Constitution Daily

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Constitution Check: Where does the Second Amendment stand now?

March 22, 2016 by Lyle Denniston


Lyle Denniston, the National Constitution Center’s constitutional literacy adviser, looks at a ruling by the Supreme Court vacating a decision about stun guns in Massachusetts.

640px-Inside_the_United_States_Supreme_CourtTHE STATEMENT AT ISSUE:

“If the fundamental right of self-defense does not protect [the threatened woman in this case], 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….[The woman in this case] didn’t need physical strength to protect herself.  She stood her ground, displayed the stun gun, and announced: ‘I’m not gonna take this anymore.’…The gambit worked. The ex-boyfriend got scared and he left her alone.”

 – Excerpt from a separate opinion on Monday by Justice Samuel A. Alito, Jr., joined by Justice Clarence Thomas, as the Supreme Court in a brief, unsigned opinion unanimously vacated a decision by Massachusetts’ highest state court upholding the state’s flat ban on possessing stun guns for personal self-defense.   The case was Caetano v. Massachusetts.


The “right to keep and bear arms” has been in the Constitution since 1791, as the Second Amendment.  But it has only been taking shape as protecting a personal right to have a gun, for self-defense, since 2008, when the Supreme Court declared that such protection is what “keep and bear arms” means now.

Until Monday, though, the Justices had never made any attempt to spell out further just what that right covers.  The decision in 2008 (in the case of District of Columbia v. Heller) was the court’s last opinion discussing the dimensions of the right.  Its only other decision following up that one was McDonald v. Chicago, in 2010, simply extending the personal right to keep and bear arms so that it protected gun rights in every state, through the Fourteenth Amendment.

And, until Monday, the court had repeatedly turned aside every test case filed with it seeking further clarification of the scope of the Second Amendment right.  Did the right exist only for self-defense in the home (the situation in the Heller case)?  What about a right to carry a gun in public?  What kinds of regulation of gun ownership and use could be made, without violating the Second Amendment?  What other kinds of weapons would qualify as “arms” within the meaning of that phrase in the Second Amendment?

Somewhat peculiarly, the court chose a case about a woman’s use of a “stun gun” for its first foray back into the meaning of the Second Amendment.  Massachusetts had flatly banned possession or use by all except police officers and the military, so ordinary folks could not legally obtain or use them, even for self-defense.  A Boston woman, Jaime Caetano, had obtained a stun gun after her ex-boyfriend had repeatedly assaulted her.  She had it with her when she encountered him in a public parking lot; when he threatened her there, she told him she had the stun gun, and would use it.  The police found the gun, and she was prosecuted and found guilty of violating the state ban on that kind of weapon.  Under the procedure used in her case, she received no jail sentence or fine.

Much of what has gone on behind the scenes at the Supreme Court while this case moved through the process remains undisclosed, especially since the Justices had never previously accepted the case for review, had not called for written legal briefs, and had held no hearing.  The deliberation over the case started last September, and continued right up through last Friday’s private conference of the Justices.   During that span, Justice Antonin Scalia – the author of the Heller opinion and its fervent defender – was on the bench for most of the time, but died last month before the Justices finished their work on the case.

The decision that emerged was only a page and a half long (compared to the ten pages of the separate opinion by Justice Alito, joined by Justice Thomas), and it did not fully explain where the case might go from here.  Massachusetts’ Supreme Judicial Court decision upholding the ban on stun guns was vacated, and that court was told to take another look.  Jaime Caetano’s conviction remains for the time being, but her lawyer has now said he will attempt to get that set aside.

Brief and unrevealing as the court’s unsigned opinion was, the reality is that some possible meanings can be drawn from it nevertheless.   Here are some ways to interpret it:

First, the court is paying attention, closer than might have seemed with all of the denials of review of cases in recent years, to what the states and the lower courts are doing.  It is, at least to a degree, standing ready to step in when it finds a lower court ruling that it senses went too far.

Second (and this is of potential significance in the wake of gun rights advocates’ complaints that only one more Justice needed to be named to the court potentially to lead to overruling the Heller decision and with it the personal right to a gun under the Second Amendment), no sign has yet emerged that any of the current Justices is pushing to reconsider or cast aside that ruling.  (It is possible, of course, that this particular case, about a stun gun, did not rank as important enough to even raise that question, but the fact that there were no dissents on Monday was suggestive, if not conclusive, that gun rights under the Constitution may not be in the kind of jeopardy that some gun rights advocates fear.)

Third, this is the first time the court has recognized at least some right, under the Heller decision, to have a weapon for self-defense in a public setting, outside the home.  Whether that fact in this case is enough to encourage lower courts to start ruling more often in favor of public carry or public use of guns remains to be seen.

Fourth, there are at least five votes – given the right case – for the court to rule in favor of a somewhat enlarged scope for the right to keep and bear arms.  It is possible, of course, to read too much into the Caetano decision, since it did not get the full treatment that a major gun rights case might have been given.

Finally, it seems quite plain that the court will remain at least occasionally interested in the ongoing, and sometimes anxious debate in America, about public safety and the role that gun ownership and use plays in it.  For now, the Justices have opted not to remain on the sidelines.

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