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Court rules state ban on stun guns not a Second Amendment violation

The Supreme Judicial Court today upheld a state law that prohibits the ownership of stun guns except by police.

A woman initially stopped for shoplifting in Ashland in 2011 was charged with illegal possession of the stun gun police found in her purse. The woman sued to overturn her conviction, arguing the Second Amendment gave her the right to own the device for self defense, in her case as protection against a violent ex-boyfriend against whom she had already used the weapon.

The state's highest court declared the stun gun "a dangerous and unusual weapon" not covered by the US Supreme Court's Heller ruling that nullified a Washington, DC ordinance banning gun ownership even to protect one's home.

The SJC cited two reasons: The woman was not using the stun gun to protect her home at the time and, in any case, the Supreme Court limited its decision to "the sorts of weapons protected were those 'in common use at the time'" the Second Amendment was being drafted in 1789. Stun guns, which rely on batteries to generate a debilitating electric shock, obviously were not.

The SJC justices went into detail to discuss just how stun guns are "dangerous and unusual," starting with dangerous:

From Blackstone through the 19th century cases, commentators and courts routinely explained that the [Second Amendment] right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose." Heller, supra at 626. Without further guidance from the Supreme Court on the scope of the Second Amendment, we do not extend the Second Amendment right articulated by Heller to cover stun guns.

Here, we are concerned not with ensuring that designated classes of people do not gain access to firearms or weapons generally, but rather with prohibiting a class of weapons entirely. The traditional prohibition against carrying dangerous and unusual weapons is not in dispute.

The question of the dangerousness of a weapon is well fixed in the common law through the distinction drawn between weapons that are dangerous per se and those that are dangerous as used. ... At common law, a weapon is dangerous per se if it is an "instrumentality designed and constructed to produce death or great bodily harm" and "for the purpose of bodily assault or defense." ... Weapons of this type include "firearms, daggers, stilettos and brass knuckles" but not "pocket knives, razors, hammers, wrenches and cutting tools." The weapons not so classified all share the same characteristic: they were designed primarily as tools and only secondarily utilized as weapons. ...

The statute at issue here explicitly prohibits "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." G. L. c. 140, § 131J. From this statutory definition, we easily conclude that any weapon regulated by § 131J would be classified as dangerous per se at common law. The parties have stipulated that the stun gun at issue here falls within the purview of § 131J and is a weapon. Accordingly, we consider the stun gun a per se dangerous weapon at common law. The record demonstrates no evidence or argument that its purpose is for anything other than "bodily assault or defense."

As for unusual, the justices write it's pretty obvious colonial militias didn't use anything remotely like electric stun guns; they cite a 1980 Oregon Supreme Court ruling that usual weaponry in the colonial and post-Revolution "as being a musket or rifle, a hatchet, sword and knife or pike (a long shaft with a spear head)." They continue:

The record is silent as to the development of the stun gun. The record indicates only that stun guns have been available commercially for private purchase since the early 1990s. We note that that the first patent for stun gun was filed in 1972. ... The recent invention of this weapon clearly postdates the period relevant to our analysis. We therefore conclude that stun guns were not in common use at the time of the Second Amendment's enactment. A stun gun also is an unusual weapon. In her motion to dismiss the complaint against her, the defendant acknowledged that the "number of Tasers and stun guns is dwarfed by the number of firearms." Moreover, although modern handguns were not in common use at the time of enactment of the Second Amendment, their basic function has not changed: many are readily adaptable to military use in the same way that their predecessors were used prior to the enactment. A stun gun, by contrast, is a thoroughly modern invention. Even were we to view stun guns through a contemporary lens for purposes of our analysis, there is nothing in the record to suggest that they are readily adaptable to use in the military. Indeed, the record indicates "they are ineffective for . . . hunting or target shooting." Because the stun gun that the defendant possessed is both dangerous per se at common law and unusual, but was not in common use at the time of the enactment of the Second Amendment, we conclude that stun guns fall outside the protection of the Second Amendment.

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Comments

are much more effective than a stun gun.

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That's it, peons, let the Royals tell you you can't have this and you can't have that while they loot and pillage. Be good little slaves.

Remember, we put them in power, and we didn't put them there to limit our power. It is time to remove them.

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The court is shamefully engaging in gymnastics because the hate citizenry defending themselves. Mind you the guy which invented modern policing, Sir Robert Peel (for whom the term Bobbies originated) stated that "to maintain at all times a relationship with the public that gives reality to the historic tradition that the police are the public and that the public are the police, the police being only members of the public who are paid to give full-time attention to duties which are incumbent on every citizen in the interests of community welfare and existence."

I can imagine in the near future

As for unusual, the justices write it's pretty obvious colonial pamphleteer didn't use anything remotely like the internet to distribute political materials and thus are not protected by the 1st amendment

The court's decision also declares homeless people second class citizens with no right to defend themselves. If one only has the right to defense within one's home, those without homes are in the court's eyes are out of luck.

This is terrible precedent and I hope it is overturned on appeal.

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The (expletive), are these judges Amish or something? Electricity is "unusual?"

Nice ban, too. You know, except for the part where criminals don't observe laws.

