Commonwealth v. Caetano

[Knuckle Dragger]

Remember that this is being done by the local Public Defenders office. The guy is not exactly getting paid 1350 an hour like Paul Clement.
What I'd like to know is when did the Boston PD's office decide it is time to learn several new bodies of law, burn the midnight oil and take this ladies case to the Supreme Court. This is a lot more gumption than I'd typically expect. I'm assuming the public defender in charge of this case happens to be a die hard proponent of the Second Amendment and decided to draw a line in the sand.

I've met Caetano's public defender and he didn't strike me as a particularly staunch defender of the Second Amendment, But then again, I don't care.

He is what every attorney should be: a passionate and unyielding advocate for his client. In this instance he feels very strongly about a homeless woman living in fear and trying to do every she can do to protect herself from an abusive ex partner that put her in the hospital despite being the subject of a restraining order.

Even if Caetano had wanted a firearm for personal protection, that wan't an option available to her in Massachusetts. You need a license just to own a gun in this state and no police chief is going to issue a license to a homeless person.

 

[Kharn]

Wolfwood meant the Public Defenders office when he said PD.

 

[Knuckle Dragger]

Wolfwood meant the Public Defenders office when he said PD.

Oh......

 

[danb]

Volokh amicus brief

https://www.washingtonpost.com/news...-stun-guns-protected-by-the-second-amendment/

 

[Knuckle Dragger]

Volokh amicus brief

https://www.washingtonpost.com/news...-stun-guns-protected-by-the-second-amendment/

I have yet to read this whole thing, but I think this is largely a restatement of Volokh amicus brief before the SJC.

The Commonwealth was given an extension to file their reply which means that Caetano will no longer be scheduled for the long conference.

 

[danb]

I have yet to read this whole thing, but I think this is largely a restatement of Volokh amicus brief before the SJC.

The Commonwealth was given an extension to file their reply which means that Caetano will no longer be scheduled for the long conference.

It's a summary of that brief.

 

[Peaceful John]

From a lay perspective, this could be such an important case. Simply put, Caetano may very well establish that weapons outside the home enjoy Constitutional protection. The next step might be a suit to determine if firearms are weapons. I'm very hopeful about Caetano.

 

[press1280]

From a lay perspective, this could be such an important case. Simply put, Caetano may very well establish that weapons outside the home enjoy Constitutional protection. The next step might be a suit to determine if firearms are weapons. I'm very hopeful about Caetano.

Not sure about that. She was charged with illegal possession only IIRC, so it doesn't matter that she was outside the home or not.
Still would be better than nothing. Plaintiff is sympathetic, no one in their right mind would say a stun gun is dangerous and unusual (or more so than a pistol), and lower courts are split on the issue.

 

[kcbrown]

Thanks. This is worth following with interest.

In spades.

This is perhaps even more fundamental than Jackson. Even so, I expect SCOTUS to deny cert here.

While Jackson all but slammed the door on the notion that SCOTUS will take another 2A case, denial of cert here will nail that door shut. At that point, it will be unquestionable that SCOTUS has washed its hands of the 2nd Amendment.

Here's hoping they take it, because if they don't, then you will see courts so emboldened that they will begin to reverse Heller itself, and the 2nd Amendment will truly become dead letter law.

 

[esqappellate]

In spades.

This is perhaps even more fundamental than Jackson. Even so, I expect SCOTUS to deny cert here.

While Jackson all but slammed the door on the notion that SCOTUS will take another 2A case, denial of cert here will nail that door shut. At that point, it will be unquestionable that SCOTUS has washed its hands of the 2nd Amendment.

Here's hoping they take it, because if they don't, then you will see courts so emboldened that they will begin to reverse Heller itself, and the 2nd Amendment will truly become dead letter law.

Sorry, could not resist.

 

[Peaceful John]

Not sure about that. She was charged with illegal possession only IIRC, so it doesn't matter that she was outside the home or not. Still would be better than nothing. Plaintiff is sympathetic, no one in their right mind would say a stun gun is dangerous and unusual (or more so than a pistol), and lower courts are split on the issue.

Wolfwood, in the first post on this thread, wrote the following:

This Court has solicited amicus briefs on the following two questions:

(1) Whether G. L. ch. 140, s. 131J, which criminalizes the private possession of so-called stun guns, infringes on the Second Amendment right to keep and bear arms as defined by the Supreme Court’s Heller and McDonald decisions.

(2) Whether, and how, the Second Amendment protection applies outside one’s home in the case of a homeless person.

(If the Court addresses these questions and judges in our favor, we will see the right to bear arms extended to include outside the home carry because Caetano, being a street person, has no home. The next step is to get a SCOTUS decision on whether or not a gun is a weapon as defined by Heller.)

