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courts that have considered the constitutionality of such bans have struck them down (and others have been recently repealed).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:

[* * *]

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.

Comments

[Longtobefree]

sounds like an infringement

[Michael P]

Yes. It seems likely that whatever evidence the plaintiffs introduced, the judge would simply declare that it wasn't sufficient to show common lawful use.

[Drewski]

"We won't bother to introduce evidence in this case we brought because it's futile," isn't the slam-dunk legal strategy you think it is.

[Sarcastr0]

Your vibes may well end up being correct.

But the new Bruen rights formulation is pretty muddy right now, and there's plenty of room for various interpretations.

Over time, lower courts will have different takes and the Supreme Court will correct/harmonize/elucidate. We've already seen one of those iterations.

This one may well be struck down, but it's not clearly out of bounds despite the vibes.

That's how new doctrines like this go. Not great if you're impatient, but good if you want something legally functional and carefully figured.

[John F. Carr]

"plaintiffs had the burden of introducing specific evidence of how common such weapons are"

Another sign that the Supreme Court is giving bad instructions. New weapons can be banned because they start off uncommon. The court should be asking, is carrying a stun gun worse than carrying a gun? Is carrying a stun gun worse than carrying the type of handgun people carried in the 19th century?

[Sarcastr0]

…worse?

[Aubrey LaVentana]

McGlynn covered this ground, not for electric weapons per se. He expanded the dangerous and unusual test in good faith.

And Caetano should enter the chat.

[Absaroka]

I think Mr. Carr is thinking something like: In a world where guns don't exist, you can make an argument that tasers or pepper spray should be banned. I have seen that argued right here in years gone by ('bank robbers might use pepper spray!'). But when Cathy can have a gun, does it make sense at all to tell her she can't have a taser or pepper spray? There may be some cases where she is legally justified to either shoot or spray. A law that removes the spray option seems ill advised.

I'm saying 'spray' here instead of 'tase' because I think the general view among the clueful is that pepper spray has a useful place in civilian self defense, while tasers are generally less useful, but the argument - it seems odd to restrict less lethal options in favor of more lethal ones - is the same.

[Sarcastr0]

it seems odd to restrict less lethal options in favor of more lethal ones - is the same.

This is reasoning I buy.

I just find worse to be a multidimensional metric not really useful for legal analysis.
I think it blinded me to the obvious - more likely to cause death = worse.

[Brett Bellmore]

I'd observed that when the Court first came out with their "in common use" standard: It would in principle allow the government to freeze civilian firearms development in amber, because no new firearm starts out in common use.

Indeed, if you can't ban a gun, it would seem that a ban on anything less deadly should never satisfy rational basis. Except that rational basis isn't actually rational...

[MaddogEngineer]

This is the bad faith problem with both "common use" and "dangerous". The desire to ban "assault weapons" is because some want to cast them as dangerous. I continue to be confused by that when the purpose of firearms (for self defense) is too kill. Not sure why being more lethal is a problem. Assault weapons definitions are cosmetic, and often about things that make it easier to target and fire. Why wouldn't someone using a weapon for self-defense want that?

While the previously established constitutionality of the NFA complicates the issue, one can make the case that a (fully automatic) machine gun makes it too easy for a shooter to inadvertently kill more than he intended to target.

The fundamental problem with "common use" is a definition of derivative/evolved designs. Common is not sales of a particular model, but a functional characteristic. Semiautomatic makes using a gun easier to fire repeatedly, which enhances its utility for self-defense. The bug the gun controllers perceive (easier to shoot more bullets) is a virtue if multiple people are attacking you as an individual. In reality, there should be almost no gun innovation (short of fully automatic) that should be viewed as violating common usage. Arguing otherwise is a bad faith backdoor attempt to infringe on the fundamental right.

None of this ignores that there may well be sensitive places where guns can be restricted, which have colonial antecedents. But again such restrictions bump up against bad faith when the restricted area is too broad.

[Brett Bellmore]

The purpose of "assault weapon" being an arbitrary class of firearms, rather than functionally defined, was that, once it was established that you could ban them, the list could be arbitrarily expanded over time, eventually to include every firearm.

It was just a legal foot in the door, and a PR term. Deliberately crafted, according to Josh Sugarman, to confuse the average person into thinking it was a machine gun: “The weapons menacing looks, coupled by the public’s confusion over fully automatic machine guns versus semi-automatic weapons–anything that looks like a machine gun is assumed to be a machine gun–can only increase the chances for public support for restrictions on these weapons.”

[TaioF920]

Precisely. I've heard leftists say that the danger of an assault weapon is that it can fire a lot of rounds very quickly, which means that it is magazine fed and semi-automatic, which basically means any modern pistol or rifle.

