SUPREME COURT OF THE UNITED STATES
JAIME CAETANO
v. MASSACHUSETTS
on petition for writ of certiorari to the
supreme judicial court of massachusetts
No. 14–10078. Decided March 21,
2016
Justice Alito, with whom Justice Thomas joins,
concurring in the judgment.
After a “bad altercation” with an
abusive boyfriend put her in the hospital, Jaime Caetano found
herself homeless and “in fear for [her] life.” Tr. 31,
38 (July 10, 2013). She obtained multiple restraining orders
against her abuser, but they proved futile. So when a friend
offered her a stun gun “for self-defense against [her] former
boy friend,” 470 Mass. 774, 776, 26 N. E. 3d 688,
690 (2015), Caetano accepted the weapon.
It is a good thing she did. One night after
leaving work, Caetano found her ex-boyfriend “waiting for
[her] outside.” Tr. 35. He “started screaming”
that she was “not gonna [expletive deleted] work at this
place” any more because she “should be home with the
kids” they had together.
Ibid. Caetano’s abuser
towered over her by nearly a foot and outweighed her by close to
100 pounds. But she 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. . . . I don’t wanna have to [use the
stun gun on] you, but if you don’t leave me alone, I’m
gonna have to.”
Id., at 35–36. The gambit
worked. The ex-boyfriend “got scared and he left [her]
alone.”
Id.,at 36.
It is settled that the Second Amendment protects
an individual right to keep and bear arms that applies against both
the Federal Government and the States.
District of Columbia
v.
Heller, 554 U. S. 570 (2008) ;
McDonald v.
Chicago, 561 U. S. 742 (2010) . That right vindicates
the “basic right” of “individual
self-defense.”
Id., at 767; see
Heller,
supra, at 599, 628. Caetano’s encounter with her
violent ex-boyfriend illustrates the connection between those
fundamental rights: 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.
Under Massachusetts law, however,
Caetano’s mere possession of the stun gun that may have saved
her life made her a criminal. See Mass. Gen. Laws, ch. 140,
§131J (2014). When police later discovered the weapon, she was
arrested, tried, and convicted. The Massachusetts Supreme Judicial
Court affirmed the conviction, holding that a stun gun “is
not the type of weapon that is eligible for Second Amendment
protection” because it was “not in common use at the
time of [the Second Amendment’s] enactment.” 470 Mass.,
at 781, 26 N. E. 3d, at 693.
This reasoning defies our decision in
Heller, which rejected as “bordering on the
frivolous” the argument “that only those arms in
existence in the 18th century are protected by the Second
Amendment.” 554 U. S., at 582. The decision below also
does a grave disservice to vulnerable individuals like Caetano who
must defend themselves because the State will not.
I
The events leading to Caetano’s
prosecution occurred sometime after the confrontation between her
and her ex-boyfriend. In September 2011, police officers responded
to a reported shoplifting at an Ashland, Massachusetts,
supermarket. The store’s manager had detained a suspect, but
he identified Caetano and another person in the parking lot as
potential accomplices. Police approached the two and obtained
Caetano’s consent to search her purse. They found no evidence
of shoplifting, but saw Caetano’s stun gun. Caetano explained
to the officers that she had acquired the weapon to defend herself
against a violent ex-boyfriend.
The officers believed Caetano, but they arrested
her for violating Mass. Gen. Laws, ch. 140, §131J,
“which bans entirely the possession of an electrical
weapon,” 470 Mass., at 775, 26 N. E. 3d, at
689.[
1] When Caetano moved to
dismiss the charge on Second Amendment grounds, the trial court
denied the motion.
A subsequent bench trial established the
following undisputed facts. The parties stipulated that Caetano
possessed the stun gun and that the weapon fell within the
statute’s prohibition.[
2]
The Commonwealth also did not challenge Caetano’s testimony
that she possessed the weapon to defend herself against the violent
ex-boyfriend. Indeed, the prosecutor urged the court “to
believe the defendant.” Tr. 40. The trial court nonetheless
found Caetano guilty, and she appealed to the Massachusetts Supreme
Judicial Court.
