Jaime Caetano did what she could to protect herself after the father of her two children beat her so badly that she “ended up in the hospital,” but the abuse did not stop.
Then, after she displayed a stun gun when he showed up at her workplace in New Bedford, he “got scared and left [Caetano] alone,” court papers say.
The same stun gun, however, landed Caetano in the middle of a legal battle about the weapon and the right to keep and bear arms under the Second Amendment. She was convicted last year under a state law criminalizing the possession of stun guns by private citizens.
Caetano is challenging the law in court, saying it violates her rights under the Second Amendment to defend herself.
In a twist, the state Supreme Judicial Court is asking whether and how Second Amendment protections for people to defend themselves in their own homes apply to homeless people such as Caetano. She became homeless after leaving the hospital, spending time in a hotel and a shelter, court papers say.
Arguments are scheduled for Tuesday.
“In the state of Massachusetts, [people] are permitted with a license to have guns and carry guns,” said Michael E. Rosman, general counsel for the Center for Individual Rights in Washington, D.C. “It makes no sense to say you shouldn’t be allowed to have a weapon that you can defend yourself with, but is less dangerous to the attacker.”
Caetano was charged on Sept. 30, 2011, with one count of a possession of an electric stun gun after she was questioned the day before in a Shaw’s supermarket parking lot by Ashland police officers investigating a shoplifting report, court papers say.
An officer found a stun gun in Caetano’s purse after she gave him permission to search her bag, court papers say. Caetano said she had forgotten it was in her purse. She told the officer a friend gave it her to defend herself from an ex-boyfriend, against whom she had obtained restraining orders, Caetano’s lawyer, Benjamin H. Keehn, wrote in a legal brief.
Caetano was convicted of possession of a stun gun after a trial before a judge, who ordered a guilty finding be filed in the case and mandated the stun gun be confiscated.
The maximum punishment for possessing a stun gun is 2½ years in a house of correction. Caetano wants the conviction vacated and her stun gun returned.
Keehn argues that stun guns are “arms” as defined by the Second Amendment and that two United States Supreme Court decisions imply “a right to carry them outside the home.”
“An individual who loses her home does not lose the ‘basic right [of self-defense, which is] recognized by many legal systems from ancient times to the present day,’ ” Keehn wrote. He declined to comment Friday.
Massachusetts is one of five states that prohibits the possession of stun guns or Tasers by private citizens, said Eugene Volokh, a law professor at the University of California, Los Angeles School of Law.
In 2012, a court in Michigan struck down a stun-gun ban, and lawmakers in Wisconsin have repealed a law outlawing their possession, Volokh said.
He said stun gun bans can be “perverse” because they take away a less lethal form of self-defense.
People are “being pushed into handgun possession by the ban on stun guns,” Volokh said.
Volokh and Rosman are among several lawyers representing Arming Women Against Rape & Endangerment, a Massachusetts nonprofit that filed a friend-of-the-court brief in the case.
Commonwealth Second Amendment also filed a friend-of-the-court brief.
“Something like this is an extremely appropriate means of self-defense,” said Brent Carlton, president and cofounder of the Massachusetts nonprofit.
Middlesex County prosecutors, who brought the case against Caetano, argue the Second Amendment does not establish the constitutional right to have a banned electric stun gun outside the home. They argue two Supreme Court decisions that upheld the right to possess handguns for self-defense inside homes does not necessarily extend that protection outside the home.
Middlesex District Attorney Marian T. Ryan declined to comment through a spokeswoman. The spokeswoman, MaryBeth Long, referred questions to a legal brief prepared by prosecutors.
“Only a ruling from this Court reversing itself or a decision from the United States Supreme Court specifically holding that the Second Amendment protects possession of an electric stun gun or like weapon outside the home would be sufficient to vindicate the defendant’s challenge to her conviction,” Middlesex Assistant District Attorney Michael A. Kaneb said.
He wrote that being homeless does not entitle Caetano to “special protection” under the Second Amendment.