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.