******

You're right, she is sympathetic. But there might be a little more to this only illegal possession. I've emboldenated where my thinking is going. Do I have it wrong?

 

[Knuckle Dragger]

Wolfwood, in the first post on this thread, wrote the following:

This Court has solicited amicus briefs on the following two questions:

(1) Whether G. L. ch. 140, s. 131J, which criminalizes the private possession of so-called stun guns, infringes on the Second Amendment right to keep and bear arms as defined by the Supreme Court’s Heller and McDonald decisions.

(2) Whether, and how, the Second Amendment protection applies outside one’s home in the case of a homeless person.

(If the Court addresses these questions and judges in our favor, we will see the right to bear arms extended to include outside the home carry because Caetano, being a street person, has no home. The next step is to get a SCOTUS decision on whether or not a gun is a weapon as defined by Heller.)

******

You're right, she is sympathetic. But there might be a little more to this only illegal possession. I've emboldenated where my thinking is going. Do I have it wrong?

These were the questions presented to the Massachusetts SJC. The question presented in the SCOTUS petition is simply:

"Whether the Second and Fourteenth Amendments protect a right to keep and bear weapons that are less deadly (but also less common) than handguns."​

Given the lengths the SJC went to in excluding EDWs from 2A protection, this could actually be a good vehicle for the high court to give a gentle nudge in the right direction. There apparently is some interest in this case as they've asked Massachusetts for a response.

In addition the SJC's decision is contrary to how the high courts in Connecticut and Michigan have ruled on less deadly weapons. The court has a legitimate interest in issuing a very narrow ruling in order to resolve a lower court split.

 

[kcbrown]

Sorry, could not resist.

LOL!

Touche, though in my defense, SCOTUS has denied every single 2A case I've said they'd deny cert to, when they could have granted cert to any of them. That's quite unlike Chicken Little who continuously predicts the sky is falling and it continuously fails to do so. Here, the sky has fallen on numerous occasions, with the end result being that the "right" now barely exists at all at the level of the federal judiciary.

Honestly, can you really say with a straight face that the courts will unequivocally continue to uphold Heller if SCOTUS refuses cert here, in light of the "reasoning" in Friedman and the "results-oriented reasoning" here in Caetano? If so, then on what basis?

 

[press1280]

These were the questions presented to the Massachusetts SJC. The question presented in the SCOTUS petition is simply:

"Whether the Second and Fourteenth Amendments protect a right to keep and bear weapons that are less deadly (but also less common) than handguns."​

Given the lengths the SJC went to in excluding EDWs from 2A protection, this could actually be a good vehicle for the high court to give a gentle nudge in the right direction. There apparently is some interest in this case as they've asked Massachusetts for a response.

In addition the SJC's decision is contrary to how the high courts in Connecticut and Michigan have ruled on less deadly weapons. The court has a legitimate interest in issuing a very narrow ruling in order to resolve a lower court split.

True, some interest exists to ask for the response. However, this bar seems pretty low. I don't think I've seen any cases so far where a legitimate 2A cases hasn't had a response requested from the government entity.

There are also several Oregon state opinions protecting other weapons (billy clubs,exc.), although those were under the state RKBA statute.

 

[danb]

LOL!

Touche, though in my defense, SCOTUS has denied every single 2A case I've said they'd deny cert to, when they could have granted cert to any of them. That's quite unlike Chicken Little who continuously predicts the sky is falling and it continuously fails to do so. Here, the sky has fallen on numerous occasions, with the end result being that the "right" now barely exists at all at the level of the federal judiciary.

Honestly, can you really say with a straight face that the courts will unequivocally continue to uphold Heller if SCOTUS refuses cert here, in light of the "reasoning" in Friedman and the "results-oriented reasoning" here in Caetano? If so, then on what basis?

If I said they would deny a case, I'd be right 99.9% of the time, because they deny at least 99.9% of all cases, regardless of the topic. I'd like to hope they take this case, but while there is a split I am not sure how many people this really affects, and I am not clear this case would be the best vehicle or whether there would be other cases.

 

[press1280]

If I said they would deny a case, I'd be right 99.9% of the time, because they deny at least 99.9% of all cases, regardless of the topic. I'd like to hope they take this case, but while there is a split I am not sure how many people this really affects, and I am not clear this case would be the best vehicle or whether there would be other cases.

5 states and a handful of municipalities. At this point any vehicle would do IMO, short of US v. gangbanger case. At least from the Jackson dissent, 2 justices (Scalia and Thomas) are already seeing what's been going on in the lower courts and want to put a stop to it. This could be the case where 4 of the Heller 5 might decide to go ahead and grant cert when they're unsure of the 5 for the win.

 

[esqappellate]

LOL!