The Supreme Judicial Court rejected
Caetano’s Second Amendment claim, holding that “a stun
gun is not the type of weapon that is eligible for Second Amendment
protection.” 470 Mass., at 775, 26 N. E. 3d, at
689. The court reasoned that stun guns are unprotected because they
were “not ‘in common use at the time’ of
enactment of the Second Amendment,”
id., at 781, 26
N. E. 3d, at 693 (quoting
Heller,
supra, at
627), and because they fall within the “traditional
prohibition against carrying dangerous and unusual weapons,”
470 Mass.
, at 779, 26 N. E. 3d, at 692 (citing
Heller,
supra, at 627).
II
Although the Supreme Judicial Court professed
to apply
Heller, each step of its analysis defied
Heller’s reasoning.
A
The state court repeatedly framed the question
before it as whether a particular weapon was “ ‘in
common use at the time’ of enactment of the Second
Amendment.” 470 Mass., at 781, 26 N. E. 3d, at 693;
see also
id., at 779, 780, 781, 26 N. E. 3d, at
692, 693, 694. In
Heller, we emphatically rejected such a
formulation. We found the argument “that only those arms in
existence in the 18th century are protected by the Second
Amendment” not merely wrong, but “bordering on the
frivolous.” 554 U. S., at 582. Instead, we held that
“the Second Amendment extends, prima facie, to all
instruments that constitute bearable arms,
even those that were
not in existence at the time of the founding.”
Ibid. (emphasis added).[
3] It is hard to imagine language speaking more directly
to the point. Yet the Supreme Judicial Court did not so much as
mention it.
Instead, the court seized on language,
originating in
United States v.
Miller, 307
U. S. 174 (1939) , that “ ‘the sorts of
weapons protected were those “in common use at the
time.” ’ ” 470 Mass., at 778, 26
N. E. 3d, at 692 (quoting
Heller,
supra, at
627, in turn quoting
Miller,
supra, at 179). That
quotation does not mean, as the court below thought, that only
weapons popular in 1789 are covered by the Second Amendment. It
simply reflects the reality that the founding-era militia consisted
of citizens “who would bring the sorts of lawful weapons that
they possessed at home to militia duty,”
Heller, 554
U. S., at 627, and that the Second Amendment accordingly
guarantees the right to carry weapons “typically possessed by
law-abiding citizens for lawful purposes,”
id., at
625. 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.
Revolvers were virtually unknown until well into the 19th
century,[
4] and semiautomatic
pistols were not invented until near the end of that
century.[
5] Electronic stun
guns are no more exempt from the Second Amendment’s
protections, simply because they were unknown to the First
Congress, than electronic communications are exempt from the First
Amendment, or electronic imaging devices are exempt from the Fourth
Amendment.
Id., at 582 (citing
Reno v.
American
Civil Liberties Union, 521 U. S. 844, 849 (1997) , and
Kyllo v.
United States, 533 U. S. 27 –36
(2001)). As
Heller aptly put it: “We do not interpret
constitutional rights that way.” 554 U. S., at 582.
B
The Supreme Judicial Court’s holding
that stun guns may be banned as “dangerous and unusual
weapons” fares no better. As the
per curiam opinion
recognizes, this is a conjunctive test: A weapon may not be banned
unless it is
both dangerous
and unusual. Because the
Court rejects the lower court’s conclusion that stun guns are
“unusual,” it does not need to consider the lower
court’s conclusion that they are also
“dangerous.” See
ante, at 1–2. But make no
mistake—the decision below gravely erred on both grounds.
1
As to “dangerous,” the court below
held that a weapon is “dangerous per se” if it is
“ ‘designed and constructed to produce death or
great bodily harm’ and ‘for the purpose of bodily
assault or defense.’ ” 470 Mass., at 779, 26
N. E. 3d, at 692 (quoting
Commonwealth v.
