Right to Bear Tasers?
11:48 AM, Jul 10, 2008 • By ERIN SHELEY
By now everyone is well aware of the Supreme Court's determination in the Heller case, announced in its last session of the term, that Washington, D.C.'s effective ban on handguns violates the Second Amendment right to keep and bear arms. The two big questions now occupying the legal community are whether this right will also be recognized against state governments (which it likely will, eventually), and what magnitude of gun regulations, short of a categorical ban, will be deemed constitutionally permissible (which the opinion leaves ambiguous). But fewer have asked what effect Heller will have on other types of weapons beyond handguns. For those of us living in D.C. but not quite ready to start packing heat, the question of whether the city's categorical ban on Taser weapons (which are likewise illegal in Hawaii, Massachusetts, Michigan, New York, New Jersey, Wisconsin, and certain cities and counties) passes constitutional muster becomes extremely interesting. Justice Scalia's opinion in Heller cites a Founding-era dictionary definition of "arms" as "anything that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another," which would seem to encompass other weapons beyond firearms. While the Heller Court explicitly rejects the argument that "only those arms in existence in the 18th century are protected by the Second Amendment," the opinion as it relates to handguns (as opposed to other sorts of firearms) seems to turn on the fact that "the American people have considered the handgun to be the quintessential self-defense weapon."
Does this mean that the Taser, relatively new technology compared to handguns, is insufficiently "quintessential" to be constitutionally protected--despite the much lower governmental interest in limiting its use as compared to lethal weapons? And, even if it is not constitutionally required to allow Tasers, wouldn't it be in Washington's best interests as a matter of public policy (given how hard the city fought to limit handgun use), to voluntarily legalize them and give its citizens a less deadly option for self-defense? I dare to remain hopeful.