« DOJ bragging about Smart on Crime initiative focusing on "more significant drug cases" | Main | Federal district judge interprets Nebraska law to preclude placing juve on its public sex offender list »

March 22, 2016

Unanimous Supreme Court suggests Second Amendment can preclude state felony prosecution for public weapon possession

I wanted a chance to review closely the Supreme Court's notable Second Amendment work yesterday in Caetano v. Massachusetts, No. 14-10078 (S. Ct. March 21, 2016) (available here), before blogging about what strikes me as a significant constitutional ruling.  But even after doing some more review, I am still scratching my head a bit regarding both the Court's brief per curiam opinion and the lengthy and forceful concurring opinion authored by Justice Alito and joined by Justice Thomas.

Caetano strikes me as significant primarily because the Supreme Court has not ruled on the merits in a Second Amendment case since the 2010 McDonald ruling, and also because both McDonald and its landmark precursor, the 2008 Heller ruling, left so much uncertain about the reach and limits of the Second Amendment.  In addition, the merits of the Caetano case seem significant because it involved (1) possession of a weapon other than a traditional firearm (a stun-gun), and (2) a state criminal conviction affirmed by a state Supreme Court based on possession of this weapon outside the home.  Finally, as the title of this post suggests, it seems significant that not a single Justice dissented from the the Caetano per curiam ruling to vacate the judgment of the Supreme Judicial Court of Massachusetts based on the Second Amendment.

But Justice Alito's concurrence, which seems like it might have been initially drafted to serve as an opinion for the full Court, reasonably complained that the Court’s per curiam opinion was "grudging" because it seems open to the possibility that the defendant might still have her felony conviction for possession of a stun-gun outside her home affirmed on some other grounds.  Thus, as the title of this post is meant to indicate, I think the Caetano ruling only suggests a broadened application of the Second Amendment to limit a state felony prosecution.

This Lyle Denniston post at SCOTUSblog captures these themes in its title: "The Second Amendment expands, but maybe not by much."  And here is a telling excerpt from that post:

The Court set aside the state court ruling, and told that tribunal to take another look.  The decision left in doubt whether the conviction in the case would stand, and whether the state could come up with other reasons to support its ban.  It is possible that the state’s highest court will call for new legal briefs or a hearing on what to do about the Boston woman in the case, Jaime Caetano.

Her defense lawyer, Boston public defender Benjamin H. Keehn, said after the ruling Monday that he would seek to have her conviction vacated.  Although she was found guilty of a serious crime (a felony) under the Massachusetts procedure used in her case, she was not given a jail sentence or a fine.  Keehn said he was “not positive” what the Supreme Court ruling meant, and said he was studying whether there had been comparable situations in other cases returned to lower courts without specific instructions.

March 22, 2016 at 08:07 AM | Permalink


Given the woman "was not given a jail sentence or a fine," the state very well might just let her go. OTOH, it perhaps makes it an ideal test case for them.

Alito's opinion -- with Scalia probably, three justices took this case pretty seriously -- is overall pretty strong. SCOTUS should take a 2A for full review SOMETIME, but I guess now it makes sense to wait for a full court.

The definition of "dangerous and unusual," for instance, warrants more discussion than shown here. So, "unusual" isn't just "what was around back in the day." Fine. The court below used rational basis to uphold the law, after saying stun guns weren't protected by the 2A. Alito challenged it on how dangerous stun guns were -- he actually argued it is less dangerous and that there might even be a reason based on conscience to use it.

His opinion showed some empathy. Thought only liberals did that. Is that even allowed? /snark

Posted by: Joe | Mar 22, 2016 10:40:12 AM

BTW, agree the ruling in effect expands the 2A at least by a bit.

I noticed that the opinion in passing spoke of "keep and carry" ... Heller/McDonald focused on the home though in passing noted the 2A meant more. The citation here was opaque. But, a lower court can take that to help protect a right outside the home.

Posted by: Joe | Mar 22, 2016 10:42:39 AM


I'm curious. Where do you see any empathy in Alito's opinion? I read it and I don't see it.

Posted by: Daniel | Mar 22, 2016 3:41:23 PM

To me, he showed empathy for the woman involved, drawing a sympathetic picture of the person herself, not merely in an above the fray way addressing the facts and law of the case. I realize they aren't the same thing, but saw both.


The first page, setting up her fact situation, seemed the most clear there. Later, he spoke about how this could be a choice resting on conscience, how "tragic" her situation can be without proper protection, how people like are "left at mercy" of the state. The opinion was filled with sympathetic adjectives/language and showed "the ability to understand and share the feelings of another," namely the woman in question. How it was a "good thing" she did something or how she "stood her ground" etc. I felt able to understand the situation of the person in particular, she came alive.

Posted by: Joe | Mar 22, 2016 5:01:21 PM

One of the rare cases in which conservatives emphasize that the Constitution establishes principles to be applied to evolving circumstances -- rather than an exact rule intended by the Framers. That normally is the liberal bailiwick.

Beyond holding that state court improperly minimized the right to bear arms by limiting that right to those weapons which were legal at the time of the Framing, not sure if it gives any guidance for future cases.

Posted by: tmm | Mar 22, 2016 6:49:45 PM


Thanks for the follow-up. I don't agree with those definitions of sympathy and empathy in the link you provided--those words have become a lot like envy and jealousy, which people often mix up too. For the record, the etymology of the word sympathy means "same feeling" so it is especially odd to define it as not sharing the same feeling. Empathy, as defined by the person who coined the term the German philosopher Lotze, meant exactly the opposite of a shared feeling--it represented a psychological projection.

But now that I understand where you are coming from I think we agree. Alito is showing sympathy as I would define it. He's not trying to project his own feelings into the victim but to say that he shares the victim's feelings.

Posted by: Daniel | Mar 22, 2016 9:44:43 PM

Merriam Webster: "Latin sympathia, from Greek sympatheia, from sympathēs having common feelings, sympathetic, from syn- + pathos feelings, emotion, experience."

It is not to me "odd" that English words develop over time to have somewhat different meanings than their foreign roots. And, I'm not using technical usage here; it is not as much "confusion" as you are using words in a certain sense.

To be honest, I seem to be using the common usage that is usually used here. Thus, e.g., in a past comment you schooled Prof. Berman on how you were using a word. In fact, looking at Merriam-Webster, there are two definition of "empathy" and my usage is one definition while yours seems to be the other.

Anyway, I noted "empathy" and "sympathy" (and the link provides the common usage in the U.S.) are different but he showed both. He showed "sympathy" -- a compassion that might but not necessarily involves sharing the other person's feelings. "I sympathize with you" etc. OTOH, he showed "empathy" -- (per Merriam-Webster) "action of understanding, being aware of, being sensitive to" her feelings/thoughts etc.

He need not have "shared feelings" here and this in part caused problems when "empathy" was cited during the Sotomayor hearings. Many thought it mean she would only share the feelings of one side while it also mean an ability to understand without necessarily being sympathetic.

Posted by: Joe | Mar 22, 2016 11:20:25 PM

Liberal SJC blows off the law to keep the stain of a criminal conviction on someone who was defending herself. And all libs in here can do is snark. Cute.

As for empathy--I think conservatives have empathy for people--they just don't allow it to twist the law. This doesn't seem to be an expansion of the Second Amendment right either. To bear arms is to carry them, and that implies being able to do so outside of the home.

Posted by: federalist | Mar 23, 2016 9:54:56 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB