Ramirez v. Commonwealth

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SJC-12340
JORGE RAMIREZ vs. COMMONWEALTH.
Suffolk. December 5, 2017. - April 17, 2018.
Present: Gants, C.J., Gaziano, Lowy, Budd, Cypher, & Kafker,
JJ.
Firearms. Constitutional Law, Right to bear arms, Severability.
Statute, Validity, Severability.
Civil action commenced in the Supreme Judicial Court for
the county of Suffolk on March 21, 2017.
The case was reported by Hines, J.
Benjamin H. Keehn, Committee for Public Counsel Services,
for Jorge Ramirez.
Kathryn Leary, Assistant District Attorney, for the
Commonwealth.
GANTS, C.J. We once again confront the question whether
the absolute criminal prohibition of civilian possession of a
stun gun, in violation of G. L. c. 140, § 131J, violates the
Second Amendment to the United States Constitution, which is
applied to the States by its incorporation into the Fourteenth
2
Amendment. In Commonwealth v. Caetano, 470 Mass. 774 (2015)
(Caetano I), we held that § 131J did not violate the Second
Amendment right to bear arms, as interpreted by District of
Columbia v. Heller, 554 U.S. 570 (2008). However, the United
States Supreme Court, in a brief per curiam opinion, concluded
that each of the three explanations we offered to support this
holding were inconsistent with propositions stated in Heller,
and therefore vacated the judgment and remanded the case for
further proceedings. See Caetano v. Massachusetts, 136 S. Ct.
1027 (2016) (Caetano II). That case was later dismissed as moot
after it was "resolved . . . to [the parties'] mutual
satisfaction," so we did not there revisit the question of
§ 131J's constitutionality. But we must revisit it in this
case, where the defendant was charged in a criminal complaint
with possession of a stun gun, in violation of § 131J, among
other crimes, and moved unsuccessfully to dismiss that count of
the complaint, arguing that § 131J unconstitutionally infringes
on his Second Amendment rights.
We conclude that the absolute prohibition against civilian
possession of stun guns under § 131J is in violation of the
Second Amendment, and we order that the count of the complaint
charging the defendant with such possession be dismissed with
prejudice.
3
Background. We summarize the agreed-upon facts relevant to
this appeal. On November 5, 2015, at approximately 2:15 A.M.,
Officer Sean Matthews of the Revere police department was on
patrol when he observed a vehicle with a broken taillight that
was being operated in what he believed to be a suspicious manner
in an area where the police had recently received reports of a
number of motor vehicle break-ins. The vehicle was occupied by
three men; the defendant was seated in the rear passenger seat.
After Officer Matthews activated his cruiser's blue lights, and
before the vehicle came to a stop, he observed the three men
moving in a manner that heightened his suspicion. After a
backup unit arrived, the three men were ordered out of the
vehicle and a patfrisk was conducted of the defendant, which
revealed a stun gun in his pants pocket. Officer Matthews
seized the weapon and placed the defendant under arrest for
possession of a stun gun. During a subsequent search of the
vehicle, the police recovered a firearm and a loaded extended
grip magazine in the back seat, near where the defendant had
been seated. The defendant was charged in a criminal complaint
with possession of a stun gun, as well as with carrying a
firearm without a license, in violation of G. L. c. 269,
§ 10 (a); carrying a loaded firearm without a license, in
violation of G. L. c. 269, § 10 (n); and possession of a firearm
4
without a firearm identification card, in violation of G. L.
c. 269, § 10 (h).
The defendant moved to dismiss the stun gun charge, arguing
that § 131J's criminal prohibition of the possession of stun
guns by civilians violates the Second Amendment, citing the
Supreme Court's opinion in Caetano II. The judge denied the
motion without explanation, and also denied the defendant's
request for written findings of fact and rulings of law. After
the defendant petitioned for relief from the single justice
pursuant to G. L. c. 211, § 3, and the Commonwealth joined the
petition, the single justice reserved and reported the petition
to the full court.
