Mimesis Law
26 February 2020

Caetano and the Right to Non-Lethal Arms (Update)

Feb. 12, 2016 (Mimesis Law) — I’ve said it before and I’ll say it again. The police are under no obligation to protect you. Your baby can be drowning in a puddle six inches away while an officer noshes on a cruller, and whether he flips her over so she can breathe or gets up for another donut is basically a matter of discretion.

So the right to bear arms isn’t just, as Ken Womble suggests, the right to own a tool, any more than the right to a free press refers only to printing presses. The Second Amendment exists to protect the most elemental right: the right to defend your home, your family, and yourself. As the United States Supreme Court ruled in Heller, “[T]he inherent right of self-defense has been central to the Second Amendment right.”

Case in point:

Jaime Caetano bought a stun gun because she was homeless, and because she worried that an abusive ex-boyfriend was stalking her. According to Commonwealth Second Amendment, she acquired the weapon after her boyfriend beat her so badly that she had to be hospitalized.

Police stopped her outside of a supermarket, suspecting that she might have been involved with a shoplifter who had been detained.

The police asked to search her purse, and she consented. Inside, they found the stun gun, which is illegal in Massachusetts.

Violation of this section is punishable “by a fine of not less than $500 nor more than $1,000 or by imprisonment in the house of correction for not less than [six] months nor more than [two and one-half] years, or by both such fine and imprisonment”

She didn’t ask for a trial. Instead, she wanted to plead guilty, but challenge the constitutionality of the statute. If the Second Amendment protects lethal weapons, she reasoned, then non-lethal weapons must be especially protected.

But the Massachusetts Supreme Judicial Court disagreed. In fact, it ruled that stun guns are not constitutionally protected precisely because they are a modern, non-lethal weapon.

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.

So, in other words, because stun guns were invented in 1972, and because they can’t be readily adapted for use in a militia, the Second Amendment can’t apply to them. But the court lays its reasoning even more bare:

[W]ithout further guidance from the Supreme Court on the scope of the Second Amendment…[this Court will not] extend the Second Amendment rights articulated by Heller to cover stun guns.

This is an interesting statement. The court isn’t ruling out that such weapons might be protected, but it is indicating that it will have to be carried kicking and screaming towards that conclusion by the decision of the United States Supreme Court.

Michigan, meanwhile, has come out the other way, holding that stun guns are squarely protected. And hell, it even went ahead and pointed out the obvious:

Tasers and stun guns, while plainly dangerous, are substantially less dangerous than handguns. Therefore, tasers and stun guns do not constitute dangerous weapons for purposes of Second Amendment inquiries.

Eugene Volokh helped write an amicus in the case on behalf of an organization called AWARE[1], and he brings up some of the important reasons why the right to bear lethal weapons must, necessarily, include non-lethal options. You might not want to kill a potential attacker because he’s a family member, because you have a moral compunction against killing, or simply because you don’t want to have to resort to lethal force as your first option against a threat.

For a woman like Caetano, who likely would get little help from the police, arming herself was likely the single best option to avoid further injury. Even if she told them in advance that her boyfriend was a danger and asked for protection, the government was under no obligation to help her.

And of course, even if one does call the police, and they arrive on time, there’s no guarantee that they will actually do what’s required to save your life. They might just fill you with bullets alongside your attacker.

It is certainly understandable why courts want to narrow the holding of Heller. As Scott Greenfield points out, even the strictest constitutionalist can get a little uncomfortable with the idea of an overzealous shooter jeopardizing a family member, rights or no.

But if courts and governments are going to draw a line in the stand, hoping to limit Second Amendment rights, non-lethal weapons are precisely the wrong place to do it. There are no school stunnings. It is relatively rare to hit the wrong person, and the consequences are less dire than a bullet. If the Second Amendment lets you ban things for being “dangerous and unusual,” then chances are the thing you’re banning should be at least as dangerous as the stuff that’s allowed.

Caetano is currently petitioning for cert before the United States Supreme Court. After leaving Second Amendment case-law in kind of a jumble, this is a chance for some clarification on just what the scope of the right is. It is currently on its seventh relist.

But if the right to bear arms is to mean anything, it should mean that Jaime Caetano, 4’11 and risking serious harm, without financial resources, can choose reasonable means to protect herself.

Update:  The Supreme Court, in a per curiam opinion, summarily reversed the Massachusetts decision.

[1] Arming Women Against Rape & Endangerment

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