A Cert-Worthy Brief in Caetano v. Massachusetts

The Supreme Court will soon decide a cert petition in Caetano v.

Massachusetts, a case about whether a stun gun is an “arm” under the Second Amendment. Jaime Caetano was convicted of violating a Massachusetts statute that outlaws the possession of a “portable device or weapon from which an electrical current...may be directed, [and] which...is designed to incapacitate temporarily, injure or kill...”

The Supreme Judicial Court of Massachusetts (which I’ll call the Massachusetts Supreme Court) upheld the conviction, finding (1) that a stun gun is not the type of weapon that Congress contemplated as being protected under the Second Amendment when that amendment was passed in 1789; (2) that Caetano’s conduct was outside the “core” of the Second Amendment; and (3) that the stun gun was a “dangerous and unusual” weapon.   

This case was interesting even before the death of Justice Scalia but is even more interesting now given Caetano’s heavy reliance on Justice Scalia’s opinion in D.C. v. Heller.

Caetano is currently represented by counsel with the Public Defender Division of the Committee for Public Counsel Services in Boston, Massachusetts. Her cert petition isn’t a perfect piece of legal writing—those are unicorns; they don’t exist except in our imaginations. But the brief is a solid piece of advocacy. Below are some of the most interesting parts (at least from a legal writing perspective).  

Logic of Logos

Caetano’s brief is full of logos, and she leans on the Heller opinion to support her position that Massachusetts’ law banning possession of stun guns violates the Second Amendment:

Heller could not be clearer on the point that “Arms”—as that word appears in the Second Amendment—includes, prima facie, bearable weapons that came into existence after 1789. And, just like the modern “handgun” at issue in Heller, a stun gun is an instrument designed to be borne “for defense, or to cast at or strike another.” Heller, 554 U.S. at 581.

And, like the modern handgun at issue in Heller, a stun gun may be kept in a location (such as a purse) “that is readily accessible in an emergency” and that may be utilized by “those without the upper-body strength to lift and aim” a heavier weapon.” Heller, 554 U.S. at 629. Stun guns thus share many of the features—albeit virtually none of the lethality—that make handguns so popular as weapons of self-defense.

The Massachusetts Supreme Court does not explain why a stun gun—a weapon designed not to kill or maim and is almost never fatal—could be banned in accord with Heller as an instrumentality designed and constructed to produce death or great bodily harm, while handguns, which cause well over 60,000 deaths and injuries in the United States each year, are the quintessential self-defense weapon for Second Amendment purposes.  

Individual self-defense is “the central component” of the Second Amendment itself. Although the “need” for self-defense may be “most acute” inside the home, it cannot be that the right itself simply evaporates at the threshold. Confrontations are not limited to the home. And [b]ecause the statute in question prohibits a class of weapons entirely, the approach taken by the [Massachusetts Supreme Court] would afford the petitioner no Second Amendment protection even if she had been arrested for possessing a stun gun while in the act of fending off her abuser inside whatever place she called “home.”

Presenting Pathos

Caetano reinforces her legal arguments with factual ones, reminding the Court over and over again that she carried the stun gun for a very particular reason:

The petitioner carried a stun gun for purposes of self-defense in case of further confrontation from her abusive former partner.

The petitioner told the police that the stun gun was for self-defense against her violate and abusive former partner.

The petitioner testified that the stun gun was for self-defense against her abuser, whom she had previously sought to keep at bay with restraining orders. The petitioner further testified that she had displayed the stun gun to fend off her abuser when confronted by him outside her place of employment....

Interesting Imagery

[The Massachusetts Supreme Court’s] conception of the Second Amendment—as a sort of fossilized relic trapped in amber—permeates [its] opinion in this case....”

Untethered to Heller’s definitional mooring, the [Massachusetts Supreme Court] reaches a result...which conflicts directly with the only other reported case to have considered this precise question.”

The Second Amendment is not a popularity contest.

My Favorite Passage

My favorite passage in the Caetano brief is the final paragraph. It is a mix of these three writing techniques, and others, and is an excellent example of going out with a bang (pun intended)!

In a parting shot, the [Massachusetts Supreme Court] says its affirmance of the petitioner’s conviction will not affect her right to bear arms because barring any cause for disqualification,’ she could have applied for a license to carry a firearm, or carried mace or pepper spray instead. Cold comfort. The statutes cited [by the Massachusetts Supreme Court] deem the petitioner to now be a prohibited person who is disqualified as a result of the conviction affirmed below from ever obtaining a firearm license, or from purchasing or possessing self-defense spray. The petition should be granted because, by reaching a result that violates the petitioner’s Second Amendment right to bear arms in case of confrontation, the [Massachusetts Supreme Court] renders its own suggested state-law self-defense alternatives infeasible.