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The Second Amendment expands, but maybe not by much

Reopening, for the first time in eight years, the always heated controversy over what the Second Amendment means, the Supreme Court on Monday sent the states and Congress an uncertain message, but one that seemed to caution against putting new or different kinds of weapons beyond the people’s right to have and use them.

The Court decided the case of Caetano v. Massachusetts without full written or oral arguments, in a brief per curiam (“by the Court”) opinion that said the Massachusetts Supreme Judicial Court was wrong in the three reasons it offered for why the state could ban personal possession or use of a “stun gun” without violating the Second Amendment.  A stun gun is a weapon that sends an electronic pulse that can temporarily disable a person as its target.

Two Justices filed a separate opinion, complaining that the Court’s opinion was “grudging” in its limited scope, and left open the possibility that the conviction of the Boston woman for violating the state ban might result in her being forever barred from having “arms for self-defense.”  She obtained the weapon to ward off further attacks by an abusive boyfriend.

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.

The unsigned opinion did not explicitly disclose who provided the minimum of five votes needed to wipe out the state court ruling, but there were no noted dissents.  Justice Samuel A. Alito, Jr., joined by Justice Clarence Thomas, wrote at considerable length in a separate concurring opinion expressing deep sympathy for Caetano’s plight, suggesting that she was lucky to have a weapon that caused her boyfriend to back off from further assault.  Alito praised her for having “stood her ground” — a phrase often used by gun rights advocates as they defend a personal right under the Second Amendment to have weapons for their own protection.

Alito also implied that state officials in Massachusetts may have left Caetano to her own devices.  He wrote: “If the fundamental right of self-defense does not protect Caetano, then 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.”

The Court first ruled in 2008 that the Second Amendment guarantees a personal right to have a gun for self-defense, at least in the home (District of Columbia v. Heller).  Two years later (in McDonald v. Chicago), it extended that right nationwide, by applying the protection in all of the states through the Fourteenth Amendment.

Since then, the Justices have steadfastly refused to review any among a series of cases filed with it in pursuit of further clarity on how far the right goes.  For example, the Court has never ruled explicitly that the amendment’s protection reaches outside the home.  But it appeared to have reached such a conclusion silently on Monday, discussing a case in which the weapon involved was, in fact, displayed in a public encounter to thwart a feared assault.  Whether lower courts would rely upon that fact to now rule, explicitly, that the amendment does go beyond self-defense at home must await the outcome of future cases.  The facts in this case do not necessarily stand as a definite constitutional declaration.

Justices Elena Kagan and Sonia Sotomayor were not on the Court when it decided the Heller case eight years ago, but Sotomayor was among the dissenters when it decided the McDonald case in 2010.  Justices Stephen G. Breyer and Ruth Bader Ginsburg dissented in both cases.  There was no indication Monday that any of those four had dissented from the unsigned opinion in Caetano.  Neither was there any such indication from Chief Justice John G. Roberts, Jr., or Justice Anthony M. Kennedy.  The vote thus may have been, in effect, unanimous, since Alito and Thomas joined only the result, not the Court opinion.

The Court appeared to have had significant difficulty working its way toward a decision in this case — an exploration that actually began last September.  The case was listed for the Justices’ consideration at eleven Conferences — eight of which occurred while the late Justice Antonin Scalia was still serving, and three since his death.  The author of the Heller opinion, Scalia may have had a role in shaping what the Court would do in the Caetano decision, but there was no hint of that on Monday.

When the Court went to the bench Monday morning, the seven Justices who are junior in rank to the Chief Justice all took their new seats on the opposite sides of the bench for the first time.  Scalia had been the senior Associate Justice, so the other seven still serving moved up one place in the seating by seniority.  Scalia’s seat had remained empty during formal mourning period, which ended in mid-February.

In other actions the Court announced in orders released Monday morning:

** Over Thomas’s dissent, joined by Alito, the Court denied the states of Nebraska and Oklahoma a right to file a lawsuit directly in the Supreme Court (an “Original” case) to challenge their neighboring state of Colorado’s move to allow the marketing for personal use of marijuana, a relaxation that the two states argued was leading to an increase in marijuana-related crimes across the border from Colorado.  The Court gave no reason for turning aside the case (144 Original).  The dissenters argued that the Court had been wrong in finding ways for several years to avoid taking on such fights between state governments.

** The Court agreed to decide, at its next Term starting in October, a legal issue in a major patent dispute over the design of smartphones, between the nation’s No. 1 and No. 2 makers of those handheld devices (the case is Samsung Electronics v. Apple).  The South Korean electronics giant, Samsung, had raised two issues in its appeal — just what Apple’s design patent should include in its protection, and the amount of a company’s profits from a device that partly infringed another’s patent that should be awarded as a remedy for the infringement.  The Court agreed to hear only the remedy question, leaving intact Apple’s victory in lower courts on the infringement of the design patent.   The remedy question turns on how much of a $548 million damages payment, already paid conditionally by Samsung, was justified legally.

** The Court asked the Justice Department for the federal government’s views on whether the Court should grant review in Midland Funding v. Madden.  That case tests whether a state usury law, regulating the interest that a nationally chartered bank may charge on a loan, is barred from enforcement after the bank had sold or otherwise assigned the loan to another entity.  Such state laws do not control when the loan remains due at a national bank.  There is no deadline for the government to file a response.

**  The Justices turned aside a test case on the constitutionality, under the First Amendment, of a state law that gives prominent athletes or other public figures a right to sue for the use of their images in published works.  At issue in Electronic Arts v. Davis was a right to sue the maker of a popular pro football video game series using images that closely resemble actual National Football League players.  The case is still in preliminary stages in lower courts, and presumably might return to the Court at a later time.

[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioners in Samsung Electronics v. Apple.  The author of this post, however, is not affiliated with the firm.]


Recommended Citation: Lyle Denniston, The Second Amendment expands, but maybe not by much, SCOTUSblog (Mar. 21, 2016, 3:07 PM),