[wvattorney13]

"The fundamental problem with “common use” is a definition of derivative/evolved designs. Common is not sales of a particular model, but a functional characteristic. Semiautomatic makes using a gun easier to fire repeatedly, which enhances its utility for self-defense. The bug the gun controllers perceive (easier to shoot more bullets) is a virtue if multiple people are attacking you as an individual. In reality, there should be almost no gun innovation (short of fully automatic) that should be viewed as violating common usage. Arguing otherwise is a bad faith backdoor attempt to infringe on the fundamental right."

The same things you say about semi automatic firearms can be said about fully automatic or select fire weapons. Why the distinction? We go from muzzle loaders, breech loaders, breech loading cartridges, manual repeaters, semi autos, and then full auto and somehow the Constitution says the last one is too much? Where in the 2nd amendment does that come from?

I don't think that common=functionality fares any better. To continue the cars analogy, manual transmissions are disappearing rapidly. Could they be banned under a functional common use test?

I think the test has to be "relevant" functionality but Heller does not say relevant to what? Can M-16s be banned because they kill just too well? That the militia would be far too functional? That makes zero sense. You might as well say that dead bolt locks just give too much privacy.

[Dan Schiavetta]

Were tasers used by husbands to beat their wives in 1791?

[Brett Bellmore]

I don't recall that being mentioned in Ben Franklin's biography.

[Dan Schiavetta]

Sounds like a joke, but it is a relevant question now, under present case law.

[Brett Bellmore]

No, not really.

[Dan Schiavetta]

What was the 1791 equivalent of a taser?

[Brett Bellmore]

I suppose a well charged Leyden jar. You can get a serious jolt from one.

Just to be clear, it is a bit of feminist mythology, akin to 'the rule of thumb', that domestic violence was legal in founding era America. It was simply assault, not a distinct offense, but it was certainly illegal.

To be sure, there were procedural obstacles to prosecution in some places, but that's different from saying that it wasn't a crime.

[Drewski]

Probably a small shotgun loaded with rock salt? I think it would have been the best option for a ranged weapon that hurts, leaves scars, and occasionally kills somebody but usually not. I'm fairly sure that game wardens in England were using rock salt on poachers by then at least.

(Yes, it would be a terrible analogy for regulatory purposes and I recognize that the absurdity of that test is your actual point. I'm just up at an unusual hour and got to thinking about it as a real question.)

[wvattorney13]

What makes a weapon "common"? Even if show that there are 30 million in the United States, that means only 1 out of every 10 people own one. Is that common?

[Absaroka]

I dunno, which definition of common gives the policy outcome you prefer :-(.

I think I read once that the F-150 is/has been the biggest selling vehicle for years. Ford sold 700K last year (as a sanity check, Toyota sold 300K Camrys). If you assume a median service life of 20 years, that's 14M on the road.

So, is 14M 'common'? If not, then no vehicle is common. A definition that says no model is common seems pretty useless.

You'd have to go with an argument that no model of car is common, even though cars in general are common. That seems like a stretch. I think 'Labrador Retrievers are a common dog breed' is something most people would agree with, but there are only about 800K of those in the US.

[wvattorney13]

But in Heller, the category for commonality was "handguns" not Glock 19s. The more general category was used. Of course, when M-16s were said not to be common, the specific model was used, not "rifles." But perhaps he meant to say "fully automatic rifles." But then if that was the test, why wouldn't it be "semi auto pistols" or "revolvers" or "derringers" as the comparator instead of handgun?

It seems that Heller is hopelessly unclear on what we are looking for as "in common use." Mr. Heller's .22 single action revolver is not a good self defense weapon and most people don't use that weapon for self defense, but it qualified because Scalia expanded it to all handguns.

And handguns where? The whole U.S.? One could have easily argued that handguns weren't in common use by law abiding citizens in D.C. as they had been banned for 32 years. And that is the exact reason why M-16s are not in common use: because they are legally banned. Seems like an odd way to justify a law.

The test seems completely out to sea.

[Absaroka]

Fair enough. You are writing Heller - what standard would you use?

[Brett Bellmore]

If I were writing Heller, I would go back to the US v Miller standard: Is it suitable for militia use? And rule that any arm comparable to what the US military issues to its own soldiers must be constitutionally protected for civilian ownership, since the whole point was that the citizenry was entitled to be armed to the same standard as the military.

And having done that, declare that no ban on any lesser arm would pass rational basis.

[wvattorney13]

But isn't that odd? Scalia spent 60 pages telling us, taking us on a journey through history, that the Second Amendment had to do with self-defense, unconnected with membership in a militia.

