Anthony Sculimbrene, Esq.
Caetano v. Massachusetts
136 US 1027 (2016)
Heller applies to modern weapons and less lethal weapons as well as handguns.
Voting Results: Per Curiam, or Unanimous, Majority Opinion (members still on the court as of 9/2017 in bold), no stated author for Majority Opinion
Majority: Roberts, Kennedy, Thomas, Alito, Breyer, Sotomayor, Kagan, and Ginsburg
Concurring Opinion: Alito joined by Thomas
Voting Trend: This Opinion was issued when there was a vacancy on the court after Antonin Scalia died. As such, the unanimous opinion has only eight signatories instead of nine. Noteworthy here is the fact that the dissenters from Heller and MacDonald that are still on the Court when Caetano was published all joined the majority. In Heller Breyer and Ginsburg were dissenters and here supported the Heller analysis. In MacDonald, Breyer and Ginsburg were joined by Sotomayor and she also supported the Heller analysis in Caetano. Finally, the concurring opinion, which is where the bulk of analysis is, is written by Alito and joined by Thomas. Both were in the majority in both Heller and MacDonald. Furthermore, Alito wrote the majority in MacDonald and continues his analysis (and Scalia’s devastating style) here.
This is one of the most unusual U.S. Supreme Court cases to issue in a very long time. Not only is it a unanimous decision, but it is also an incredibly short majority opinion, terse and without much analysis. Additionally, even the dissenters in the two original Second Amendment cases, switched sides here. And finally, Alito’s concurrence is extremely sharply worded and is a direct intellectual uppercut to the Supreme Judicial Court’s thin legal reasoning. Suffice to say, based on the opinion and concurrence, the entire U.S. Supreme Court strongly disagreed with both the Supreme Judicial Court and the prosecutors in Massachusetts that bothered to bring criminal charges against the Defendant. Calling out prosecutors for abusing their discretion when charging someone with a crime is exceptionally rare in a U.S. Supreme Court opinion.
Jeanine Caetano was involved with an abusive man. They had children together and eventually she left him. After she did, he continued to harass and stalk her. Caetano applied for and received more than one stalking protective order. This had no effect on her abuser. After one particularly bad incident, a friend gave her a stun gun. One day after work, Caetano’s abuser confronted her in the parking lot of her job. He began yelling and screaming at her and threatened her for working instead of being home with his children. Caetano’s abuser was almost a foot taller than she was and outweighed her by nearly 100 pounds. As he approached her, Caetano reached into her purse and brandished the stun gun telling him she would use it on him. The abuser relented and left Caetano alone. A short time later Caetano was wrongly mentioned as a suspect in a shoplifting. When the police arrived they asked to search her purse, which she consented to, and upon searching they found no evidence of shoplifting, but did spot the stun gun, which was illegal to carry in Massachusetts. The police cleared her of the shoplifting but charged her with possession of the stun gun.
At trial, Caetano conceded that she possessed the stun gun. The State conceded that she had used it to defend herself and also conceded that it was a less lethal option. The only issue decided at trial was whether Heller protected her possession of the stun gun. The trial court ruled that it did not. On appeal to Massachusetts’ highest court, the Supreme Judicial Court, Caetano lost her case. The Supreme Judicial Court rejected Heller’s application to stun guns on three grounds: 1) stun guns were not in use at the time of the passage of the Second Amendment; 2) stun guns were dangerous and unusual weapons not within the scope of the Second Amendment’s protections as defined in Heller; and 3) stun guns were not within the scope of the Second Amendment because they were not weapons commonly used in war or by militias.
The U.S. Supreme Court issued a collective, unanimous decision swiftly rejecting all three arguments, relying on language in Heller. The majority opinion was very short. The concurrence, written by Alito, laid out in great detail all of the analysis to reject the Supreme Judicial Court’s reasoning. Because it is a concurring opinion, it is technically not binding, but it is very powerful persuasive authority.
First, the Alito concurrence rejected the idea stun guns were not protected by the Second Amendment because they did not exist at the time of the Revolution. He noted that Heller specifically rejected that claim. Alito rejected the second argument about the stun gun being unprotected because it is dangerous and unusual. He noted that this was a conjunctive test – the arm must be both dangerous AND unusual. Dangerousness alone is not enough because all weapons, by definition, are dangerous. He rejected the Supreme Judicial Court’s contention that the stun gun was usual because it is a form of technology not in existence at the time of the Revolution. He noted that all constitutional rights are updated with technology. For example, the First Amendment covers electronic communications even if they didn’t exist at the time of the Revolution. Finally, he rejected the weapons of war issue. He noted that stun guns were used in the military and even if the military use issues not a requirement of Heller, but an example of historical analysis about weapons the drafters of the Second Amendment intended to be covered by the phrase “keep and bear arms.” Alito’s rebuke of the Supreme Judicial Court was thorough and pointed.
Notes for Knife Owners
This case gives knife owners significant hope that Heller extends to them. That, alone, makes this an important case for people that regularly carry knives. This case also illustrates two valuable related points. First, the defendant here was very responsible in how she used the stun gun and though it had nothing to do with her actual charge, it made the case look very different in front of the court. Second, while her prior history with her assailant and use of the stun gun had nothing to do with her charge, it does show the usefulness in carrying a weapon for self-defense, something that reaches the core of Heller.
- Point 1: Though knives still are specifically covered by Heller, this case gets us much closer.
- Point 2: Though Heller is about firearms, the core of the case is self-defense and responsible use of weapons in self-defense, such as here, is important for courts.
Notes for Attorneys
This case is a treasure trove of gems for attorneys litigating knife cases. State courts are just now getting hit by Caetano’s fall out. This is the first U.S. Supreme Court case to apply Heller to a non-gun weapon, making it very unlikely that Heller would ever be interpreted as applying only to knives, especially given the strength of the rebuke here of the Supreme Judicial Court’s opinion. Alito addresses the “choice of weapons” used for self-defense, writing that it is not the court’s job to dictate what weapons people should carry when defending themselves. It is also clear that high tech weapons can still be covered by Heller. A switchblade or an assisted opener, something that didn’t exist at the time of the Revolution, could still, theoretically, be covered. Alito also makes clear that the “dangerous and unusual” weapons test is not one or the other, but a two-part test. His logic here about all arms being dangerous is not only persuasive, but a fertile field for defenses to knife possession cases. Alito also gives attorneys gifts in arguing about the lethality of a weapon. In states that allow firearms but ban certain kinds of knives, Alito’s logic about courts making weapons choices for people is powerful. Finally, the “Quaker passage” from Heller, which references hunting knives as arms, and this case make clear that the scope of Heller’s protections is not about military weapons, but weapons that people have in their everyday lives (such as knives) that COULD be used in war.
- Point 1: Though not explicit, in light of Caetano it would be VERY difficult for a court to claim that knives are not covered by Heller
- Point 2: The court’s language about less lethal weapons is useful for knife cases.
- Point 3: Heller clearly applies to new or high tech weapons
- Point 4: The “dangerous and unusual” test for arms that are per se outside of Heller’s protections requires proof of both dangerousness and something being unusual.
- Point 5: The “dangerous” part of the test is relatively unimportant as all arms are dangerous and in the case of knives, it is virtually impossible to argue that a knife, of any design, is more dangerous than a gun
- Point 6: The “weapons used in militias” part of Heller is better explained here and a weapon need not be a military weapon to be covered.