Supreme Court Decision About Second Amendment Not Stun Guns

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Supreme Court decision wasn’t about stun guns – It was about the Second Amendment decision in District of Columbia v. Heller which is bad news for concealed carry

Today, Monday March 21, 2016, the United States Supreme Court published, without dissent, a two page per curiam decision (Caetano v. Massachusetts) which reversed a decision by the Massachusetts high court which had held that stun guns are not arms protected by the Second Amendment.  After reversing the state court decision the US Supreme Court sent the case back to the Massachusetts high court for the judicial equivalent of a “do-over.”

Procedurally, the Massachusetts high court could contrive some other reason why stun guns are not protected by the Second Amendment but given what today’s US Supreme Court decision said, I cannot conceive of any and I suspect neither will the Massachusetts high court. The most likely outcome is that the Massachusetts high court will set aside Jamie Caetano’s conviction and dismiss the case.

In its now reversed decision the Massachusetts Supreme Judicial Council (state supreme court) gave three reasons as to why stun guns are not arms protected by the Second Amendment.

an enforcer stun-gun.
Enforcer stun-gun.

Using very concise language, the US Supreme Court picked apart and shot down each of those three reasons as being in direct conflict with its landmark 5-4, 2008 decision on the Second Amendment – District of Columbia v. Heller which was written by the late Justice Antonin Scalia. It has been 2,825 days since District of Columbia v. Heller was published which is seven years, eight months, three weeks and five days. Today’s decision is only the third decision by the US Supreme Court which were explicitly limited to answering Second Amendment questions.

In all of that time, both opponents and the lawyers who work for the so-called gun-rights groups have argued before Federal judges in cases stretching from New York to San Diego that the Heller decision did not mean exactly what the decision said. Their positions are in direct conflict with the Second Amendment as defined in the Heller decision.

Heller Decision Means Exactly What It Said

That is the beauty of today’s per curiam decision in Caetano. The decision is a presumably unanimous Supreme Court decision of the United States which holds that the Second Amendment decision in Heller, written by the late Justice Scalia, means exactly what it said and not something else.

For the opponents of the Second Amendment who claim that the Second Amendment is limited to keeping loaded firearms inside of one’s home and does not exist once one steps outside the door of his home, today’s decision is a crushing blow.

The reason given by these opponents as to why the Heller decision is so limited is because the facts of the case in the Heller decision did not involve anything other than the District of Columbia laws which made it illegal to possess modern handguns in one’s home and which required antique handguns and long guns (both antique and modern) to be kept unloaded, or disassembled or locked up.

According to the opponents of the Second Amendment everything else that was written in the Heller decision is irrelevant.

Today, the US Supreme Court held that the Second Amendment is not limited to the facts of the Heller decision. Today’s decision was presumptively a unanimous decision.

This shouldn’t come as a surprise given that unless the US Supreme Court explicitly limits the scope of its decisions, what the prevailing justices say in a decision has a wide-ranging application to other cases. If that weren’t how our courts worked then judges would not be able to apply prior decisions in other cases to current cases before their court and our legal system would be set back 800 years.

Today’s decision also dealt a crushing blow to the lawyers who work for the so-called gun-rights groups who have been seeking to compel shall-issue concealed carry permits in one failed Federal lawsuit after another.

Their argument has been that the US Supreme Court decision in Heller was wrong when it held that Open Carry is the right guaranteed by the Second Amendment and that concealed carry is not a right and can therefore be banned. Their position is that states can ban Open Carry in favor of concealed carry permits despite their position being in direct conflict with the Heller decision.

The so-called gun-rights lawyers position that states can ban Open Carry in favor of concealed carry directly conflicts with the Second Amendment right defined in the Heller decision.

The defendants in my Federal lawsuit, a lawsuit which seeks to strike down California’s ban on openly carrying loaded and unloaded firearms in public (California Governor Edmund Brown Jr., and Attorney General Kamala Harris), did not even concede that we have a right to keep arms in our home, let alone to bear arms in public and it was the conclusion of the district court judge (S. James Otero and his assistant (Magistrate Judge Susan Segal)) in my case that not only do we not have the right to bear arms in non-sensitive public places, we do not even have the right to keep arms in the curtilage of our homes or, for that matter, any part of our homes to which the public might have access.

Needless to say that judgment by the district court in my case directly conflicts with the Heller decision which held that:

“[A] right to carry arms openly: “This is the right guaranteed by the Constitution of the United States, and which is calculated to incite men to a manly and noble defence of themselves, if necessary, and of their country, without any tendency to secret advantages and unmanly assassinations.””

“Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose… For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues.”

second amendment in script.
The Second Amendment

While the so-called gun-rights groups which include the National Rifle Association, its various state organizations including the California Rifle and Pistol Association, the Second Amendment Foundation (SAF), its affiliated groups like the Calguns Foundation have been in Federal court these past years arguing that states can ban Open Carry (in direct conflict with the Heller decision) I have been in Federal Court since November of 2011 trying to vindicate our Second Amendment right in California and have done so despite the opposition of these so-called gun-rights groups.

There is only one other case in all of this nation which seeks to vindicate the Second Amendment Open Carry right and that case is Dale Norman v. State of Florida which is currently pending before the Florida State Supreme Court (oral arguments are scheduled for June 8).

My California Open Carry case is pending before the 9th Circuit Court of Appeals.  It is currently stayed pending a decision in the NRA, CRPA, SAF and Calguns concealed carry lawsuits (Peruta v. San Diego and Richards v. Prieto) which were argued before an eleven judge en banc panel of the 9th Circuit on June 16, 2015.

Nobody believes that any of the concealed carry lawsuits pending in this circuit are going to prevail but if they did prevail then they would be in direct conflict with the Heller decision and would likewise be reversed by the US Supreme Court.

Just as a decision in my Open Carry case (Charles Nichols v. Edmund G. Brown Jr., et al) or the Open Carry case out of Florida (Dale Lee Norman v. State of Florida) would be reversed if the courts were to decide in our Open Carry lawsuits that there is no Second Amendment right to openly carry firearms (loaded and unloaded) in public for the purpose of self-defense.

Such a conclusion by either the 9th Circuit Court of Appeals or the Florida State Supreme Court would be in direct conflict with the US Supreme Court decision in District of Columbia v. Heller.

Given that the California Solicitor General has already conceded that there is a Second Amendment right to openly carry loaded firearms in public, beyond the curtilage of one’s home, but not a right to carry weapons concealed in public as per the Heller decision, I suspect that we will have a decision in the various concealed carry cases sooner than later.