Shouldn't then we be looking at the scope of the Second as containing that purpose unconnected with the militia? The Second, we were told had primarily to do with defense of hearth and home. Why wouldn't that purpose guide what types of weapons I might be able to buy instead of what I was expected to bring to militia duty? That was the holding of Heller that handguns were protected because of their suitability for home defense.

My choice for home protection, protection in public, and militia use would lead me to different weapons choices. Why is the choice for one purpose guided by a weapon suitable for an unrelated purpose? If I am a 75 year old woman wanting to protect my home against intruders, why do I care what a 20 year old man would bring to his militia service? It's nonsensical.

[Brett Bellmore]

As we're told below... Only not nearly as dishonest as Stevens.

As I said, once you have a right to military weapons, no ban of lesser arms, such as the 45 LC revolver I have for home defense, should be able to survive even rational basis scrutiny.

[Brett Bellmore]

The Court wasn't ready to admit that you can't base evaluating the constitutionality of a law on patterns of behavior driven by the law in question. The Court, after US v Miller in 1939, refused without comment certiori to every single case where one of the parties so much as mentioned the 2nd amendment, until Heller came along in 2008. Nearly 70 years of refusing to uphold the 2nd amendment.

During that time a lot of laws accumulated that would never have survived review if the Court had actually been engaged in review. Now they don't want to touch them with a 10 foot pole.

It's as though the Brown Court had decided that Jim Crow was presumptively constitutional because it had been in place for so long. Heck, a lot of these laws ARE Jim Crow!

[wvattorney13]

I think the real answer is that the Court was not engaged in originalism or textualism by this point in the opinion. It had reached a predetermined result (we cannot allow this individual right to protect the right to own machine guns) and then worked backwards from that result through several tortured steps to find that the Second Amendment does not protect M-16s.

My objection is not necessarily to a prohibition on fully automatic weapons, but a court that is claiming to do history must do a better job than a purposivist making things up as he goes along.

However the Court got there, its justification is exceptionally weak and it has failed to prove in any way workable---unless we are prepared to accept virtually no gun regulations--which this Court is unwilling, and frankly most of the American people, are unwilling to do. But you cannot couch a bad result by using history.

It's "half measures" have created a mess of this jurisprudence. Why is shall-issue constitutional, for example? There's no deep rooting in history for that, but it was simply declared in Bruen to be just fine.

[ObviouslyNotSpam]

Miller? Had to do with a short-barreled shotgun, if I recall correctly.

One glaring reason why the decision was so weak might have been because it was not actually argued before the Court. Neither the defendants nor their counsel appeared for the hearing, so the Court heard only from the federal government's lawyers.

[Brett Bellmore]

Miller was a set up, a purposely designed test case to get the NFA upheld. The judge who struck the NFA down to free Miller was a radical gun control supporter. And Miller came after "the switch in time that saved nine".

I frankly think we dodged a bullet there, because the Court WAS going to rule in favor of the government regardless, and that it was a trial in abstentia allowed them to rule in favor of the government on the narrowest grounds imaginable, and so creating no ugly Supreme court precedents.

Of course, the Court dodging 2nd amendment cases for several generations after, THAT saddled us with some ugly lower court precedents...

[Brett Bellmore]

"Why is shall-issue constitutional, for example?"

I agree that even a non-discretionary licensing scheme is, frankly, obscene when it comes to exercise of a civil right. But this just brings us right back to the original problem, which is that the majority of the Court are not remotely prepared to fully uphold the 2nd amendment.

They spent their formative years in possibly the most hostile to the 2nd amendment subculture in America, mid to latter 20th century legal academia. Never mind that the country got by just fine without any federal gun control at all for most of its history, and that such state level gun control as it had before the middle of the 20th century was mostly Jim Crow, and only enforced against minorities; They simply cannot imagine a country without gun control, and what they can't imagine, no principle can force them to rule in favor of.

[TaioF920]

Judge Cabranes on the 2nd Circuit, another low IQ Puerto Rican judge appointed by a Democrat, in this case Clinton, held that "assault weapons" were not common because they only constituted 2% of guns sold.

Pure bad faith. By that standard, no car, including the F150 or Tesla Model Y, are "common."

[MaddogEngineer]

True, but also "assault weapon" is a made up category. It is bad faith all the way down, with any analysis about a firearm being "deadly". Duh, they are supposed to be. Because gun controllers object to specifically that, which is infringement, any evolution would be equally objectionable to them.

Which is what is especially bad about a ruling against tasers: they are not deadly. So why should they be particularly restricted? If you want to somehow restrict lethal weapons in "sensitive" areas, you need to allow the non-lethal.

This is just more of the handgun nonsense. We need to ban them because they're concealable. We need to ban long guns because they are "powerful" and hit targets at distances. A variation on banning both concealed and open carry.

