Skip to main content

Saint Louis University School of Law Header Logo Center

Menu Search & Directory

Caetano v. Massachusetts: Modern Day Weapon Protected by the Second Amendment


Caetano v. Massachusetts: Modern Day Weapon Protected by the Second Amendment

By Sarah N. Livergood


In Caetano v. Massachusetts, the United States Supreme Court struck down the decision of the Massachusetts Supreme Judicial Court (“judicial court”), which upheld the conviction of a woman for the possession of a stun gun.[1] The possession of the stun gun violated Mass. Gen. Laws, ch. 140 §131J, which bans citizens of Massachusetts from possessing an electrical weapon.[2] The Court found the law contradicts U.S. Supreme Court precedent[3] and the judicial court erred when it relied on the explanation that a stun gun does not fall under the protection of the Second Amendment because it was not in common use at the time the Amendment was enacted.[4]


Jaime Caetano (“Caetano”) was a young woman who was forced to take her safety into her own hands after she was hospitalized by an abusive ex-boyfriend.[5] She had obtained multiple restraining orders against him, but with little avail.[6] After fearing for her life, she acquired a stun gun from a friend.[7] One night, Caetano’s ex-boyfriend confronted her outside of her work and started screaming at her.[8] In response, Caetano pulled out her stun gun and threatened that if he did not leave her alone, she would be forced to use it.[9]Her threat was successful and her ex-boyfriend left.[10]

During events that occurred after Caetano’s confrontation with her ex-boyfriend, police arrested Caetano after a search of her purse revealed the stun gun. [11] The trial court found her possession of the stun gun constituted a violation of the Massachusetts law prohibiting the possession of electrical weapons, despite its purpose for self-defense.[12]Caetano claimed that the law was unconstitutional because it violated her Second Amendment right to bear arms. The court rejected her claim, asserting that the Second Amendment right does not include stun guns because they were not in “common use” at the time the amendment was enacted.[13]

The judicial court upheld the conviction of Caetano after relying on an erroneous interpretation of District of Columbia v. Heller.[14] It determined that stun guns are not protected by the Second Amendment because “they were not in common use at the time of enactment of the Second Amendment”[15] and are therefore unusual.[16] Further, the judicial court upheld the constitutionality of the Massachusetts law prohibiting electrical weapons because “[stun guns] fall within the traditional prohibition against carrying dangerous and unusual weapons.”

Court’s Analysis

The Supreme Court found the judicial court’s analysis erroneous because it defied the reasoning in Heller.[17] In Heller, the Court rejected the concept that a weapon is only protected if it was in common use at the time the Second Amendment was enacted.[18]Rather, the Court in Heller stated 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.”’[19] Weapons did not have to be in existence at the end of the 18th century to be constitutionally protected.[20] The Court pointed out in Caetano that most weapons commonly used today for self-defense—revolvers and semiautomatic pistols—were not in existence until the 19th century or later. Yet, the Court has not found them to be exempt from Second Amendment protection.[21] Accordingly, although stun guns are a modern weapon, they also should not be considered unusual.[22]

As such, the Court rejected the judicial court’s rationale that stun guns are dangerous and unusual weapons.[23] Under the conjunctional test, a weapon may not be banned unless both elements are met.[24] The Court found that stun guns are not unusual.[25] Thus, the dangerous element of the analysis is not applicable because it is irrelevant to a weapon that is used for lawful purposes.[26]

The Court also refuted the judicial court’s assertion that stun guns are not constitutionally protected because they are not evenly matched to the weapons of the militia—an intent meant to be met by allowing civilians to bear arms.[27] The Court pointed to the use of stun guns and Tasers by law enforcement and correctional officers, who have a similar task as the militia in controlling crowds.[28] Therefore, stun guns would equate to level of force used by modern day officers and would accordingly qualify under the intent of the right to bear arms.

Author’s Analysis

The Supreme Court was correct in finding that the judicial court erred in its ruling. The opinion in Heller provides language as to whether or not weapons were in common use at the time of the Second Amendment’s enactment because Heller addresses the intent of the drafters. The intent of the right to bear arms was to protect citizens who were fit for military service that would bring lawful weapons they possessed at home to militia duty.[29]Consequently, Heller discusses whether the weapons in common use at the time matched the weapons seen in use by the militia. However, Heller does not indicate that the intent of the Second Amendment is to ensure a right of citizens to possess any weapon used by the militia. Rather, the intent is to protect the right of citizens to possess arms in the chance that they must enlist in the militia and use their own weaponry.

Therefore, I find that a restriction on the type of weapon a citizen is allowed to possess to only those that were in existence at the end of the 18th century is incompatible with the original intent of the Second Amendment. Furthermore, if the intent of the Constitution and its amendments are to be upheld, I must find that the possession of a modern day stun gun should be constitutionally protected. Although considered non-lethal, it is a weapon that may potentially be used if a citizen must enlist in the militia.[30]


The Court vacated the judgment of the judicial court upholding the conviction of a woman exercising her Second Amendment right to bear arms. It has affirmatively stated that a weapon does not need to have been in existence or in common use at the time the Second Amendment was enacted in order to be constitutionally protected. A citizen’s right to bear arms will be protected as the weaponry of modern time advances.

Sarah N. Livergood*
Edited By Tyler Winn


[1] Caetano v. Massachusetts, No. 14–10078, 2016 WL 1078932 (U.S. Mar. 21, 2016).

[2] Id. at *2. “Specifically, the statute prohibits the possession of any ‘portable device or weapon from which an electrical current, impulse, wave or beam may be directed, which current impulse, wave or beam is designed to incapacitate temporarily, injure or kill.”’ Id. at n. 1 (citation omitted).

[3] Id. at *1.

[4] Id. at *2.

[5] Caetano, 2016 WL 1078932, at *2.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Caetano, 2016 WL 1078932, at *2.

[11] Id. at *3.

[12] Id.

[13] Id.

[14] Id.; District of Columbia v. Heller, 554 U.S. 570, 627 (2008).

[15] Caetano, 2016 WL 1078932, at *3 (inner quotation and citation omitted).

[16] Id. at *1 (The Judicial Court found that “stun guns are unusual because they are a thoroughly modern invention”).

[17] Id. at *3.

[18] Id.

[19] Id. (quoting Heller, 554 U.S. at 582).

[20] Caetano, 2016 WL 1078932, at *3.

[21] Id.

[22] Id. at *4.

[23] Id.

[24] Id.

[25] Caetano, 2016 WL 1078932, at *4.

[26] Id.

[27] Id. at *5.

[28] Id.

[29] Heller, 554 U.S. at 629.

[30] The author notes that the use of a stun gun or personal weapon during militia service is unlikely in this day and age due to the modern practice of providing soldiers with government weapons as opposed to soldiers supplying their own [but remains a possibility].

* Saint Louis University School of Law, J.D. Candidate 2017.