Commonwealth v. Caetano

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  • jrosenberger

    Active Member
    Jan 19, 2011
    332
    NH
    It seems likely to me that they'll do just that. The MA SJC has been very carefully threading the needle on 2A cases post Heller/McDonald. They seem to have accepted that they can't ignore the 2A, but will limit it exactly as much as they think they can get away with without SCOTUS stepping in.
     

    Inigoes

    Head'n for the hills
    MDS Supporter
    Dec 21, 2008
    49,365
    SoMD / West PA
    Thank you

    That was really interesting. The court is second guessing the 2A only applies "inside the home".
     

    Knuckle Dragger

    Active Member
    May 7, 2012
    213
    Thank you

    That was really interesting. The court is second guessing the 2A only applies "inside the home".

    The SJC has historically been openly hostile to the Second Amendment. They're going somewhere with the cases they've taken lately. We're not sure where exactly, but it's into a box of some sort.

    One thing to note here is that the court's amicus request was not about how the 2A might apply outside the home. They specifically asked whether the stun gun ban infringes on the Second Amendment right to keep and bear arms as defined by the Supreme Court’s Heller and McDonald decisions.

    They're not looking at the 2A as a whole, only if Heller and McDonald cover stun guns. We think they do. The ADA however thinks that the 2A only applies if you have two things: 1) In the home & 2) handguns.
     

    Campfire

    Member
    Apr 21, 2012
    73
    Kansas
    I don't see how someone can read Heller, McDonald, Moore and perhaps especially Peruta and still think only handguns and in the home are protected.
     

    Blacksmith101

    Grumpy Old Man
    Jun 22, 2012
    22,163
    The problem with in the home only still has the problem of just where a homeless persons home begins and ends.
     

    press1280

    Ultimate Member
    Jun 11, 2010
    7,878
    WV
    I don't see how someone can read Heller, McDonald, Moore and perhaps especially Peruta and still think only handguns and in the home are protected.

    "only in the home" was a creation of several of the federal district courts (plus MD's Supreme Court) who basically said if the SCOTUS doesn't explicity say it, it doesn't exist. The Circuit courts haven't gone that route, instead finding new ways to find the right "may" extend outside the home but can be limited to few individuals under a vague "need" standard.
     

    press1280

    Ultimate Member
    Jun 11, 2010
    7,878
    WV
    The problem with in the home only still has the problem of just where a homeless persons home begins and ends.

    It certainly does, although the state might be able to effectively eliminate a homeless person's 2A rights with an expensive and burdensome licensing requirement. Let's face it, the courts will allow almost anything short of total bans.
     

    wolfwood

    Ultimate Member
    Aug 24, 2011
    1,361
    Anyone have any idea how long it normally takes for Mass to issue a opinion. I want to file a 28j in Young if the outcome is positive.
     

    Knuckle Dragger

    Active Member
    May 7, 2012
    213
    Anyone have any idea how long it normally takes for Mass to issue a opinion. I want to file a 28j in Young if the outcome is positive.

    I think the SJC's goal is to issue decisions within 5 months or so, but I forgot where I saw that. They seem to beat that timeline most of the time.

    However, I think this may be fast-tracked. This is the second of two 2A cases before the SJC that specifically deal with 'carry'. There's a significant change to our law as of January 1 that will trigger large numbers of licensing appeals, and I think that the SJC wants to get out ahead of this and give the district courts some line within which they can color.
     

    wolfwood

    Ultimate Member
    Aug 24, 2011
    1,361
    I think the SJC's goal is to issue decisions within 5 months or so, but I forgot where I saw that. They seem to beat that timeline most of the time.

    However, I think this may be fast-tracked. This is the second of two 2A cases before the SJC that specifically deal with 'carry'. There's a significant change to our law as of January 1 that will trigger large numbers of licensing appeals, and I think that the SJC wants to get out ahead of this and give the district courts some line within which they can color.

    The other one was Simkin right? Or was there a case about resident carry as well.
     

    Knuckle Dragger

    Active Member
    May 7, 2012
    213
    The other one was Simkin right? Or was there a case about resident carry as well.

    No, the other case is Gemme v. Holden. Video.

