Caetano Per Curiam Decision Provides Three Clarifying Lessons About Second Amendment

March 21st, 2016

Today’s per curiam decision in Caetano v. Massachusetts is (believe it or not) the Court’s first pronunciation of the Second Amendment since McDonald v. Chicago in 2010. Yes, that was six years ago. I was still clerking in the District Court, and the Affordable Care Act was only three months young. I previously commented on the strange posture of the case. It was considered at 11 conferences over the course of nine months before yielding a terse two-page per curiam. five paragraph decision. My first guess is that the style reads like Chief Justice Roberts. There are no wasted words here, with every sentence laid out in a logical procession. There is a lot of weight put on citations to Heller, so the Court doesn’t need to further explicate anything.

Let me walk you through it.

First, the Court makes clear that this case is not about the scope of regulations that are permissible on the right to keep and bear arms, or on the appropriate standard of review, but on what types of arms are protected:

The Court has held that “the Second Amendment ex- tends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding,” District of Columbia v. Heller, 554 U. S. 570, 582 (2008), and that this “Second Amend- ment right is fully applicable to the States,” McDonald v. Chicago, 561 U. S. 742, 750 (2010). In this case, the Su- preme Judicial Court of Massachusetts upheld a Massa- chusetts law prohibiting the possession of stun guns after examining “whether a stun gun is the type of weapon contemplated by Congress in 1789 as being protected by the Second Amendment.” 470 Mass. 774, 777, 26 N. E. 3d 688, 691 (2015).

Second, the Court rejects the lower court’s application of the “common use” test.

First, the court explained that stun guns are not protected because they “were not in common use at the time of the Second Amendment’s enactment.” Id., at 781, 26 N. E. 3d, at 693. This is inconsistent with Heller’s clear statement that the Second Amendment “extends . . . to . . . arms . . . that were not in existence at the time of the founding.” 554 U. S., at 582.

This was a flat-out misstatement of Heller–that only weapons in existence in 1791 could be protected.

Third, the Court said that new weapons are not “unusual.”

The court next asked whether stun guns are “dangerous per se at common law and unusual,” 470 Mass., at 781, 26 N. E. 3d, at 694, in an attempt to apply one “important limitation on the right to keep and carry arms,” Heller, 554 U. S., at 627; see ibid. (referring to “the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons’”). In so doing, the court concluded that stun guns are “unusual” because they are “a thoroughly modern invention.” 470 Mass., at 781, 26 N. E. 3d, at 693–694. By equating “unusual” with “in common use at the time of the Second Amendment’s enactment,” the court’s second explanation is the same as the first; it is inconsistent with Heller for the same reason.

This is written obtusely, but in short, the Court suggest that the mere fact that such weapons were not in use at the time of the ratification of the 14th Amendment does not make then “unusual” for purposes of the “dangerous and unusual” exception carved out by Heller.

Fourth, the Court rejected the argument that only weapons used in the military are protected.

Finally, the court used “a contemporary lens” and found “nothing in the record to suggest that [stun guns] are readily adaptable to use in the military.” 470 Mass., at 781, 26 N. E. 3d, at 694. But Heller rejected the proposi- tion “that only those weapons useful in warfare are pro- tected.” 554 U. S., at 624–625.

Each of these three lessons seem like fairly routine applications of Heller. In all likelihood, if the SJC cares, they can uphold the regulation on remand by applying some form of routine intermediate scrutiny and be done with the issue. So there’s not much new ground broken here. But, for the first time in six years, we get something on the Second Amendment–and it’s not awful!

Part of me would like to think that all 8 Justices agree with Heller is settled law, but a Per Curiam GVR does not make me too assured.