Discussion. A stun gun, as defined in § 131J, is "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."1 A stun gun is not a "firearm," which, as defined in
1 General Laws c. 140, § 131J, provides:
"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: (1) a [F]ederal, [S]tate or municipal law
enforcement officer, or member of a special reaction team
in a [S]tate prison or designated special operations or
tactical team in a county correctional facility, acting in
the discharge of his official duties who has completed a
training course approved by the secretary of public safety
5
in the use of such a devise or weapon designed to
incapacitate temporarily; or (2) a supplier of such devices
or weapons designed to incapacitate temporarily, if
possession of the device or weapon is necessary to the
supply or sale of the device or weapon within the scope of
such sale or supply enterprise. No person shall sell or
offer for sale such device or weapon, except to [F]ederal,
[S]tate or municipal law enforcement agencies. A device or
weapon sold under this section shall include a mechanism
for tracking the number of times the device or weapon has
been fired. The secretary of public safety shall adopt
regulations governing who may sell or offer to sell such
devices or weapons in the [C]ommonwealth and governing law
enforcement training on the appropriate use of portable
electrical weapons.
"Whoever violates this section shall be punished by a
fine of not less than $500 nor more than $1,000 or by
imprisonment in the house of correction for not less than
[six] months nor more than [two and one-half] years, or by
both such fine and imprisonment. A law enforcement officer
may arrest without a warrant any person whom he has
probable cause to believe has violated this section."
As is apparent, § 131J does not use the term "stun gun."
But G. L. c. 269, § 12F, a statute pertaining to airport secure
areas, defines a "[p]rohibited weapon" as, among other things,
"any stun gun as defined in [G. L. c. 140, § 131J]." The two
most well-known electrical weapons that fall within the rubric
of § 131J are stun guns and "dart-firing electrical shock
device[s]," better known as Tasers. See American Civil
Liberties Union of Massachusetts, Less Lethal Force: Proposed
Standards for Massachusetts Law Enforcement Agencies, at 5,
https://aclum.org/wp-content/uploads/2015/06/reports-less-
lethalforce.pdf [https://perma.cc/F29X-XHWH]. Tasers use
"compressed nitrogen gas to fire two wires tipped with
electrical barbs at [a person]," and, "[w]hen the barbs
penetrate [a person's] skin or clothing, an electrical signal is
transmitted through the wires, resulting in a paralyzing and
incapacitating electrical shock." Id. at 6. In contrast to
Tasers, stun guns have the electrodes attached to the device,
and, when this "charged portion of the stun gun" comes into
direct contact with a person's skin or clothing, it "completes
an electrical circuit and delivers an incapacitating shock to
[the person]." Id. at 5-6. For the sake of simplicity, we
refer to all electrical weapons under § 131J as "stun guns."
6
G. L. c. 140, § 121, is a weapon "from which a shot or bullet
can be discharged," among other requirements.
The Second Amendment provides, "A well regulated Militia,
being necessary to the security of a free State, the right of
the people to keep and bear Arms, shall not be infringed." In
Heller, 554 U.S. at 635, the Supreme Court held that "the
District [of Columbia's] ban on handgun possession in the home
violates the Second Amendment, as does its prohibition against
rendering any lawful firearm in the home operable for the
purpose of immediate self-defense." Noting that "the inherent
right of self-defense has been central to the Second Amendment
right," the Court declared:
"The handgun ban amounts to a prohibition of an entire
class of 'arms' that is overwhelmingly chosen by American
society for that lawful purpose. The prohibition extends,
moreover, to the home, where the need for defense of self,
family, and property is most acute. Under any of the
standards of scrutiny that we have applied to enumerated
constitutional rights, banning from the home 'the most
preferred firearm in the nation to "keep" and use for
protection of one's home and family,' . . . would fail
constitutional muster" (footnote and citation omitted).
Id. at 628-629.
Although there was no dispute that the firearm at issue in
Heller was an "arm" under the Second Amendment, the Court
addressed the meaning of the term "arm." The Court noted that
"[t]he 18th-century meaning is no different from the meaning
today," and offered two definitions of the word from legal
7
dictionaries written shortly before the enactment of the Second
Amendment. Id. at 581. The first, in the 1773 edition of
Samuel Johnson's dictionary, defined "arms" as "[w]eapons of
offence, or armour of defence." Id., quoting 1 Dictionary of
the English Language 106 (4th ed.) (reprinted 1978). The
second, in Timothy Cunningham's 1771 legal dictionary, defined
"arms" as "any thing that a man wears for his defence, or takes
into his hands, or useth in wrath to cast at or strike another."
