financial distress? Why is the right to defend your very life subject to restrictions that would not be acceptable if applied to other Constitutional rights?