A federal judge has struck down Rhode Island’s ban on stun guns, though he didn’t seem too thrilled about having to reach that decision. U.S. District Judge William E. Smith ended up relying on the Heller decision in his opinion declaring the state’s ban on electronic weapons unconstitutional, but argued in footnotes that the Supreme Court in essence created a right to individual self-defense that wasn’t originally seen as part of the Second Amendment.
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 Us 160-70, 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.”
I find it odd that Smith would cite Joseph Ellis and not, say, the Heller dissent authored by Justice John Paul Stephens, but it doesn’t really matter either way. As much as Smith may disagree with the decision, it’s still the law of the land, and that doesn’t give Rhode Island much room to defend its ban on stun guns on constitutional grounds.
The state, Smith concluded, had “failed to demonstrate that stun guns are not in common use or not typically possessed for lawful purposes like self-defense.”
The law in question bars people from carrying or possessing “any instrument or weapon of the kind commonly known as a blackjack, slingshot, billy, sandclub, sandbag, metal knuckles, slap glove, bludgeon, stun-gun, or the so called ‘Kung-Fu’ weapons.”
Smith struck down only the part that relates to stun guns. They’re usually defined as a weapon that delivers non-lethal electric shocks when held against somebody. Tasers have a stun-gun component, but they also propel steel projectiles, also to incapacitate people with electricity.
The state had had only 12 arrests relating to stun gun usage in Rhode Island since 2005, a fact that the plaintiffs — Michael P. O’Neil and Nicola Grasso — cited while arguing that people have them for a lawful purpose. The state argued that incident reports going back 20 years didn’t include references to stun guns being used for self defense.
But under Second Amendment case law as it stands now, it was up to the state to show that stun guns aren’t used for lawful purposes like self defense, “and they failed to do so,” Smith wrote.
I have to say, it’s nice to see a judge take the law seriously, even if he disagrees with it. I would, however, offer up some additional reading for Judge Smith beyond Joseph Ellis’ book, which, while interesting reading is hardly a compendium of what Founding-era Americans thought about the right to keep and bear arms. A more expansive look at how the Second Amendment came to be can be found in Stephen Halbrook’s “The Founders’ Second Amendment: Origins of the Right to Bear Arms” which provides plenty of clear evidence that the individual right to keep and bear arms in self-defense isn’t the invention of the NRA or other modern gun rights activists.
As for the decision itself, the state of Rhode Island could appeal to the First Circuit, but I think they’d be wasting time and taxpayer dollars in doing so. While the Supreme Court has not explicitly declared bans on stun guns unconstitutional, its guidance in the 2016 case known as Caetano v. Commonwealth of Massachusetts makes it pretty clear that the Court casts a dim view on stun gun bans, and I highly doubt that either the First Circuit or SCOTUS is going to turn around and give the green light to a ban on less-than-lethal self-defense tools that are in common use for lawful purposes.
We can chalk this one up as a win, but I do hope that Judge Smith has a chance to peruse Halbrook’s take on the Founders and the Second Amendment before another 2A case lands in his lap. Of course, if Smith doesn’t like the Heller decision, chances are he’s really going to be disappointed with what SCOTUS has to say about the right to bear arms when it releases its decision in the pending challenge to New York’s carry laws.