In a per curiam (unauthored) opinion, which concurring Justices Alito and Thomas call “grudging,” the U.S. Supreme Court has ordered the Supreme Judicial Court of Massachusetts to decide again whether Massachusetts’s stun gun ban is constitutional. Currently eight states and a handful of cities and counties ban stun guns.
The highest state court in Massachusetts held that the Second Amendment doesn’t protect stun guns because they weren’t in common use at the time the Second Amendment was enacted, they are “unusual” as “a thoroughly modern invention,” and they aren’t readily adaptable for use in the military.
In District of Columbia v. Heller (2008), the Court ruled that the Second Amendment provides individual the right to possess a firearm to use for lawful purposes, including for self-defense in the home. In Heller the Supreme Court concluded that the Second Amendment extends to arms “even those that were not in existence at the time of the founding.”
In its two page decision in Caetano v. Massachusetts the Supreme Court notes that the Supreme Judicial Court of Massachusetts ignores this “clear statement” in Heller. A gun can’t be unprotected as “unusual” just because it is a modern invention for the same reason. And Heller “rejected the proposition ‘that only those weapons useful in warfare are protected.’”
Justices Alito and Thomas would have held that the Massachusetts law is unconstitutional.
This case comes at an interesting time. Supreme Court nominee Merrick Garland has been criticized by some as being “anti-gun.” The D.C. Circuit Court of Appeals initially decided Heller. A three-judge panel not including Merrick held that Washington D.C.’s handgun ban was unconstitutional. Merrick voted in favor of en banc review (all of the D.C. Circuit Court judges rehearing the case). In Heller, the Supreme Court agreed with the D.C. Circuit Court of Appeals.
Earlier this term the Supreme Court refused to review Friedman v. City of Highland Park, where the Seventh Circuit held that the City of Highland Park could ban assault weapons and large capacity magazines.
It is only a matter of time until the Court decides another big gun case. But this probably won’t happen until the Court’s current vacancy is filled.