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This Court May Have Just Banned All Non-Lethal Weapons

Image source: Omega Stun Guns

Image source: Omega Stun Guns

The Second Amendment does not guarantee you the right to own or use modern non-lethal weapons – if you live in Massachusetts.

That state’s highest court, the Supreme Judicial Court, upheld a state law banning citizens from owning stun guns and Tasers in a case that could have a national impact.

“Because the stun gun that the defendant possessed is both dangerous per se at common law and unusual, but was not in common use at the time of the enactment of the Second Amendment, we conclude that stun guns fall outside the protection of the Second Amendment,” Justice Francis X. Spina wrote in an a unanimous opinion in a case called Commonwealth vs. Jaime Caetano.

The controversy began when a Massachusetts resident, Jaime Caetano, was arrested in 2011 for carrying a stun gun in her purse. She said she needed it to protect herself from an abusive ex-boyfriend. The stun gun has two metal prongs and a switch, and once activated, can deliver up to 50,000 volts. It has to make contact with a person to work. Caetano filed suit seeking to overturn the law.

Gun rights groups criticized the decision and noted an inconsistency in the law that defies common sense: Lethal weapons are legal, but non-lethal ones are banned.

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“The Second Amendment is about arms,” James L. Wallace, executive director of the Gun Owners’ Action League of Massachusetts, told the Worcester Telegram. “It’s not just about guns. It’s basically, whatever reasonable force you can use to defend yourself and somebody else. The Second Amendment could cover pocket knives. It’s an arm. It’s not necessarily a firearm.”

In his opinion, Justice Spina advanced a series of legal arguments that could effectively gut the Second Amendment’s guarantees if they were widely adopted.

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Spina argued:

  • The Second Amendment only guarantees the right to own weapons that were in existence at the time it was adopted in 1791. If taken to its logical conclusion, the only weapons you would be allowed to own are swords, knives and muskets. “We therefore conclude that stun guns were not in common use at the time of the Second Amendment’s enactment,” Spina wrote.
  • It would be legal for Caetano to carry deadly weapon but not a less-lethal stun gun. Spina argued that a US Supreme Court pro-gun decision, District of Columbia v. Heller, only applied to firearms. “Without further guidance from the Supreme Court on the scope of the Second Amendment, we do not extend the Second Amendment right articulated by Heller to cover stun guns,” Spina wrote.
  • The Second Amendment does not cover stun buns because they are “dangerous and unusual weapons” that have no military application. “A stun gun also is an unusual weapon,” Spina wrote. “Historically, when considering challenges to the ban of dangerous and unusual weapons under the Second Amendment or equivalent State statutes, courts have asked whether the weapon in question is unusual by ascertaining if it is a weapon of warfare to be used by the militia.” But stun guns and Tasers are far from unusual. More than 600,000 Tasers are used by 16,300 law enforcement agencies in 107 countries, according to a 2009 Fortune article. The world’s leading manufacturer of stun guns, Taser International, is a publicly traded company that on Dec. 31 reported revenues of $164 million.
  • Any weapon designed or created only for self-defense or attacking people is not protected by the Second Amendment. “The record demonstrates no evidence or argument that its purpose is for anything other than ‘bodily assault or defense,’” Spina wrote.

Wallace said his organization will work to change the law through the legislature.

“This particular court has a long history of being a little bit, shall we say, immature and antiquated when it comes to Second Amendment decisions. And they kind of followed that with this ruling as well,” Wallace said.

Do you believe Tasers and stun guns should be legal? Share your thoughts in the section below:

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  1. I can’t get over this one, “was not in common use at the time of the enactment of the Second Amendment, we conclude that stun guns fall outside the protection of the Second Amendment.”

    Case closed, right! I guess the only gun right we have is to use weapons available in 1791.

    I wouldn’t expect much else out of this court, but I am a little surprised that all justices signed on to that opinion.

    • Using the esteemed justice’s logic (or lack thereof), first amendment free speech is not guaranteed on television, radio, internet, or any other media that didn’t exist in colonial times.
      Don’t they take an oath to uphold not just the letter of the Constitution, but the spirit of it, which is FREEDOM?

