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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.
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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.
