Update, June 28, 2018
This issue was addressed in the conference report on the Extreme Risk Protective Order bill. The report goes back to my original proposal of treating stun guns as “firearms” for licensing purposes, in other words, they will require a license to carry. I moved off this proposal because many regulations pertaining to firearms do not make sense as applied to stun guns. The conferees chose instead to carve out exceptions to those regulations.
Image of the Gillio Firearms Taser Pulse Stun Gun from the Gillio website
A recent SJC decision is forcing the legislature to replace the current ban on stun guns. We were prepared when the new decision came down.
Current Massachusetts law prohibits the use of electrical weapons:
No person shall possess a portable device or weapon from which an electrical current, impulse, wave or beam may be directed, which current, impulse, wave or beam is designed to incapacitate temporarily, injure or kill, except: . . . a federal, state or municipal law enforcement officer . . ..
This law was challenged as unconstitutional under the Second Amendment, but our Supreme Judicial Court upheld it in 2015. Our court concluded that since stun guns did not exist at the time the Second Amendment right to bear arms was created, the Second Amendment does not apply to stun guns:
The ban on the private possession of stun guns will not burden conduct that falls within the scope of the Second Amendment if a stun gun is a weapon not “in common use at the time” of enactment of the Second Amendment and would be dangerous per se at common law without another, primary use, i.e., as a tool. . . . [T]here can be no doubt that a stun gun was not in common use at the time of enactment, and it is not the type of weapon that is eligible for Second Amendment protection.
However, on further appeal, in a very interesting example of the idea that old constitutional principles apply to new technologies, the Supreme Court of the United States overturned that decision. The U.S. court criticized our court’s decision saying:
. . . the [Massachusetts] court explained that stun guns are not protected because they “were not in common use at the time of the Second Amendment’s enactment.” . . . This is inconsistent with Heller’s [a previous U.S. case] clear statement that the Second Amendment “extends . . . to . . . arms . . . that were not in existence at the time of the founding.”
After reviewing this guidance from the U.S. Supreme Court, our Supreme Judicial Court recently issued an opinion finding our stun gun ban unconstitutional.
This result was inevitable in light of the Supreme Court’s unanimous opinion and we have been expecting it. Last year, I filed a bill that would repeal the ban and regulate stun guns as firearms.
Over the past year, we’ve been consulting with advocates of gun control as well as with gun owner advocates to refine our new approach. Some made the objection that many of the safety regulations applicable to firearms do not really make sense as to stun guns. For example, our laws state that a firearm cannot be sold in the Commonwealth if it:
Has a frame, . . . that is composed of: (i) any metal having a melting point of less than 900 degrees Fahrenheit; (ii) any metal having an ultimate tensile strength of less than 55,000 pounds per square inch; or (iii) any powdered metal having a density of less than 7.5 grams per cubic centimeter.
This language is, of course, intended to protect consumers from explosions — explosions are not a risk for stun guns.
Another important point is that there are really two different kinds of electrical weapons on the market today. True stun guns are sort of like cattle prods — you touch them to someone and cause pain. By contrast, Tasers shoot darts that can discharge current into somebody who is many feet away. Both tend to be referred to as “stun guns” and are readily available online, but tasers are a much more dangerous weapon.
We concluded that treating all electrical weapons as firearms was too simple. We settled on the following alternative: We will simply require that to purchase a taser, one should have a license to carry firearms. To purchase a stun gun, one should have a firearms ID card. Licenses to carry can only be obtained after a discretionary review by police chiefs. The FID card is readily obtainable for anyone who can pass a background check. (More on gun law basics at this link.)
The week before the new opinion came out, the Joint Committee on Public Safety approved and reported out a redraft implementing this two-tiered approach.. When the opinion came out, the Committee Chair, Senator Michael Moore issued the following statement:
The recent SJC ruling on the legality of electronic weapons has created a significant gap in the Commonwealth’s oversight of these devices. While the court ruled a wholesale ban of electronic weapons was unconstitutional, the Commonwealth has a duty to provide a reasonable level of regulation to ensure the use of electronic weapons is consistent with our public safety objectives.
