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Massachusetts High Court Strikes Down Stun Gun Ban

The U.S. Supreme Court had rejected the Massachusetts court's earlier arguments for why stun guns aren't covered by the Second Amendment, but had sent the case back for the Massachusetts court to consider other arguments.

In an earlier case, the Massachusetts high court concluded that stun guns just aren't "arms" for Second Amendment purposes, because they didn't exist at the time the Second Amendment was written, and because they aren't usable in the military. In Caetano v. Massachusetts (2016), the U.S. Supreme Court unanimously reversed this judgment, holding that the Second Amendment wasn't so limited, but sent the case back so the Massachusetts court could consider other arguments.

Today's Massachusetts high court decision in Ramirez v. Commonwealth doesn't really much discuss the other arguments -- e.g., the argument that stun guns are "dangerous and unusual," because they aren't common these days, or the argument that stun gun bans pass heightened scrutiny as public safety measures -- but just concludes that,

Having received guidance from the Supreme Court ..., we now conclude that stun guns are "arms" within the protection of the Second Amendment. Therefore, under the Second Amendment, the possession of stun guns may be regulated, but not absolutely banned. Restrictions may be placed on the categories of persons who may possess them, licenses may be required for their possession, and those licensed to possess them may be barred from carrying them in sensitive places, such as schools and government buildings. But the absolute prohibition ... that bars all civilians from possessing or carrying stun guns, even in their home, is inconsistent with the Second Amendment and is therefore unconstitutional.

The bulk of the court's discussion focuses on whether the ban can be narrowed rather than invalidated outright, but the court ultimately concludes that it can't be narrowed:

If the Legislature had made it a crime only for this class of "prohibited persons" [referring to felons and certain other violent criminals, "persons who have been committed to a hospital or an institution for mental illness, alcohol, or substance abuse," and 15-year-olds] to possess a stun gun (or a comparable class), there could be no doubt that such a statute would be constitutional and that it would preserve much of what the Legislature intended through its broader ban. But we cannot ourselves limit the application of § 131J to "prohibited persons" without engaging in the "quintessentially legislative work" of rewriting State law. We would first need to decide whether the class of "prohibited persons" should be the same for the possession of stun guns as for the possession of firearms, which are more lethal than stun guns. We would then need to decide whether a person must be licensed to possess a stun gun, as is required to possess a firearm. And if we decided that a license should be required, we would need to consider if we should adopt the same licensing scheme for stun guns as exists for firearms, or some variant of that licensing scheme.

The court therefore left the statutory scheme in place for 60 days, to give the Legislature time to pass a replacement (though this particular charge against this defendant is being dismissed immediately).

By my count, this means that, since D.C. v. Heller, stun gun bans have been invalidated or repealed in Massachusetts, Michigan, Wisconsin, D.C., the Virgin Islands, Overland Park (Kansas), and Annapolis, Baltimore, Philadelphia, Tacoma, Anne Arundel County, Baltimore County, Harford County, and Howard County (all in Maryland).

Stun gun bans remain in effect, to my knowledge, in Hawaii, New York, Rhode Island, and Wilmington (Delaware), plus some smaller towns. The Hawaii and New York laws are being challenged in court. Stun guns are also heavily regulated (e.g., with total bans on carrying in most places outside the home) in some other places. For more, see this article, though the listing of restrictions in Appendix II is now out-of-date.

Disclosure: I've consulted a very little bit, through the Firearms Policy Coalition, on some of the stun gun litigation, and I was also involved pro bono in some such litigation through the Center for Individual Rights.

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  • ||

    Watch their legislature require a "may issue" permit, which is blatantly unconstitutional regardless o how many liberal judges uphold it.

  • Michael Ejercito||

    Would "may issue" be permitted in the context of medical licenses?

  • ||

    Is practicing medicine a Constitutional right?

  • Jury Nullification||

    "Is practicing medicine a Constitutional right?"

    Yes, if you worship Hippocrates.

  • SQRLSY One||

    Scratching your own asshole, on your own time, without even paying yourself one red cent... Is NOT a cunts-tits-tutional right, any more! It might affect the interstate traffic in toilet paper, see, so Congress if FULLY empowered to regulate your asshole-scratching activities!!!

  • Tionico||

    Indubitably yes. YThe "persuit of happiness" is generally considered to include one's ability to provide financially for one's self and family, at the very least.

  • Alan Beck||

    Here is a copy to the opinion https://www.scribd. com/document/376611733/ Mass-Taser-Case

    Note I had to break up the url so anyone trying to access this link needs to delete the spaces

  • Brett Bellmore||

    Just go with [a href="https://www.scribd.com/document/376611733/ Mass-Taser-Case"]Here is a copy of the opinion.[/a]

    Only replace [ with < and ] with >

    Give it a try!

