More Fruits of Caetano: Rhode Island Ban on Stun Guns Ruled Unconstitutional

On March 15, 2022, the United States District Court for the District of Rhode Island found the Rhode Island ban on the possession of stun guns was unconstitutional under the Second Amendment. 

The decision is expected. Several other courts have found a complete ban on stun guns to be unconstitutional. The foundational decision was made in the United States Supreme Court in its unanimous decision about a stun gun ban in Massachusetts, Caetano v. Massachusetts.  

In the Rhode Island opinion, written by District Judge William E. Smith, there are several interesting observations. Judge Smith observes it is the burden of the state to prove an item is not in common use, and the item is not used for lawful purposes such as self-defense.

Judge Smith finds, unsurprisingly, stun guns fall within the protection of the Second Amendment. From the decision: 

 p.18-19

But it is Defendants' burden to demonstrate that stun guns are not used for lawful purposes such as self-defense, and they failed to do so.

 p.21

In sum, Defendants have failed to demonstrate that stun guns are not in common use or not typically possessed for lawful purposes like self-defense.

 p.23 

Accordingly, like the other courts to have addressed this question, this Court finds that stun guns constitute arms within the protection of the Second Amendment.

Judge Smith unsurprisingly cited the Caetano case, and numerous others. This correspondent found it interesting Judge Smith cited the New York court which found, in Maloney, a ban on nunchaku was unconstitutional. 

Judge Smith agreed with Judge Chen in the Maloney case, the burden is with the state to prove a particular type of weapon is *not* protected by the Second Amendment. 

The standard assumption is, if a weapon is a "bearable arm", it is under the protection of the Second Amendment. 

Judge Smith is a lifelong resident of Rhode Island, appointed to the federal District Court in 2002 by George W. Bush. 

Judge Smith lets the public know, citing a reference in footnote 7: he does not agree with the Heller decision.  From the decision, p. 9:

7 This holding is the law of the land and binding on this Court. But as the historian Joseph Ellis describes in the book American Dialogue: The Founders and Us, this conclusion is not historically accurate, nor defensible as an example of Constitutional “originalism.” Joseph Ellis, American Dialogue: The Founders and Us160-70, 2018. Rather, Justice Scalia’s majority opinion is a much better example of judicial activism or “living constitutionalism” in as much as it reflected public sentiment dressed up in “law-office history.”

The opinion of Joseph Ellis is controversial. Many knowledgeable people find precisely the opposite.  It is difficult to see how a "right of the people to keep and bear arms" only applies to government agencies, such as state sponsored militias, even given the maintenance of a militia depends on such a right. 

Joyce Lee Malcolm is a highly acclaimed scholar who devoted a book to the topic. Malcolm shows exactly how and why the right developed as a right of individuals.

Judge Smith does not allow his prejudice about the meaning of the Second Amendment to control his opinion. He follows the law and the precedent of the Supreme Court.  

He makes much of the fact stun guns can be used inside the home, because the Heller decision was about use inside the home. 

The upcoming Supreme Court decision in the New York Rifle & Pistol Association v Bruen case is likely to restore the protection of the Second Amendment to areas outside the home. The opinion is expected to be announced in June of 2022.

©2022 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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