Eugene Volokh on Yesterday's Pro-Second Amendment Supreme Court Decision

Yesterday the U.S. Supreme Court issued a unanimous decision that reversed and sent back to the Supreme Judicial Court of Massachusetts a decision dealing with the use of a stun gun for self-defense.  As noted by Sebastian at the blog Shall Not Be Questioned, it was a relatively short decision that gives us a little hope that all may not be lost with the death of Scalia, at least in some cases.  This morning, blogger Eugene Volokh, who teaches free speech law and other law courses at UCLA School of Law, wrote about the decision and offered a few thoughts.  On the subject of whether this unanimous decision signals a change in the way the full court views Heller and McDonald:

This is a unanimous decision, unlike the court’s earlier Second Amendment cases — D.C. v. Heller and McDonald v. City of Chicago — which were 5-4. I doubt that Justices Stephen Breyer, Ruth Bader Ginsburg and Sonia Sotomayor, who were in the dissent in McDonald, are reconciled to those cases; I suspect they would be willing to overrule them if they had five votes to do so. But in this case, they were willing to accept them as given.

This case was decided without oral argument.  Volokh noted that whether the stun gun ban may still be justified is a more complicated question, and that a number of the justices may hesitate to resolve that question without oral arguments.  He also suggested those justices might have thought there’s no need to devote such resources to the case now, since the matter might go away if the Massachusetts high court on remand holds in Caetano’s favor.

Volokh went on to talk about Thomas and Alito's concurring opinion and it bears noting that in the Massachusetts decision, the court said if Caetano (the defendant) had wanted a weapon for self-defense, she should have purchased a firearm (not necessarily an easy task in Massachusetts).  Thomas reasoned that thinking is a threat to the fundamental right of self-defense for the following reason:

The reasoning of the Massachusetts court poses a grave threat to the fundamental right of self-defense. The Supreme Judicial Court suggested that Caetano could have simply gotten a firearm to defend herself. But the right to bear other weapons is “no answer” to a ban on the possession of protected arms. Moreover, a weapon is an effective means of self-defense only if one is prepared to use it, and it is presumptuous to tell Caetano she should have been ready to shoot the father of her two young children if she wanted to protect herself. Courts should not be in the business of demanding that citizens use more force for self-defense than they are comfortable wielding.

Countless people may have reservations about using deadly force, whether for moral, religious, or emotional reasons — or simply out of fear of killing the wrong person. “Self-defense,” however, “is a basic right.” I am not prepared to say that a State may force an individual to choose between exercising that right and following her conscience, at least where both can be accommodated by a weapon already in widespread use across the Nation.

No doubt given a fifth vote to overturn Heller and McDonald, Breyer, Ginsburg, and Sotomayor, all of which voted in the minority on both case, would vote to do so.  But we should take victories when we can get them and this decision is a good one for the right to self-defense.