  • Eugene Volokh||

    Sorry, meant to include a link to the opinion but forgot to -- I've revised the post to now include it.

  • California Right To Carry||

    FYI, the California state's attorney representing Governor Brown and Attorney General Becerra refused to stipulate in my case that Tasers are not firearms as firearms are defined under California law.

  • Brett Bellmore||

    "The court therefore left the statutory scheme in place for 60 days"

    Got to love the judiciary's practice of saying, "This law is unconstitutional, but we're going to leave it in effect anyway for a while. Because two months of violating the Constitution isn't really violating the Constitution, I guess.

  • mad_kalak||

    I see it as respect to another branch, if nothing else. Besides, seeing as the law was on the books for how many years, another 60 days won't make a difference.

  • Jury Nullification||

    "I see it as respect to another branch..."

    Yeah, fuck that ultimately superior branch called, "We the People." See if you would feel the same if your warden declared you would not be released for another 60 days past your actual release date because of mad respect for Correction Officer unions or you had been there for 5 years and another 60 won't make a difference.

    Admittedly, incarceration is not the same as prohibition; however, violate the latter and you risk the former. Seeing your posts below, you obviously defer to maintaining the jack boot in place despite it being unconstitutional. I have no problem imagining greater freedom or incentivizing legislatures to give greater consideration to constitutionality before passing laws and especially laws of prohibition.

  • mad_kalak||

    You're creating a bit of a false choice. I can be strongly pro 2nd Amendment, but against judges writing law from the bench. I prefer my laws to come from the elected branches, which are closest to the people. I presume that high court judges in MA are appointed, and serve for life on good behavior. I don't want them writing the rules for anything, even if in this case I would like the outcome of them throwing the whole stun gun ban out. Just because the other side does it, doesn't mean we should either.

  • Henry||

    Declaring an unconstitutional law immediately void is not "writing law from the bench."

  • Brett Bellmore||

    I see it as treating absolute constitutional commands as vague suggestions which don't really have to be followed if you've got what you think is a good reason.

  • ||

    But only when it relates to the 2nd Amendment. When judges ruled that the Equal Protection clause protects same-sex marriage on a Friday, the homosexuals got "marriage" licenses the next day.

  • mad_kalak||

    These kind of suspension are common enough. Remember, in Brown, the Court said that schools had to be desegregated "with all deliberate speed" and some places sure took time time to deliberate.

  • Sarcastr0||

    Practicalities sure are easy to brush aside on the Internet!

  • TwelveInchPianist||

    Whereas irl it's easy to send someone to prison on an unconstitutional law. Cuz practicalities.

  • Sarcastr0||

    Come on, TiP, appeal to sympathy doesn't change how stuff works.
    You can't turn any institutions on a dime. Not if you want the law enforced consistently and well.

    If someone is sent to jail they can petition for release if the law ends up being unconstitutional.

  • Brett Bellmore||

    And they can petition to have 60 days or whatever added back to their lifespans, too. So in the end it's a wash; You spent a few months in jail, but you got to live that much longer, and the government finds you a new job, too, after you're fired.

    Yes, actually institutions CAN change on a dime, if the dime says, "just stop doing that". The courts know perfectly well how to order immediate compliance, when it comes to things they actually care about.

    They'll give the government a few months to draft new laws in the case of regulating arms, because they don't really like citizens owning arms, and thus don't consider it a big deal if the government continues violating the right for a while.

  • Sarcastr0||

    That's facile. It's like you don't know how institutions of any real size work.

    A memo from the boss won't cut it. You need a communications and training strategy for people on the ground. And one must address other policies that are entangled with the unconstitutional portion.

    What now if someone is brandishing a stun gun?
    What if you find one in one of those 'officer safety' patdowns?
    ================
    I'm enjoying the knee-jerk 'there is a double standard about self defense.' Not everything is victimizing you guys. A number of people have pointed out counterexamples but the victimization righteousness train rolls on.

    They'll give the government a few months to draft new laws in the case of regulating arms, because they don't really like citizens owning arms
    Why not add in a conspiratorial agenda? That'll keep you in righteously oppressed mode regardless of reality! Sheesh.

  • TwelveInchPianist||

    "What now if someone is brandishing a stun gun?"

    IDK. What is someone is brandishing a chain saw? Or a hammer? What if a cop finds a claw hammer in an officer safety patdown?

  • Henry||

    The lamentable difficulty of turning the government machine on a dime never seems to arise when some new "emergency law" bans a firearm.

