Yesterday the Supreme Court released a per curiam opinion striking down the reasoning of the Supreme Judicial Court of Massachusetts in Caetano v. Massachusetts. To understand the case let us consider the brief facts.
Ms. Caetano has a child by an ex-boyfriend and the ex-boyfriend has become violent. She gets a restraining order against her ex-boyfriend, but he pays it no mind and continues to accost her. She is then given a stun gun by a friend for self defense. The ex-boyfriend affronts her, she threatens to use the stun gun, and he backs off. Problem solved. Later, Ms. Caetano is talked into consenting to a search by the police, the stun gun is discovered, and she is charged with illegal possession of a stun gun in Massachusetts.
The police and prosecutor recognize that Ms. Caetano possessed the gun for the purpose of self defense, but they continue the prosecution. Ms. Caetano’s reason for possession of the stun gun, and the state’s failure to keep her safe, is brought to the attention of the trial court, but she is nonetheless found guilty.
Ms. Caetano appeals to the Supreme Judicial Court of Massachusetts, but the Court misapplies Heller and finds stun guns are not protected by the Second Amendment.
The Three Mistakes of the Massachusetts Court
The per curiam opinion of The US Supreme Court faults all three reasons the Massachusetts Court gives in finding Heller does not apply to stun guns.
First, the Massachusetts Court claims Heller applies only to arms “in common use at the time of the Second Amendment’s enactment”. This claim is absurd given that Heller found the possession of modern pistols under the protection of the Second Amendment, and the Court summarily dismisses this reason. A concurring opinion describes the argument as “bordering on the frivolous.”
Second, the Massachusetts Court attempts to apply the “dangerous and unusual” exception to the Second Amendment by acknowledging that stun guns are a “thoroughly modern invention.” This reasoning wholly ignores the “dangerous” requirement in “dangerous and unusual” and is essentially the same faulty reasoning above. The Supreme Court casually dismisses this reason as “inconsistent with Heller for the same reason” as the first explanation.
Third, the Massachusetts Court refuses to let go of the military standard and claims that “nothing in the record suggest that [stun guns] are readily adaptable to use in the military.” The Supreme Court merely notes that Heller rejected this line of reasoning in its dismissal of the same.
What happens next?
Many news agencies have reported or implied that the Supreme Court found the Massachusetts law unconstitutional. This is not true. The Supreme Court struck down the Massachusetts reasoning that found Stun Guns are not protected by the Second Amendment. The Massachusetts Court will now have to reconsider the case without relying on this faulty reasoning. It is theoretically plausible, but very improbable, that the Massachusetts Court could reach the same conclusion (that stun guns are not protected by the Second Amendment) on different, but valid, grounds.
It is more likely that the Massachusetts Court will now apply Heller and still determine that the Massachusetts law is Constitutional even though stun guns are protected.
A per curiam opinion is one unsigned and issued by a unanimous court. In this case however, disagreement was shown by the concurring opinion of Justice Alito and Justice Thomas. In this concurring opinion, Alito reasons that “Massachusetts’ categorical ban of [stun guns] therefore violates the Second Amendment.” But this is not the law of the case, and Alito chastises the Supreme Court’s “grudging per curiam [that] now sends the case back to [the] same court” that “affirmed [Ms. Caeteno’s] conviction on the flimsiest of grounds”.
Justice Alito clearly and ominously warns that “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”.
So why did the Supreme Court punt the ultimate decision? The first and safe choice is that Constitutional issues should only be resorted to as a final means, and the Court had another option here. But there is more at play in the larger picture.
This case was accepted by the Court when Justice Scalia, the lion for Second Amendment rights, was still alive. There is no doubt he would have joined Justices Alito and Thomas in their opinion and would have heavily leaned on Kennedy and Roberts to do the same.
Instead, the Supreme Court is looking at an empty seat and is dead center of a political battle over the President’s pick to replace Justice Scalia. The chosen nominee has been described as a moderate, but the NRA and the GOA have each highlighted his liberal views and opinions on the Second Amendment. The nominees past opinions on the Second Amendment are sure to fire up the Republican base against his confirmation, and are likely the reason for the President’s nomination given his inability to pass any gun control laws during his terms.
A split court, or worse a negative Second Amendment decision, would add ammunition to the NRA and GOA claim that the President’s Nominee could forever change the meaning of the Second Amendment. The Court, in an attempt at peace making, or a desire to secure a majority to overturn Heller, avoided the result of a split court. Instead the Court came together, and without signaling out any Justice, unanimously found a Second Amendment positive ruling that will likely be meaningless in the long run.
This is why Alito and Thomas chastise the Court. After all, if the Second Amendment protects stun guns, which the Court agrees, and prevents outright prohibitions of protected arms, which Heller found, then why is the prohibition on stun guns not prima facia unconstitutional? Perhaps the answer lies in the unwritten opinion of one of the President’s recent appointments to the Court and is waiting for a clear majority to surface.