MA SJC rules stun gun ban violates the 2A

[seanc]

So... do you have “high capacity” and “standard capacity” stun guns? Then you have you can only get them for sport and target? Or, can you now hunt deer, coyote and bear and ducks with a taser?

Love it when they come out with the pretzel logic that even they can’t explain with a straight face other than “ legal schmegal, it’s because we say so”.

 

[Waher]

It’s as if she completely forgot that Caetano WAS homeless when she started talking about how stun guns would only be acceptable “in the home” if they were to be acceptable at all.

I think this part of the Caetano ruling is what's going to allow Comm2A & others to take the state to the mat in court for whatever bowel movement the legislature passes in response to the SJC. SCotUS made it clear homeless people have a right to stun-guns outside the home, as they have no home. Any scheme which prohibits carry of stun-guns outside the home, or effectively prohibits the homeless from being able to legally posses them as they don't have a home address to licensure (I'd argue even the $100 fee is non-kosher). The state is stupid to even push crap around licensure which could wind up back before SCotUS because of the commonwealth's "May Issue" licensure required for possession in the home policy being in violation of Heller.

This isn't just a 2A issue but a MAJOR 14A issue. The liberals already made a big stink about the homeless being discriminated against when it comes to ids and voting. Why should exercising their 2A rights and ability to obtain FIA/LTC cards be any different?

The antis really don't seem to understand the implications of Caetano reinforcing Heller in the slightest.

 

[Knuckle Dragger]

I think this part of the Caetano ruling is what's going to allow Comm2A & others to take the state to the mat in court for whatever bowel movement the legislature passes in response to the SJC. SCotUS made it clear homeless people have a right to stun-guns outside the home, as they have no home. Any scheme which prohibits carry of stun-guns outside the home, or effectively prohibits the homeless from being able to legally posses them as they don't have a home address to licensure (I'd argue even the $100 fee is non-kosher). The state is stupid to even push crap around licensure which could wind up back before SCotUS because of the commonwealth's "May Issue" licensure required for possession in the home policy being in violation of Heller.

This isn't just a 2A issue but a MAJOR 14A issue. The liberals already made a big stink about the homeless being discriminated against when it comes to ids and voting. Why should exercising their 2A rights and ability to obtain FIA/LTC cards be any different?

The antis really don't seem to understand the implications of Caetano reinforcing Heller in the slightest.

In this and your earlier post, I think you're reading something into Caetano that isn't there. The homelessness issue was given a lot of attention, but wasn't part of either the SJC decision or SCOTUS per curiam decision. If I recall correctly, Caetano's homelessness status was of interest to the SJC when the solicited amicus briefs, but they determined at the time that stun guns were outside the scope of the Second Amendment. Justice Alito addressed her homelessness state as part of his concurrence, but that wasn't precedent as it was only joined by Justice Thomas.

As far as Massachusetts is concern, SCOTUS was wrong in Heller and the Second Amendment is a 'collective' right that's irrelevant today. But, if they really have to follow Heller, the Second Amendment is no more than a home-bound right limited to handguns. As one ADA described it (I believe in Caetano) the Second Amendment is the intersection of a Venn diagram where the home and handguns overlap. With yesterday's SJC ruling, you can update that to where the home overlaps with either a handgun and/or a stun gun.

Don't expect much from the legislature. They're mandate is to put this genie back in the bottle and to restrict access to stun guns as much as is possible.

 

[uwaeve]

So... do you have “high capacity” and “standard capacity” stun guns? Then you have you can only get them for sport and target? Or, can you now hunt deer, coyote and bear and ducks with a taser?

Love it when they come out with the pretzel logic that even they can’t explain with a straight face other than “ legal schmegal, it’s because we say so”.

No honest man (or woman) needs 50 thousand volts. Let's talk about some common sense restrictions on these things.

 

[Al-Jim19]

So I’m wondering how the law would treat me if I bought a taser pulse tomorrow. Am I a criminal or not?

 

[Glockster30]

As far as Massachusetts is concern, SCOTUS was wrong in Heller and the Second Amendment is a 'collective' right that's irrelevant today. But, if they really have to follow Heller, the Second Amendment is no more than a home-bound right limited to handguns. As one ADA described it (I believe in Caetano) the Second Amendment is the intersection of a Venn diagram where the home and handguns overlap. With yesterday's SJC ruling, you can update that to where the home overlaps with either a handgun and/or a stun gun.