  • Violent Sociopath||

    A memo from the boss won't cut it. You need a communications and training strategy for people on the ground. And one must address other policies that are entangled with the unconstitutional portion.

    What now if someone is brandishing a stun gun?
    What if you find one in one of those 'officer safety' patdowns?

    It's been two years since Caetano. The state of Massachusetts has had all of that time to reconcile itself to the implications of that decision and develop any necessary plans for the probable outcome of the case on remand. Its manifest failure to do so is not my fucking problem.

    It's not that I don't know how institutions of any real size work. It's that, in this case, I don't give a shit.

  • TwelveInchPianist||

    "If someone is sent to jail they can petition for release if the law ends up being unconstitutional."

    The law has already turned out to be unconstitutional. Now, I'm happy to be corrected if I misunderstand what this stay means, but if someone is caught tomorrow with a stun gun, it is my understanding that they can be arrested, tried, convicted, and incarcerated, all on a law that the legislature didn't have the power to enact. Now, if I'm wrong I'm happy to be corrected.

  • phattyboombatty||

    Once the court found that the law is unconstitutional, the stay of its judgment is completely illusory. If somebody is arrested and charged tomorrow in Massachusetts for possession of a stun gun, is that person's conviction really going to stand? Of course not. How can that person possible be convicted of violating an unconstitutional law/ So the 60 day stay accomplishes absolutely nothing.

  • markm23||

    Except allowing the state to throw people who exercise a constitutional right into jail for 60 days.

  • Harvey Mosley||

    If the law is unconstitutional how can the court justify keeping it in place even for 60 days?

  • mad_kalak||

    The 7th Circuit did this when they ruled Illinois' total ban on concealed carry unconstitutional, seeing as the Court acknowledges that the right can be regulated, they want to give the legislature time to write constitutional regulations. Look at it as preventing confusion problems; imagine if in MA stun guns went from regulated before the decision, then completely unregulated after the decision, then re-regulated as the other branches scramble to reimpose their preferred policy preferences.

  • mad_kalak||

    Further, seeing as the Court realized that some regulations are allowable, do you want them to re-write the law, or hand that off to the elected representatives (which is where laws should come from, not the bench).

  • Harvey Mosley||

    I want them to strike down the law immediately if they find it unconstitutional. It is not the responsibility of the courts to do the legislature's job for them. If the legislative body doesn't want their laws to be struck down they should put more effort into writing laws that pass muster. The judiciary is not the only branch of government charged with upholding and defending the Constitution.

    I realize that in some cases logistics get in the way. The Brown decision obviously could not be implemented without a lot of logistical changes. In this case the only consequence of not waiting 60 days is that people will be able to buy stun guns. There are no logistical issues preventing the state from not violating the Constitution.

  • ||

    The courts apply one set of rules to weapons, and another to everything else.

  • mad_kalak||

    If the courts decide that gay marriage is constitutional, the framework for gays to get married is already in place. Essentially, the law just had to be expanded to cover a new class of people. After passage of the 19th Amendment, all they had to do was allow women to cast votes, there was no new laws or regulations needed.

    With stun guns they were not expanding the right to own stun guns a new class of people, but rather expanding access to a stun guns to the same classes of people already permitted other guns. The laws that cover firearms and stun guns are separate.

    Therefore, unless we want un-elected MA judges to craft the new law themselves (which happens sometimes) they instead punt to place where laws are supposed to originate from to make the fix. It also avoids them re-writing the law one way, only to have the elected branches come back again and change the law to minimally comply with the ruling. At least this way there is only one change that everyone has to deal with.

    What would you say if the MA court made the narrowest possible ruling? What if they said that "Heller says firearms in the home are protected, therefore stun guns in the home are protected. End of story." That is a worse outcome then give it back to the elected branches.

  • TwelveInchPianist||

    So do the guys being prosecuted currently get to argue that the law is unconstitutional?

  • ||

    You're splitting hairs here. They could have just allowed people to buy stun guns. They don't need to "expand" anything, but merely not enforce an existing law.

  • Brett Bellmore||

    Bingo! There's no "framework" needed here. Many states don't bother regulating things like stun guns or pepper spray at all, the heavens are not going to fall if the legislature isn't given time to put alternate regulations in place.

    Just, "Stop enforcing this law immediately. And don't even think of enacting a new law that's similar. 'When the legislature legislates on the topic of civil liberties, it does so at it's peril.', to paraphrase."

  • Tionico||

    and THAT is preciselywhat thst silly gang of hooh hahs in black nighties SHOULD have done. If a man is trusted by the government to carry a .357 magnum revolver with a six inch barrel capable of putting six rounds in a four inch circle at two hundred yards, what's the issue with a silly stun gun?

