The Second Amendment does not Only Protect Firearms

The Supreme Court Monday reaffirmed that the Second Amendment protects the basic individual right of self-defense, regardless of whether the technology in question existed during the time of the Founding, and that such protections extend to non-firearms defensive weapons. 


The Court ruled that the judicial precedents set forth in District of Columbia v. Heller (07-290, 2008), and since partially echoed by a recent ruling in the 4th Circuit Court of Appeals, invalidate Massachusetts’ conviction of Jaime Caetano for mere possession of a “stun gun.”  The Massachusetts appellate court upheld Caetano’s conviction by concluding that stun guns are not protected by the Second Amendment, because they “‘were not in common use at the of the Second Amendment’s enactment,'” “they are ‘unusual’ because they are ‘a thoroughly modern invention,'” and that they “‘are [not] readily adaptable to use in the military.'” 


In unilaterally rejecting the Massachusetts court’s rationale in Caetano v. Massachusetts (14-10078, 2016), the Court reemphasizes the interpretational precedent that Caetano’s conviction is invalid because the Second Amendment does in fact protect an individual right to self-defense, extends to more than just firearms, protects even bearable arms that were not in use or common at the time of the Bill of Rights’ ratification, and has nothing whatever to do with military service.


Perhaps most shocking, and equal bits encouraging: the ruling was unanimous.  Key elements of the Court’s ruling follow.


The [Supreme] Court has 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…” and that this “Second Amendment right is fully applicable to the States (emphasis added). 


By equating “unusual” with “in common use at the time of the Second Amendment’s enactment,” the [Massachusetts] court’s second explanation is the same as the first; it is inconsistent with Heller for the same reason.


…Heller rejected the proposition “that only those weapons useful in warfare are protected.”

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.  That right vindicates the “basic right” of “individual self-defense” (emphasis added).


[Massachusetts’] 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.”  (emphasis added).


Although the [Massachusetts] Supreme Judicial Court professed to apply Heller, each step of its analysis defied Heller’s reasoning (emphasis added).


[In Heller] 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.”  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.”  It is hard to imagine language speaking more directly to the point.  Yet the [Massachusetts] Supreme Judicial Court did not so much as mention it (emphasis in original).


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” (emphasis added).


That test [of “dangerous” arms] may be appropriate for applying statues criminalizing assault with a dangerous weapon.  But it cannot be used to identify arms that fall outside the Second Amendment.  First, the relative dangerousness of a weapons is irrelevant when the weapon belongs to a class of arms commonly used for lawful purposes.    If Heller tells us anything, it is that firearms cannot be categorically prohibited just because they are dangerous (emphasis added).


The [Massachusetts] Supreme Judicial Court conclusion that stun guns are “unusual” rested largely on its premise that one must ask whether a weapon was commonly used in 1789.  As already discussed, that is simply wrong.


The court also opined that a weapon’s unusualness depends on whether “it is a weapon of warfare to be used by the militia.”    But Heller actually said that it would a “startling reading” of [United States v.] Miller to conclude that “only those weapons useful in warfare are protected.”


The Second Amendment therefore protects such weapons as a class, regardless of any particular weapon’s suitability for military use.  Indeed, Heller acknowledged that advancements in military technology might render many commonly owned weapons ineffective in warfare.  But such “modern developments… cannot change our interpretation of the right” (emphasis added).


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 (emphasis in original).


While less popular that 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. 


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 (emphasis added). 


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. 


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 (emphasis added). 


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  1. #1 by Debbie on March 22, 2016 - 7:42 PM

    The second amendment gives people the right to own and bear arms. While there is a strong incentive for laws requiring motor vehicle insurance to protect the inevitable, a car accident, the same incentive does not apply to gun liability insurance. There is a 2% chance that a firearm will go off unintentionally, whereas a 98% chance that the firearm will be shot intentionally. Do we want firearm owners to rest assured they are ïnsured when they shoot intentionally?

    • #2 by An Observer on March 23, 2016 - 4:01 PM

      Hi Debbie, thanks for commenting.

      First, it is important to remember that since the people predate and institute government, government consequently does not “give” the people any rights; by definition, a right naturally exists whereas government does not – the latter must be created. The Bill of Rights merely recognizes “the” right to keep and bear arms (for the natural right of self-defense), and subsequently imposes a restriction on the US federal government’s delegated authority in this regard (and later applied to the States via the Fourteenth Amendment).

      Also, it is important to remember that insurance for automobiles is not regulated by the federal government either; that is a State function, constitutionally. I am not sure where your cited statistics originate, but I doubt very much that 2% of firearms are discharged unintentionally, as that would equate to about 7+ million such discharges (seems exceedingly high).

      But for argument’s sake, people who are deemed negligent in discharging a firearm are generally held accountable via the civil courts for any personal, property, or other relevant damage they may inflict. If someone wants to insulate their assets via insurance for such potential incidences, I fully support their right to do so. However, I do not support any forced requirement by the state to compel such insurance as a prerequisite to exercise a natural right guaranteed by the Constitution and incorporated to the States. This would be akin to requiring people purchase and maintain liability insurance prior to exercising their right to free speech, lest they slander someone in the process. Or better yet, liability insurance for their children as part of the right to procreate – after all, none of these gun-related (or other) issues exist without people’s unregulated offspring.

      In my experience, guns simply do not generally discharge all by themselves. Human behavior is a necessary component of both justified and negligent use of firearms, as with anything. Polices that continue to regulate things rather than people’s behavior not only miss the point, but are demonstrably ineffective and infringing.

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