Jaime Caetano Gets Another Chance

The Supreme Court tossed a Massachusetts court ruling that upheld a state ban on owning or possessing a stun gun.  Today’s ruling directs the Supreme Court of Massachusetts to reconsider Jaime Caetano’s conviction for possessing a stun gun in violation of a Massachusetts laws in light of the Supreme Court’s ruling in District of Columbia v. Heller. In Heller, the Court specifically ruled that the Second Amendment covers “all instruments that constitute bearable arms, even those that were not in existence at the time of the founding,” In its earlier ruling, Massachusetts court held that the Second Amendment does not protect stun gun possession because stun guns are a modern invention.

On remand, the Massachusetts court will have to consider whether the Massachusetts per se ban on stun guns survives the requirements of the Second Amendment now that it is established that stun guns are covered by the Amendment.

Justice Alito wrote a separate concurring opinion joined by Justice Thomas in support of the Court’s decision.  The opinion takes note of an amicus brief filed by UCLA Professor Eugene Volokh and the Center for Individual Rights on behalf of Arming Women Against Rape & Endangerment (AWARE).   The opinion argues that a person should not have to choose between exercising a Constitutional right and following their conscience:

“Moreover, a weapon is an effective means of self-defense only if one is prepared to use it, and it is presumptuous to tell Caetano she should have been ready to shoot the father of her two young children if she wanted to protect herself. Courts should not be in the business of demanding that citizens use more force for self-defense than they are comfortable wielding. Countless people may have reservations about using deadly force, whether for moral, religious, or emotional reasons—or simply out of fear of killing the wrong person. See Brief for Arming Women Against Rape & Endangerment as Amicus Curiae 4–5. “Self-defense,” however, “is a basic right.” McDonald, 561 U. S., at 767. I am not prepared to say that a State may force an individual to choose between exercising that right and following her conscience, at least where both can be accommodated by a weapon already in widespread use across the Nation.”


n behalf of the group Arming Women Against Rape and Endangerment (AWARE), a non-profit dedicated to training women in self-defense, CIR, along with appellate lawyer and AWARE board member Lisa J. Steele and UCLA law professor Eugene Volokh, filed an amicus brief before the Supreme Court in Commonwealth v. Caetano. The case arose when Jaime Caetano was convicted of possessing a stun gun in violation of Massachusetts’s blanket ban on civilian stun gun possession.  She carried the stun gun in her purse for protection from her dangerously abusive ex-boyfriend.

CIR’s involvement in this case began early-on when the Supreme Judicial Court of Massachusetts requested amicus briefs from any interested parties. CIR argued that the Second Amendment protects more than just the right to keep and bear firearms, because the word “arms” in that amendment embraces many different weapons, including stun guns and knives.  Moreover, the right to keep and bear arms for self-defense necessarily includes the right to do so outside the home.  And whatever justification might be adduced for limiting the carrying of deadly weapons, such as firearms, outside the home, these justifications would not support restricting almost entirely nonlethal weapons such as stun guns.

The Supreme Judicial Court of Massachusetts disagreed. The Court upheld the ban, reasoning that stun guns are not protected by the Second Amendment because they were not in existence at the time of America’s founding. As such, the Massachusetts Court found stun guns to be “dangerous and unusual.”

Caetano appealed her case to the Supreme Court, where UCLA Prof. Eugene Volokh and CIR filed another amicus brief on behalf of AWARE, arguing that the Second Amendment protects the right to bear non-lethal weapons because, “some people have religious or ethical compunctions about killing. Other religious and philosophical traditions, such as Judaism and Catholicism, believe that defenders ought to use the least violence necessary. Some adherents to these beliefs may therefore conclude that fairly effective non-deadly defensive tools are preferable to deadly tools.”

On March 21, 2016, the Supreme Court vacated the Massachusetts Court ruling. In a concurring opinion, Justice Alito, joined by Justice Thomas, cited the AWARE brief in support of their conclusion that, when it comes to Constitutional rights, a state may not “force an individual to choose between exercising that right and following her conscience.”

Case Status: Victory. Supreme Court vacated and remanded case, which was dismissed.

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