Supreme Court Almost Ruled That Stun Guns Are Protected By The Second Amendment

But Justices Samuel Alito and Clarence Thomas would've gone further.
There's no right to keep and bear stun guns -- yet.
There's no right to keep and bear stun guns -- yet.

The Supreme Court on Monday accepted a Massachusetts woman's argument that a law criminalizing stun guns may violate the Second Amendment.

In an unsigned, two-page decision, the court threw out the conviction of Jaime Caetano, who had argued that her prosecution for carrying a stun gun in her purse for self-defense purposes violated her constitutional rights.

Quoting its landmark 2008 ruling in District of Columbia v. Heller -- authored by none other than the late Justice Antonin Scalia -- the court said that "the Second Amendment extends ... to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding."

The court stopped short of saying that stun guns are wholly protected under the Second Amendment. Instead, the justices sent the case back to Massachusetts' highest court to reconsider its earlier ruling against Caetano. That ruling had declared stun guns to be "dangerous and unusual" and noted that they didn't exist when the Second Amendment was enacted.

The Supreme Court's ruling Monday was "per curiam," which means no individual justice was identified as the author of the majority opinion. Like most per curiam opinions, it was issued summarily and without oral arguments -- which may explain why the justices avoided any sweeping pronouncements on a supposed right to possess stun guns.

But Justices Samuel Alito and Clarence Thomas, who since Scalia's death have formed an alliance of sorts, wrote separately to express at length the dissonance between the Massachusetts law and the right to bear arms for self-defense purposes -- and presumably would've gone further than their colleagues.

"Caetano's encounter with her violent ex-boyfriend illustrates the connection between those fundamental rights," Alito wrote. "By arming herself, Caetano was able to protect against a physical threat that restraining orders had proved useless to prevent. And, commendably, she did so by using a weapon that posed little, if any, danger of permanently harming either herself or the father of her children."

Alito continued: "Under Massachusetts law, however, Caetano's mere possession of the stun gun that may have saved her life made her a criminal."

Drawing a parallel with how electronic communications are protected by the First Amendment, which covers free speech, Alito said stun guns shouldn't be singled out just because they didn't exist at the time of the founding.

"While stun guns were not in existence at the end of the 18th century, the same is true for the weapons most commonly used today for self-defense, namely, revolvers and semiautomatic pistols," he wrote.

Then, as if alluding to the dozens of cases the Supreme Court has declined to hear involving the Second Amendment, Alito closed with this: "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."

That Alito and Thomas felt this language was necessary to expound on the court's decision is yet another example of how much the Supreme Court's conservative wing isn't the same without Scalia on the bench.

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