Massachusetts Attorney General Defends Unconstitutional Stun-gun Ban

On April 27th, Massachusetts Attorney General Maura Healey filed a response to the Center for Individual Rights’ motion for a preliminary injunction. Attorney General Healey argues that the law should not be suspended until a decision is reached on the merits for the following reasons: First, she argues that because CIR’s plaintiffs have alternative means of defense they are not harmed by the law’s continued enforcement. Second, she argues that “electrical weapons remain outside the Second Amendment’s reach” because they are not “lineal descendants” of weapons in existence at the time the Second Amendment was ratified. Finally, she argues that the law has been in place for three decades and suspension would leave electric weapons unregulated.

CIR’s original motion addressed each of these arguments. Attorney General Healey’s suggestion that the plaintiffs have alternative means of self-defense suggests that the state would rather citizens use means of self-defense that are either more lethal or less reliable than electric weapons. Additionally, the Supreme Court has never held that the Second Amendment protects only weapons that are “lineal descendants” of weapons in use at the founding. Finally, a law that infringes on constitutional rights should be overturned regardless of how long it has been on the books. That Massachusetts has been infringing on the Second Amendment for thirty years is not an argument for why it should continue to do so.


In 1986, Massachusetts passed a law that bans private citizens from owning a stun-gun or Taser for self-defense. Codified in Section 131J of the General Laws of Massachusetts, the law states that “No person shall possess a portable device or weapon from which an electrical current, impulse, wave or beam may be directed, which current, impulse, wave or beam is designed to incapacitate temporarily, injure or kill.” Anyone who violates the law is subject to a fine up to $1,000 or imprisonment up to two and one half years, or both.

Criminalizing Self-Defense

CIR is representing three clients who have moral and practical objections to using lethal violence in self-defense. Each of them face criminal charges if they attempt to use non-lethal electric weapons.

Stun-guns are legal in forty-five states and have been sold commercially since the 1970s. Nevertheless, states like Massachusetts have tried to ban electric weapons under the reasoning that they are “dangerous and unusual” weapons that are “not typically possessed by law abiding citizens for lawful purposes.”

An overwhelming majority of states, however, recognize that law-abiding citizens may face situations where they require non-lethal means of self-defense. By prohibiting stun-guns, the Massachusetts law make self-defense more dangerous, not less.

Legal History

The Massachusetts stun-gun ban was challenged in 2011 by a Massachusetts woman named Jamie Caetano. Caetano obtained a stun-gun to defend herself from an abusive ex-boyfriend, but nevertheless found herself convicted and criminalized under Massachusetts law. She appealed her conviction, arguing that her criminalization violated her Second Amendment right to self-defense. The Supreme Judicial Court of Massachusetts, however, held that convictions under the statute are constitutional because stun-guns, even though they are non-lethal, are “thoroughly modern” inventions that were not in common use at the time the Second Amendment was enacted in 1789.

Caetano appealed her conviction once again to the United States Supreme Court, where the Center for Individual Rights, along with Arming Women Against Rape and Endangerment and UCLA Law Professor Eugene Volokh filed an amicus brief on her behalf. Our brief argued that many people seek non-lethal means of self-defense, but that laws like those in Massachusetts leave them either criminalized or without a means of self-defense they can lawfully use in keeping with their convictions.

The Supreme Court vacated the Massachusetts’s Court ruling and instructed them that stun-guns are not per-se outside the scope of the Second Amendment. In a concurring opinion, Justice Thomas and Justice Alito cited our brief, saying:

“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.” 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.”

The opinion stopped short of striking down the Massachusetts’s law outright, but it did call the laws Constitutional footing into question. The law still stands and individuals are still prosecuted for the possession of non-lethal electric weapons.

In light of this development, the Center for Individual Rights filed this suit in the United States District Court for the District of Massachusetts. Our challenge alleges the Massachusetts’s law violates the Second Amendment by criminalizing those – like our clients – who for moral or practical reasons desire a stun-gun to use in self-defense.

 

 

 



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