  2. Justis Fransis X’s considerations do not meet the elements of “D.C. vs. Heller” (DvH) in any regard. That landmark case had to do with what types of firearms are in common use by everyone; the military, the police, and civilians.

    Justice Francis X’s arguments do not stand up under scrutiny and do not make any sense in lieu of present-day firearms useage. His decision certainly would not meet the scrutiny of a Supreme Court of the United States (SCOTUS) challenge.

    Here’s why:

    DvH dealth with, among many things, the types of firearms that people use, and consider as able-bodied for, self-defense. The answer to this question pertains to all modern firearms.

    Not muskets. (The long rifle replaced muskets and allowed an advantage during the Revolutionary War.)

    Not swords. (Unless you’re with the Society for Creative Anachronism (SCR) and are doing medieval fight reenactments at your local rennaisance faire, or are a collector, these long blades haven’t been carried for defense in years.)

    Knives. (These are legitimate self-defense weapons, and certainly fall under concealed carry guidelines–provided that bladed weapons aren’t restricted in a given area.)

    Justice Francis X needs to be overridden by an appeals court, and probably–most certainly given DvH–will.

    My .02c American.

  3. These liberal courts will make whatever contortions or distortions are needed to slowly moved towards suppressing firearms. Never forget the SCOTUS only upheld the second amendment by ONE vote, 5-4. All it takes is one more lifetime liberal justice and guns will be gone for the masses and the sole purvey of the rich and politically connected.

  4. “That state’s highest court, the Supreme Judicial Court…”

    The first glaring problem is that the Michigan Supreme Court seems to believe that it was given the power to “interpret” the US Constitution, which is the SUPREME LAW OF THIS LAND. It was not. That was a “power” the courts gave to themselves. ALL courts – state and federal – are REQUIRED to support and defend the US Constitution, and took Oaths to the same. They are REQUIRED and giving the duty of ENFORCING IT. No interpretation is ever needed as all that there might be a question about is revealed in the writings of the time, in the debates, etc.

    Thomas Jefferson: “I consider the foundation of the Constitution as laid on this ground: That “all powers not delegated to the United States, by the Constitution, nor prohibited by it to the States, are reserved to the States or to the people.”To take a single step beyond the boundaries thus specially drawn around the powers of Congress, is to take possession of a boundless field of power, no longer susceptible of any definition.”

    Thomas Jefferson: “The government created by this compact (the Constitution) was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party (the people of each state) has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.” <- Yes that does apply to the courts which were created by the US Constitution and the required republican form of governments within each state.

    What duties did the US Constitution assign to the judicial – state and federal? Yes, state courts are bound by the US Constitution also.

    US Constitution says in Article VI: “… This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

    The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”

    Article VI says that only the laws that are made in Pursuance thereof the US Constitution are lawful here in the USA. Anything else disguised as “law” is not legal or binding on US Citizens.

    It also says that anyone serving within the federal or state governments MUST support the US Constitution or no longer meet the qualifications of the position or office they are occupying when it says this about qualifying for office or public trust:

    “The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”

    Thomas Jefferson: “It would be a dangerous delusion were a confidence in the men of our choice to silence our fears for the safety of our rights; that confidence is everywhere the parent of despotism; free government is founded in jealousy, and not in confidence; it is jealousy, and not confidence, which prescribes limited constitutions to bind down those whom we are obliged to trust with power; that our Constitution has accordingly fixed the limits to which, and no farther, our confidence may go…. In questions of power, let no more be said of confidence in man, but bind him down from mischief by the chains of the Constitution.” <- Again, this applies to the courts as well.

    James Madison: “But it is objected, that the judicial authority is to be regarded as the sole expositor of the Constitution in the last resort;… The resolution supposes that dangerous powers, not delegated, may not only be usurped and executed by the other departments, but that the judicial department, also, may exercise or sanction dangerous powers beyond the grant of the Constitution"

    Thomas Jefferson: “…To consider the judges as the ultimate arbiters of all constitutional questions is a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps… The Constitution has erected no such tribunal, knowing that to whatever hands confided, with the corruption of time and party, its members would become despots….”

    John Marshall: Opinion as Chief Justice in Marbury vs. Madison, 1802: "The particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the Constitution is void; and that courts, as well as other departments, are bound by that instrument."

