Are stun gun bans now a thing of the past?

No matter how often anti-gun activists swear they’re really Second Amendment supporters just in favor of a few “common sense gun safety regulations,” the fundamental bedrock belief of the gun control movement is that guns are bad and should be banned. Whether we’re talking about handguns, modern sporting rifles, or even non-lethal electronic arms like stun guns and Tasers, the ultimate goal of the gun prohibitionists is to ensure that we the people can’t legally own any of ’em.

Thankfully, we not only have the Constitution on our side, but we have many outstanding attorneys working across the country to keep our Second Amendment rights strong, and I’m very pleased to welcome one of them to Cam & Co to specifically talk about Rhode Island’s recently overturned ban on stun guns.

Attorney Stephen Stamboulieh says that Rhode Island’s ban was the last outright ban on stun guns still on the books in any state, which means that yes, actually, stun gun bans may very well be heading the way of the dinosaurs and dodo birds. Unfortunately, as Stamboulieh well knows, even after a state either willingly repeals their unconstitutional law or has it struck down by a court, anti-gun lawmakers can still make it nearly impossible to lawfully acquire a stun gun.

That’s the case in Hawaii, where the outright ban was recently removed, but the new regulations that were imposed in its place are having the same effect. Stamboulieh tells Bearing Arms that follow up litigation is imminent, and we could very well see another lawsuit filed in Rhode Island if the Democrats in charge of the state legislature decide to abide by the letter of the court decision striking down the ban while violating the spirit of the opinion from U.S. District Judge William E. Smith. 

Of course, Rhode Island could also decide to appeal Smith’s decision all the way up to the Supreme Court, though based on what the Court has had to say in both the Heller case and 2016’s guidance in Caetano v. MassachusettsI don’t think the state is going to find any relief from the High Court. Here’s what the justices had to say about Massachusetts’ ban on electronic weapons six years ago (with some footnotes omitted).

The Court has held that “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding,” District of Columbia v. Heller, 554 U. S. 570, 582 (2008), and that this “Second Amendment right is fully applicable to the States,” McDonald v. Chicago, 561 U. S. 742, 750 (2010).

In this case, the Supreme Judicial Court of Massachusetts upheld a Massachusetts law prohibiting the possession of stun guns after examining “whether a stun gun is the type of weapon contemplated by Congress in 1789 as being protected by the Second Amendment.”

The court offered three explanations to support its holding that the Second Amendment does not extend to stun guns. First, the court explained that stun guns are not protected because they “were not in common use at the time of the Second Amendment’s enactment.” This is inconsistent with Heller’s clear statement that the Second Amendment “extends . . . to . . . arms . . . that were not in existence at the time of the founding.”

The court next asked whether stun guns are “dangerous per se at common law and unusual,”  in an attempt to apply one “important limitation on the right to keep and carry arms,” Heller, 554 U. S., at 627; see ibid. (referring to “the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons’”). In so doing, the court concluded that stun guns are “unusual” because they are “a thoroughly modern invention.” By equating “unusual” with “in common use at the time of the Second Amendment’s enactment,” the court’s second explanation is the same as the first; it is inconsistent with Heller for the same reason.

Finally, the court used “a contemporary lens” and found “nothing in the record to suggest that [stun guns] are readily adaptable to use in the military.” But Heller rejected the proposition “that only those weapons useful in warfare are protected.” For these three reasons, the explanation the Massachusetts court offered for upholding the law contradicts this Court’s precedent.

While the Supreme Court hasn’t explicitly come out and said “Hey dummies, you can’t ban stun guns just because they weren’t around when the Bill of Rights was ratified,” both Heller and Caetano make it clear that those bans aren’t likely to survive a review by justices.

Check out the entire conversation with Stephen Stamboulieh in the video window above, which also touches on the open carry case out of the Ninth Circuit known as Young v. Hawaii and the prospects of SCOTUS review in the months ahead. My thanks to Stephen for joining me on today’s show, and I look forward to having him back again very soon.