The recent decision from the United States Supreme Court in Caetano v. Massachusetts, 577 U.S. _ (March 21, 2016), includes a concurring opinion that is a forceful reiteration of the Supreme Court’s position on the Second Amendment. As many readers know, the decision in McDonald v. Chicago, 561 U.S. 742, 750 (2010), held that the Second Amendment right to bear arms is fully applicable to the states. McDonald was a sequel to the Supreme Court decision in District of Columbia v. Heller, 554 U.S. 570, 582 (2008) (Scalia, J.). The Heller decision emphasized that the Second Amendment protects an individual right to keep and bear arms. In the Caetano case, the U.S. Supreme Court granted a writ of certiorari, vacated the judgment of the Supreme Judicial Court of Massachusetts, and remanded for further proceedings not inconsistent with the per curiam opinion. The Caetano opinion strongly criticized the Massachusetts court for failing to follow Heller in several respects. That court failed to recognize a stun gun as among the types of weapons that are protected under the interpretation of the Second Amendment in Heller.
Justice Alito and Justice Thomas joined in a concurrence which strongly rebuked the Massachusetts court for flagrantly ignoring the clear rulings in Heller. The concurring opinion of Justices Alito and Thomas could be viewed as a way of honoring the author of the Heller opinion, Justice Scalia. The concurrence reminded the Massachusetts court of several basic principles in Heller including the following:
“It is settled that the Second Amendment protects an individual 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.
This case involved a woman who obtained a stun gun to protect herself against an abusive former boyfriend who towered over her by nearly a foot and outweighed her by close to 100 pounds. The Supreme Court opinion described how after work one evening, her ex-boyfriend confronted her and started screaming. She stood her ground, displayed the stun gun, and told him that she would not take his abuse, and if he did not leave her alone she would use the stun gun on him. It worked. The ex-boyfriend left her alone. Subsequently, in an unrelated incident, the police found the stun gun in her purse and arrested her because apparently the possession of a stun gun is in violation of a Massachusetts statute, even though the possession of the stun gun may have saved her life.
Justice Alito explained the connection between the right to bear arms and the basic right of self-defense: “By arming herself, Caetano was able to protect against the physical threat that a restraining order had proved useless to prevent.” Slip op. at 2.
Justice Alito also explained that Heller confirmed that: “The Second Amendment extends, prima facie, to all instruments that constitute bearable arms . . .” 554 U.S. at 582. Justice Alito expressed discontent that the Massachusetts court defied the reasoning in Heller. The reasoning of the Massachusetts court, instructed Justice Alito, “poses a grave threat to the fundamental right of self-defense.” The concurrence observed that:
“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. . . . 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 them safe.”
This concurrence by Justices Alito and Thomas reinforces the vitality of the Heller and McDonald decisions and gives hope to those who cherish the Bill of Rights.
Postscript: The Delaware Supreme Court’s opinion interpreting the Delaware Constitution’s version of the Second Amendment, known as Article I, Section 20, was reinforced in the opinion styled Doe v. Wilmington Housing Authority, highlighted on these pages. The natural right to self-defense that each person is born with transcends the typical corporate and commercial litigation fare typically found on this blog.