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Federal judge strikes down R.I.’s stun gun ban

The decision does leave room for the state to regulate stun guns. But based on precedent, it can’t ban them outright,

A Rhode Island federal judge on Tuesday struck down the state’s prohibition on stun guns.

US District Judge William E. Smith found in favor of two would-be stun gun buyers in ruling that the ban is an unconstitutional restriction on the right to bear arms provided in the Second Amendment. Smith’s decision follows successful legal challenges in other states that have helped make Rhode Island an outlier in outlawing stun guns, which deliver painful electric shocks when pressed against the skin.

“I’m very happy we’ve prevailed,” said Frank Saccoccio, a Rhode Island gun-rights attorney and who represented the two people who challenged the law. “What this does is allow individuals that do not want to carry a firearm to carry a less than lethal form of protection in the state of Rhode Island.”

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Smith’s decision does leave room for the state to regulate stun guns. But based on precedent, including the Supreme Court’s District of Columbia v. Heller decision, it can’t ban them outright, Smith found.

The landmark 2008 Heller decision struck down a law prohibiting handguns in the home, and held, as Smith described it, that “the Second Amendment right to keep and bear arms applies to an individual unconnected to militia service.”

Smith’s 33-page decision includes the word “Heller” 29 times, including in a footnote in which Smith criticized Associate Justice Antonin Scalia’s majority opinion as “judicial activism.” Smith also cited a historian’s broadside against Scalia’s opinion in Heller. But Heller is the law of the land, and Smith was bound to follow it, he noted.

The state, Smith concluded, had “failed to demonstrate that stun guns are not in common use or not typically possessed for lawful purposes like self-defense.”

The law in question bars people from carrying or possessing “any instrument or weapon of the kind commonly known as a blackjack, slingshot, billy, sandclub, sandbag, metal knuckles, slap glove, bludgeon, stun-gun, or the so called ‘Kung-Fu’ weapons.”

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Smith struck down only the part that relates to stun guns. They’re usually defined as a weapon that delivers nonlethal electric shocks when held against a person. Tasers have a stun-gun component, but they propel steel projectiles, also to incapacitate people with electricity.

The state had only 12 arrests relating to stun gun usage in Rhode Island since 2005, a fact that the plaintiffs — Michael P. O’Neil and Nicola Grasso — cited while arguing that people have them for a lawful purpose. The state argued that incident reports going back 20 years didn’t include references to stun guns being used for self defense.

But under Second Amendment case law, it was up to the state to show that stun guns aren’t used for lawful purposes like self defense, “and they failed to do so,” Smith wrote.

Attorney General Peter Neronha and State Police Colonel James Manni were sued in their official capacity. Neronha’s office represented the state.

Under the decision, the state is blocked from enforcing that law as it relates to possessing and using stun guns.

Saccoccio, who is president of the Rhode Island 2nd Amendment Coalition, has helped draft legislation that would legalize but regulate stun guns several times, but it hasn’t gone anywhere. Depending on a possible appeal, this decision may force the state’s hand.

“At this point it’s now probably going to go through, because they’re going to have to do something,” Saccoccio said.

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Brian Amaral can be reached at brian.amaral@globe.com. Follow him on Twitter @bamaral44.