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May 15, 2017 Practice Points

Caetano v. Massachusetts: Does the Second Amendment Protect Bearable Arms That Did Not Exist at the Time of Enactment?

The Supreme Court reverses the Massachusetts Supreme Judicial Court on the subject of stun guns.

John Pierce – May 15, 2017

In District of Columbia v. Heller, 554 U.S. 570 (2008), the U.S. Supreme Court held that the Second Amendment’s protection of “the right of the people to keep and bear Arms . . . confers an individual right to possess and carry weapons.” They went on to note that the protection thus recognized “extends . . . to . . . arms . . . that were not in existence at the time of the founding.”

While this unambiguous statement, coupled with the holding in McDonald v. Chicago, 561 U. S. 742 (2010) that “the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right recognized in Heller,” would seem to be fatal to many outright bans under state law, we are just now beginning to see cases that have progressed through the various state courts presenting themselves for consideration by the Supreme Court.

In a per curiam decision in Caetano v. Massachusetts, 136 S. Ct. 1027 (2016), the justices were unanimous in vacating and remanding a Massachusetts Supreme Judicial Court decision upholding a conviction based upon Massachusetts’ complete ban on stun guns.

In upholding the conviction, the Massachusetts Supreme Judicial Court had relied upon three separate premises, two of which the Supreme Court noted were in direct conflict with the clear language of Heller:

  • that stun guns were not protected because they “were not in common use at the time of the Second Amendment’s enactment”;
  • that stun guns were “dangerous per se at common law and unusual”; and
  • that stun guns are not “readily adaptable to use in the military.”

The Supreme Court summarily dismissed the first premise as “inconsistent with Heller’s clear statement that the Second Amendment ‘extends . . . to . . . arms . . . that were not in existence at the time of the founding.’”

They dismissed the third premise with equal ease, noting that “Heller rejected the proposition ‘that only those weapons useful in warfare are protected.’”

The second premise seemed based on somewhat sounder footing, mimicking as it did the limitation from Heller against the bearing of “dangerous and unusual weapons.” However, the Massachusetts Supreme Judicial Court had asserted that stun guns were ‘dangerous and unusual’ based solely upon their status as “a thoroughly modern invention.” Having already dispensed with this line of reasoning when addressing the first premise, the Supreme Court held that all of the “explanation[s] the Massachusetts court offered for upholding the law contradict[ed] [U.S. Supreme Court] precedent.”

Stopping short of striking down the law, the case was vacated and remanded. The state responded by dropping all charges against Caetano. A new challenge that seeks to strike down the law, Martel v. Healey, was filed on February 16, 2017, in the Federal District Court for Massachusetts and is currently being litigated.


John Pierce is an attorney in Virginia and chair of the Second Amendment Subcommittee of the Civil Rights Litigation Committee.

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