Shocker! MA Supreme Court Suddenly Realizes the 2nd Amendment Covers Stun Guns

P. Gardner Goldsmith | April 19, 2018

Sometimes – well, shoot, most of the time – government acts so slowly, creating so many of its own self-perpetuating customs and rituals, it’s flabbergasting.

And a perfect example of this perverse activity has arisen in Massachusetts – an example that not only sheds light on this “make-work” behavior, but also exposes many other malign actions of the American system in general.

As Eugene Volokh reports for Reason, April 17 saw the redundantly titled Massachusetts Supreme Judicial Court (as opposed to a tennis court) rule the obvious: because the Second Amendment of the US Constitution prohibits such action, the state cannot ban stun guns for personal use.

In the most erudite circles of political disputation, this would fall into the “no duh” category.

And it only took two years, the US Supreme Court reversing a previous MA Supreme Judicial Court ruling, massive amounts of tax money, the defendant spending lots of cash, and a completely childish application of what should be recognized as a clear prohibition offered in the Second Amendment to arrive at the decision.

How nice.

Seriously, it’s almost unfathomable that a group of legally trained Mass judges could not only get it wrong in an earlier case (Caetano v. Massachusetts, which was reversed by the SCOTUS in 2016), but that it’s such a simple issue, where one need not dance around for months. One need only read the text of the Second Amendment, and, voila, in a few minutes, the work is done.

The Second Amendment is clear:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

One need not even bother stressing the fact that the right to self-defense is inherent in the right to exist. One need not focus on the fact that at the time of the adoption of the Bill of Rights, the Militia was composed of all citizens capable of firing a weapon (even teenagers were part of it). It was the bulk of the people, who, when deciding to do so, could fight in a military manner.

All one need do is see that the Second Amendment strictly prohibits any government from infringing on the right to keep and bear arms – any arms. That includes firearms, knives and blades, rocks, clubs, pitchforks, cannons, rocket launchers, surface-to-air missiles, and, yes, stunningly, it seems for the Massachusetts Supreme Judicial Court, it also includes stun guns.

How hard is it to read a sentence in the Bill of Rights? Why do politically appointed judges do odd collectivist ceremonial dances around the fact that all governments in the US are supposed to be prohibited from infringing on the right to carry arms – any arms?

As Volokh notes, in its previous bungling on the 2016 “Caetano” case:

…the Massachusetts high court concluded that stun guns just aren't "arms" for Second Amendment purposes, because they didn't exist at the time the Second Amendment was written…

But, thankfully, the SCOTUS swatted away that soporific thinking.

And, of course, the Massachusetts Supreme Judicial Court, evidently keen on bloviation, not only pushed back against the next plaintiff to bring such a case about stun guns, wasting all that time and money, it also twisted the meaning of the Second Amendment in doing so.

Here’s part of the MA court’s ruling on April 17th:

Having received guidance from the Supreme Court..., we now conclude that stun guns are "arms" within the protection of the Second Amendment. Therefore, under the Second Amendment, the possession of stun guns may be regulated, but not absolutely banned.

Thanks for stumbling upon that keen insight about what stun guns are, MA judges. But in tripping across this clear reality, you also did a terrible injustice to the original meaning of the Second Amendment. The Second Amendment strictly prohibits any infringement on the right to keep and bear arms. This prohibition includes what you judges, politicians, and other agents of the state might call “regulations” or “reasonable” restrictions, and this, by definition, would include your arbitrary “waiting periods.” They are all infringements, and they are all clearly, clearly prohibited by the Second Amendment. Your idea that “the possession of stun guns can be regulated” is utterly bogus.

But the MA Supreme Judicial Court went even further in showing how far they deviate from the actual wording and intent of the Founders’ Constitution. In the decision, they write:

We once again confront the question whether the absolute criminal prohibition of civilian possession of a stun gun, in violation of G. L. c. 140, § 131J, violates the Second Amendment to the United States Constitution, which is applied to the States by its incorporation into the Fourteenth Amendment. 

This is profoundly wrong on two extremely important levels. First, the judges don’t need to do anything other than read the actual wording of the Second Amendment. And, additionally, this term “incorporation” refers to the popular judicial fantasy called “The Incorporation Doctrine”, in which generations of black-robed oligarchs have simply pretended that with the passage of the Fourteenth Amendment, the states “incorporated” the Bill of Rights into their state constitutions.

This never happened. It’s like saying the states “incorporated” the script for “Wizard of Oz” into their so-called rulebooks. Even if this were the case, the Second Amendment doesn’t need to be “incorporated,” because it already proscribes any government from infringing on the right to keep and bear arms.

How much simpler could this be?

What this ruling in Massachusetts shows us is that, even when the courts might rule in “our” favor, they lay out dangerous language that continues to threaten our rights and misread the rules. During the debate on the Constitution, the Anti-Federalists warned about this happening, and they were absolutely right.

Leaving rights in the hands of any branch of the government is a mistake, and Massachusetts has just shown this.

(Cover Photo: Jason Bain)