Weapons and The Second Amendment

While Heller was the most recent United States Supreme Court case to address the Second Amendment as applied to guns, it is often overlooked that the Second Amendment protects the right to bear “arms” or weapons, not just firearms. On March 21, 2016, in the case of Caetano v. Massachusetts, the U.S. Supreme Court reiterated that reiterating 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 rejected the proposition that only those weapons useful in warfare are protected. This was not only a unanimous U.S. Supreme Court Opinion, but it was “per curiam.” Per curiam opinions do not list the author because the answer to the legal issue is said to be so straightforward that it does not require an individual Justice’s analysis.

In this case, the Supreme Judicial Court of Massachusetts upheld a state law prohibiting the possession of stun guns after examining “whether a stun gun is the type of weapon contemplated by Congress in 1789 as being protected by the Second Amendment. The Massachusetts court offered three explanations to support its holding that the Second Amendment does not extend to stun guns. First, the court explained that stun guns are not protected because they “were not in common use at the time of the Second Amendment’s enactment. This is inconsistent with Heller’s clear statement that the Second Amendment “extends to arms that were not in existence at the time of the founding.”

The Massachusetts court next asked whether stun guns are “dangerous per se at common law and unusual,” in an attempt to apply one “important limitation on the right to keep and carry arms.” In so doing, the court concluded that stun guns are “unusual” because they are “a thoroughly modern invention.” By equating “unusual” with “in common use at the time of the Second Amendment’s enactment,” the court’s second explanation is the same as the first and it is inconsistent with Heller for the same reason.

Finally, the Massachusetts court used “a contemporary lens” and found “nothing in the record to suggest that stun guns are readily adaptable to use in the military.” But Heller rejected the proposition “that only those weapons useful in warfare are protected.”

For these three reasons, the judgment of the Supreme Judicial Court of Massachusetts is vacated, and the case is remanded for further proceedings not inconsistent with this opinion.