Cite as: 577 U. S. ____ (2016)
SUPREME COURT OF THE UNITED STATES
JAIME CAETANO v. MASSACHUSETTS
ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME
JUDICIAL COURT OF MASSACHUSETTS
No. 14–10078. Decided March 21, 2016
JUSTICE ALITO, with whom JUSTICE THOMAS joins,concurring in the judgment.
After a “bad altercation” with an abusive boyfriend put her
in the hospital, Jaime Caetano found herself homelessand “in fear
for [her] life.” Tr. 31, 38 (July 10, 2013). She obtained multiple
restraining orders against her abuser,but they proved futile. So when
a friend offered her a stun gun “for self-defense against [her]
former boy friend,” 470 Mass. 774, 776, 26 N. E. 3d 688, 690 (2015),
Caetano accepted the weapon.
It is a good thing she did. One night after leaving work,Caetano found
her ex-boyfriend “waiting for [her] outside.”Tr. 35. He “started
screaming” that she was “not gonna[expletive deleted] work
at this place” any more because she “should be home with the
kids” they had together. Ibid. Caetano’s abuser towered over
her by nearly a foot and outweighed her by close to 100 pounds. But she
didn’t need physical strength to protect herself. She stood her
ground, displayed the stun gun, and announced: “I’m not gonna
take this anymore. . . . I don’t wanna have to [use the stun gun
on] you, but if you don’t leave me alone, I’mgonna have to.”
Id., at 35–36. The gambit worked. The ex-boyfriend “got scared
and he left [her] alone.” Id., at 36.
It is settled that the Second Amendment protects anindividual right to
keep and bear arms that applies against both the Federal Government and
the States. District of Columbia v. Heller, 554 U. S. 570 (2008); McDonald
v. Chicago, 561 U. S. 742 (2010). That right vindicates the “basic
right” of “individual self-defense.” Id., at 767; see
Heller, supra, at 599, 628. Caetano’s encounter with her violent
ex-boyfriend illustrates the connection between those fundamental rights:
By armingherself, Caetano was able to protect against a physicalthreat
that restraining orders had proved useless to prevent. And, commendably,
she did so by using a weaponthat posed little, if any, danger of permanently
harmingeither herself or the father of her children.
Under Massachusetts law, however, Caetano’s mere possession of the
stun gun that may have saved her life made her a criminal. See Mass. Gen.
Laws, ch. 140, §131J (2014). When police later discovered the weapon,
she was arrested, tried, and convicted. The Massachusetts Supreme Judicial
Court affirmed the conviction, holding thata stun gun “is not the
type of weapon that is eligible forSecond Amendment protection”
because it was “not in common use at the time of [the Second Amendment’s]enactment.”
470 Mass., at 781, 26 N. E. 3d, at 693.
This reasoning defies our decision in Heller, which rejected as “bordering
on the frivolous” the argument “thatonly those arms in existence
in the 18th century are protected by the Second Amendment.” 554
U. S., at 582. The decision below also does a grave disservice to vulnerableindividuals
like Caetano who must defend themselves because the State will not.
The events leading to Caetano’s prosecution occurred sometime after
the confrontation between her and her ex-boyfriend. In September 2011,
police officers responded to a reported shoplifting at an Ashland, Massachusetts,supermarket.
The store’s manager had detained a suspect, but he identified Caetano
and another person in the parking lot as potential accomplices. Police
approachedthe two and obtained Caetano’s consent to search her
purse. They found no evidence of shoplifting, but saw Caetano’s
stun gun. Caetano explained to the officers thatshe had acquired the weapon
to defend herself against aviolent ex-boyfriend.
The officers believed Caetano, but they arrested her for violating Mass.
Gen. Laws, ch. 140, §131J, “which bansentirely the possession
of an electrical weapon,” 470Mass., at 775, 26 N. E. 3d, at 689.1
When Caetano moved to dismiss the charge on Second Amendment grounds,
the trial court denied the motion.
