When Justice Antonin Scalia died, court-watchers on the left and right assumed that, once a new liberal took his seat, the court would move quickly to reverse or limit Scalia’s most important decision—District of Columbia v. Heller, which reinterpreted the Second Amendment to provide an individual right to bear arms.
On Monday, however, the Supreme Court issued a brief, unsigned opinion simultaneously reaffirming Heller—and, arguably, even expanding it. Most surprisingly, the decision noted no dissents, meaning the liberal justices presumably endorsed it. This silence from the left doesn’t necessarily mean that the court’s progressive bloc is now embracing an absolutist Second Amendment jurisprudence. But it does suggest, at the very least, that the liberals are waiting for a sympathetic colleague before chipping away at Heller—and may indicate that the progressive justices are hesitant to move against Heller at all.
The decision, Caetano v. Massachusetts, does not quite state that the Second Amendment protects stun guns, but its implications to that effect are pretty obvious. Caetano involved the prosecution of Jaime Caetano, a domestic violence victim who threatened her abuser with a stun gun. Although Caetano succeeded in scaring away her abusive ex-boyfriend, she also broke the law: Massachusetts forbids private possession of “electrical weapon[s].” Inexplicably, the police arrested her, and prosecutors charged her with violating the stun gun ban. (Credit to Second Amendment advocates for finding a test case in which the defendant acted so nobly and the state so idiotically.) Caetano argued that the Constitution shielded her right to own a stun gun, because such weapons qualified as “arms” within the meaning of the Second Amendment.
In an evasive and dubious opinion, the Massachusetts Supreme Judicial Court disagreed. It insisted that, under Heller, the only constitutionally protected weapons are those “contemplated by Congress in 1789” when it drafted the Second Amendment. Stun guns, “a thoroughly modern invention,” are thus outside the Constitution’s protections. But this holding plainly contradicts Heller, which explicitly ruled that the Second Amendment extends to arms “that were not in existence at the time of the founding.” The Massachusetts court also decided that stun guns are not “readily adaptable to use in the military”—an utterly irrelevant question under Heller, which painstakingly detached the Second Amendment from its militia context. Noting these analytical problems, the Supreme Court simply vacated the Massachusetts court’s ruling and ordered a new judgment, one that actually follows Heller.
Justice Samuel Alito, joined by Justice Clarence Thomas—the court’s new dream team—filed a concurring opinion proclaiming that “the decision below … does a grave disservice to vulnerable individuals like Caetano who must defend themselves because the state will not.” Alito’s opinion criticized his colleagues’ brief decision as “grudging” and framed the lower court’s opinion as an attack on “the fundamental right of self-defense.” His ominous tone suggests he does not trust his own court to ward off future perceived assaults on the Second Amendment. Thomas echoed this fear when he broke his silence last month, portentously describing gun ownership as a constitutional right “at least as of now.” But where is their evidence that the post-Scalia court may turn against gun rights? It would be a steep uphill climb to overturn Heller, one that might expend more political capital than the court can afford to lose. And the unanimity of Caetano, grudging or not, suggests that the liberal justices aren’t eager to lead the charge.