The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
As I've noted, many jurisdictions have repealed their bans on stun guns. People v. Yanna (Mich. Ct. App. 2012) struck down one such ban on Second Amendment grounds, and in Caetano v. Massachusetts, the Supreme Court rejected some of Massachusetts's arguments in favor of the stun gun ban. The court sent the case back to Massachusetts courts so that they could consider the other arguments, but prosecutors decided to just drop that prosecution, and even agreed to the entry of a formal not guilty finding.
Now, the Center for Individual Rights—an excellent public interest law firm, for which I'm an unpaid legal adviser—is challenging the Massachusetts stun gun ban in federal district court, in Martel v. Healey. The briefing has recently completed, and I thought I'd pass along the briefs; because the plaintiffs and defendants have both moved for summary judgment, there are four briefs, and they are somewhat repetitive:
- The challengers' opening brief in support of their motion for summary judgment.
- The state's brief opposing the challengers' motion, and supporting its motion for summary judgment.
- The challengers' reply brief, and opposition to the state's motion for summary judgment.
- The state's reply brief.
And here is a long excerpt from the challengers' second brief (No. 3 in the above list), which should offer a sense of the argument:
A. Defendant's suggestion that Tasers and stun guns are not arms protected by the Second Amendment is incorrect.
According to D.C. v. Heller, the Second Amendment guarantees "the individual right to possess and carry weapons in case of confrontation." Heller ruled and Caetano reiterated that "the Second Amendment extends, prima facie, to all instruments that constitute bearable arms." Defendant's contention that Tasers and stun guns are not protected is simply wrong. And as a matter of fact, the Mass.gov webpage titled "Massachusetts Law About Guns and Other Weapons" cites to Caetano for the proposition that "a stun gun is protected by the Second Amendment." See http://www.mass.gov/courts/case-legal-res/law-lib/laws-by-subj/about/weapons.html No court has held otherwise.
B. Heller does not require arms to be lineal descendants of weapons in common use at the time the Second Amendment was ratified.
Heller makes it clear that the Second Amendment right is not limited to arms suited to the militia. As Heller explained, the right to bear arms "did not refer only to carrying a weapon in an organized military unit" but also included doing so as part "of the natural right of defense." Accordingly, any weapon that could be used either for militia duty or for private self-defense qualifies as an "arm" under the Second Amendment. Lower courts have read Heller's reference to the various weapons that militia members would bring to their militia service (such as swords and knives) as protecting those arms "in common use at the time." But nothing in Heller requires protected arms to be direct descendants of colonial weapons. Quite the contrary, in Heller, the Court specifically analogized Second Amendment rights to the First Amendment's protection for modern forms of communications, such as the internet.
C. Defendant's contention that Tasers and stun guns are not lineal descendants is incorrect.
In any event, Tasers and stun guns are in fact the modern versions of many of the handheld weapons militia members kept at home and brought along to their service. A contact stun gun shares many characteristics with close combat arms like knives, and bayonets. Whereas a Taser on the other hand, having a greater range, serves many of the same purposes as a rifle or a pistol, for combat from farther away. As stated in Plaintiffs' opening memorandum, the inventor of the original Taser named it a "rifle," and the ATF regulated his invention as a firearm.
And Defendant's contention that electrical weapons are "wholly distinct" simply because they are battery operated and colonial pistols did not use electricity is disingenuous at best. The same comparison could be made about modern websites and colonial newsletters, but no one would seriously argue that speech on websites is not protected by the First Amendment. So whether this Court concludes that a modern Taser is closer to a rifle, or the defendant's harpoon (really just a specialized type of sword), or a combination of the two, it is clearly an "arm" for purposes of the Second Amendment even if lineal descendancy were a prerequisite to Second Amendment protection.
D. Tasers and stun guns are widespread.
… [Lower court] case law shows considerable variety as to the relevant statistics and the threshold needed to establish common use…. [R]aw numbers, percentages, and number of jurisdictions can all be relevant inquiries depending on the weapon considered. In this case, it makes no sense to rely on raw numbers or percentages, since Tasers are quite expensive weapons, costing approximately $1,000. No one would take seriously the argument that a rare and highly valuable antique pistol or revolver was any less protected by the Second Amendment simply because there are only a few in existence. Moreover, the numbers of generic stun gun sales are not reliably tracked, since they are offered by a number of different manufacturers.
