How a “firearm” is legally defined has far-reaching practical and legal implications. What is defined as a “firearm” is almost always set out in a relevant state or federal statute. This is one reason it is essential to retain local legal representation to obtain advice and counsel on firearm rights and rights restoration. Your local attorney will know the law and be able to identify how “firearm” is defined in your jurisdiction.
Interestingly enough, how a firearm is legally defined is a sword with two edges for purposes of Second Amendment firearm rights and for rights restoration. On the one hand, having a device deemed to be a “firearm” means that possession and use of the device is protected by the Second Amendment. On the other hand, if the device is NOT considered a firearm, then possession and use of the device will not violate federal and state statutes that prohibit and diminish firearm rights for convicted felons and others.
A case in point with respect to the former is the US Supreme Court case of Caetano v. Massachusetts, 136 S. Ct. 1027 (US Supreme Court 2016) involving stun guns. At the time, the State of Massachusetts had a statute that prohibited the possession of stun guns. Specifically, the statute prohibited any portable device that emitted “… an electrical current, impulse, wave or beam … designed to incapacitate temporarily, injure or kill.” In 2011, Jaime Caetano was stopped by Massachusetts law enforcement officials and, after a search, she was discovered to have a stun gun in her possession. Caetano claimed that the stun gun was necessary for protection from an abusive former boyfriend. Indeed, the evidence showed that Caetano’s safety was threatened. As described by the court, one night after leaving work, Caetano found her ex-boyfriend waiting outside. He began screaming at her. He demanded that she stop working and remain at home taking care of their children. As reported, Caetano’s abuser towered over her by nearly a foot and outweighed her by close to 100 pounds. Caetano displayed her stun gun and threatened to use it on her ex-boyfriend. And, the strategy worked. Her ex-boyfriend left the scene and, thereafter, left her alone.
However, despite these compelling facts, Caetano was convicted of violating Massachusetts law and sentenced.
Caetano appealed and argued that her right to possess a stun gun was protected by both the US and Massachusetts Constitutions. She also argued that her right of self-protection applies even though she was, at the time, living temporarily in a hotel. Eventually, Caetano lost her appeal before the Massachusetts Supreme Judicial Court. The Massachusetts Supreme Judicial Court contended that the Second Amendment did not apply to stun guns for these reasons:
- Stun guns were not in use at the time of the Second Amendment’s enactment in 1789
- Being modern, stun guns are “dangerous or unusual weapons” which can be banned and
- Stun guns are not used by the military and can, therefore, be banned
Caetano again appealed, this time to the US Supreme Court. The US Supreme Court agreed with Caetano. The court rejected all three reasons given by the Massachusetts court. The US Supreme Court stated that stun guns are plainly “bearable arms” for purposes of Second Amendment protections. Further, the court had already held that the Second Amendment protects the right to bear firearms that are modern and were not in existence in 1789. Because of this, the Supreme Court rejected the first reason given by the Massachusetts court. Further, just because a stun gun is a “modern weapon,” that does not make it a “dangerous or unusual” weapon. Further, firearms are protected by the Constitution even if the firearms in question are not used by or designed for use by the military. For these reasons, the US Supreme Court reversed the decision of the Massachusetts court.
So, as can be seen, having a device like a stun gun defined as a “firearm” is “good” for purposes of having protection under the Second Amendment. The Caetano decision is also likely applicable to other “modern” weapons like tasers. Stun guns, of course, are close-range weapons where an electric current runs between two metal prongs. Placing the prongs in direct contact with the opponent delivers the electrical charge. Tasers are longer-range weapons where wires tipped with electrodes are expelled and deliver the electrical current upon contact from a distance. There are also tasers that do not deploy wired electrodes – often called a “dry stun gun.”
However, as noted, having a device defined as “firearm” can make the device prohibited under various state and federal laws that ban the possession and use of firearms by convicted felons. Federal laws, for example, ban convicted felons (and others) from owing, possessing or using “firearms and ammunition.” If a stun gun is now defined by the US Supreme Court as a “firearm,” then the prohibitions under federal gun control laws might apply to a stun gun. There is, after all, an ongoing debate about whether federal control laws apply to black powder guns and/or muzzleloaders which might be considered “antique firearms.” Some are considered “firearms” and some are not.
As again noted above, much will depend on how the word “firearm” is defined by statutes. In Louisiana, a “firearm” means “… any pistol, revolver, rifle, shotgun, machine gun, submachine gun, black powder weapon, or assault rifle which is designed to fire or is capable of firing fixed cartridge ammunition or from which a shot or projectile is discharged by an explosive.” See La. Rev.Stat. 14:95.1(B). So, presumably, stun guns and dry stun guns are not “firearms” under Louisiana law, but tasers might be.
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