Ole Tecumseh Sherman And His Stun Gun: How Extending Second Amendment Protection To Stun Guns Is Uncontroversial, Obvious, and Does Not Require A Substantial Court Opinion

A little unknown fact about General William Tecumseh Sherman is that his favorite weapon of choice during the Civil War was a stun gun.  Hell that is how the Yankees took out that Rebel General by the name of Stonewall Jackson.  A Stun gun straight to the man’s chest.

Okay that is complete bullshit and made up history.  However, if said by Donald Drumpf I imagine a vast majority of Americans would believe it.  Alright, moving on, let’s talk about how the Supreme Judicial Court of Massachusetts felt that owning a stun gun is not protected by the Second Amendment of the U.S. Constitution because stun guns were not in common use at the time the Second Amendment was enacted.  I can hear Ole Tecumseh Sherman rolling in his grave over this one.

In Caetano v. Massachusetts, 577 U.S. ___(2016), Jaime Caetano, like too many women in this country, found herself fearing for her life due to an abusive boyfriend.  Caetano took out multiple restraining orders against her boyfriend, but that did not stop the abuse and at one point the abuse landed her in the hospital.  Due to the abuse, Caetano’s friend offered her a stun gun for self-defense.

Leaving work one evening, Caetano’s boyfriend confronted her and began to scream at Caetano.  This jackass was upset because Caetano was working and not tending to their children.   Being completely over the jackass, Caetano produced her stun gun and told her boyfriend that she will use the stun gun on him if he did not leave her alone.  Being the big strong man he claimed to be, Caetano’s boyfriend took off with his tail between his legs.

A few short days or weeks later, Caetano was stopped by police officers regarding a shoplifting incident.  Caetano was accused of being an accomplice to the shoplifting.  When approached by the police officers, Caetano consented to a search of her purse.  The police officers found no evidence of shoplifting, but found Caetano’s stun gun.  Caetano was subsequently arrested for violating a Massachusetts’ law that prohibits possession of an electrical weapon.  Caetano moved to have the charge dismissed on Second Amendment grounds, but was ultimately denied.  The case eventually made its way up to the Supreme Judicial Court.  Supreme Massachusetts Demi-Football God Tom Brady, writing for the majority, held that a stun gun is not the type of weapon that is eligible for Second Amendment protection.*

The Supreme Judicial Court of Massachusetts found three explanations to support its holding that the Second Amendment does not extend to stun guns.  Those explanations are below.

1)         Stun guns are not protected because they “were not in common use at the time of the Second Amendment’s enactment.”

2)        Stun guns are unusual because they are a thoroughly modern invention.

3)        Stun guns are not readily adaptable to use in the military.

In their per curiam opinion, the U.S. Supremes opened up with “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.”  District of Columbia v. Heller, 544 U.S. 570 (2008).

Using Heller, the U.S. Supremes reject the Supreme Judicial Court of Massachusetts’ three explanations.  The Court held that the first explanation is inconsistent with Heller’s clear statement about the Second Amendment.  Moving on to the second explanation, the Court found that equating “unusual” with “in common use at the time of the Second Amendment’s enactment,” is inconsistent with Heller.  Lastly, the Court found that Heller rejected the proposition “that only those weapons useful in warfare are protected.”  Based on the above reasoning, the U.S. Supremes vacated the judgment and remanded the case back to the lower court for further proceedings.

Backing up a bit, a per curium opinion is traditionally used for a case that is uncontroversial, obvious, and did not require a substantial opinion.  Basically, “Hey Supreme Judicial Court of Massachusetts, did you even read the Heller decision?!? It is real simple, just follow it and you won’t have this mess!”

Justice Alito and Justice Thomas, in their concurring opinion, however, felt that the Court did not go far enough.  In fact, both Justice Alito and Justice Thomas seemed to go out of their way to chastise the Supreme Judicial Court of Massachusetts for defying Heller and allowing Caetano’s conviction stick.  In addition, I felt that they were calling out the other Justices for not beefing up the Heller decision to give further protection to individuals who want to bear arms.

Justice Alito wrote, “the Court’s grudging per curiam now sends the case back to the same court.  And the consequences for Caetano may prove more tragic still, as her conviction likely bars her from ever bearing arms for self-defense.”  Justice Alito went on to write, “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 keeping them safe.”

Although Justice Alito and Justice Thomas wanted more from their Court, you and General Sherman can rest easy knowing that stun guns, under Heller, are protected by the Second Amendment.

*          I don’t even know if Tom Brady can read let alone write in complete sentences.  However, I am pretty sure that he is not on the Supreme Judicial Court of Massachusetts.  Just a joke…I still don’t like the man though.

 

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