If the MA legislature believes that it is a "collective" right and that Heller was wrong, then it should consider changing Art. XVII of the Massachusetts Constitution, which states that, "The people have a right to keep and bear arms for the common defence." How can we keep and bear arms if they are locked up in an armory somewhere? Yes, I know that I'm preaching to the choir.

Article XVII.
The people have a right to keep and to bear arms for the common defence. And as, in time of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority, and be governed by it.

Massachusetts Constitution

 

[Waher]

In this and your earlier post, I think you're reading something into Caetano that isn't there

I was reading into the concurrence and not understanding that it didn't carry the conceptual force of law behind precedent that the Per Curiam does.

Article XVII
Has been dead letter in MA since the SJC decided the "militia" was the National Guard (you know the standing army dangerous to liberty and all that, which IS NOT maintained with the consent of the legislature ever since Woodrow Wilson got his way) in the 1970s as a F-U to the precursor to GOAL for rallying against the handgun ban referendum.

 

[Whiskeywon]

If the MA legislature believes that it is a "collective" right and that Heller was wrong, then it should consider changing Art. XVII of the Massachusetts Constitution, which states that, "The people have a right to keep and bear arms for the common defence." How can we keep and bear arms if they are locked up in an armory somewhere? Yes, I know that I'm preaching to the choir.



Massachusetts Constitution

If Massachusetts ever got one thing right, it's that. Shame that it isn't how COTUS was written because we wouldn't even be having some of these conversations.

 

[amm5061]

So I’m wondering how the law would treat me if I bought a taser pulse tomorrow. Am I a criminal or not?

For the next 50-odd days, yes. Yes you are a criminal.

Also, probably not going to be on the AG's seekrit list since no LCI or 50lb trigger pull. Verboten for dealers to sell it to you!

 

[Knuckle Dragger]

If the MA legislature believes that it is a "collective" right and that Heller was wrong, then it should consider changing Art. XVII of the Massachusetts Constitution, which states that, "The people have a right to keep and bear arms for the common defence." How can we keep and bear arms if they are locked up in an armory somewhere? Yes, I know that I'm preaching to the choir.



Massachusetts Constitution

The SJC has taken care of that already on Comm v. Davis - 1976 and declared that Artificial XVII is a 'collective' right:

Article 17 expresses the distrust in its second sentence. It refers to the preference in the first: the declared right to keep and bear arms is that of the people, the aggregate of citizens; the right is related to the common defense; and that in turn points to service in a broadly based, organized militia. Provisions like art. 17 were not directed to guaranteeing individual ownership or possession of weapons.

Heller did nothing to change this. The SJC is the final authority on the meaning of the state constitution.

 

[fshalor]

They specifically called stun guns per-se dangerous and deadly arms. Use of which constitutes "deadly force" as per other decisions. But it was never specifically stated in this decision. They didn't have to once they classed them as per-se dangerous and deadly arms.

That said, my post is cautionary. Lets see what the legislature does.

Does this open up the can of worms for people who are tased by poliece to sue for use of deadly force as if they were shot with a firearm?

 

[Chevy 2 65]

For the attorneys on this site. Will this help with the AR ruling ? How can the ban on AR's stand? I know one is fed and one is state, but seriously what in the actual f*** is going on?

 

[VetteGirlMA]

The SJC has taken care of that already on Comm v. Davis - 1976 and declared that Artificial XVII is a 'collective' right:
Heller did nothing to change this. The SJC is the final authority on the meaning of the state constitution.

Who ever said that? The left made no bones about challenging anti-gay marriage amendments to state constitutions on 14th amendment grounds. Why can't gun laws be treated the same way? Furthermore isn't the general idea behind the Heller and Mcdonald decisions that the SCOTUS in essence set aside the Cruikshank decision and stated that 1st and 2A rights were part of equal protection from the 14th and binding on the states? PS: I have read the background story about Cruikshank and it's an absolutely fascinating story about how badly racism persisted in this country in the immediate post civil war era.

This is where I don't seem to understand the people who represent gun owners in the legal sphere and fail to look at gun control in the same way that the left looks at their issue du jour. This is not a dig but I fail to see why there are never any challenges to crazy gun laws on 14th amendment grounds (example people who lawfully own a gun in PA for example and accidentally cross the imaginary line into NJ and become instant felons). Caetano had a hell of a lawyer. Sure we must have more like this when other incidents happen around the country?

 

[connor]

So... the only people who can get a taser (the pdw of people who don't want a gun)....are people who could cary a .45 instead?

Seems reasonable.