Heller, supra at 581, quoting 1 A New and Complete Law
Dictionary. The Court characterized the argument "that only
those arms in existence in the 18th century are protected by the
Second Amendment" as "bordering on the frivolous," declaring
that "the Second Amendment extends, prima facie, to all
instruments that constitute bearable arms, even those that were
not in existence at the time of the founding." Heller, supra at
582. It also noted that "[t]he term was applied, then as now,
to weapons that were not specifically designed for military use
and were not employed in a military capacity." Id. at 581.
The Court, however, made clear that "the right secured by
the Second Amendment is not unlimited," and "was not a right to
keep and carry any weapon whatsoever in any manner whatsoever
and for whatever purpose." Id. at 626. The Court recognized
two important limitations on the right to keep and carry arms.
First, the Court declared, "Although we do not undertake an
8
exhaustive historical analysis today of the full scope of the
Second Amendment, nothing in our opinion should be taken to cast
doubt on longstanding prohibitions on the possession of firearms
by felons and the mentally ill, or laws forbidding the carrying
of firearms in sensitive places such as schools and government
buildings, or laws imposing conditions and qualifications on the
commercial sale of arms." Id. at 626-627. Second, the Court
recognized that there was a "historical tradition of prohibiting
the carrying of 'dangerous and unusual weapons'" (citations
omitted). Id. at 627. The Court declared that this historical
tradition was supported by the limitation explained in United
States v. Miller, 307 U.S. 174, 179 (1939), "that the sorts of
weapons protected [under the Second Amendment] were those 'in
common use at the time.'" Heller, supra, quoting Miller, supra
at 179. However, a few pages earlier in the Heller opinion, the
Court had stated that it "read Miller to say only that the
Second Amendment does not protect those weapons not typically
possessed by law-abiding citizens for lawful purposes, such as
short-barreled shotguns." Heller, supra at 625.
In Caetano I, we considered whether a ban on civilian stun
gun possession under § 131J violated the Second Amendment, where
9
the possession was outside the home.2 The defendant had been
arrested after a police officer found a stun gun in her purse
while she was seated in her vehicle in the parking lot of a
supermarket. See Caetano I, 470 Mass. at 775. The defendant
told police that she carried the stun gun for self-defense
against a former boy friend. See id. She moved to dismiss the
complaint, arguing that her possession of the stun gun was
protected by the Second Amendment because a stun gun is an "arm"
for purposes of the Second Amendment, is a weapon used primarily
for self-defense, and is in common use in the United States for
that purpose. Id. at 775-776. We affirmed the denial of the
motion to dismiss as well as her subsequent conviction,
concluding, "Without further guidance from the Supreme Court on
the scope of the Second Amendment, we do not extend the Second
Amendment right articulated by Heller to cover stun guns." Id.
at 779, 783.
We noted that "[t]he conduct at issue in [that] case falls
outside the 'core' of the Second Amendment, insofar as the
defendant was not using the stun gun to defend herself in her
home, . . . and involves a 'dangerous and unusual weapon' that
was not 'in common use at the time' of enactment." Id. at 779.
We determined that a stun gun was a "per se dangerous weapon at
2 The defendant in that case testified that she was homeless
but temporarily residing in a hotel. See Commonwealth v.
Caetano, 470 Mass. 774, 776 (2015).
10
common law," id. at 780, because its purpose was solely for
"bodily assault or defense." Id., quoting Commonwealth v.
Appleby, 380 Mass. 296, 303 (1980). We also determined that a
stun gun was "unusual" because it was not "in common use at the
time" the Second Amendment was enacted, Caetano I, supra at 780-
781, and was also an "unusual weapon" in terms of the number of
persons who own them (as compared to firearms) and in terms of
its use (in that it is not readily adaptable to use in the
military and is ineffective for hunting and target shooting).
Id. at 781.
