Right to Possess Stun Guns in N.Y., Right to Carry Them in Illinois

Two Second Amendment wins late last week.


[1.] New York was one of the few states that banned all private possession of stun guns; Friday's decision by U.S. District Court Judge David N. Hurd in Avitabile v. Beach held this was unconstitutional. Illinois banned carrying stun guns on one's person in public places.

[2.] The Illinois Supreme Court had earlier held that the Second Amendment secures a right to carry guns (a matter on which courts are split), and on Thursday it held in People v. Webb that the Second Amendment likewise secures a right to carry stun guns. The logic of this opinion would also invalidate, I think, the bans on irritant sprays (such as pepper spray and mace) in some Illinois towns (see pp. 246-47 of this article).

[3.] By my count, this means that, since D.C. v. Heller, stun gun bans have been invalidated or repealed in Massachusetts, Michigan, New Jersey, New York, Wisconsin, D.C., the Virgin Islands, Overland Park (Kansas), and Annapolis, Baltimore, New Orleans, Philadelphia, Tacoma, and in four Maryland counties (Anne Arundel County, Baltimore County, Harford County, and Howard County).

Stun gun bans remain in effect, to my knowledge, in Hawaii, Rhode Island, and Wilmington (Delaware), plus some smaller towns. The Hawaii law is being challenged in court, and I'm told that it is headed for legislative repeal. Stun guns are also heavily regulated (e.g., with total bans on carrying in most places outside the home) in Connecticut and in some cities. For more, see this article, though the listing of restrictions in Appendix II is now out-of-date.

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  1. “The Illinois Supreme Court had earlier held that the Second Amendment secures a right to carry guns (a matter on which courts are split), “

    Which is astounding, because what does “BEAR ARMS” even mean if not “carry guns”?

    1. That’s what Heller held, with explicit discussion of “bear” meaning carry ready for use, ie, not disassembled and locked in a carrying case.

      Or so I remember.

    2. They take the indefensible position that “bear” means “bear in the home.” It can’t be defended with any level of intellectual honesty.

      1. Actually, they take the absurd position that bear means (only) “bear in military service.” Rather than treating “keep” and “bear” as ordinary words with ordinary meanings, they treat the phrase “keep and bear arms” as if it’s a term of art.

        1. Bear in military service is the position that the non-judges take, and the judges may aspire to impose, but Heller quashed that until they can reverse it.

          So “bear in the home” is the fallback position for the judges.

    3. Historically, a number of Western jurisdictions outright banned the carry of weapons inside the border of a town.

      Of course, back then, the town was a tiny island in a huge sea of wilderness. And perhaps in a modern light those restrictions were a violation of the 2A. But it does no good to the debate to just ignore the historical practice.

      1. In fairness to these Western cowtown gun control laws, nobody was asking anybody to give up their guns for more than a short stretch. Before the young, unattached cowboys went to a town’s “red light district” where they would gamble, drink, and whore, they were asked to check their guns for that time. These laws were not “gun control” in our modern sense at all.

        1. They picked their guns up when they were leaving town.

          Which calls to question whether the confrontation between the Earps and the Cowboys near the OK Corral was justified. There was a trial held after the shootout. There were claims the Cowboys had retrieved their guns and were saddling up to leave town.

          1. My understanding, is that there was more to the story and that Wyatt Earp wasn’t the good guy, or at least not as white hat, as he is portrayed in Hollywood. I have never taken the time to dig into it though.

        2. Oh, absolutely. I tried to be super clear than the ‘town’ was an tiny island in a huge and dangerous wilderness.

          I was just wonder if Sigivald, who seems very confident about what the words of the 2A mean, would have invalidated those cattle town laws or would have let them stand. Or if he believes they were fine in practice then but the 2A has evolved to make their current application unlawful.

          1. I would agree with Siglvald about the meaning of the text of 2A.

            However, without a contemporaneous challenge, It’s difficult to say who is right. And that runs into a bigger problem Not all, but a lot of those laws pre-date the Civil War and the 14th amendment. Originally, the bill of rights in the US constitution were not considered applicable to sate/local government. Personally, I see no justification for this stance in the text of the Constitution, but it is what it is.

            On incorporation via 14A, only two positions make any sense to me. All, or nothing. The notion of piecemeal incorporation doesn’t compute for me.