The fact that Tasers and stun guns are already legal in 45 states, (and as noted in Plaintiffs' opening brief, several other states and municipalities are in the process of voluntarily lifting their bans in recognition of their unconstitutionality) necessarily leads to the conclusion that Tasers and stun guns are wide spread. And even if the court considers raw numbers, more than 18,000 law enforcement agencies and some 275,000 civilians use Tasers, hardly a miniscule number. Given their modest cost compared to a Taser, one could reasonably conclude that the number of generic stun guns in circulation could well be many times the number of Tasers.
E. Tasers and stun guns are neither unusual nor dangerous.
Notwithstanding Defendant's contention to the contrary, for an arm to be excluded from Second Amendment protection, it must be both unusual and dangerous. Tasers are neither. A Taser is about as safe as a common electrical fence.
It is difficult to comprehend how a Taser, a weapon deliberately designed not to kill or maim and is "almost never fatal," if ever, could be banned in accord with Heller as a "dangerous and unusual weapon" when Heller plainly protects a very deadly weapon: handguns. As Justice Breyer pointed out in dissent, handguns, are employed in "well over 60,000 deaths and injuries in the United States each year," but are nevertheless the "quintessential self-defense weapon" for Second Amendment purposes. Tasers and stun guns are significantly less deadly than firearms, which are constitutionally protected and widely allowed in Massachusetts. The appropriate question to ask is how deadly a Taser or stun gun is compared to a firearm. See Friedman v. City of Highland Park (7th Cir. 2015) ("What should matter to the 'danger' question is how deadly a single weapon of one kind is compared with a single weapon of a different kind.").
Defendant's characterization of Tasers and stun guns as dangerous per se under the common law because they are "designed to for the purpose of bodily assault or defense," likewise is wrong on two prongs. First of all, Tasers were actually designed to minimize bodily harm; that is why they are so popular with law enforcement. Secondly, that description pertains to all firearms. Firearms are dangerous weapons designed for bodily assault or defense, yet they are protected under the Second Amendment. It is beyond dispute that Tasers and stun guns are less dangerous than firearms.
Tasers in particular are reasonably safe given their purpose. To date, there have been approximately five million Taser exposures to humans and yet there has been no documented case of a Taser causing an electrocution. This is by design. Simply put, human skeletal and cardiac muscle cells have different physical and electrical structure, and Tasers take advantage of these differences. The electrical current emitted by a Taser is specifically designed to trigger skeletal muscle rather than cardiac muscle, and therefore cannot cause cardiac arrest through electrocution.
In fact, Tasers are so safe that police officers routinely undergo a Taser exposure during their training. When the rare Taser injury does occur, it usually results from a fall to the ground following the shooting and these injuries are usually quite minor. None of Defendant's cited examples contradict these facts; rather, they are simply egregious examples of the injuries and deaths that can occur when police officers use excessive force, in these instances, multiple and prolonged Taser exposures. In fact, increased use of Tasers by police has actually reduced injuries to both suspects and officers. [Citations here, as elsewhere, omitted.—EV]
There is simply no reason to believe that Tasers or stun guns in the hands of law-abiding citizens would be any more dangerous than they are in the hands of police. Indeed, citizens have far fewer opportunities to use Tasers or stun guns than do police, because civilians are only justified in using them for self-defense. When a civilian uses a Taser in self-defense, the chance of the attacker being seriously injured is far less than if the victim uses hand to hand force, a knife, or a firearm….
Nor are Tasers and stun guns unusual. The Supreme Court has already rejected the view that Tasers and stun guns are unusual because they are a modern invention. Use of electronic control weapons is widespread in the United States. In any event, Heller used the term "unusual" in the conjunctive with "dangerous," meaning weapons that are more dangerous than the norm—unusually dangerous. In many excessive force cases in which law enforcement officers are sued after discharging Tasers, courts have approved of officers relying on a Taser, rather than a firearm or other more deadly weapon. Plaintiffs should have the option to utilize less deadly force to defend themselves as well.
