How a Domestic Violence Victim Stood Up for Herself and the Second Amendment
Tony Sculimbrene 05.15.18
NOTE: This is a story about the law. It is not legal advice. If you need legal advice, consult a local lawyer.
This is a great story, one that is only possible here in America. It is a sign that now, even in the mixed political climate, that one person, doing the right thing will get the right result. It also happens to be a fascinating story from my home state and involves a lawyer who has dedicated his entire life to help the poor in court. Finally, this story involves one of the best writers in the legal world, Samuel Alito, who, with this opinion (and others) is the clear heir to Antonin Scalia’s crown as the King of Zing.
Case Facts and Background
Jamie Caetano was a very small woman. She had two children with her boyfriend. Eventually they split up because of his cruel and abusive ways. He was more than foot taller than she was and outweighed him by more than 100 pounds. Toe to toe, she was no match. But the instinct of self-defense and the capacity of a survivor provides infinite fuel. One day the boyfriend approached her and turned on her. His viciousness displayed, she decided enough was enough—she brandished her taser and the boyfriend thought better. He walked away and left her alone.
Some time later Caetano and a friend were at a grocery store. The store suspected that someone had been shoplifting and called the police. The police came and searched Caetano. She was cleared of the shoplifting, but during the search they found the taser she had used to protect herself. She explained to them why she had it and what she had done with it and despite this, Caetano was arrested and charged with violating a Massachusetts state law banning the possession of tasers.
At the lower level, the State seems to have either stipulated to the facts above or did not really contest them. In the end, despite Caetano’s good reasons, the Massachusetts court convicted her of possession of a taser. Her lawyer, however, had bigger plans—he was going to take this to the US Supreme Court.
US Supreme Court Case
The Supreme Court case, Caetano v. Massachusetts, is, unfortunately, a per curium opinion. This means that all of the justices agreed in the outcome. Normally this is a good thing because per curium opinions provide clear direction as to the law. Here, however, the court’s actual opinion was very short with no real guidance. The meaningful part of the case is found in the concurrence written by Samuel Alito and concurrences (and dissents) are almost always persuasive but not binding authority.
That said, the language here is especially powerful. Alito’s main thrust is exceptionally good for knife owners–if Heller protects guns then certainly less lethal forms are protected as well. Alito’s logic cuts sharply: “If Heller tells us anything, it is that firearms cannot be categorically prohibited just because they are dangerous. A fortiori, stun guns that the Commonwealth’s own witness described as ‘non-lethal force,’ cannot be banned on that basis.”
Alito goes on: “The reasoning of the Massachusetts court poses a grave threat to the fundamental right of self-defense.” The problem here is an odd one, if, in the name of self-defense Caetano got a gun, Heller would protect her, but here, because her means of defense was a stun gun, she committed a crime. This tension is truly strange and one that not only impacts the right of self-defense, but, according to the court, the right of an individual to choose how to exercise that right. “Courts should not be in the business of demanding that citizens use more force for self-defense than they are comfortable wielding.”
In closing Alito reminds us why the Second Amendment is so important–“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. To make matters worse, the Commonwealth chose to deploy its prosecutorial resources to prosecute and convict her of a criminal offense for arming herself with a nonlethal weapon that may well have saved her life.”
Why Caetano Matters to Knife Owners
Alito’s language, while only persuasive authority for lower courts, is powerful nonetheless. It also opens a front for less lethal tools to be protected by the Second Amendment, something that until Caetano was decided, was entirely unclear.
In District of Columbia v. Heller the US Supreme Court held, for the first time, that the Second Amendment gives individuals a right to keep and bear arms. In doing the historical analysis, the author of Heller, Scalia, determined that arms were guns (with a few technical cavaets that don’t matter here). The result of Heller is simple—the federal government cannot entirely prohibit individuals from owning guns. Heller left open two other questions: could individual states entirely prohibit individuals from owning guns and could the federal or state government entirely prohibit individuals from owning other means of self-defense?
The first of those two questions was answered in a case after Heller called McDonald v. City of Chicago. There the US Supreme Court, this time with the very same Samuel Alito writing for the majority, held that the 2nd Amendment is an “incorporated” right, that is, it is enforceable against both the federal and the state government. If you are constitutional scholar or history nerd, there is a long discourse in the opinion about which rights are incorporated and why, but frankly, its not that important for us.
The second of those two questions—are other means of self-defense protected—is answered in part by Caetano. Tasers, it seems, are protected. Prior to Caetano lots of courts had disagreed about whether the Second Amendment applied to knives (see here for more). After Caetano the challenges are coming fast and furious across the country. Alito’s logic is powerful and easy to extend to knives–just like the Second Amendment protects firearms it also, according to Caetano’s logic, applies to less lethal tools. Arguably this includes knives as well.
Its too early to tell if Caetano will help clarify the Second Amendment as it applies to knives. The opinion was issued in 2016 and less than 18 months is a blink of an eye in the legal world. Hopefully, this is the beginning of the recognition of common sense–if guns are protected knives should be too.