The Supreme Court granted certiorari, vacated the judgment,
and remanded the case for further proceedings. In a per curiam
decision, the Supreme Court declared:
"The [Supreme Judicial] [C]ourt offered three
explanations to support its holding that the Second
Amendment does not extend to stun guns. First, the court
explained that stun guns are not protected because they
'were not in common use at the time of the Second
Amendment's enactment.' [Caetano I, 470 Mass. at 781].
This is inconsistent with Heller's clear statement that the
Second Amendment 'extends . . . to . . . arms . . . that
were not in existence at the time of the founding.' [554
U.S. at 582].
"The court next asked whether stun guns are 'dangerous
per se at common law and unusual,' [Caetano I, 470 Mass. at
781], in an attempt to apply one 'important limitation on
the right to keep and carry arms,' [Heller, 554 U.S. at
627. See id.] (referring to 'the historical tradition of
prohibiting the carrying of "dangerous and unusual
weapons"'). In so doing, the court concluded that stun
guns are 'unusual' because they are 'a thoroughly modern
invention.' [Caetano I, supra]. By equating 'unusual'
with 'in common use at the time of the Second Amendment's
11
enactment,' the court's second explanation is the same as
the first; it is inconsistent with Heller for the same
reason.
"Finally, the court used 'a contemporary lens' and
found 'nothing in the record to suggest that [stun guns]
are readily adaptable to use in the military.' [Caetano I,
470 Mass. at 781]. But Heller rejected the proposition
'that only those weapons useful in warfare are protected.'
[554 U.S. at 624-625].
"For these three reasons, the explanation the . . .
court offered for upholding the law contradicts this
Court's precedent."
Caetano II, 136 S. Ct. at 1027-1028. The Supreme Court did not
opine as to whether electrical weapons are protected under the
Second Amendment or, if they are protected, whether § 131J is
nonetheless constitutional.3
Having received guidance from the Supreme Court in Caetano
II, we now conclude that stun guns are "arms" within the
protection of the Second Amendment. Therefore, under the Second
Amendment, the possession of stun guns may be regulated, but not
absolutely banned. Restrictions may be placed on the categories
of persons who may possess them, licenses may be required for
their possession, and those licensed to possess them may be
3 In a concurrence joined by Justice Thomas, Justice Alito
expressed his view that electrical weapons are protected by the
Second Amendment and that Massachusetts's "categorical ban of
such weapons therefore violates the Second Amendment." Caetano
v. Massachusetts, 136 S. Ct. 1027, 1028-1033 (2016) (Alito, J.,
concurring in the judgment). Justice Alito also stressed that
this court's decision did "a grave disservice to vulnerable
individuals like [the defendant] who must defend themselves
because the State will not." Id. at 1029.
12
barred from carrying them in sensitive places, such as schools
and government buildings. But the absolute prohibition in
§ 131J that bars all civilians from possessing or carrying stun
guns, even in their home, is inconsistent with the Second
Amendment and is therefore unconstitutional.
Having so found, we must now decide whether § 131J is
facially invalid and therefore must be struck down in its
entirety, or whether it is only partially invalid and can be
narrowed in its application to preserve its constitutionality.
When confronting a constitutional flaw in a statute, a court
strives "to limit the solution to the problem." Ayotte v.
Planned Parenthood of N. New England, 546 U.S. 320, 328 (2006).
As part of limiting the solution to the problem, a court may
choose to "enjoin only the unconstitutional applications of a
statute while leaving other applications in force, see United
States v. Raines, 362 U.S. 17, 20-22 (1960), or to sever its
problematic portions while leaving the remainder intact, United
States v. Booker, 543 U.S. 220, 227-229 (2005)." Ayotte, supra
at 328-329. See generally Free Enter. Fund v. Public Co.
Accounting Oversight Bd., 561 U.S. 477, 508-509 (2010).
In Ayotte, supra at 329-330, the Supreme Court identified
three "interrelated principles" that should inform a court's
approach when it confronts a constitutional flaw in a statute.
First, a court should "try not to nullify more of a
13
legislature's work than is necessary, for . . . '[a] ruling of
unconstitutionality frustrates the intent of the elected
representatives of the people.'" Id. at 329, quoting Regan v.