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Besides the ones the cops carry, when was the last time you saw a stun gun? Yeah, they're unusual. Also unnecessary, now that pepper spray is legal.

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Maybe you don't see them b/c they are illegal in this state.

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Double-headed dildos are "unusual" too.

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I was not aware that I could disable someone by spraying them in the arm.

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Or macho man of muscle like yourself. You need nothing but your left fist

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Seriously? Does the first amendment not apply to the internet or to Mormons because they didn't exist at the time the constitution was written?

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The SJC justices are very good writers in the sense they always cite their sources. In this case, they point to the Supreme Court's Heller decision, which said the Second Amendment applies to the sorts of weapons that were around in the late 1700s. The Supreme Court has never set a comparable limit on the First Amendment.

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So the SJC is suddenly cool with private citizens owning artillery again just like they did in colonial times?

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This is a court that has repeatedly upheld Massachusetts gun regulations, so don't make your reservations for that international arms bazaar just yet.

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They just contradicted themselves with a heads we win tails you lose proposition by stating anything that is a non military arm is banned because it isn't protected. In which case military arms are protected which they've repeated ruled are perfectly fine to restrict or ban.

The court is twisting itself into a pretzel to push their personal opinions rather than issue an impartial reading of the law.

That the SJC would choose to do so in a case which will make a battered homeless woman a convicted criminal for daring to obtain a non lethal means of defending herself from a serial abusers is sickening.

I hope Governor Baker pardons the woman.

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Afaik you can own artillery. The Boy Scout camp I went to as a kid had a cannon to wake people up for reveille

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From Heller:

"Some have made the argument, bordering on the frivo- lous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not in- terpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997), and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U. S. 27, 35–36 (2001), 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."

The test that Heller applies to handguns is whether the weapon in question is in common use for self-defense or militia service, and not solely by criminals for a criminal purposes (like a sawed-off shotgun). Stun guns would surely pass this test.

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So, when does adam apologize for blatantly making things up and pretending he's an authority on a decision he obviously never read?

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Watch out, or they'll also ban you from posting on uhub. Or tweeting. Or typing.

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So we should only make laws that criminals will observe? So that means robbery, murder and flying airplanes into buildings should be legal, since criminals do that anyway.

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If criminals don't obey laws, and you make all weapons illegal, than only criminals will have weapons.

Boston doesn't readily issue unrestricted licenses and it is quite illegal to carry a weapon without a permit. Yet notice how often criminals carry illegal weapons.

Ultimately laws are words on paper. In the immediate they provide no protection against someone looking to do you harm. They only thing laws provide is consequences IF and ONLY IF enforcement occurs. Mind you the judiciary in this state has a very bad habit to undermine consequences of the law come time for sentencing of the convicted.

This is why making something double plus super times 10x +1 infinite illegal doesn't serve as an added deterrent. If someone thinks murder being against the law is a joke tacking on several other charges isn't going to make them any less likely to break the law.

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I like that I can get a permit for a gun but not a stun gun.

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Well if it's any consolation, your LTC will be neutered by Boston and many towns in the area, effectively taking the "C" part out entirely.

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You are exactly correct, sir. Many people don't realize that many Mass town police chiefs have taken it upon themselves to withold our citizens' 2nd amendment right to bear arms on a daily basis (Winchester, Boston, Marion, the list goes on and on and on)

So if one of these tyrant police chiefs issue you an LTC (License To CARRY concealed), they will restrict it to hunting & sporting only, even if your record is spotless and you are a perfectly law-abiding citizen.

So what that means is, they are effectively charging you the $100+ to line their greedy tyrant pockets, so they can in return give you a license to carry, which does not allow you to carry. Read that part again.

And the tyrant Mass DemocRAT politicians have been busy screwing us all as well. This year they enacted a law, backed by the tyrant police chiefs, whereby when you get your LTC renewed, you have to list all of the firearms you own and give them the list. And what do you think they will use that last for? Sending you reminders to clean your guns? Nah, you guessed it, they will use that list to take the peoples' firearms away.

And people wonder why cops are getting shot? (Belly laugh) I only wonder why MORE cops are not being shot. These tactics by the politicians and judges and police chiefs are exactly opposite to what the Constitution intended. Don't believe me? Read it sometime. You will be shocked at how far they have betrayed the people.

Revolution is not only a good idea, it is now absolutely necessary if we want to keep our freedom. The Jews saw first hand what happens when you stand passively and allow gun registration. First gun confiscation happens, and then they round up the people they don't like, and then the gas chambers open their doors and swallow all the people, no steeple. Do we really want to follow in those footsteps? Hiw about your kids? Grandkids? I sure as feck don't.

Also, at a time when ISIS is lobbing off more heads per day than Monica Lewinsky could polish off in a week, why would our tyrant-in-chief Obama want to sign an executive order to take away .223 caliber ammunition, one of the most popular rifle ammunitions the people own? A four year old can figure out which side Obama is on... can you?

Mount up., patriots. It is go time. Do your job. They hate us, cuz they ain't us!

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On the scale of 0 to crazy.

And I say this as someone who would have to jump hoops to legally bring my heirloom weapons into MA.

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Makes those bow and arrow hunters look lazy!

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