            So in terms of the constitutionality of those cow town laws, it’s not that the meaning of 2A has changed, but that 14A and the incorporation doctrine has changed the playing field.

      2. First, it’s important to note that the local rules you are citing predated the incorporation doctrine by quite a bit. In other words, state and local officials thought they were allowed to ignore the Bill of Rights when setting their own rules.

        Second, those rules were a lot more rare, more short-lived and more local than Hollywood would have you think. (Open carry and actual gunfights were also a lot more rare than Hollywood.)

  2. My California Open Carry lawsuit has an incidental challenge to California’s Taser ban. A 1970’s California appellate court decision held that Tasers are firearms because they use(d) gunpowder as a propellant, they had barrels, and they propelled projectiles.

    Under California law, if the device does not use powder as a propellant then it is not a firearm.

    I asked the State’s Attorney to stipulate in my lawsuit that modern Tasers which do not use powder (and which do not have barrels) are not firearms. I also argued that Tasers are not subject to the DROS registration requirement and are not subject to a waiting period. There are California statutes specific to stun guns which do not apply to firearms which I think adds to a pretty convincing argument that stun guns are neither firearms nor handguns.

    He refused.

    Don’t think for one minute that just because you can buy a Taser over the counter at your local sporting goods store without having to undergo a background check or waiting period that the state won’t prosecute you for unlawfully carrying a “handgun.”

  3. To qualify for a CCW in Illinois you need to fire 30 rounds total at three different distance and hit the target 21 times. And you really couldn’t do that with a TASER. So, assuming Illinois rewrites it CCW law to include TASERs, if you only want the CCW to carry a TASER, you’ll still have to shoot a real gun. And of course, get a FOID.

    Because Illinois isn’t going to just let its good citizens carry TASERs without the maximum possible amount of hassle.

    1. Barring a specific court order they would create a completely separate permit to carry a taser, with its own training requirements and fees. So if you wanted to carry a gun AND a taser you would have to attend 2 classes, pay 2 fees, and carry 2 licenses at all times

      1. Or they could amend the existing law to remove this from (430 ILCS 66/5) “Handgun” does not include:

        “(1) a stun gun or taser;”

        Take out five words and then you could carry a stun gun or taser with a CCW. That’s all they’d have to do to comply with the courts holding.

        Instead of writing duplicate legislation and requiring the Illinois State Police to maintain two separate CCW programs.

  4. The Supreme Court in DC v Heller 2008 held that the Second Amendment protected an individual right to keep and bear arms for all traditional and lawful purposes, including possession of a handgun in the home for self-defense (the subject of Heller’s complaint against the DC ban on handguns and ban on having an operational firearm in one’s home) but not limited to that..

    All traditional and lawful purposes, in court decisions, attorney general opinions, and statements of legislative intent on my home state’s RKBA include self defense, civilian markmanship training for military preparedness, hunting, protecting livestock from predators, recreational shooting, collection as curio or ornament, etc. And the laws governing illegally going armed for offense define “arms” as more than just firearms. Arms are anything used with intent as weapons for purposes of defense or offense.That would include tasers whether they used gunpowder. CO2 or springs.

    Arms are not just firearms. And possession and use for self-defense is constitutionally protected.

    To be honest, most of the 19th and early 20th century gun laws while appearing to be blanket restrictions, were actually enforced using a lot of discretion, to avoid a person with legal standing successfully challenging their constitutionality in court.

  5. More good news out of Illinois today, the Deerfield assault weapons ban is shot down.

    Judge rules Chicago suburb can’t ban assault weapons

    DEERFIELD, Ill. — A Lake County judge has ruled that the Chicago suburb of Deerfield can’t enact a ban on assault weapons.

    The Chicago Tribune reports that Judge Luis Berrones on Friday issued a permanent injunction blocking the village from enforcing the April 2018 ordinance . The Deerfield board had imposed the ban on weapons such as the AR-15, which has been used in mass shootings. The ordinance allowed fines of up to $1,000 a day.

    Gun-rights groups filed lawsuits against the ban, arguing Deerfield officials violated a state law that prohibits municipalities from enacting such bans after 2013. On Friday plaintiff attorneys said they were grateful the court “recognized the ordinances were unenforceable.”

    Village officials said they were reviewing the ruling and exploring options including an Illinois Appellate Court appeal.


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