Time, Inc., 468 U.S. 641, 652 (1984) (plurality opinion). See
Washington State Grange v. Washington State Republican Party,
552 U.S. 442, 451 (2008) ("facial challenges threaten to short
circuit the democratic process by preventing laws embodying the
will of the people from being implemented in a manner consistent
with the [United States] Constitution"). "Accordingly, the
'normal rule' is that 'partial, rather than facial, invalidation
is the required course,' such that a 'statute may . . . be
declared invalid to the extent that it reaches too far, but
otherwise left intact.'" Ayotte, supra, quoting Brockett v.
Spokane Arcades, Inc., 472 U.S. 491, 504 (1985).
Second, "mindful that our constitutional mandate and
institutional competence are limited," a court should restrain
itself from "'rewrit[ing] [S]tate law to conform it to
constitutional requirements[,]' even as [a court] strive[s] to
salvage it." Ayotte, supra at 329, quoting Virginia v. American
Booksellers Ass'n, Inc., 484 U.S. 383, 397 (1988). A court's
"ability to devise a judicial remedy that does not entail
quintessentially legislative work often depends on how clearly
[the court has] already articulated the background
14
constitutional rules at issue and how easily [it] can articulate
the remedy." Ayotte, supra.Third, "the touchstone for any decision about remedy is
legislative intent, for a court cannot 'use its remedial powers
to circumvent the intent of the legislature.'" Id. at 330,
quoting Califano v. Westcott, 443 U.S. 76, 94 (1979) (Powell,
J., concurring in part and dissenting in part). "After finding
an application or portion of a statute unconstitutional, we must
next ask: Would the legislature have preferred what is left of
its statute to no statute at all?" Ayotte, supra.Applying these three "interrelated principles," we are
confident that the Legislature would prefer partial invalidation
to facial invalidation if the scope of the stun gun statute
could be narrowed without the "quintessentially legislative
work" of rewriting State law. See Ayotte, 546 U.S. at 329.
Although stun guns, like handguns, are weapons "typically
possessed by law-abiding citizens for lawful purposes," see
Heller, 554 U.S. at 625, stun guns, like handguns, are weapons
that can injure or kill and, in the wrong hands, can be used for
many unlawful or reckless purposes. An electrical device or
weapon falls within the prohibition of § 131J only if the
electrical current, impulse, wave, or beam it emits "is designed
15
to incapacitate temporarily, injure or kill."4 G. L. c. 140,
§ 131J. As we noted in Caetano I, "stun guns deliver a charge
of up to 50,000 volts," and "are designed to incapacitate a
target by causing disabling pain, uncontrolled muscular
contractions, and general disruption of the central nervous
system." Caetano I, 470 Mass. at 782, citing Amnesty
International, Less than Lethal? Use of Stun Weapons in U.S.
Law Enforcement, 1-2, 6-7 & nn.17, 18 (2008), https://www
.amnesty.org/download/Documents/52000/amr510102008en.pdf
[https://perma.cc/JK53-XMR3].
Our appellate case law reveals that stun guns have been
used to incapacitate a victim before killing him by
strangulation, see Commonwealth v. Williams, 475 Mass. 705, 713
(2016) (victim "was assaulted repeatedly with a stun gun and
eventually strangled to death"); to assault victims to force
them to submit to unwanted sexual intercourse, see Commonwealth
v. Gomes, 54 Mass. App. Ct. 1, 2 (2002) ("The assailant drove
the complainants to a remote area . . . , displayed a stun gun,
4 Axon Enterprise, Inc. (formerly known as TASER
International, Inc., until April, 2017), the leading
manufacturer of stun guns, notes that its conducted electrical
weapon products, including stun guns, "are often used in
aggressive confrontations that may result in serious, permanent
bodily injury or death to those involved" and that its "products
may be associated with these injuries." See Axon Enterprise,
Inc., United States Securities and Exchange Commission Form 10-
K, 2017 Annual Report, at 15, https://www.sec.gov/Archives/edgar
/data/1069183/000106918318000020/a10kaaxn123117.htm [https://
perma.cc/Y3WY-SPKR].
