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The Law Blogger is a law-related blog that informs and discusses current matters of legal interest to readers of The Oakland Press and to consumers of legal services in the community. We hope readers will  find it entertaining but also informative. The Law Blogger does not, however, impart legal advice, as only attorneys are licensed to provide legal counsel.
For more information email: info@clarkstonlegal.com

Monday, August 31, 2015

Second Amendment Includes Tasers and Stun Guns

Tasers and stun guns are not just for law enforcement anymore. At least so says the Michigan Court of Appeals in a Taser case that arose out of Bay County Circuit Court.

Several years ago, our law firm represented a woman on appeal that was convicted of possession of a Taser. She would shoplift from retail stores and then, when she was ultimately chased-down and confronted by the loss prevention staff, or the unsuspecting employees of the store, she would fire-off her Taser.

Her convictions for retail fraud and assault were affirmed. But we're not so sure that her conviction for possession of a Taser would stand today.

That's because three years ago, the Michigan Court of Appeals decided People v Yanna, which invalidated our state statute making possession of a Taser or stun gun illegal. The Court of Appeals panel held that the statute was an unconstitutional violation of our right to carry and bear arms.

Fast forward three years, and we have the age-old concerns of gun control bumping-up against the constitutional right to bear arms. The conflict has played out in the national media with shooting massacres that erupt seemingly every month, and with police conduct under more scrutiny than ever before.

The Yanna panel had no problem defining a Taser or stun gun as an arm under the 18th Century definition of that term. The scope of the definition includes, "any weapon of offense or armor of defense." There is certainly no reason why a weapon of non-lethal force should not be included within that definition.

For its part, the Bay County Prosecutor asserted that Tasers were ill-suited for lawful defensive purposes; that they can be used to torture someone or to incapacitate an unsuspecting individual [like the loss prevention staff in our case]. When it comes to the Second Amendment and its Michigan constitutional counterpart, such an argument is unavailing and unpersuasive.

As the Court of Appeals noted, any weapon can be used to torture and maim; this is the nature, essence and potential of the thing. While we here at the Law Blogger do not have a problem with the inalienable right to bear arms bestowed upon each of us through the Second Amendment, we do look askance at how our fellow citizens are abusing this right by procuring guns for the sole purpose to kill innocent people.

The Second Amendment contains a very large assumption that weapons will be wielded purposefully and with just and proper cause. In today's world, as we see every day, that's a huge leap of faith.

We're beginning to think that it may be an intractable problem destined to be a prominent feature of America's legacy.

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info@clarkstonlegal.com




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