Caetano’s Erasure

Open any of the myriad of news articles discussing New York State Rifle & Pistol Association v. City of New York, and you are likely to find descriptions of the case as “[t]he first gun rights case at the U.S. Supreme Court in a decade,” or something like that. The Wall Street Journal, for instance, recently lamented that “[t]he Supreme Court has refused to take a gun case since 2011.” One small problem: These statements aren’t accurate.

In March 2016, the Supreme Court granted cert on another Second Amendment challenge. And it vacated the lower court ruling without any noted dissent. Because Caetano v. Massachusetts resulted in a GVR (grant, vacate, remand), the Court only issued a bland per curiam opinion. But the case is noteworthy nonetheless, both for what it shows about the Court’s willingness to correct erroneous lower court rulings and for Justice Alito’s vehement concurrence. Caetano shouldn’t be ignored in assessing the Supreme Court’s Second Amendment practice.

Jamie Caetano was afraid of an abusive ex-boyfriend who violated the terms of repeated restraining orders she had obtained against him. A friend lent her a stun gun, which she later displayed to ward off an attack by her ex. But, under Massachusetts law at the time, possession of this stun gun was illegal. When police discovered Caetano’s stun gun sometime after the encounter with her ex, they arrested her for violating the statute banning possession of any “portable device or weapon from which an electrical current, impulse, wave or beam may be directed, which current, impulse, wave or beam is designed to incapacitate temporarily, injure or kill.” She was charged, tried, and found guilty.

The lower courts rejected her challenge to the statute on Second Amendment grounds. Massachusetts’s high court held that a stun gun was not in common use at the time of the founding and therefore not a type of weapon protected by the Second Amendment. Caetano filed her cert petition in June 2015. The Court first considered the case at conference in November of that year. It then relisted the case 6 times before February 2016. After Justice Scalia died on February 13, the Court was left with eight members. It re-listed the case three more times, then granted cert, vacated the lower court decision, and remanded the case back to the Supreme Judicial Court of Massachusetts on March 21, 2016. It’s hard to say whether Justice Scalia’s untimely death influenced whether Caetano might have turned into a bigger decision.

As it is, the Court’s terse per curiam opinion faults three aspects of the Massachusetts’s decision: first, its focus on whether the stun gun was in common use at the founding “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.’” Second, its description of stun guns as “unusual” because they are a modern invention repeats the same error as the first. And third, the court’s focus on whether stun guns are readily adaptable to military use conflicts with Heller’s rejection of the notion that only militarily useful weapons are protected.

Justice Alito wrote separately, in an opinion joined by Justice Thomas (but not the other Heller-joiners, Chief Justice Roberts and Justice Kennedy). Justice Alito’s opinion chastises the Supreme Judicial Court, charging that it “defied Heller’s reasoning.” He criticizes the court for relying on reasoning that Heller rejected and invoked examples from other areas of constitutional law: “Electronic stun guns are no more exempt from the Second Amendment’s protections, simply because they were unknown to the First Congress, than electronic communications are exempt from the First Amendment, or electronic imaging devices are exempt from the Fourth Amendment.”

Justice Alito also argued that the “dangerous and unusual” test employed in Heller for excluding weapons from protection “is a conjunctive test: A weapon may not be banned unless it is both dangerous and unusual.” He claimed that the Court’s per curiam opinion also “recognize[d]” this fact. That is still a hotly debated issue in Second Amendment law and scholarship today; Heller in fact used both a conjunctive and disjunctive formulation, sometimes referring to them as “dangerous or unusual” weapons and sometimes using the conjunctive. In any event, Justice Alito put down a stake and seems to think the rest of the Court is on board as well. He also concluded, however, that even if the test were disjunctive, the lower court decision “gravely erred” because stun guns are less lethal alternatives to firearms. They are therefore neither dangerous nor unusual.

Finally, Justice Alito also proposed a test for weapons bans: whether the weapons “are commonly possessed by law-abiding citizens for lawful purposes today.” He said nothing about how one determines commonness or what level satisfies the inquiry, but cited evidence that stun guns are possessed in most states and that estimates show several hundred thousand sold to private individuals. He concluded that “stun guns are widely owned and accepted as a legitimate means of self-defense across the country,” and that “Massachusetts’ categorical ban of such weapons therefore violates the Second Amendment.” (Emphasis added). On this view, constitutionality hinges on whether a type of weapon is in common use for lawful purposes, which in turn means whether it is “widely owned” and “accepted” as a legitimate instrument to use in a lawful activity (query whether the use must be “widely accepted” or whether only the ownership must be widespread; Justice Alito’s formulation is ambiguous).

That test is quite strict and would appear to imperil other longstanding laws. Consider that, according to a 2017 ATF report, there are more than 630,000 registered machineguns, more than three times the number of stun guns cited by one of the sources Justice Alito relied on. Those machineguns are spread among all 50 states, ranging from 413 in Hawaii to more than 36,000 apiece in Florida and Texas. Because machineguns are almost never used in crime, one has to assume that these firearms are being used for lawful purposes like sport shooting. Yet it is exceedingly hard to imagine that Justices Alito or Thomas believe machineguns merit the same Second Amendment protection as handguns. (Joining Heller’s assurance that “M-16 rifles and the like may be banned” would be an odd choice if they do believe that.)

What is also notable is that Justice Alito did not apply either of the competing frameworks for analyzing Second Amendment challenges: the two-part test or the text, history, and tradition test. Once he found that the law operated as a ban on a commonly owned weapon, that was the end of the inquiry. For him, then, it appears that the stun gun ban would be unconstitutional even if the state could have shown that it was the narrowly tailored to a compelling government interest and the least restrictive way to attain that end. Joseph’s recent Yale Law Journal article on “Bans” discusses this type of phenomenon in the Second Amendment and constitutional law more broadly.

Justice Alito finished his opinion with the same type of stern words for the Supreme Judicial Court that he started it with. “The reasoning of the Massachusetts court poses a grave threat to the fundamental right of self-defense.” That court cannot tell Caetano what weapons she gets to use to defend herself. And, criticizing his colleagues for a “grudging per curiam” that merely “sends the case back to that same court,” Justice Alito bemoans a world in which “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.”

None of the Heller or McDonald dissenters noted their dissent from the Caetano decision. Even if each agreed that the Massachusetts’s court misapplied Heller, it would have been perfectly consistent for them to continue maintaining that Heller was wrongly decided. Consider, for example, June Medical Services v. Gee, which is currently pending before the Supreme Court. There, the Fifth Circuit upheld a law that many observers believe is indistinguishable from one the Supreme Court struck down just three years ago in Whole Woman’s Health. But several of the justices who disagreed with Whole Woman’s Health—including Justices Alito and Thomas—registered their disagreement with the Court’s decision to stay the Fifth Circuit decision pending Supreme Court review.

Caetano is important. Not just because Justice Alito’s concurring opinion showed his cards on a number of outstanding and contentious Second Amendment issues, but also because there were no noted dissents. Caetano shows a Court willing to police compliance with its decisions, even ones that not all members of the Court think was rightly decided. And it makes it a little harder to credit the common refrain that the Supreme Court has completely abdicated its responsibility for overseeing how lower courts implement Heller.