16
and forced them to have sex with him"); and to punish and
control victims of domestic violence, see Commonwealth v.
Melton, 77 Mass. App. Ct. 552, 553 (2010) (victim, who "suffered
frequent beatings, threats of violence and sexual abuse, and
continuous emotional intimidation," "testified that the
defendant had used various weapons against her, such as a
knife, stun gun, and belt, and detailed certain incidents of
abuse"). Although less lethal than a handgun, stun guns can be
used to conceal the torture and abuse of another person because
they "can deliver repeated or prolonged shocks without leaving
marks." Caetano I, 470 Mass. at 782, citing Amnesty
International, supra at 1-2. See Turner & Jumbelic, Stun Gun
Injuries in the Abuse and Death of a Seven-Month-Old Infant, 48
J. Forensic Sci. 1 (2003).
The Legislature was so concerned with the risk of their
misuse that, in 1986, it initially barred all individuals,
including law enforcement officers, from possessing electrical
weapons. See G. L. c. 140, § 131J, inserted by St. 1986,
c. 212. In 2004, the Legislature amended the law to its current
form, which continues to bar civilian possession of stun guns,
but exempts law enforcement officers from the ban when using
electrical weapons in the discharge of their official duties as
well as those who supply these weapons to law enforcement
17
officers. See G. L. c. 140, § 131J, as amended by St. 2004,
c. 170, § 1.
We recognize that declaring § 131J to be facially invalid
would leave in place no restriction on stun gun possession by
anyone in Massachusetts. Unless and until the Legislature were
to act to replace § 131J with a revised version that would pass
muster under the Second Amendment, facial invalidation of § 131J
would mean that there would be no law in place preventing stun
guns from being sold to or possessed by violent felons, persons
convicted of domestic violence, convicted drug dealers,
children, or the mentally ill. But, having carefully considered
whether the scope of the stun gun statute could be narrowed to
render it constitutional without the "quintessentially
legislative work" of rewriting State law, see Ayotte, 546 U.S.
at 329, we have reluctantly come to the conclusion that it
cannot be saved.
We are mindful that the Legislature has expressly adopted
the principle of severability of statutory provisions. See
G. L. c. 4, § 6, Eleventh, inserted by St. 1983, c. 210 ("The
provisions of any statute shall be deemed severable, and if any
part of any statute shall be adjudged unconstitutional or
invalid, such judgment shall not affect other valid parts
thereof"). Where a provision of a statute is held
unconstitutional, "the valid portions of the statute should be
18
preserved if the invalid provision is separable from the
remainder of the statute." Commonwealth v. Brown, 466 Mass.
676, 681 (2013). But, where § 131J provides that, apart from
law enforcement officers and suppliers, "[n]o person shall
possess a [stun gun]," there is no provision that can be severed
to save its constitutionality. The invalid provision here is
"[n]o person," and the statute does not make sense if that
provision were severed.
We also recognize that the Supreme Court in Heller made
clear that the Second Amendment does not prevent a legislature
from enacting statutes that prohibit the possession of arms by
certain classes of persons who pose a special danger to society,
such as felons and the mentally ill. See Heller, 554 U.S. at
626-627. In contrast with the ban on stun guns, the State has
not barred all civilian possession of firearms; instead, it has
prohibited certain classes of persons from possessing firearms
by promulgating licensing requirements. General Laws c. 140,
§ 129C, mandates that no person "shall own or possess any
firearm, rifle, shotgun or ammunition unless he has been issued
a firearm identification card" (FID card) under G. L. c. 140,
§ 129B. And § 129B (1) provides that a person shall be issued
an FID card "if it appears that the applicant is not a
prohibited person," which includes persons convicted of felonies
or adjudicated a youthful offender or delinquent child; persons
19
convicted of violent crimes (as defined in G. L. c. 140, § 121)
or misdemeanors punishable by imprisonment for more than two
years; persons who have been committed to a hospital or an
institution for mental illness, alcohol, or substance abuse; and
persons under the age of fifteen. Because presumptively lawful
prohibitions do not burden conduct protected by the Second
Amendment, they fall outside the scope of the Second Amendment
and are not subject to heightened scrutiny. See Chief of Police
of Worcester v. Holden, 470 Mass. 845, 853 (2015). See also
Commonwealth v. McGowan, 464 Mass. 232, 240-241 (2013) (we have
"consistently held, without applying any level of heightened
scrutiny, that the decisions in Heller and McDonald [v. Chicago,
561 U.S. 742 (2010),] did not invalidate laws that require a
person to have a[n] [FID] card to possess a firearm in one's
home or place of business").