A subsequent bench trial established the following undisputed facts. The
parties stipulated that Caetano possessed the stun gun and that the weapon
fell within the statute’s prohibition.2 The Commonwealth also did
not challenge Caetano’s testimony that she possessed theweapon to
defend herself against the violent ex-boyfriend.Indeed, the prosecutor
urged the court “to believe the defendant.” Tr. 40. The trial
court nonetheless found Caetano guilty, and she appealed to the MassachusettsSupreme
The Supreme Judicial Court rejected Caetano’s Second Amendment claim,
holding that “a stun gun is not the typeof weapon that is eligible
for Second Amendment protection.” 470 Mass., at 775, 26 N. E. 3d,
at 689. The court reasoned that stun guns are unprotected because they
were “not ‘in common use at the time’ of enactment of
the Second Amendment,” id., at 781, 26 N. E. 3d, at 693 (quoting
Heller, supra, at 627), and because they fall within the“traditional
prohibition against carrying dangerous andunusual weapons,” 470
Mass., at 779, 26 N. E. 3d, at 692 (citing Heller, supra, at 627).
Although the Supreme Judicial Court professed to apply Heller, each step
of its analysis defied Heller’s reasoning.
The state court repeatedly framed the question before itas whether a particular
weapon was “‘in common use at the time’ of enactment
of the Second Amendment.” 470 Mass., at 781, 26 N. E. 3d, at 693;
see also id., at 779, 780, 781, 26 N. E. 3d, at 692, 693, 694. In Heller,
we emphatically rejected such a formulation. We found the argument“that
only those arms in existence in the 18th century areprotected by the Second
Amendment” not merely wrong,but “bordering on the frivolous.”
554 U. S., at 582. Instead, we held that “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.” Ibid. (emphasis
added).3 It is hard to imagine language speaking more directly to the
point. Yet the Supreme Judicial Court did not so much as mention it.
Instead, the court seized on language, originating in United States v.
Miller, 307 U. S. 174 (1939), that “‘the sorts of weapons
protected were those “in common use at the time.”’”
470 Mass., at 778, 26 N. E. 3d, at 692 (quoting Heller, supra, at 627,
in turn quoting Miller, supra, at 179). That quotation does not mean,
as the court belowthought, that only weapons popular in 1789 are covered
by the Second Amendment. It simply reflects the reality thatthe founding-era
militia consisted of citizens “who would bring the sorts of lawful
weapons that they possessed at home to militia duty,” Heller, 554
U. S., at 627, and that the Second Amendment accordingly guarantees the
rightto carry weapons “typically possessed by law-abiding citizens
for lawful purposes,” id., at 625. While stun gunswere not in existence
at the end of the 18th century, the same is true for the weapons most
commonly used todayfor self-defense, namely, revolvers and semiautomatic
pistols. Revolvers were virtually unknown until well intothe 19th century,4
and semiautomatic pistols were not invented until near the end of that
century.5 Electronic stun guns are no more exempt from the Second Amendment’s
protections, simply because they were unknown tothe First Congress, than
electronic communications areexempt from the First Amendment, or electronic
imaging devices are exempt from the Fourth Amendment. Id., at 582 (citing
Reno v. American Civil Liberties Union, 521
U. S. 844, 849 (1997), and Kyllo v. United States, 533 U. S. 27, 35–36
(2001)). As Heller aptly put it: “We do not interpret constitutional
rights that way.” 554 U. S., at 582.
The Supreme Judicial Court’s holding that stun gunsmay be banned
as “dangerous and unusual weapons” faresno better. As the
per curiam opinion recognizes, this is a conjunctive test: A weapon may
not be banned unless it is both dangerous and unusual. Because the Court
rejectsthe lower court’s conclusion that stun guns are “unusual,”
it does not need to consider the lower court’s conclusion that they
are also “dangerous.” See ante, at 1–2. But make no
mistake—the decision below gravely erred on both grounds.
