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SJC-11718

                COMMONWEALTH   vs.   JAIME CAETANO.



       Middlesex.      December 2, 2014. - March 2, 2015.

 Present:   Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
                            Hines, JJ.


Firearms. Constitutional Law, Right to bear arms. Self-
     Defense. Practice, Criminal, Indictment placed on file.



     Complaint received and sworn to in the Framingham Division
of the District Court Department on September 30, 2011.

     A motion to dismiss was heard by Robert V. Greco, J.; the
case was heard by Martine G. Carroll, J., and a motion for
sentencing was considered by her.

     The Supreme Judicial Court granted an application for
direct appellate review.


     Benjamin H. Keehn, Committee for Public Counsel Services,
for the defendant.
     Michael A. Kaneb, Assistant District Attorney, for the
Commonwealth.
     Keith G. Langer, for Commonwealth Second Amendment, amicus
curiae, submitted a brief.
     Eugene Volokh, of California, Michael E. Rosman & Michelle
A. Scott, of the District of Columbia, & Lisa J. Steele, for
Arming Women Against Rape & Endangerment, amicus curiae,
submitted a brief.
                                                                     2

     SPINA, J.    The defendant, Jaime Caetano, asks us to

interpret the holdings of the United States Supreme Court in

McDonald v. Chicago, 561 U.S. 742, 791 (2010), and District of

Columbia v. Heller, 554 U.S. 570, 635 (2008), to afford her a

right under the Second Amendment to the United States

Constitution to possess a stun gun in public for the purpose of

self-defense.    The defendant was arrested for possession of a

stun gun in a supermarket parking lot, claiming it was necessary

to protect herself against an abusive former boy friend.       She

now challenges the constitutionality of G. L. c. 140, § 131J,

which bans entirely the possession of an electrical weapon with

some exceptions not applicable here.    We hold that a stun gun is

not the type of weapon that is eligible for Second Amendment

protection, see Heller, supra at 622, and we affirm the

defendant's conviction.1

     1.   Background.   At approximately 3 P.M. on September 29,

2011, Ashland police officers responded to a call about a

possible shoplifting at a supermarket.    The manager of the

supermarket had detained someone in the store, and he informed

police that the defendant and a man with whom she left the store

also may have been involved.    The manager pointed to a man

standing next to a motor vehicle in the parking lot outside the


     1
       We acknowledge the amicus briefs submitted by Commonwealth
Second Amendment and Arming Women Against Rape & Endangerment in
support of the defendant.
                                                                      3

supermarket.     The defendant was seated in the vehicle.   Officers

approached it.    Following a conversation with officers, the

defendant consented to a search of her purse.     Inside the purse,

the defendant had an operational stun gun.2    The defendant told

police that the stun gun was for self-defense against a former

boy friend.    Police charged her with possession of a stun gun in

violation of G. L. c. 140, § 131J.3

     The defendant challenged the constitutionality of § 131J in

a pretrial motion to dismiss.    She argued that the stun gun is

an "arm" for purposes of the Second Amendment, that it is a

weapon primarily for self-defense and in common use in the

United States for that purpose, and that she kept her stun gun

for purposes of self-defense.     As such, she argued that her




     2
       The stun gun was a black electronic device with two metal
prongs and a switch. Once the switch was thrown, an electrical
current appeared between the prongs. Stun guns are designed to
stun a person with an electrical current after the prongs are
placed in direct contact with the person and the switch is
thrown.
     3
       General Laws c. 140, § 131J, forbids the private
possession of 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 by specified public officers
or suppliers of such devices, if possession is "necessary to the
supply or sale of the device or weapon" to agencies utilizing
it. Violation of this section is punishable "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." Id.
                                                                      4

possession of the stun gun was protected by the Second

Amendment.   The motion was denied.

