Massachusetts’ highest court could greatly limit or expand the right to bear arms by answering a simple question: Does the Second Amendment cover nonlethal weapons such as stun guns? And, does the Constitution’s protection of self-defense extend outside the home?
A homeless abused woman who acquired a stun gun to protect herself – and who was then arrested for possession of it – has challenged the state’s ban in court. It could end up before the US Supreme Court.
“The Second Amendment to the United States Constitution protects the right to keep and bear arms, which includes more than just firearms,” a friend-of-the-court brief filed on behalf of Jaime Caetano states. “The right to keep and bear arms covers many weapons, including stun guns, and knives.”
The case was heard Tuesday, although a ruling is not expected anytime soon.
Caetano started carrying a stun gun in her purse after an ex-boyfriend beat her so badly that she ended up in the hospital. A friend loaned her the device for protection. She started carrying the weapon in her purse and used it to scare off her ex-boyfriend when he showed up at her job. She is now homeless.
The mother of two lost her ability to defend herself on Sept. 20, 2011, when an Ashland, Massachusetts, police officer found the stun gun in her purse. Caetano was charged with violation of a Massachusetts law which bans the possession of stun guns by anybody but law enforcement. She could face up to two and a half years in prison for protecting herself.
The Middlesex County District Attorney’s office which prosecuted Caetano is arguing that the Second Amendment’s Right to Bear Arms does not extend to non-lethal weapons. The prosecutors are also claiming that Second Amendment protections do not extend outside a person’s home. Both arguments could have wide-ranging effects.
“An individual who loses her home does not lose the ‘basic right [of self-defense, which is] recognized by many legal systems from ancient times to the present day,” a brief filed by Caetano’s attorney, Benjamin H. Keehn, states.
Firearms legal, stun guns illegal?
The law defies common sense, critics say.
“In the state of Massachusetts, [people] are permitted with a license to have guns and carry guns,” attorney Michael E. Rosman of the Center for Individual Rights told The Boston Globe. “It makes no sense to say you shouldn’t be allowed to have a weapon that you can defend yourself with, but is less dangerous to the attacker.”
Rosman’s group, an organization called Arming Women Against Rape & Endangerment (AWARE), and Eugene Volokh, a law professor at UCLA, are aiding Caetano in an appeal of her case. Caetano pleaded guilty to possession of a stun gun and a judge ordered her weapon confiscated. The case is currently before Massachusetts’ highest court – the Supreme Judicial Court.
“The Second Amendment to the United States Constitution protects the ‘right to keep and bear arms,’ not the right to keep and bear guns or firearms,” the center’s brief states. The brief asks the Supreme Judicial Court to overturn Caetano’s conviction and return her stun gun.
District attorney says precedent is on his side
The district attorney claims that two US Supreme Court rulings that uphold self-defense only apply in the home.
Massachusetts’ stun gun ban could also violate a person’s freedom of religion, the AWARE brief states. Some faiths bar their members against using deadly force but allow believers to use non-deadly force in self-defense. It notes that some Christian theologians and the Dalai Lama (a Buddhist leader) have made that argument.
“Other religious and philosophical traditions, such as the Jewish and Catholic ones, believe that defenders ought to use the least violence necessary,” the brief notes. “Some religious believers might therefore conclude that, when fairly effective non-deadly defensive tools are available, they are preferable to deadly tools.”
Volokh went so far as to call the stun gun ban perverse and noted that it could force people who hate guns to carry firearms because they are the only legal means of self-defense in Massachusetts. People, he said, are “being pushed into handgun possession by the ban on stun guns.”
An important precedent could be set
Caetano’s case could set important precedents because it could force the US Supreme Court to rule on the constitutionality of the stun gun ban and the extent of Second Amendment rights outside the home.
There are five states in which it is illegal for private citizens to own stun guns, Volokh noted. The last time a stun gun ban was appealed to a state Supreme Court (Michigan), it was overturned.
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