As to “dangerous,” the court below held that a weapon is“dangerous
per se” if it is “ ‘designed and constructed to produce
death or great bodily harm’ and ‘for the purpose of bodily
assault or defense.’” 470 Mass., at 779, 26 N. E. 3d, at 692
(quoting Commonwealth v. Appleby, 380 Mass. 296, 303, 402 N. E. 2d 1051,
1056 (1980)). That test may be appropriate for applying statutes criminalizing
assault with a dangerous weapon. See ibid., 402 N. E. 2d, at 1056. But
it cannot be used to identify arms that fall outside theSecond Amendment.
First, the relative dangerousness of a weapon is irrelevant when the weapon
belongs to a class of arms commonly used for lawful purposes. See Heller,
supra, at 627 (contrasting “‘dangerous and unusual weapons’”
that may be banned with protected “weapons . . . ‘incommon
use at the time’”). Second, even in cases where dangerousness
might be relevant, the Supreme Judicial Court’s test sweeps far
too broadly. Heller defined the “Arms” covered by the Second
Amendment to include “‘anything that a man wears for his defence,
or takes into his hands, or useth in wrath to cast at or strike another.’”
554 U. S., at 581. Under the decision below, however, virtually every
covered arm would qualify as “dangerous.”
Were there any doubt on this point, one need only lookat the court’s
first example of “dangerous per se” weapons: “firearms.”
470 Mass., at 779, 26 N. E. 3d, at 692. If Heller tells us anything, it
is that firearms cannot be categorically prohibited just because they
are dangerous.554 U. S., at 636. A fortiori, stun guns that the Commonwealth’s
own witness described as “non-lethal force,” Tr. 27, cannot
be banned on that basis.
The Supreme Judicial Court’s conclusion that stun gunsare “unusual”
rested largely on its premise that one must ask whether a weapon was commonly
used in 1789. See 470 Mass., at 780–781, 26 N. E. 3d, at 693–694.
As already discussed, that is simply wrong. See supra, at 4–6.
The court also opined that a weapon’s unusualnessdepends on whether
“it is a weapon of warfare to be used by the militia.” 470
Mass., at 780, 26 N. E. 3d, at 693. It asserted that we followed such
an approach in Miller and “approved its use in Heller.” 470
Mass., at 780, 26
N. E. 3d, at 693. But Heller actually said that it would be a “startling
reading” of Miller to conclude that “only thoseweapons useful
in warfare are protected.” 554 U. S., at
624. Instead, Miller and Heller recognized that militiamembers traditionally
reported for duty carrying “thesorts of lawful weapons that they
possessed at home,” and that the Second Amendment therefore protects
such weapons as a class, regardless of any particular weapon’s suitability
for military use. 554 U. S., at 627; see id., at 624–625. Indeed,
Heller acknowledged that advancements in military technology might render
many commonlyowned weapons ineffective in warfare. Id., at 627–628.
But such “modern developments . . . cannot change our interpretation
of the right.” Ibid.
In any event, the Supreme Judicial Court’s assumption that stun guns
are unsuited for militia or military use isuntenable. Section 131J allows
law enforcement and correctional officers to carry stun guns and Tasers,
presumably for such purposes as nonlethal crowd control. Subduing members
of a mob is little different from “suppress[ing] Insurrections,”
a traditional role of the militia.
U. S. Const., Art. I, §8, cl. 15; see also ibid. (militia may be
called forth “to execute the Laws of the Union”). Additionally,
several branches of the U. S. armed services equip troops with electrical
stun weapons to “incapacitate a target without permanent injury
or known side effects.”
