8-0 looks mighty good!
Excellent!
I hesitate to get too excited about this for the sake of future RTKBA cases. This is not a true 8-0, it’s per curiam. So no justice’s name is attached to it, except for Alito & Thomas who filed the concurrence. All we really know is that a majority of the court (5 justices) signed onto the first two pages (only a majority is needed for a per curiam opinion). The vote may have been, 8-0, 7-1, or 6-2, but we don’t know that, and ambiguity as to the Court’s vote is likely part of reason this is per curiam.
While it is wonderful that there was at least one liberal vote (Breyer, Ginsberg, Sotomayor, or Kagan) for this case, we should note how narrow the opinion is. It does not expand the law, nor does it vacate Ms. Caetano’s conviction. The opinion does not find that stun guns are legal. It just says that the Massachusetts’s high court was wrong, and needs to try again. This was the bare minimum that could be done to reverse a lower court that ignored the specific language of a recent Supreme Court opinion. The Massachusetts Supreme Court was fairly egregious in ignoring
Heller, so a 4-4 split allowing the Massachusetts decision to stand, would have likely spelled the end of
Heller.
It is possible, indeed it is likely, that given Justice Scalia’s demise, the Court just wanted to get rid of this case. This case is similar to some other recent cases (i.e.
Sturgeon v. Frost) where the Court similarly did not take a position other than saying the court below got it wrong and needs to try again. The difference between
Sturgeon and
Caetano, is that
Caetano is per curiam. As a result of
Caetano, no justice (other than Alito and Thomas) will contradict themselves by later saying that the RTKBA is a collective right and voting to undo
Heller and
McDonald. Merrick Garland or whomever Hillary (or Trump) appoints, may supply that 5th vote.
Also, just because the Supreme Court sent this case back, it does not mean that they will take it up again if the Massachusetts high court again rules against Ms. Caetano. The moldy washing machine cases are a recent example, the Supreme Court summarily reversed the 6th and 7th Circuits and sent the cases back for re-consideration. The 6th and 7th Circuits did the same exact thing again, and the Supreme Court did nothing. While this was a slightly different procedural context, it will suggest to Massachusetts that they can do the same thing again (albeit with a slightly tweaked justification) and the Supreme Court may let it slide, especially if there is a new 5th vote on the Court.