F. Tasers and stun guns are typically possessed by law-abiding citizens for lawful purposes.
Tasers and stun guns are typically possessed by law-abiding citizens for lawful purposes. Like any arms, they can also be used for criminal purposes. But looking solely at a weapon's association with crime is insufficient. The proper inquiry is whether the weapon is dangerous and unusual in the hands of law-abiding civilians. Furthermore, Defendant's citation of a few anecdotal cases of misuse by criminals is heavily outweighed by innumerable instances of criminal misuse of firearms.
Defendant's reference to a seven-month-old infant's death at the hands of a foster parent following repeated abuse using a contact stun gun is nothing less than horrifying, but fortunately events like these are rare….
Contrary to Defendant's contention that civilian Taser use "could not be tracked," civilian Taser models are in fact specifically designed to aid police in tracking misuse. Every civilian Taser emits anti-felon identification tags ("AFIDs") each time the device is discharged. AFID's are confetti-like tags, that each contain a trackable serial number which allows police to trace the identity of the purchaser of the device or refill cartridge in any case of alleged criminal misuse.
While a Taser could conceivably be used to commit crimes as well as for legitimate self-defense, it is much easier to track than a firearm, since bullet casings contain no serial number recorded in a database identifying the purchaser. Private arms ownership always poses some risk, but our nation's founders agreed that law-abiding citizens are entitled to keep and bear arms despite the risk that some will misuse them. Considering that electronic weapons are legal in 45 states and counting and all but a few municipalities, the lack of evidence of wide spread criminal misuse is telling.
[G]. The fact that Massachusetts allows access to alternative weapons does not save the ban.
Section 131J operates as a blanket ban, just like the unconstitutional ban in Heller. Like the Heller ban, Section 131J bans possession of Tasers and stun guns even inside the home where the Second Amendment right is at its apex, even for law-abiding citizens like Plaintiffs who have undergone extensive training and background checks. Because of its breadth, the ban implicates core Second Amendment rights.
Heller speaks mostly about guns because the plaintiff in Heller challenged an absolute ban on handguns. But the Court in Heller concluded that the Second Amendment codifies a preexisting "individual right to possess and carry weapons in case of confrontation." And in Caetano, the Court made clear that the Second Amendment "extends, prima facie, to all instruments that constitute bearable arms ….",plainly encompassing Tasers and stun guns. Because Section 131J significantly burdens Plaintiffs' rights to keep and bear the arms they seek to use for self-defense, even within their homes, it violates the Second Amendment….
The fact that other weapons are available to Plaintiffs does not save the ban. See Heller ("It is no answer to say … that it is permissible to ban the possession of handguns so long as the possession of other firearms (i.e., long guns) is allowed). The plaintiffs in Heller had access to long guns, yet the Court found the blanket ban on handguns unconstitutional. Likewise here, the availability of alternative weapons does not save the ban.
In many cases, pepper spray is not an effective weapon, and it too presents its own set of risks. And even though Plaintiffs can legally carry firearms, there are many situations in which Plaintiffs would prefer to have the option of a Taser or stun gun, particularly where more deadly force is not legal or appropriate. And practically speaking, even though Plaintiff Donna Major is a trained competitive shooter and could legally use a firearm for self-protection, she will not do so because she has a moral aversion to taking a human life for any reason.
This Court need not consider whether a more narrow ban would be constitutional. While Plaintiffs believe the right to keep and bear electronic arms extends outside the home, this Court need not reach that question in this case, since Section 131J operates as a categorical ban on all possession of Tasers and stun guns by all civilians, and is unconstitutional. Whether a ban on carrying Tasers and stun guns in public or in sensitive places such as schools would be constitutional, must await the legislature's enactment of such a law. Plaintiffs here are not seeking an unfettered right to bear Tasers and stun guns free from any regulation or oversight. Plaintiffs here challenge Section 131J's absolute ban on the civilian possession and use of a class of arms typically used by law-abiding citizens for self-defense.