  • Henry||

    Ah. but in Masachusetts, the man ISN'T so trusted. He can't even OWN the revolver without a may-issue permit from his local Party factotum.

    Overturning the stun gun law would have put stun guns into the reach of the Great Unwashed, those anonymous citizens who have never had to appear before a tribunal of their Betters to beg permission to commit self-defense. Unclean!

  • mad_kalak||

    You're right, in that I'm assuming that MA will want the some regulations in place. I guess I am off my rocker in assuming that MA of all places would want to regulate stun guns. So then, the court could have make stun guns unregulated, since both you and I know, of course, that MA wouldn't re-institute regulations of some sort (which are constitutional under Heller).

    And really, making up a hypothetical prosecution of someone for stun gun possession during those 60 days? I'm bet MA prosecutors got the memo on this case, and if not, a 2A advocate will make national news out of the poor sap that is prosecuted. I'm also pretty sure that you're making a logical fallacy of some sort, I'm going to call it "argument by extremely improbable example at the margins negates the average."

  • Brett Bellmore||

    You really think the court kept the unconstitutional regulation in place for 60 days on the theory that it wouldn't be enforced during that time?

  • mad_kalak||

    Do you really think that, given the prosecution of the woman who prompted the case having been dropped, that some other prosecutor is going to go after somebody else? Besides, that person would have a strong case, even if they did. There is a nice warm place set aside in hell for overzealous public prosecutors, but you're pushing the boundaries of reasonableness.

  • Brett Bellmore||

    Quite possibly, yes, because prosecutors are well aware that "the process IS the punishment". Back in Michigan we had quite a record of people being arrested for perfectly legal open carry, including prosecutions that were almost certain to fail, because the cops and prosecutors in some areas just wanted to subject people to the hassle, even if they wouldn't be able to eventually imprison them.

  • mad_kalak||

    Well, then we come to a difference of opinion about the wisdom of MA prosecutors. I guess we will have to wait and find out.

  • Henry||

    "There is a nice warm place set aside in hell for overzealous public prosecutors, but you're pushing the boundaries of reasonableness."

    Pul-leeze. You're talking about a state where the police not only performed hundreds of unconstitutional searches of private premises for the Marathon Bomber, ordering people out of their own homes during the search… but actuallyindicted a homeowner for finding an unattended, unsecured firearm, a firearm which the homeowner was in fact handling and attending to just before the police knocked on his door.

  • Henry||

    The regulation not only forbade the citizenry from obtaining stun guns, it forbade merchants everywhere else in the USA from shipping them into the state borders. I can guarantee you that permission to do so will stil not be forthcoming within those 60 days. So essentially, the citizens would then have the right to obtain "illegally shipped" stun guns during that period, hardly an improvement.

  • nonzenze||

    The legislature believed that the law was constitutional based on the lack of precedent stating the opposite. Now they have been corrected.

  • ||

    That "belief" was not reasonable, nor held in good faith.

  • Violent Sociopath||

    I don't give a shit what the legislature believed.

    As I said to Sarcastro, above: the state of Massachusetts has had two years to reconcile itself to the implications of the Caetano decision and make any appropriate preparations for the probable outcome of the case on remand. Its manifest failure to do so is not my fucking problem.

    Halting enforcement of the unconstitutional law immediately might cause some confusion, or some practical problems? Not my fucking problem. The legislature might prefer to have some regulation of stun guns in place? Not my fucking problem.

  • phattyboombatty||

    A stay on a judgment that finds a statute unconstitutional is completely illusory. Nobody arrested for violating the unconstitutional statute during the stay will ever be convicted. When the 7th Circuit entered its judgment and stayed its ruling, not a single person in Illinois was subsequently convicted of violating the statute at issue. In fact, almost every state's attorney in Illinois declared that they weren't going to bring any charges against anybody for violating the unconstitutional statute during that time period.l

  • Violent Sociopath||

    If the stay is completely illusory, and no one arrested for violating the unconstitutional statute during the stay will ever be convicted, then there's no good reason to issue the stay in the first place.

  • Henry||

    But this is PRECISELY what happened to the carry permit law in DC, and the world did not end.

  • croaker||

    It falls under the FYTW exception in the Constitution.

  • TwelveInchPianist||

    Sounds about right. So... Ramirez walks... But do the guys who are prosecuted for possessing stun guns up until two months from now get to make the constitutional argument? Are lower courts bound by this ruling? Bound to reject the constitutional argument? Something else?

  • croaker||

    "Having received guidance from the Supreme Court..."