    At a jury-waived trial, the parties stipulated that the

device in question was a stun gun regulated by G. L. c. 140,

§ 131J.   The defendant testified that the stun gun was for self-

defense against a former boy friend.     She further testified that

her former boy friend was violent, and that previously she had

displayed the stun gun during a confrontation with him.      She

said that she had been homeless and living in a hotel.       The

judge found the defendant guilty of possession of the stun gun

and placed the case on file.   The defendant consented to having

the case placed on file.   Approximately two and one-half months

later the defendant filed a written objection to the case being

placed on file, and she moved for sentencing.

    A hearing was held on the motion.     The Commonwealth

recommended the imposition of the minimum fine.     The defendant

proposed a fine less than the minimum.    Both the Commonwealth

and the judge recognized that the purpose of the hearing was to

preserve the defendant's right of appeal.     After discussion, the

judge again placed the case on file over the defendant's

objection in the belief that this action would preserve the

defendant's right of appeal.

    The defendant filed a timely notice of appeal.     We granted

her application for direct appellate review.
                                                                      5

    2.     Appellate jurisdiction.   As an initial matter, the

Commonwealth argues that this appeal is not properly before the

court.   The basis of this argument is that no judgment resulted

from the defendant's conviction because a conviction placed on

file is not a judgment from which an appeal may be taken.

Generally, a judgment in a criminal case is the sentence, and a

defendant has no right of appeal until after the sentence is

imposed.    See Commonwealth v. Ford, 424 Mass. 709, 713 n.2

(1997) (conviction placed on filed suspends defendant's right to

appeal alleged error in proceeding); Commonwealth v. Delgado,

367 Mass. 432, 438 (1975) (no appeal until after judgment "which

in criminal cases is the sentence").     See also Mass. R. Crim. P.

28 (e), 453 Mass. 1501 (2009) (court may file case after guilty

verdict without imposing sentence).

    We have recognized that a defendant has a right to appeal a

conviction on file without her consent.     Delgado, supra.    It was

clear to all involved that the defendant wanted to pursue an

appeal on the constitutionality of the criminal statute of which

she was adjudged guilty, and that she withdrew her consent and

moved for sentencing for that purpose.     We conclude that the

defendant may proceed with her appeal.    See id.

    3.     Discussion.   Where we must determine whether the

Massachusetts ban on stun guns violates the Second Amendment, we

are bound by decisions of the United States Supreme Court on the
                                                                   6

matter.   The Supreme Court recently interpreted the Second

Amendment in a historical context that focused on the meaning of

various words and phrases in the amendment as they probably were

understood and used by Congress at the time of the Second

Amendment's enactment.     In accord with that analysis we must

determine whether a stun gun is the type of weapon contemplated

by Congress in 1789 as being protected by the Second Amendment.

    In Heller, 554 U.S. at 635, the United States Supreme Court

held that "[a] 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."     The Court in Heller was confronted

with a total ban on handgun possession in the home, and a

further requirement that any lawful firearm kept in the home be

rendered inoperable.     Id. at 628.   The Court reasoned that

    "the inherent right of self-defense has been central to the
    Second Amendment right. 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
    omitted; emphasis added.)

Id. at 628-629, quoting Parker v. District of Columbia, 478 F.3d

370, 400 (D.C. Cir. 2007).     The Supreme Court extended this

interpretation of the Second Amendment to the States in
                                                                   7

McDonald, 561 U.S. at 791.    The defendant now urges that the

outright prohibition on the private possession of stun guns in

Massachusetts violates the right articulated in Heller.4

     "Since Heller, '[c]ourts have consistently recognized that

Heller established that the possession of operative firearms for

use in defense of the home constitutes the 'core' of the Second

Amendment.'"    Commonwealth v. McGowan, 464 Mass. 232, 235

(2013), quoting Hightower v. Boston, 693 F.3d 61, 72 (1st Cir.