[H]. Section 131J cannot survive any sort of heightened scrutiny.
Heller interprets the Second Amendment as "elevat[ingl above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home," "where the need for defense of self, family, and property is most acute." Since Section 131J criminalizes possession of Tasers and stun guns by responsible, law-abiding citizens for all purposes, even self-defense in the home, it is plainly facially unconstitutional, just like the blanket ban at issue in Heller. The ban sweeps broadly to prevent law-abiding persons from using electronic weapons in any circumstances, even for legal self-defense in the home. There is no close means ends fit to the ban. Accordingly, it cannot survive strict scrutiny nor even intermediate scrutiny.
Of course Massachusetts has an important state interest in curbing crime and violence. But this interest is insufficient to justify a complete ban on civilian possession of Tasers and stun guns, even in the home. Though Tasers or stun guns could conceivably be used for crimes as well as for legitimate self-defense, that is true of any arm, and arms ownership always poses some risk.
But the Second Amendment protects the right of law-abiding citizens to keep and bear arms despite the risk that some will misuse them. If that is true for deadly weapons like handguns, it is especially true for weapons that are significantly less lethal, including Tasers and stun guns. Electronic weapons are legal and widely available, yet there is no evidence of any widespread criminal use. Charitably, any suggestion by the state that a complete ban on civilian use is needed in order to prevent widespread violence is speculation at best. And there is no evidence in the record that the population of Massachusetts is any more likely to commit violent crimes with electronic weapons than the residents of other states….
The ban substantially burdens core Second Amendment rights because it forecloses one of the most effective forms of less lethal self-defense, a particularly substantial burden on anyone who has moral qualms about using a firearm against a human being. Thus, strict scrutiny should apply….
But even if this Court applies intermediate scrutiny, Section 131J still fails. As the Supreme Court recently reaffirmed, intermediate scrutiny demands that restrictions of constitutionally protected conduct be "narrowly tailored," and possess a "close fit between ends and means." Here, that close fit is absent. And even if such a regulation need not be narrowly tailored, Section 131J fails any means-ends fit test as a matter of law, because the means chosen, i.e., a complete ban, substantially burdens the core Second Amendment right of law abiding citizens to possess an entire class of arms for self-defense purposes even within the home….
The record is bereft of any evidence that banning law-abiding citizens from possessing Tasers and stun guns is necessary to advance the state's interest in promoting safety. (On the contrary, the ban could lead to a few more citizens carrying firearms for self-protection.) Although intermediate scrutiny does not require the government to adopt the least restrictive means available to advance its interest, "the government must demonstrate that alternative measures that burden substantially less [protected conduct] would fail to achieve the government's interests." This, Massachusetts cannot do. Much like the complete ban in Heller there is no state interest sufficient to justify such a substantial burden on the core conduct protected by the Second Amendment.
Section 131J fails as a matter of law for another reason as well. The Massachusetts ban has no connection to public safety, because no basis exists to conclude that Massachusetts or the United States has a widespread (or in fact any) problem with the criminal misuse of Tasers or stun guns. In order to satisfy intermediate scrutiny, a regulation must be "substantially related to the achievement" of the government's objective. "The burden of justification is demanding and it rests entirely on the State." Here, Massachusetts simply cannot meet that burden, because there is no evidence that the ban advances public safety.
Even if Massachusetts could show that banning law-abiding citizens from possessing Tasers and stun guns in their homes advances public safety in some de minimis way, this interest could easily be achieved by enacting less onerous regulatory measures similar to those used for other legal arms, such as handguns. Recognizing this fact, many states have enacted more narrowly tailored regulations on the possession and use of electrical weapons in lieu of an outright ban. For instance, the Commonwealth of Virginia prohibits possession of electronic arms on school grounds, and by felons outside the home. Massachusetts has similar regulations prohibiting firearms in or near schools and universities. "In short, [Massachusetts can] not [show] that it seriously undertook to address the problem with less intrusive tools readily available to it," but instead "has too readily foregone options that could serve its interests just as well" without substantially burdening Second Amendment rights.