 

[terraformer]

Does this open up the can of worms for people who are tased by poliece to sue for use of deadly force as if they were shot with a firearm?

It may. It's very unclear at this point. Like I said earlier, my point of even raising it was to make sure all of you knew to tread very lightly when you get your hands on these things. Elevate their use beyond OC spray.

 

[swatgig]

For the attorneys on this site. Will this help with the AR ruling ? How can the ban on AR's stand? I know one is fed and one is state, but seriously what in the actual f*** is going on?

No. This will not help the AR ruling.

This is the first time in my memory that the SJC has actually acknowledged that the subject of the litigation is actually protected by the Second Amendment. Their rulings are generally: The Second Amendment protects something else, but not this. They have acknowledged that the 2A protects the right to possess a handgun in the home for self defense, but nothing more.

In Caetano, SCOTUS ruled that the states cannot outright ban an entire class of weapons. What a class is, and what a sub class is is left to the imagination of the reader. So far, handguns and electrical weapons are the only 'defined' classes. I would expect that rifles are a class, and shotguns are a class. I doubt that they'll consider semi-automatic rifles as an entire class, nor an AR as an entire class.

 

[Chevy 2 65]

No. This will not help the AR ruling.

This is the first time in my memory that the SJC has actually acknowledged that the subject of the litigation is actually protected by the Second Amendment. Their rulings are generally: The Second Amendment protects something else, but not this. They have acknowledged that the 2A protects the right to possess a handgun in the home for self defense, but nothing more.

In Caetano, SCOTUS ruled that the states cannot outright ban an entire class of weapons. What a class is, and what a sub class is is left to the imagination of the reader. So far, handguns and electrical weapons are the only 'defined' classes. I would expect that rifles are a class, and shotguns are a class. I doubt that they'll consider semi-automatic rifles as an entire class, nor an AR as an entire class.

It's not you, and thanks for answering. But that is just crazy.

 

[Glockster30]

The SJC has taken care of that already on Comm v. Davis - 1976 and declared that Artificial XVII is a 'collective' right:
Heller did nothing to change this. The SJC is the final authority on the meaning of the state constitution.

It isn't the first time the SJC got it wrong, and it will not be the last time.

If the BoR had an amendment that read, "A well informed people, being necessary to the literacy of a free State, the right of the people to keep and read books, shall not be infringed.", there would be no ambiguity in what was being stated. (I know, it's covered under the 1st.)

 

[JohnZ]

So all those people who were saying that 2A is only for muskets were lying? I don't see a lot of pictures from those times with people totin' tasers. Maybe I'll ask my town to update the minute man statue in park square.

 

[Knuckle Dragger]

Who ever said that? The left made no bones about challenging anti-gay marriage amendments to state constitutions on 14th amendment grounds. Why can't gun laws be treated the same way? Furthermore isn't the general idea behind the Heller and Mcdonald decisions that the SCOTUS in essence set aside the Cruikshank decision and stated that 1st and 2A rights were part of equal protection from the 14th and binding on the states? PS: I have read the background story about Cruikshank and it's an absolutely fascinating story about how badly racism persisted in this country in the immediate post civil war era.

This is where I don't seem to understand the people who represent gun owners in the legal sphere and fail to look at gun control in the same way that the left looks at their issue du jour. This is not a dig but I fail to see why there are never any challenges to crazy gun laws on 14th amendment grounds (example people who lawfully own a gun in PA for example and accidentally cross the imaginary line into NJ and become instant felons). Caetano had a hell of a lawyer. Sure we must have more like this when other incidents happen around the country?

You're talking about two very different scenarios. State supreme courts have the final in interpreting the meaning of their own laws and constitutions. They also have the power to determine if a state law is constitutional under the US Constitution, but they do not have the final authority. The US Supreme Court has that authority. State constitutional prohibitions on same-sex marriage are not constitutional because the US Supreme Court has rule that they run afoul of the US Constitution which is a higher authority.

Article 17 of the Massachusetts Constitution and its interpretation by the SJC are very different because they do not prohibit anything. In 1976 the SJC said that Article 17 refers to a collective right. It does not prohibit the possession of arms by individuals. That stands today and will stand for the foreseeable future.

Now, if Article 17 stated, or if the SJC interpreted Article 17 to mean, that possession of arms was prohibited except when providing for the common defense as part of an organized militia, it would look a lot more like state level bans on same-sex marriage. In this case Article 17 or the SJC's interpretation, would be unconstitutional under the Second Amendment.