2012).    Moreover, the Supreme Court said in Heller that the

Second Amendment individual right to keep and bear arms is "not

unlimited."    554 U.S. at 595.   The Court identified certain

examples of lawful prohibitions and limitations on the Second

Amendment right including, but not limited to, "prohibitions on

the possession of firearms by felons and the mentally ill."      Id.

at 626.   In addition to the lawfulness of prohibitions against

possession of arms by certain persons, the Court recognized the

existence of


     4
       At issue here is only the applicability of the Second
Amendment to the statute. The cognate Massachusetts
constitutional provision, art. 17 of the Massachusetts
Declaration of Rights, previously has been held to encompass a
collective, and not an individual, right to bear arms. See
Commonwealth v. Davis, 369 Mass. 886, 888 (1976). The Heller
Court, before reaching its conclusion, first conducted a survey
of Second Amendment jurisprudence. District of Columbia v.
Heller, 554 U.S. 570, 576-628 (2008). In so doing, the Court
concluded that the Second Amendment secured an individual right
to bear arms for defensive purposes. Id. at 602. We therefore
view the defendant's claim only through the lens of the Second
Amendment.
                                                                    8

    "another important limitation on the right to keep and
    carry arms. [United States v.] Miller said, as we have
    explained, that the sorts of weapons protected were those
    'in common use at the time.' . . . We think that
    limitation is fairly supported by the historical tradition
    of prohibiting carrying of 'dangerous and unusual
    weapons.'"

Heller, supra at 627, quoting United States v. Miller, 307 U.S.

174, 179 (1939).

    The conduct at issue in this 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, see Hightower 693

F.3d at 72 & n.8, quoting Heller, 554 U.S. at 627, and involves

a "dangerous and unusual weapon" that was not "in common use at

the time" of enactment.   "From Blackstone through the 19th-

century cases, commentators and courts routinely explained that

the [Second Amendment] right was not a right to keep and carry

any weapon whatsoever in any manner whatsoever and for whatever

purpose."   Heller, supra at 626.   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.

    Here, we are concerned not with ensuring that designated

classes of people do not gain access to firearms or weapons

generally, but rather with prohibiting a class of weapons

entirely.   The traditional prohibition against carrying
                                                                      9

dangerous and unusual weapons is not in dispute.    See Heller,

554 U.S. at 627, citing 4 Blackstone 148-149 (1769).

    The question of the dangerousness of a weapon is well fixed

in the common law through the distinction drawn between weapons

that are dangerous per se and those that are dangerous as used.

See Commonwealth v. Appleby, 380 Mass. 296, 303, cert. denied,

449 U.S. 1004 (1980) (setting out common-law definitions of

dangerous weapons).    See also Commonwealth v. Wynton W., 459

Mass. 745, 748-755 (2011) (analyzing term "dangerous weapon" in

context of G. L. c. 269, § 10 [j], barring possession of

dangerous weapons on school grounds).    At common law, a weapon

is dangerous per se if it is an "instrumentality designed and

constructed to produce death or great bodily harm" and "for the

purpose of bodily assault or defense."    Appleby, supra at 303.

Weapons of this type include "firearms, daggers, stilettos and

brass knuckles" but not "pocket knives, razors, hammers,

wrenches and cutting tools."   Id.   The weapons not so classified

all share the same characteristic:   they were designed primarily

as tools and only secondarily utilized as weapons.     The Court in

Heller confirms this method of analysis in discussing Miller,

307 U.S. at 178.   See Heller, 554 U.S. at 622 (Miller decision

concerned with design or "type of weapon at issue" and not use

[emphasis omitted]).
                                                                     10

    The statute at issue here explicitly prohibits "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."    G. L.

c. 140, § 131J.   From this statutory definition, we easily

conclude that any weapon regulated by § 131J would be classified

as dangerous per se at common law.     The parties have stipulated

that the stun gun at issue here falls within the purview of

§ 131J and is a weapon.   Accordingly, we consider the stun gun a

per se dangerous weapon at common law.    The record demonstrates

no evidence or argument that its purpose is for anything other

than "bodily assault or defense."    Appleby, 380 Mass. at 303.

    We turn next to the question whether a weapon is unusual.

Historically, when considering challenges to the ban of

dangerous and unusual weapons under the Second Amendment or

equivalent State statutes, courts have asked whether the weapon

in question is unusual by ascertaining if it is a weapon of

warfare to be used by the militia.     See Hill v. State, 53 Ga.