U. S. Army, Project Manager Close Combat Systems, PDCombat Munitions:
Launched Electrode Stun Device (LESD), http://www.pica.army.mil/pmccs/combatmunitions/nonlethalsys/taserx26e.html
(all Internet materials as lastvisited Mar. 18, 2016); see U. S. Marine
Corps Admin- istrative Message 560/08 (Oct. 2, 2008) (Marine Corpsguidance
for use of Tasers), http://www.marines.mil/News/Messages/MessagesDisplay/tabid/13286/Article/113024/marine-corps-training-and-use-of-human-electro-muscularincapacitation-hemi-dev.aspx; Joint Non-Lethal Weapons Directorate, Non-Lethal Weapons (NLW) Reference Book 3 (2012) (Department of Defense report stating that“[m]ultiple Services employ” Tasers), http://dtic.mil/dtic/tr/fulltext/u2/a565971.pdf.
As the foregoing makes clear, the pertinent SecondAmendment inquiry is
whether stun guns are commonly possessed by law-abiding citizens for lawful
purposes today. The Supreme Judicial Court offered only a cursorydiscussion
of that question, noting that the “‘number of Tasers and stun
guns is dwarfed by the number of firearms.’” 470 Mass., at
781, 26 N. E. 3d, at 693. This obCite
as: 577 U. S. ____ (2016) servation may be true, but it is beside the
point. Otherwise, a State would be Evaluation to ban all weapons excepthandguns,
because “handguns are the most popular weaponchosen by Americans
for self-defense in the home.” Heller, supra, at 629.
The more relevant statistic is that “[h]undreds of thousands of Tasers
and stun guns have been sold to private citizens,” who it appears
may lawfully possess them in 45States. People v. Yanna, 297 Mich. App.
137, 144, 824
N. W. 2d 241, 245 (2012) (holding Michigan stun gun banunconstitutional);
see Volokh, Nonlethal Self-Defense, (Almost Entirely) Nonlethal Weapons,
and the Rights ToKeep and Bear Arms and Defend Life, 62 Stan. L. Rev.199,
244 (2009) (citing stun gun bans in seven States); Wis. Stat. §941.295
(Supp. 2015) (amended Wisconsin law permitting stun gun possession); see
also Brief in Opposition 11 (acknowledging that “approximately 200,000
civilians owned stun guns” as of 2009). While less popular than
handguns, stun guns are widely owned and acceptedas a legitimate means
of self-defense across the country.Massachusetts’ categorical ban
of such weapons thereforeviolates the Second Amendment.
The lower court’s ill treatment of Heller cannot stand. The reasoning
of the Massachusetts court poses a gravethreat to the fundamental right
of self-defense. The Supreme Judicial Court suggested that Caetano could
have simply gotten a firearm to defend herself. 470 Mass., at 783, 26
N. E. 3d, at 695. But the right to bear other weapons is “no answer”
to a ban on the possession of protected arms. Heller, 554 U. S., at 629.
Moreover, a weapon is an effective means of self-defense only if one is
prepared touse it, and it is presumptuous to tell Caetano she shouldhave
been ready to shoot the father of her two young children if she wanted
to protect herself. Courts should not be in the business of demanding
that citizens use more force for self-defense than they are comfortable
Countless people may have reservations about using deadly force, whether
for moral, religious, or emotionalreasons—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.” McDonald, 561 U. S., at 767. I am not
prepared to say that a State may force an individual to choosebetween
exercising that right and following her conscience, at least where both
can be accommodated by aweapon already in widespread use across the Nation.
A State’s most basic responsibility is to keep its people safe. The
Commonwealth of Massachusetts was either unable or unwilling to do what
was necessary to protect Jaime Caetano, so she was forced to protect herself.
To make matters worse, the Commonwealth chose to deployits prosecutorial
resources to prosecute and convict her of a criminal offense for arming
herself with a nonlethal weapon that may well have saved her life. The
SupremeJudicial Court then affirmed her conviction on the flimsiest of
grounds. This Court’s grudging per curiam now sends the case back
to that same court. And the consequences for Caetano may prove more tragic
still, as her conviction likely bars her from ever bearing arms for self-defense.
See Pet. for Cert. 14.
If the fundamental right of self-defense does not protect Caetano, then
the safety of all Americans is left to the mercy of state authorities
who may be more concerned about disarming the people than about keeping