    I think this case, which raises both the suitability and carry questions, is on the fast track because because of the impeding statutory change in January. Two of the bigger changes are relevant here. First, 'suitability' denials of an LTC* have to be justified in terms of the risk presented to public safety. Second, we now have a statutory right of appeal when that license is restricted - meaning it the holder cannot carry a loaded concealed handgun outside a home or business.

    These two changes will create a flood of appeals next month. The SJC clearly wants to give the lower courts more than the statutory language to go on:
    A determination of unsuitability shall be based on:
    (i) reliable and credible information that the applicant or licensee has exhibited or engaged in behavior that suggests that, if issued a license, the applicant or licensee may create a risk to public safety; or
    (ii) existing factors that suggest that, if issued a license, the applicant or licensee may create a risk to public safety.

    Police chiefs have traditionally made liberal, indiscriminate and inconsistent use of their broad 'suitability' discretion. In addition to denying large numbers of people their 2A rights for some pretty frivolous reasons, many also have some pretty onerous non-statutory application requirements such as notarized reference letters (sometimes up to five), notes from doctors, and letters to the chief explaining why you want to have a gun. The threat of a suitability denial allows these practices and they've been upheld by the courts. Theoretically this all goes away next month, but I've seen little indication that many police departments are going to change their policies without being sued - which is more difficult here that you'd think.

    Similarly, the court probably wants to nix the district court 'carry' appeals before they go anywhere. I expect that they'll come down against any right or entitlement outside the home.

    One thing was very interested in these oral arguments. It is clear that the SJC is finally taking these issues seriously and are getting themselves up to speed. In past oral arguments is was very clear that they didn't have a good grasp of the statutory scheme or the issues. It doesn't help that most of the attorneys appear in front of the SJC in these cases are so poorly prepared and knowledgeable. That's starting to change with Simkin and again here. Right off the bat the justices are asking questions from the Comm2A amicus. Unfortunately, Hoden's attorney utterly fails to take advantage of the opening they gave him.

    *The MA LTC is required in order to possess or purchase a handgun of any type. By default it is a license to carry firearms unless it is restricted which happens only about 8% of the time and mostly just in a handful of communities. That leaves Massachusetts in an interesting spot. The mere act of owning or possessing any firearm is much harder here than in any other state. But, almost everyone that clears that hurdle can carry.
     

    Blacksmith101

    Grumpy Old Man
    Jun 22, 2012
    22,163
    It looks like the Star Trek crew will be in trouble because Phasers probably aren't protected by the 2nd Amendment either.
     

    Kharn

    Ultimate Member
    Mar 9, 2008
    3,578
    Hazzard County
    She should have applied for a CCW? As a homeless person in MA? :rolleyes:
    and I love this one:
    In accord with that analysis we must determine whether a stun gun is the type of weapon contemplated by Congress in 1789 as being protected by the Second Amendment.[...] We note that that the first patent for stun gun was filed in 1972. [...] The recent invention of this weapon clearly postdates the period relevant to our analysis.
    The first chemical battery (voltaic pile) was invented in 1800, so it's not like the founders could have known the idea of carrying an electric charge with you wherever you went. Maybe the court should have looked at truncheons and the like.

    I also wonder what it will do for civil law suits in MA if any cops tazer someone using such a "dangerous and unusual" weapon.
     

    Inigoes

    Head'n for the hills
    MDS Supporter
    Dec 21, 2008
    49,365
    SoMD / West PA
    She should have applied for a CCW? As a homeless person in MA? :rolleyes:
    and I love this one:
    The first chemical battery (voltaic pile) was invented in 1800, so it's not like the founders could have known the idea of carrying an electric charge with you wherever you went. Maybe the court should have looked at truncheons and the like.

    I also wonder what it will do for civil law suits in MA if any cops tazer someone using such a "dangerous and unusual" weapon.

    Ben Franklin flew his kit in a lightning storm :innocent0

    Then there is that Baghdad battery, where alkaline batteries have been around for thousands of year.

    This opinion is more "in the home" crap...

    However, the court is screaming for more guidance:
    Without further guidance from the Supreme Court on the scope of the Second Amendment, we do not extend the Second Amendment right articulated by Heller to cover stun guns.
     

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