    Translation: We were bench-slapped like Anthony DiNozzo.

  • John C. Randolph||

    Waiting for the stun-gun grabbers to try telling us that the founding fathers only ever anticipated stun guns that you have to charge by flying a kite in a thunderstorm...

    -jcr

  • California Right To Carry||

    The nice thing about this decision is it repeats several of the same arguments I made in my opening brief. The court stayed its decision for 60 days to give the legislature the opportunity to write legislation which would prohibit convicted felons and others who fall outside the scope of the Second Amendment (such as the mentally ill) from possessing stun guns. Fortunately, the California Supreme Court has already held that persons, such as convicted felons, or persons who commit crimes with firearms (such as robbery) cannot be punished for violating the Open Carry bans I challenge in my lawsuit.

    As such, and as argued in my case both in the district court and on appeal, California's #OpenCarry bans punish only constitutionally protected conduct.

    Status of California Open Carry Lawsuit - Nichols v. Brown 14-55873 - June 20, 2017 and Later -> http://blog.californiarighttoc.....ge_id=6922

  • Alan@.4||

    Re the "regulation" of Stun Guns, have a care lest, while they are "protected", they aren't "regulated", as that old saying goes, "to death", as a practical matter.

  • Joe_JP||

    Citing SCOTUS:

    "the inherent right of self-defense has been central to the Second Amendment right"

    Hey, a higher court said that, so be it, but that is a tad silly. I am quite willing to accept an inherent right of self-defense. One that brings with it a own firearms. But, doubt it is "central" to the 2nd Amendment.

    I also thought Alito's concurrence in Caetano was interesting, including he comment that a stun gun, a non-lethal weapon as compared to handgun, might be appreciated by some for moral reasons. Interesting angle.

    SCOTUS in a mostly forgotten ruling (you always here about no cases being decided since McDonald) decided narrowly, leaving MA a chance to uphold the ban in some other way. The court does something of a disservice in just assuming it is an "arm" without reasoning it out.

  • Joe_JP||

    Typos here, typos there.

  • phattyboombatty||

    Once the Supreme Court established that a very deadly weapon (handgun) is constitutionally protected, it makes little sense for anyone to argue that a less-lethal weapon (e.g. a stungun or a knife or a bat or pepper spray) should not be protected because of being "dangerous."

    If I have the right to defend myself with lethal force, why can't I decide to defend myself with less-than-lethal force? Is the government really advancing the argument that it would prefer it's citizens kill other citizens in self-defense instead of simply incapacitating attackers?

  • markm23||

    That's like expecting a "rational basis" review by the courts to require rationality.

  • phattyboombatty||

    Once the Supreme Court established that a very deadly weapon (handgun) is constitutionally protected, it makes little sense for anyone to argue that a less-lethal weapon (e.g. a stungun or a knife or a bat or pepper spray) should not be protected because of being "dangerous."

    If I have the right to defend myself with lethal force, why can't I decide to defend myself with less-than-lethal force? Is the government really advancing the argument that it would prefer it's citizens kill other citizens in self-defense instead of simply incapacitating attackers?

  • vek||

    Seriously, how the hell can somebody be in favor of banning stun guns??? They're non lethal for christs sake! Do they want people to start packing even eviler REAL guns instead? What morons. Stun guns aren't all that awesome, but they can serve a function for some people in some situations. The fact that they're non lethal just makes this insane. Are they going to ban nerf bats next because you could give somebody a bump on their head if you hit them 487 times with one in the same spot???

  • Brett Bellmore||

    Technically, the term is "less lethal"; While stun guns are less likely to kill you than being shot by a regular gun, some percentage of people shot with them will turn out to have a heart condition, or just really bad luck, and die of a heart attack or stroke.

  • Henry||

    Indeed. What you might (from documented cases) call "non-lethal except in the hands of certain police officers."

  • jerryg1018||

    The authors of the Second Amendment didn't limit the right to just "muskets." They used the all encompassing term, "arms" which covered all types of hand held weapons from ancient to then modern times. It also encompasses future hand held weapons that can be used for self defense. The RKBA also covers the right to self defense.

  • phattyboombatty||

    The same people who adamantly argue that the 2nd Amendment should be narrowly interpreted typically also argue that the Constitution broadly protects rights such as abortion or same-sex marriage that aren't even mentioned anywhere in the Constitution and without a shadow of a doubt would not have been considered protected by the Constitution by the Founding Fathers or by the U.S. population at the time that the 14th Amendment was passed.

  • Michael Ejercito||

    I wonder why the reason for this inconsistency.

  • prediksifajar||

    bocoran togel sydney

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