The Joint Committee on Public Safety considered several bills this session that would establish new regulations for these devices. On April 13, the Committee favorably reported a redrafted version of S.1283 an Act relative to electrical defensive devices, filed by Senator William Brownsberger. The legislation incorporates regulation of electronic weapons into the existing firearm statute, providing necessary oversight that is in line with the SJC decision.
Following the SJC decision, the legislature must act quickly to enact new regulations to promote public safety. S.1283 offers the Senate an important opportunity to continue this discussion and I hope that the bill will advance through the legislative process in a timely fashion.
I look forward to working Senator Moore to get the replacement for the ban implemented swiftly. The Supreme Judicial Court stayed the effect of its decision for 60 days, until June 16, but in truth, the ban is already unenforceable.
Informal Poll Results
It’s always hard to gauge overall sentiment reading through comments — sometimes a particular group is especially vocal. I got some initial negative comments on this piece that surprised me, so I did a poll of people on my mailing list.
The email I sent read as follows:
As a result of court decisions striking down our ban on stun guns, stun guns will be unregulated in Massachusetts unless the legislature acts to create a licensing scheme.
Stun guns include batons that shock people when you poke them. They also include tasers which shoot darts which shock people.
Please click the statement that best summarizes your views:
I feel that stun guns should be available to adults without any background checking or licensing.
I feel that there should be some degree of background checking and required licensing for stun guns.
You’ll have the opportunity to elaborate your views by commenting at the link you get to by responding. If you feel that neither option is close to your views, you can go directly to comment here [link to this post].
Of 723 who responded within 48 hours, the sentiment was overwhelmingly in favor of regulation:
- 83% in favor of background checking and licensing;
- 8% against background checking and licensing;
- 9% not sure.
I also ran the same poll on facebook and got a similar result 83% for and 17% against (only 54 responding).
I took the position outlined in this piece without doing any polling, but I’m pleased to find that my constituents generally agree with it.
Response to comments — April 29
Thanks to all who have commented here. I respect the varying perspectives.
I am grateful for the dialog. I will move forward in the process better informed as a result.
Some responses and reflections:
- Revival of the ban is definitely off the table — the Supreme Court has made that clear.
- I continue to feel that some or all of these electronic weapons should require licensing. The overwhelming majority of my constituents agree.
- Tasers should require a license to carry (or perhaps only an FID, but definitely some level of licensing and background checking). Tasers are distinctly dangerous.
- It is more debatable how batons that deliver shocks should be regulated.
- My instinctive view, which seems to be shared by the majority, is that they should require some background checking too.
- We might want to handle more powerful batons differently. A shock can be an irritant or it can be fatal, depending largely on the power level. Weak devices, perhaps, could be unregulated. However, I’m not sure technically how we draw the lines on this — there could be some kind of rule based on peak discharge.
- As a comparison point, it is worth noting that, since our 2014 reforms, persons over 18 can possess pepper spray without a license (but are not allowed to possess it if they are disqualified in various ways).
- I take the point that the internal discharge counter may not be necessary. I also take the point that the penalties should be moderate.
License to Carry vs Firearms Identification Card?
The FID is easier to get. A police chief . . .
shall issue [an FID card] if it appears that the applicant is not a prohibited person.
The qualification to this that came out of our 2014 reform was that a police chief can petition a court for the right to deny an FID card.
By contrast, a police chief . . .
may issue [an LTC] if it appears that the applicant is not a prohibited person as set forth in this section to be issued a license and that the applicant has good reason to fear injury to the applicant or the applicant’s property or for any other reason, including the carrying of firearms for use in sport or target practice only, subject to the restrictions expressed or authorized under this section.