Appleby, 380 Mass. 296, 303, 402 N. E. 2d 1051,
1056 (1980)). That test may be appropriate for applying statutes
criminalizing assault with a dangerous weapon. See
ibid.,
402 N. E. 2d, at 1056. But it cannot be used to identify
arms that fall outside the Second Amendment. First, the relative
dangerousness of a weapon is irrelevant when the weapon belongs to
a class of arms commonly used for lawful purposes. See
Heller,
supra, at 627 (contrasting
“ ‘dangerous and unusual
weapons’ ” that may be banned with protected
“weapons . . . ‘in common use at the
time’ ”). Second, even in cases where
dangerousness might be relevant, the Supreme Judicial Court’s
test sweeps far too broadly.
Heller defined the
“Arms”
covered by the Second Amendment to
include “ ‘any thing that a man wears for his
defence, or takes into his hands, or useth in wrath to cast at or
strike another.’ ” 554 U. S., at 581. Under
the decision below, however, virtually every covered arm would
qualify as “dangerous.”
Were there any doubt on this point, one need
only look at the court’s first example of “dangerous
per se” weapons: “firearms.” 470 Mass., at 779,
26 N. E. 3d, at 692. If
Heller tells us anything,
it is that firearms cannot be categorically prohibited just because
they are dangerous. 554 U. S., at 636.
A fortiori,
stun guns that the Commonwealth’s own witness described as
“non-lethal force,” Tr. 27, cannot be banned on that
basis.
2
The Supreme Judicial Court’s conclusion
that stun guns are “unusual” rested largely on its
premise that one must ask whether a weapon was commonly used in
1789. See 470 Mass., at 780–781, 26 N. E. 3d, at
693–694. As already discussed, that is simply wrong. See
supra, at 4–6.
The court also opined that a weapon’s
unusualness depends on whether “it is a weapon of warfare to
be used by the militia.” 470 Mass., at 780, 26
N. E. 3d, at 693. It asserted that we followed such an
approach in
Miller and “approved its use in
Heller.” 470 Mass., at 780, 26 N. E. 3d, at
693. But
Heller actually said that it would be a
“startling reading” of
Miller to conclude that
“only those weapons useful in warfare are protected.”
554 U. S., at 624. Instead,
Miller and
Heller
recognized that militia members traditionally reported for duty
carrying “the sorts of lawful weapons that they possessed at
home,” and that the Second Amendment therefore protects such
weapons as a class, regardless of any particular weapon’s
suitability for military use. 554 U. S.
, at 627; see
id., at 624–625. Indeed,
Heller acknowledged
that advancements in military technology might render many commonly
owned weapons ineffective in warfare.
Id., at 627–628.
But such “modern developments . . . cannot change
our interpretation of the right.”
Ibid.
In any event, the Supreme Judicial Court’s
assumption that stun guns are unsuited for militia or military use
is untenable. Section 131J allows law enforcement and correctional
officers to carry stun guns and Tasers, presumably for such
purposes as nonlethal crowd control. Subduing members of a mob is
little different from “suppress[ing] Insurrections,” a
traditional role of the militia. U. S. Const., Art. I,
§8, cl. 15; see also
ibid. (militia may be called
forth “to execute the Laws of the Union”).
Additionally, several branches of the U. S. armed services
equip troops with electrical stun weapons to “incapacitate a
target without permanent injury or known side effects.”
U. S. Army, Project Manager Close Combat Systems, PD Combat
Munitions: Launched Electrode Stun Device (LESD),
http://www.pica.army.mil/pmccs/combatmunitions/nonlethalsys/taserx26e.html
(all Internet materials as last visited Mar. 18, 2016); see
U. S. Marine Corps Admin-istrative Message 560/08 (Oct. 2,
2008) (Marine Corps guidance for use of Tasers),
http://www.marines.mil/News / Messages / MessagesDisplay /tabid/13286/Article/113024/marine-corps-training-and-use-of-human-electro-muscular-incapacitation-hemi-dev.aspx;
Joint Non-Lethal Weapons Directorate, Non-Lethal Weapons (NLW)
Reference Book 3 (2012) (Department of Defense report stating that
“[m]ultiple Services employ” Tasers),
http://dtic.mil/dtic/tr/fulltext/u2/a565971.pdf.
