In Docket No. 304293, the prosecution appealed the Bay Circuit Court’s decision holding unconstitutional MCL 750.224a, which prohibits possession of Tasers and stun guns by private individuals.
I. FACTS
The facts of Docket No. 304293 are not disputed. On Saturday June 5, 2010, the Bay City Police “received an anonymous telephone call stating that [defendant, Dean Yanna] was working behind the counter at Old Town Party Store .. . with a Taser on his belt.” Officers responded to the party store and observed Yanna working behind the counter. Upon request, Yanna removed a stun gun
Yanna was charged with possession of a stun gun in violation of MCL 750.224a and with being a third-offense habitual offender. Yanna filed a motion to dismiss, arguing that MCL 750.224a violated his right to
The facts of Docket No. 306144 are equally undisputed. According to the police report, on February 4, 2011, John Collie called the Muskegon Police Department and said that he needed his insulin medication but his wife would not let him in the house. A police officer arrived to assist Collie in getting his insulin and some other personal belongings. When the officer arrived, Collie informed the officer that his wife had told him that she wanted a divorce and taken his house key. After the officer spoke to Collie’s wife, she opened the door and Collie began gathering his things. Collie then said he needed one more thing, which he called a “toy.” He began looking for the item, and his wife held up a stun gun and asked if that was what he was looking for. He said it that was what he wanted, but the officer took custody of it. In his report, the officer stated that “[t]he Stun Gun when activated, displayed an approximately 1 inch long white/blue electrical current with a loud, intimidating crackling sound.”
Collie was charged with possession of a stun gun and with being a fourth-offense habitual offender. Collie filed a motion to dismiss in the district court, arguing that MCL 750.224a was unconstitutional because possession of a stun gun within one’s home was protected under the Second Amendment. The district court agreed and dismissed the charges, but the circuit court
II. ANALYSIS
This Court reviews de novo issues of constitutional construction. Dep’t ofTransp v Tomkins,
There are several issues to be considered. The first question is whether the objects banned by MCL 750.224a constitute “arms,” such that they come within the ambit of the Second Amendment. This question must be answered in the affirmative.
The Court in Heller stated:
The 18th-century meaning is no different from the meaning today. The 1773 edition of Samuel Johnson’s*143 dictionary defined “arms” as “ [wjeapons of offence, or armour of defence.” 1 Dictionary of the English Language 106 (4th ed.) (reprinted 1978) (hereinafter Johnson). Timothy Cunningham’s important 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,554 US at 581 (citation omitted)].
Stun guns may be used both for defense or “to cast at or strike another.” Therefore, MCL 750.224a does affect “arms.” “[T]he 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.” Id. at 582. The prosecution argues that Heller is strictly a gun-control case, but the broad nature of the language used in Heller’s definition of “arms” clearly covers more than just firearms.
Heller did recognize certain limitations on the right to keep and bear arms. In some respects, these limitations are consistent with each other. However, they are not identical, and the United States Supreme Court neither fully harmonized them nor elevated one over another. First, the Court stated that “the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes.” Id. at 625. The Court further stated that “the sorts of weapons protected were those ‘in common use at the time.’ ” Id. at 627 (citation omitted). As noted, however, this included weapons that did not exist when the Second Amendment was enacted. Id. at 582. Third, the Court referred to “the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.’ ” Id. at 627 (citation omitted).
The prosecution argues that stun guns are not suited for lawful defensive purposes and that they can easily be used for torturing someone tied to a chair or incapacitating an unsuspecting victim. This argument is
This Court previously upheld the prohibition of stun gun possession and ownership found in MCL 750.224a in People v Smelter,
The prosecution also argues that stun guns and Tasers are so dangerous' that they are not protected by the Second Amendment. However, it is difficult to see how this is so since Heller concluded that handguns are not sufficiently dangerous to be banned. Tasers and stun guns, while plainly dangerous, are substantially less dangerous than handguns. Therefore, tasers and stun guns do not constitute dangerous weapons for purposes of Second Amendment inquiries.
The prosecution also argues that Tasers and stun guns are “unusual” or rare weapons. However, they are legal in 43 states, and in Michigan are routinely used by law enforcement officers. They have been in use for several decades. Though far less prevalent than handguns, we do not think that stun guns or Tasers may be fairly labeled as unusual weapons.
Because Tasers and stun guns do not fit any of the exceptions to the Second Amendment enumerated in Heller, we find that they are protected arms. Heller held unconstitutional a law that completely banned the possession of protected arms in the home. Heller, 554
The next question is whether the protected status of these arms makes unconstitutional a complete ban on carrying them in public. Heller specifically addressed only a full ban of protected weapons inside the home, not in public. Further, the analysis in Heller focused in part on the unmatched popularity of handguns for self-defense and did not make clear to what extent greater restrictions could be applied to less popular weapons.
On the other hand, Heller stated that concealed weapons may be banned, but made no such statement regarding openly carried arms. Id. at 626-627. Indeed, Heller cited with approval two state cases that struck down laws prohibiting the public carrying of handguns. Id. at 629. The Second Amendment explicitly protects the right to “carry” as well as the right to “keep” arms. Likewise, the Michigan Constitution specifically allows citizens to “bear” arms for self-defense. We therefore conclude that a total prohibition of the open carrying of protected arms such as a Taser or stun gun is unconstitutional.
Statutes are presumed to be constitutional unless their unconstitutionality is clearly apparent and must be construed as constitutional if possible. City of Owosso v Pouillon,
We therefore affirm the Bay Circuit Court’s decision dismissing the charges against Yanna, and we reverse
Notes
MCL 750.224a(l), as amended by
Because this case involves the constitutionality of a state statute, following oral argument we issued an order inviting the Attorney General to file a brief on that issue. People v Yanna, unpublished order of the Court of Appeals, entered March 29, 2012 (Docket Nos. 304293 and 306144). The Attorney General declined to do so.
The term “Taser,” although a trademark for a particular brand of device, is commonly applied to a device that delivers an electric charge through barbs that can be propelled several feet away and penetrate clothing or skin. By contrast, a stun gun must be held in direct contact with the target.
People v Collie, unpublished order of the Court of Appeals, entered October 25, 2011 (Docket No. 306144).
Volokh’s article cited a newspaper article from 1985 reporting that more than 300,000 stun guns had already been sold to police and civilians.
Hardy, Taser’s Latest Police Weapon: The Tiny Camera and the Cloud, NY Times, February 21, 2012 (indicating that Taser International’s cofounder and chief executive, claimed that tasers “are used by 17,000 of the 18,000 law enforcement agencies in the United States”), available at http://www.nytimes.com/2012/02/21/technology/tasers-latest-pohce-weaponthe-tiny-camera-and-the-cloud.html?pagewanted = l&ref = stunguns > (accessed June 5, 2012).