472, 474-477 (1874); Aymette v. State, 21 Tenn. 154, 158-160

(1840); English v. State, 35 Tex. 473, 476-477 (1871); State v.

Workman, 335 W. Va. 367, 372-374 (1891).     The Supreme Court

utilized this approach in Miller, 307 U.S. at 178, and approved

its use in Heller.   The Court said,

    "'In the colonial and revolutionary war era, [small-arms]
    weapons used by militia men and weapons used in defense of
                                                                   11

    person and home were one and the same.' State v. Kessler,
    289 Ore. 359, 368 . . . (1980) (citing G. Neumann, Swords
    and Blades of the American Revolution 6-15, 252-254
    [1973]). Indeed, that is precisely the way in which the
    Second Amendment's operative clause furthers the purpose
    announced in its preface. We therefore 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."5

Heller, 554 U.S. at 624-625.   Thus, the questions whether a

weapon is "unusual" and whether the weapon was "in common use at

the time" of enactment are interrelated.   Id. at 627-628.

    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.   See Heller, 554 U.S. at 624-625, 627, quoting

Miller, 307 U.S. at 179.   For reasons that follow, there 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.   See Heller, supra at 622.

    The record is silent as to the development of the stun gun.

The record indicates only that stun guns have been available

commercially for private purchase since the early 1990s.     We


    5
       In State v. Kessler, 289 Ore. 359, 368 (1980), the Oregon
Supreme Court described the type of weapons typically used by
militiamen in defense of home and for purposes of the militia as
being a musket or rifle, a hatchet, sword and knife or pike (a
long shaft with a spear head).
                                                                      12

note that that the first patent for stun gun was filed in 1972.

See Weapon for Immobilization and Capture, U.S. Patent No.

3,803,463 (filed July 10, 1972).   The recent invention of this

weapon clearly postdates the period relevant to our analysis.

We therefore conclude that stun guns were not in common use at

the time of the Second Amendment's enactment.   A stun gun also

is an unusual weapon.   In her motion to dismiss the complaint

against her, the defendant acknowledged that the "number of

Tasers and stun guns is dwarfed by the number of firearms."

Moreover, although modern handguns were not in common use at the

time of enactment of the Second Amendment, their basic function

has not changed:   many are readily adaptable to military use in

the same way that their predecessors were used prior to the

enactment.   A stun gun, by contrast, is a thoroughly modern

invention.   Even were we to view stun guns through a

contemporary lens for purposes of our analysis, there is nothing

in the record to suggest that they are readily adaptable to use

in the military.   Indeed, the record indicates "they are

ineffective for . . . hunting or target shooting."      Because the

stun gun that the defendant possessed is both dangerous per se

at common law and unusual, but was not in common use at the time

of the enactment of the Second Amendment, we conclude that stun

guns fall outside the protection of the Second Amendment.      See

Heller, 554 U.S. at 622, 627.
                                                                     13

    The question remains whether the total ban on stun guns has

a rational basis.    Those who challenge the constitutionality of

a statute that burdens neither a suspect group nor a fundamental

constitutional right bear a heavy burden in overcoming the

presumption of constitutionality in favor of the statute's

validity.    See English v. New England Med. Ctr., Inc., 405 Mass.

423, 427, cert. denied, 493 U.S. 1056 (1989).     Such is the case

before us.    For due process claims, the test under "the Federal

Constitution is 'whether the statute bears a reasonable relation

to a permissible legislative objective' . . . and, under the

. . . State Constitution [is] whether the statute 'bears real

and substantial relation to public health, safety, morals, or

some other phase of the general welfare'" (citations omitted).

Id. at 430.   For equal protection claims, the test is the same

under both Constitutions, namely, whether the statute is

"rationally related to the furtherance of a legitimate State

interest" (citations omitted)".    Id. at 428.   Under the State

Constitution the test also "includes a requirement that an

impartial lawmaker could logically believe that the

classification would serve a legitimate public purpose that

transcends the harm to the members of the disadvantaged class."

