N.Y. Federal Judge Upholds N.Y. Stun Gun/Taser Ban

Most courts that have considered the constitutionality of such bans have struck them down (and others have been recently repealed). But Judge Edgardo Ramos's opinion yesterday in Calce v. City of N.Y. (S.D.N.Y.) upheld the New York state ban and New York City ban, concluding that the plaintiffs had the burden of introducing specific evidence of how common such weapons are:

"[T]he Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes." Therefore, Plaintiffs must show that stun guns and tasers are in "common use" today, and that they are "typically possessed by law-abiding citizens for lawful purposes."

Here, Plaintiffs have not provided any studies, reports, or data for the Court to conduct a "statistical inquiry" into whether stun guns and tasers are in common use. Plaintiffs do not "even identify the most basic of statistics including, for example, the number of stun guns and/or tasers purchased in the United States for any given year." Thus, Plaintiffs provide "no evidence whatsoever to support their claim that stun guns and tasers are in common use in the United States for self-defense, let alone in New York City."

Plaintiffs' reliance on "findings and conclusions" from non-binding cases is of no moment. see People v. Yanna (Mich. Ct. App. 2012) ("Hundreds of thousands of Tasers and stun guns have been sold to private citizens, with many more in use by law enforcement officers."); Avitabile v. Beach (N.D.N.Y. 2019) ("[B]ased on the limited data available, the parties agree there are at least 300,000 tasers and 4,478,330 stun guns owned by private citizens across the United States."); O'Neil v. Neronha (D.R.I. 2022) ("Defendants agree that millions of stun guns have been sold nationwide[.]"). Putting aside that the phrases "hundreds of thousands" and "millions" are indefinite, and that the figures in Avitabile were based on "limited data," Plaintiffs do not provide a legal basis for the Court to adopt those findings. Moreover, Plaintiffs do not even attempt to argue how these scant sources could inform whether stun guns and tasers are commonly used for lawful purposes….

Plaintiffs also overstate the Supreme Court's holding in Caetano v. Massachusetts (2016), arguing that the case "erases any conceivable doubt concerning the weapons at issue." In Caetano, the Court vacated a Massachusetts court's judgment upholding a ban on the possession of stun guns, but it did so specifically because "the explanation the Massachusetts court offered for upholding the law contradict[ed] th[e] Court's precedent." The Court explained that the Massachusetts court (1) improperly relied on the fact that stun guns "were not in common use at the time of the Second Amendment's enactment," and (2) it improperly concluded stun guns were "unusual" because they are "a thoroughly modern invention"—both in contradiction with the principles established in Heller. {The Court additionally rejected the Massachusetts Court's third explanation for its holding that the Second Amendment did not protect stun guns: that the record did not "suggest that [stun guns] are readily adaptable to use in the military." The Court found this reasoning also contradicted Heller, as "Heller rejected the proposition 'that only those weapons useful in warfare are protected.'"} In other words, Caetano reiterated that the Second Amendment can extend to arms "that were not in existence at the time of the founding." The Caetano Court did not, however, conclusively determine, because it was not required to, that stun guns and tasers are in "common use."

{The Court notes, however, that in concurrence, Justice Alito, joined by Justice Thomas, states: "While less popular than handguns, stun guns are widely owned and accepted as a legitimate means of self-defense across the country. Massachusetts' categorical ban of such weapons therefore violates the Second Amendment."}

In sum, because Plaintiffs have failed to provide any evidence that stun guns and tasers are in "common use"; they have clearly not "set forth significant, probative evidence on which a reasonable fact-finder could decide in [their] favor." …

Here's my post on the subject from 2022, when the Rhode Island ban was struck down:

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R.I. Stun Gun Ban Struck Down

The case is O'Neil v. Neronha, decided today by Judge William E. Smith (D.R.I.); Judge Smith expresses his disapproval of D.C. v. Heller (pp. 9-10 n.7), but applies it to hold that the stun gun ban is unconstitutional. Congratulations to lawyers Alan Beck, Stephen Stamboulieh, and Frank Saccoccio on the victory.

Shortly after D.C. v. Heller was decided, stun guns were banned in seven states, D.C., the Virgin Islands, several substantial cities, and some smaller towns. (I cataloged these in Nonlethal Self-Defense, (Almost Entirely) Nonlethal Weapons, and the Rights To Keep and Bear Arms and Defend Life, 62 Stanford Law Review 199 (2009).) But in Caetano v. Massachusetts (2016), the Court signaled that stun gun bans may well be unconstitutional, and lower courts and legislatures have largely heard the message.

By my count, since D.C. v. Heller stun gun bans have been invalidated or repealed in Hawaii, Massachusetts, Michigan, New Jersey, now Rhode Island, 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). The Illinois Supreme Court, which had held that the Second Amendment secures a right to carry guns (a matter on which courts are split), has also held 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).

Stun gun bans remain in effect, to my knowledge, in

• New York, where a federal district court held that the state stun gun ban was unconstitutional, but a state trial court in a different case disagreed (yes, state courts can do that),
• Wilmington (Delaware) and the county in which it is located (New Castle County),
• plus some smaller towns.

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. New Jersey lawyer Dan Schmutter tells me that New Jersey likely also essentially bans carrying stun guns outside the home. For more, see this article, though the listing of restrictions in Appendix II is now out-of-date.