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July 25th, 2017

Insight

An End Run Around the Second Amendment

Bernard Goldberg

By Bernard Goldberg

Published March 23, 2016

Last year, the Supreme Judicial Court of Massachusetts – the highest court in the state — upheld the criminal conviction of a woman named Jaime Caetano who was arrested and convicted because she possessed what the authorities said was an unlawful weapon. The weapon was a stun gun, which she obtained for self-defense against her abusive and violent ex-boyfriend.

The Massachusetts court said that individuals had no right to have a stun gun, that it was “not the type of weapon that is eligible for Second Amendment protection” — because the Constitution only protects guns that were in common use at the time the document was written. In other words, stun guns didn't exist when the Second Amendment was written so they’re not covered by the Second Amendment.

However one feels about guns, or the Heller decision that said individuals, not just militias, have the right to bear arms, the reasoning in Massachusetts borders on the absurd. Followed to its illogical conclusion, the Massachusetts court might also rule that broadcast journalists have no First Amendment protection because radio and television didn't exist when the First Amendment was written.

The case went to the U.S. Supreme Court and in a unanimous decision this week – rare in cases involving guns – the Justices struck down the lower court ruling. So how could the Massachusetts judges get it so wrong that even four liberal U.S. Supreme Court Justices knocked down their ruling — and their reasoning? Could it be that this was nothing more than an end run by liberal judges who just don't like guns?

That's pretty much what U.S. Supreme Court Justice Samuel Alito believes. “The Commonwealth of Massachusetts was either unable or unwilling to do what was necessary to protect Jaime Caetano, so she was forced to protect herself,” he wrote. “To make matters worse, the Commonwealth chose to deploy its prosecutorial resources to prosecute and convict her of a criminal offense for arming herself with a nonlethal weapon that may well have saved her life. The Supreme Judicial Court then affirmed her conviction on the flimsiest of grounds.”

According to Alito, “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 people than about keeping them safe.”

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