Id. at 429, quoting Cleburne v. Cleburne Living Ctr., Inc., 473

U.S. 432, 452 (1985) (Stevens, J., concurring).    The defendant

does not challenge the statute on the basis of any group
                                                                     14

classification.   We therefore focus on the challenge under

principles of due process.

    The defendant does not articulate any basis for challenging

the statute under the rational basis test.     Nevertheless, we

note that stun guns deliver a charge of up to 50,000 volts.

They are designed to incapacitate a target by causing disabling

pain, uncontrolled muscular contractions, and general disruption

of the central nervous system.   See Amnesty International, Less

than Lethal?   Use of Stun Weapons in U.S. Law Enforcement, 1-2,

6-7 & nn.17, 18 (2008), available at

https://www.amnesty.org/download/Documents/52000/amr510102008en.

pdf [https://perma.cc/JK53-XMR3] (last visited February 26,

2015).   It is difficult to detect clear signs of use and misuse

of stun guns, unlike handguns.   Stun guns can deliver repeated

or prolonged shocks without leaving marks.     Id. at 1-2.   The

Legislature rationally could ban their use in the interest of

public health, safety, or welfare.     Removing from public access

devices that can incapacitate, injure, or kill a person by

disrupting the central nervous system with minimal detection is

a classic legislative basis supporting rationality.     It is

immaterial that the Legislature has not banned weapons that are

more lethal.   Mathematical precision by the Legislature is not

constitutionally required.   See Commonwealth v. McQuoid, 369

Mass. 925, 927-928 (1976).   The statute easily passes the
                                                                  15

rational basis test under both the Federal and State

Constitutions.

    Self-defense when homeless.     Although we already have

concluded that the defendant's possession of a stun gun was in

violation of a statute regulating a weapon not protected by the

Second Amendment, we touch briefly on her claim that her

homelessness at the time of her arrest should not deprive her of

her right to defend herself.   As noted above, the Supreme

Court's holding in Heller stressed the particular importance of

the right to defend hearth and home as the core of the Second

Amendment.   See Hightower, 693 F.3d at 72 & n.8 (noting emphasis

in Heller on "hearth and home" and subsequent interpretations).

A homeless person may indeed have a home for constitutional

purposes, and this question must be determined on a case-by-case

basis.   For example, constitutional protections against

unreasonable search and seizure can be extended to a variety of

living situations.   See Commonwealth v. Porter P., 456 Mass.

254, 260-261 (2010) (holding reasonable expectation of privacy

exists in transitional living space); Commonwealth v. Paszko,

391 Mass. 164, 184-185 (1984) (hotel room during rental period).

However, where a stun gun itself is not a type of weapon the

possession of which is protected under the Second Amendment, we

need not decide whether a hotel room may be treated as a home

under the Second Amendment.    Moreover, the stun gun was found
                                                                   16

not in the defendant's hotel room but on her person in a motor

vehicle, outside the "core" of the Second Amendment.

    Finally, neither the legislative ban on stun guns nor our

decision affects the defendant's right to bear arms under the

Second Amendment.    Barring any cause for disqualification the

defendant could have applied for a license to carry a firearm.

See G. L. c. 140, §§ 129B, 131 (c).    In addition, again barring

any disqualification, possession of mace or pepper spray for

self-defense no longer requires a license.    See G. L. c. 140,

§ 122D, inserted by St. 2014, c. 284, § 22.    We hold only that

the defendant's weapon of choice, the stun gun, is not protected

by the Second Amendment.    We acknowledge that stun guns may have

value for purposes of self-defense, but because they are not

protected by the Second Amendment and because a rational basis

exists for their prohibition, the lawfulness of their possession

and use is a matter for the Legislature.

    Conclusion.     For the reasons stated above, we hold that

G. L. c. 140, § 131J, does not violate the Second Amendment

right articulated in Heller.    We affirm the defendant's

conviction of possession of an electrical weapon in violation of

G. L. c. 140, § 131J.

                                     So ordered.