Generally, federal courts don't get into the business of trying to determine what a state law means. They might decide a law is unconstitutional, but they don't usually try to figure out the meaning of a state law. And most legal challenges are about what a law means, not weather it's constitutional. If the Massachusetts declaration of rights was amended to give every Mass resident the right to a 'basic' ice cream sundae on their birthday, a federal court would not normally get into the minutia of weather 'basic' included flavors other than vanilla or chocolate or enhanced options like nuts and sprinkles. This is a fundamental aspect of our system of dual-sovereignty federalism

 

[Rob Boudrie]

Article 17 expresses the distrust in its second sentence. It refers to the preference in the first: the declared right to keep and bear arms is that of the people, the aggregate of citizens; the right is related to the common defense; and that in turn points to service in a broadly based, organized militia. Provisions like art. 17 were not directed to guaranteeing individual ownership or possession of weapons.

It is amazing that the SJC thinks that the government needed to grant itself permission to own guns, and that absent such a constitutional provision, the government would have no right to arm its minions for the defense of the state.

 

[Waher]

It is amazing that the SJC thinks that the government needed to grant itself permission to own guns, and that absent such a constitutional provision, the government would have no right to arm its minions for the defense of the state.

Someone needs to make the argument that because the state claims the "collective right" allows them to do something, that anything not explicitly stated as a "collective right" of the state is therefor not permitted and the state can't do it. Turn their own twisted rules unto themselves.

 

[CAR]

And here's how they're going to approach it - Tasers require an LTC, contact devices require a FID.

Stun Gun Ban Revisited – Will Brownsberger

 

[Rob Boudrie]

And here's how they're going to approach it - Tasers require an LTC, contact devices require a FID.

Stun Gun Ban Revisited – Will Brownsberger

Who is this Will Brownsberger and who is this "we" of which he speaks when he states "we concluded....". Is he in any way connected to the MA politburo, or is he just a random blogger?

Woops... just googled him ... Senate Judiciary Chairman. Got my own answer.

 

[milktree]

And here's how they're going to approach it - Tasers require an LTC, contact devices require a FID.

Stun Gun Ban Revisited – Will Brownsberger

Holy crap, there's so much wrong with that.

"at the time the Second Amendment right to bear arms was created..."
Written, you dumb shit. The right existed before, the 2nd amendment simply states it. The right wasn't created then.


"in a very interesting example of the idea that old constitutional principles apply to new technologies," ...Like The Internet, or telephone, or telegraph, or megaphones...)


Goddamn, what a piece of crap that is. I wonder who he thinks he's fooling.

I notice how he edited out the part about the 2nd amendment not applying to new tech as "laughable"

 

[Tallen]

You're talking about two very different scenarios. State supreme courts have the final in interpreting the meaning of their own laws and constitutions. They also have the power to determine if a state law is constitutional under the US Constitution, but they do not have the final authority. The US Supreme Court has that authority.

Where does the SCOTUS' authority come from?

 

[inkdesigner]

I thought FID cards were subject to the same discretion of the CoP as an LTC? Am i wrong and a MA FID is shall issue as long as the applicant pass the background check while LTC is may issue?

 

[Rob Boudrie]

I thought FID cards were subject to the same discretion of the CoP as an LTC? Am i wrong and a MA FID is shall issue as long as the applicant pass the background check while LTC is may issue?

The issuing authority must first ask a judge for a rubber stamp ruling to deny an FID.

 

[MachineHead]

The UK says this:

Q766: Can I use a Taser for self defence?

A Taser is a weapon capable of discharging an electrical current and is classified as a prohibited firearm. It is therefore an offence to possess, purchase, acquire, manufacture, sell or transfer such a weapon, without lawful authority. Lawful authority is only granted to bodies such as the Police, and would never cover a member of the general public. Tasers should therefore not be used or in the possession of any member of the public.

Tasers can be legally used by the Police, however they are only used by highly-trained officers, who can only use them when and where they are authorised to do so. All Taser use by Police officers is monitored and reported.
Q766: Can I use a Taser for self defence?

And Sen. Brownsberger would’ve been fine 131J as it was. There’s no difference in the two.

 

[EJFudd]

Who is this Will Brownsberger and who is this "we" of which he speaks when he states "we concluded....". Is he in any way connected to the MA politburo, or is he just a random blogger?

Woops... just googled him ... Senate Judiciary Chairman. Got my own answer.

Just another stupid anti-2A Massachusetts DimoCRAP pol who ran unopposed. That's who he is. Looks like he never met an anti-2A proposal in this Godawful state that he didn't fall in love with.