Second Circuit Keeps NYC Stun Gun Ban in Place

New York City’s ban on stun guns and tasers will remain in effect for now, thanks to a ruling by the Second Circuit Court of Appeals released on Monday, less than a month after oral arguments were held. 

In Calce v. New York City, the plaintiffs, including the Firearms Policy Coalition and Second Amendment Foundation, had argued that the ban on electronic weapons violates the Second Amendment. The Second Circuit’s decision largely mirrors what the district court had to say about the legal challenge; namely, that the plaintiffs failed to show the arms in question are in “common use”, and are therefore not protected by the Second Amendment. From the summary order released today:

The District Court held that summary judgment was appropriate because Plaintiffs failed to establish that a genuine dispute of material fact existed as to the constitutionality of N.Y. Penal Law § 265.01 or N.Y.C. Admin. Code § 10-135 under the Second Amendment. 

Specifically, the court concluded that Plaintiffs “failed to provide any evidence that stun guns and tasers are in common use” and therefore, on the summary judgment record before it, “no reasonable jury could return a verdict that stun guns and tasers are presumptively protected by the Second Amendment.” We agree.

… To determine under step one whether the Second Amendment’s plain text covers certain conduct, this Court looks to: whether the weapons at issue are “weapons in common use today for self-defense” and whether the conduct at issue implicates the right to armed self-defense. Plaintiffs bear the burden of proof on both of these inquiries.

How on earth are the plaintiffs supposed to prove that stun guns are in common use for self-defense, given that there is no real way of knowing how many stun guns and/or Tasers are purchased in the U.S. every year. That statistic is virtually impossible to determine with any specificity given that these items are largely unregulated in most of the country. 

The plaintiffs tried their best by citing figures accepted by courts in other cases; including “the parties agree there are at least 300,000 tasers and 4,478,330 stun guns owned by private citizens across the United States” from a lawsuit challenging Rhode Island’s restrictions on stun guns. That wasn’t good enough for the district court or for the Second Circuit, which both essentially demanded that the plaintiffs come up with some way of accounting for the number of stun guns and Tasers possessed across the United States in order to proceed with their litigation. 

What about what the Supreme Court said in Caetano v. Massachusetts? In 2016, the Court struck down a decision from the state’s highest court upholding Massachusetts’ ban on stun guns, but in doing so found fault with the logic deployed by the Supreme Judicial Court. 

The court offered three explanations to support its holding that the Second Amendment does not extend to stun guns. First, the court explained that stun guns are not protected because they “were not in common use at the time of the Second Amendment’s enactment.” Id., at 781, 26 N. E. 3d, at 693. This is inconsistent with Heller’s clear statement that the Second Amendment “extends . . . to . . . arms . . . that were not in existence at the time of the founding.” 554 U. S., at 582.The court next asked whether stun guns are “dangerous per se at common law and unusual,” 470 Mass., at 781, 26 N. E. 3d, at 694, in an attempt to apply one “important limitation on the right to keep and carry arms,” Heller, 554 U. S., at 627; see ibid. (referring to “the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons’ ”). In so doing, the court concluded that stun guns are “unusual” because they are “a thoroughly modern invention.” 470 Mass., at 781, 26 N. E. 3d, at 693–694. By equating “unusual” with “in common use at the time of the Second Amendment’s enactment,” the court’s second explanation is the same as the first; it is inconsistent with Heller for the same reason.Finally, the court used “a contemporary lens” and found “nothing in the record to suggest that [stun guns] are readily adaptable to use in the military.” 470 Mass., at 781, 26 N. E. 3d, at 694. But Heller rejected the proposition “that only those weapons useful in warfare are protected.” 554 U. S., at 624–625.For these three reasons, the explanation the Massachusetts court offered for upholding the law contradicts this Court’s precedent. Consequently, the petition for a writ of certiorari and the motion for leave to proceed in forma pauperis are granted. The judgment of the Supreme Judicial Court of Massachusetts is vacated, and the case is remanded for further proceedings not inconsistent with this opinion.

Unlike the Massachusetts court, the Second Circuit isn’t saying that stun guns are “unusual” because they’re modern inventions. Instead, the panel has started with the premise that stun guns aren’t common now, despite the fact that SCOTUS said ““the 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.”

In other words, all bearable arms are assumed to be protected by the Second Amendment. That means it should be up to the defendants to prove that they’re not, but the district court and Second Circuit both flipped that language on its head and instead began with the assumption that stun guns are not protected even though they’re bearable arms, and then left it up to the plaintiffs to prove otherwise.   

The Second Circuit makes another basic error in stating that the plaintiffs bear the burden of proving that arms are in common use for self-defense before they can proceed with litigation. What the Supreme Court has said is that arms that are in common use for lawful purposes including, but not limited to, self-defense are protected by the Second Amendment. In the case of stun guns, self-defense is obviously the most common reason why someone would purchase one, but “common use for self-defense” is not the test that SCOTUS has laid out. If so, the Second Amendment’s protections wouldn’t apply to guns that are primarily used for hunting… including the muzzleloading rifles that are most akin to the muskets in common use at the time of the Founding. 

This is yet another example of lower courts engaging in fundamental and intentional misreadings of the Supreme Court’s Second Amendment jurisprudence. Today’s decision will undoubtably be appealed, but unfortunately, SCOTUS has yet to aggressively step in and correct the record when it comes to most of the other abuses. I wish I were confident that the Court will be willing to do so here, but given past history I’m not all that optimistic. 

Editor’s Note: The radical left will stop at nothing to enact their radical gun control agenda and strip us of our Second Amendment rights.

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