C
As the foregoing makes clear, the pertinent
Second Amendment inquiry is whether stun guns are commonly
possessed by law-abiding citizens for lawful purposes
today.
The Supreme Judicial Court offered only a cursory discussion of
that question, noting that the “ ‘number of Tasers
and stun guns is dwarfed by the number of
firearms.’ ” 470 Mass., at 781, 26 N. E. 3d,
at 693. This observation may be true, but it is beside the point.
Otherwise, a State would be free to ban
all weapons
except handguns, because “handguns are the most
popular weapon chosen by Americans for self-defense in the
home.”
Heller,
supra, at 629.
The more relevant statistic is that
“[h]undreds of thousands of Tasers and stun guns have been
sold to private citizens,” who it appears may lawfully
possess them in 45 States.
People v.
Yanna, 297 Mich.
App. 137, 144, 824 N. W. 2d 241, 245 (2012) (holding
Michigan stun gun ban unconstitutional); see Volokh, Nonlethal
Self-Defense, (Almost Entirely) Nonlethal Weapons, and the Rights
To Keep and Bear Arms and Defend Life, 62 Stan. L. Rev. 199,
244 (2009) (citing stun gun bans in seven States); Wis. Stat.
§941.295 (Supp. 2015) (amended Wisconsin law permitting stun
gun possession); see also Brief in Opposition 11 (acknowledging
that “approximately 200,000 civilians owned stun guns”
as of 2009). While less popular than handguns, stun guns are widely
owned and accepted as a legitimate means of self-defense across the
country. Massachusetts’ categorical ban of such weapons
therefore violates the Second Amendment.
III
The lower court’s ill treatment of
Heller cannot stand. The reasoning of the Massachusetts
court poses a grave threat to the fundamental right of
self-defense. The Supreme Judicial Court suggested that Caetano
could have simply gotten a firearm to defend herself. 470 Mass., at
783, 26 N. E. 3d, at 695. But the right to bear other
weapons is “no answer” to a ban on the possession of
protected arms.
Heller, 554 U. S., at 629. Moreover, a
weapon is an effective means of self-defense only if one is
prepared to use it, and it is presumptuous to tell Caetano she
should have been ready to shoot the father of her two young
children if she wanted to protect herself. Courts should not be in
the business of demanding that citizens use
more force for
self-defense than they are comfortable wielding.[
6]
Countless people may have reservations about
using deadly force, whether for moral, religious, or emotional
reasons—or simply out of fear of killing the wrong person.
See Brief for Arming Women Against Rape & Endangerment as
Amicus Curiae 4–5. “Self-defense,”
however, “is a basic right.”
McDonald, 561
U. S.
, at 767. I am not prepared to say that a State
may force an individual to choose between exercising that right and
following her conscience, at least where both can be accommodated
by a weapon already in widespread use across the Nation.
* * *
A State’s most basic responsibility is
to keep its people safe. The Commonwealth of Massachusetts was
either unable or unwilling to do what was necessary to protect
Jaime Caetano, so she was forced to protect herself. To make
matters worse, the Commonwealth chose to deploy its prosecutorial
resources to prosecute and convict her of a criminal offense for
arming herself with a nonlethal weapon that may well have saved her
life. The Supreme Judicial Court then affirmed her conviction on
the flimsiest of grounds. This Court’s grudging
per
curiam now sends the case back to that same court. And the
consequences for Caetano may prove more tragic still, as her
conviction likely bars her from ever bearing arms for self-defense.
See Pet. for Cert. 14.
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.