    Second Amendment is a PROTECTION put into writing that no one who serves within our governments – state and federal – has any authority over the people and those natural rights, that DOES include those serving within the courts – state and federal.

    Richard Henry Lee, 1788, Initiator of the Declaration of Independence, and member of the first Senate, which passed the Bill of Rights: "To preserve liberty, it is essential that the whole body of people always possess arms, and be taught alike especially when young, how to use them."

    Patrick Henry, in the Virginia Convention on the ratification of the Constitution. Debates and other Proceedings of the Convention of Virginia,… taken in shorthand by David Robertson of Petersburg, at 271, 275 2d ed. Richmond, 1805 (Also 3 Elliot, Debates at 386): "The great object is that every man be armed" and "everyone who is able may have a gun."

    Tench Coxe, Pennsylvania Gazette, Feb. 20, 1788: "Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birthright of an American… The unlimited power of the sword is not in the hands of either the federal or state government, but, where I trust in God it will ever remain, in the hands of the people".

    Notice here that he says "every other terrible implement of the soldier, are the birthright of an American"; and then he also reaffirms that those who serve within our governments were forbidden to create a standing military and governmental professional law enforcement with these words, "The unlimited power of the sword is not in the hands of either the federal or state government, but, where I trust in God it will ever remain, in the hands of the people."

    St. George Tucker, Blackstone's Commentaries on the Laws of England (1803): “The right of the people to keep and bear arms shall not be infringed, and this without any qualification as to their condition or degree, as is the case in the British government. — This may be considered as the true palladium of liberty… The right of self-defense is the first law of nature; in most governments it has been the study of rulers to confine this right within the narrowest limits possible. Whenever standing armies are kept up, and the right of the people to keep and bear arms is, under any color or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction”.

    Bliss vs. Commonwealth, 12 Ky. (2 Litt.) 90, at 92, and 93, 13 Am. Dec. 251 (1822): “For, in principle, there is no difference between a law prohibiting the wearing of concealed arms, and a law forbidding the wearing such as are exposed; and if the former be unconstitutional, the latter must be so likewise. But it should not be forgotten, that it is not only a part of the right that is secured by the constitution; it is the right entire and complete, as it existed at the adoption of the constitution; and if any portion of that right be impaired, immaterial how small the part may be, and immaterial the order of time at which it be done, it is equally forbidden by the constitution."

    Nunn vs. State, 1 Ga. (1 Kel.) 243, at 251 (1846): " `The right of the people to keep and bear arms shall not be infringed.' The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State. Our opinion is that any law, State or Federal, is repugnant to the Constitution, and void, which contravenes this right."

    Cockrum v. State, 24 Tex. 394, at 401-402 (1859): "The right of a citizen to bear arms, in lawful defense of himself or the State, is absolute. He does not derive it from the State government. It is one of the "high powers" delegated directly to the citizen, and `is excepted out of the general powers of government.' A law cannot be passed to infringe upon or impair it, because it is above the law, and independent of the lawmaking power."

    Wilson v. State, 33 Ark. 557, at 560, 34 Am. Rep. 52, at 54 (1878): "To prohibit a citizen from wearing or carrying a war arm … is an unwarranted restriction upon the constitutional right to keep and bear arms. If cowardly and dishonorable men sometimes shoot unarmed men with army pistols or guns, the evil must be prevented by the penitentiary and gallows, and not by a general deprivation of constitutional privilege."

    That judge, nor any judge – state or federal – was ever granted the authority to tell the people what arms they can carry, how they may carry them – concealed or not. Nor were they given the authority to do anything outside of the duties assigned by the US Constitution and each state's Constitution (where the state Constitution applies).

    Abraham Lincoln: “We, the people, are the rightful masters of both congress and the courts – not to overthrow the constitution, but to overthrow men who pervert the Constitution”

    Abraham Lincoln: “Prohibition will work great injury to the cause of Temperance. It is a species of intemperance within itself, for it attempts to control a man's appetite by legislation and makes a crime out of things that are not crimes. A prohibition law strikes at the very principles upon which our government was founded.”

    Remember, judges are ALLOWED to remain in office ONLY for as long as they use "Good Behaviour".

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