If the Legislature had made it a crime only for this class
of "prohibited persons" to possess a stun gun (or a comparable
class), there could be no doubt that such a statute would be
constitutional and that it would preserve much of what the
Legislature intended through its broader ban. But we cannot
ourselves limit the application of § 131J to "prohibited
persons" without engaging in the "quintessentially legislative
work" of rewriting State law. See Ayotte, 546 U.S. at 329. We
would first need to decide whether the class of "prohibited
20
persons" should be the same for the possession of stun guns as
for the possession of firearms, which are more lethal than stun
guns. We would then need to decide whether a person must be
licensed to possess a stun gun, as is required to possess a
firearm.5 And if we decided that a license should be required,
we would need to consider if we should adopt the same licensing
scheme for stun guns as exists for firearms, or some variant of
that licensing scheme.
We therefore come to the conclusion that we cannot save
§ 131J through partial invalidation and must declare it to be
facially invalid. Because this will invalidate the
Legislature's absolute ban and leave no lesser restriction on
the possession of stun guns in its place, and because we
recognize that the Legislature may wish to do what we cannot
(revise the statute in a manner that will preserve its
constitutionality), we will direct that the entry of the
judgment after the date of our issuance of the rescript in this
5 We note that prohibited persons may be barred from
possessing a weapon without there being a licensing system.
General Laws c. 140, § 122D, prohibits various categories of
persons from purchasing or possessing "self-defense spray,"
which is defined in G. L. c. 140, § 122C (a), to mean "chemical
mace, pepper spray or any device or instrument which contains,
propels or emits a liquid, gas, powder or other substance
designed to incapacitate." But, unlike with firearms,
individuals over the age of eighteen need not be licensed to
purchase or possess self-defense spray. See G. L. c. 140,
§ 122C (d). The Legislature simply made it a criminal violation
for a person to purchase or possess self-defense spray if he or
she is within a category of persons enumerated in § 122D.
21
case be delayed in order to allow the Legislature adequate time
to amend the statute in light of this opinion, if it so chooses.
See, e.g., Moot v. Department of Envtl. Protection, 456 Mass.
309, 310 (2010) (in earlier case, Department of Environmental
Protection regulation had been declared to be invalid, but court
"issued a stay of the entry of judgment after rescript in the
Superior Court to permit the Legislature to take any action it
might deem appropriate in light of our opinion"); Goodridge v.
Department of Pub. Health, 440 Mass. 309, 344 (2003) (marriage
licensing statute declared unconstitutional because it could not
be construed to permit same-sex couples to marry, but court
ordered that "[e]ntry of judgment shall be stayed for 180 days
to permit the Legislature to take such action as it may deem
appropriate in light of this opinion").
Conclusion. The case is remanded to the county court for
entry of a judgment (a) declaring that the absolute prohibition
in G. L. c. 140, § 131J, against the civilian possession of stun
guns is in violation of the Second Amendment to the United
States Constitution, and therefore that § 131J in its current
form, as amended by St. 2004, c. 170, § 1, is facially invalid;
and (b) vacating the District Court's order denying the
defendant's motion to dismiss the charge of unlawfully
possessing a stun gun in violation of § 131J, and directing the
judge to allow the motion and to dismiss that charge. The entry
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of that judgment shall be stayed for sixty days after the date
of the issuance of the rescript in this case. In the meantime,
to avoid needless delay in the adjudication of the defendant's
remaining criminal charges, the Commonwealth may treat the
charge under § 131J as having been dismissed, and may proceed
with its prosecution of the remaining charges, without awaiting
the entry of the judgment in the county court to that effect.
So ordered.