Touche, though in my defense, SCOTUS has denied every single 2A case I've said they'd deny cert to, when they could have granted cert to any of them. That's quite unlike Chicken Little who continuously predicts the sky is falling and it continuously fails to do so. Here, the sky has fallen on numerous occasions, with the end result being that the "right" now barely exists at all at the level of the federal judiciary.

Honestly, can you really say with a straight face that the courts will unequivocally continue to uphold Heller if SCOTUS refuses cert here, in light of the "reasoning" in Friedman and the "results-oriented reasoning" here in Caetano? If so, then on what basis?

I don't think there is anything pivotal about this case. A denial of cert is just that. It doesn't set precedent and doesn't bind the courts in the slightest. The sky will have fallen when and if the SCT takes a case that we should win on the merits and we lose on the merits. All the lower court decisions mean exactly squat if a subsequent SCT decision rules on a given issue, as that SCT decision then becomes controlling authority. We are all (me included) impatient for that SCT decision, but in the Supreme Court, you got to play the long game. I think it will happen and this is a good candidate on the facts. But, if cert is denied, that doesn't mean you quit trying.

 

[kcbrown]

If I said they would deny a case, I'd be right 99.9% of the time, because they deny at least 99.9% of all cases, regardless of the topic. I'd like to hope they take this case, but while there is a split I am not sure how many people this really affects, and I am not clear this case would be the best vehicle or whether there would be other cases.

That would be a valid point if the Supreme Court were taking cases randomly. But it's not. We know this because the odds of the Court taking both Heller and McDonald are literally a million to one under those circumstances (a 0.1% chance of the court taking a case represents a one in a thousand chance. The probability of succeeding twice in a row with those odds are 1/1000 squared, or a million to one).

Because the Court is not taking cases randomly, the conclusions I drew are valid. The Jackson dissent neatly dispenses with all of the other arguments that might be used against the ones I've raised.

 

[kcbrown]

I don't think there is anything pivotal about this case. A denial of cert is just that. It doesn't set precedent and doesn't bind the courts in the slightest. The sky will have fallen when and if the SCT takes a case that we should win on the merits and we lose on the merits. All the lower court decisions mean exactly squat if a subsequent SCT decision rules on a given issue, as that SCT decision then becomes controlling authority.

You mean the way Heller is "controlling authority" on whether or not individuals can be required to lock their firearms in such a way as to make them unavailable for immediate use when one is most vulnerable at home (Jackson)? Or how it is "controlling authority" as regards the ability to even acquire the "quintessential self-defense weapon" it calls out as being protected (NRA v BATFE, Pena v Lindley)? Or how it is "controlling authority" as regards "keep" of firearms that are "typically possessed by law-abiding citizens for lawful purposes" (Friedman v Highland Park)? Or how it is "controlling authority" as regards mere possession in one's second home (Osterweil v Bartlett)? Or how it is "controlling authority" as to even whether the right is to be treated with the same respect as other protected rights (all of the above, and much more)?

It looks to me like Heller, which you clearly claim here is "controlling authority", is such for jack squat. Like I said (in a different, less specific way), the right that Heller is a so-called "controlling authority" for is disappearing in front of our very eyes as a result of the actions of the very same courts Heller is supposed to be "controlling authority" over. Some "authority".

So: your message here is merely a reply to my claims. It is not an answer to them.

Supreme Court decisions are supposed to be controlling authority over the lower courts. But the difference between theory and practice is that in theory, theory and practice are the same while in practice, they are different. Here, we see the massive difference between legal theory and legal practice. In practice, the lower courts can do whatever they want until the Supreme Court or some other entity gives them real incentive to do otherwise. And we know this because we see this very thing right before our eyes. One would have to be blind to not see that now.

In theory, a Supreme Court denial of cert means absolutely nothing. In practice, strings of cert denials on the same subject establish patterns that will of course have an effect on the behavior of the lower courts. Even certain Supreme Court members say much the same as that (the Jackson dissent). And the recent decision in Reed v Town of Gilbert should make that absolutely crystal clear, as that proves that the First Amendment is getting very different treatment (at a minimum, as regards grants of cert) than the Second Amendment is. In that context, why shouldn't lower courts treat the Second Amendment as a bastard stepchild of the Constitution whenever they wish to, if the Supreme Court can't even see its way clear to take even one case to "clarify" things? What incentive whatsoever have the lower courts to treat it other than how they wish?

We are all (me included) impatient for that SCT decision, but in the Supreme Court, you got to play the long game. I think it will happen and this is a good candidate on the facts. But, if cert is denied, that doesn't mean you quit trying.

Nor am I claiming it means that. Knowing what to expect of the game does not necessarily change the decision to play. It does mean we'd better start looking at contingencies, because winning the right in the courts in any meaningful way has now become a low-probability play.

 

[Brooklyn]