[wvattorney13]

That's my point. 2% of all sales sounds small until you try to determine what constitutes common use. It's like saying that stamps are not in common use since they are only affixed to a miniscule amount of personal written communications.

Neither of those statements mean anything unless we know how common is common enough, common compared to what, and what level of generality we should use as a comparator. Should we consider if the government had put in barriers to ownership? Heller incredibly suggests that doesn't matter.

[TaioF920]

That's because Scalia was an intellectually dishonest piece of crap.

[MaddogEngineer]

The only intellectually dishonest people are those who claim that the Second Amendment only protects a collective right to bear arms when serving in a government sanctioned militia. If that is all it ever was, there is no reason to add an enumerated right in the Constitution.

Otherwise they would have worded the amendment with a “Congress shall make no law” infringing on a state’s right to maintain a militia, so similar, to protect it from the federal government. A state doesn’t need its “right” to do so enshrined in the Constitution, if such a militia “right” is dependent on state laws regulating it.

Instead, it identifies the right as belong to the people.

[JoeFromtheBronx]

Caetano v. Massachusetts is an intriguing case including Alito referencing people possibly having a "moral, religious, or emotional reason" to use certain arms over others.

The crafting of a compromise per curiam with an eight-person court factors into the interesting nature of the case.

[A Japanese Student]

More importantly, only four justices who supported Heller.

The compromise was based on a principle that transcends ideology: that the Court does not tolerate violation of a recently-issued precedent. Chief Justice Roberts followed this principle in at least two cases where he disagreed with the merits of the prior decision. The justices in dissent seem to not recognize this.

[TaioF920]

In the case of the 2nd Amendment, the court does tolerate it, which is why it keeps happening.

[JoeFromtheBronx]

The eight justice interregnum resulted in various compromise opinions resting on narrow grounds.

[Krayt]

"Plaintiffs have the burden of justifying their speech is valuable in the market place of ideas as well as in common use, or I will not deign to permit it. The People have spoken, through me."

[TaioF920]

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."

This Puerto Rican Obama judge showed his bad faith with this one. How can it be common for self-defense in New York City when it's banned there?

[MaddogEngineer]

Sounds like burden inversion. Prove you're not beating your wife.

As others have already commented, if a hyper-vigilant jurisdiction can be quick to outlaw any firearm innovation, they can strangle the "common" standard in its crib. But that only works if one conflates evolutionary with newness. Certainly gun controllers would have done so with semiautomatics, if they had had the chance. Of course back then, people understood what infringing meant, so they did not.

[ObviouslyNotSpam]

It's like the judge had never heard of "judicial notice"...

[Stephen Lathrop]

As so often in the case of 2A threads, OPs and commenters willfully overlook a giant question: Whether logical arguments about various weapons can be shown by any standard to have anything to do with whether they are nationally regulated under the 2A, or state regulated by default. Without strong evidence that the weapon in question serves a specific 2A-protected purpose—basically the militia purpose or self-defense—where is there a case for any but state protection?

The next step in that is of course not a question of logic about weapon characteristics, but a question about what happened when both the body of the Constitution, and then the Bill of Rights, were passed.

[Brett Bellmore]

"Without strong evidence that the weapon in question serves a specific 2A-protected purpose—basically the militia purpose or self-defense—where is there a case for any but state protection?"

This utterly inverts things, you know. It takes a right, something thought so important that the government had to be explicitly forbidden from infringing it, and analyzes it from a presumption that infringements are OK unless the citizen proves to the government that they're not.

But the whole point of enumerating a right is that the topic in question is something where the government is presumed to not be trustworthy, is suspected of harboring ill intent. You don't enumerate rights out of an expectation the government will be doing the right thing, you do it to obstruct the government from doing the wrong thing.

So, look at this from precisely your own narrow perspective: If the purpose of the 2nd amendment is to protect a right to arms suitable for militia purposes, why are precisely the sort of arms the military thinks best suit its purposes, select fire arms, exactly the ones the government most restricts access to?

Because the distrust was warranted after all. Which is why you do NOT want the government deciding what arms are protected: It wants to defeat the amendment, not effectuate it!

[Stephen Lathrop]

But the whole point of enumerating a right is that the topic in question is something where the government is presumed to not be trustworthy, is suspected of harboring ill intent. You don't enumerate rights out of an expectation the government will be doing the right thing, you do it to obstruct the government from doing the wrong thing.

That could be a 20th century libertarian take on enumerating a right. It might be a natural law take on enumerating a right. It might even be a take on enumerating rights favored by some anti-Federalists.

It is not the pro-Federalist founders' take on enumerating rights. They showed time and again, during the Convention and afterward, that their interest was to identify rights the jointly sovereign People agreed to protect against infringements by their new federal government, and to leave to the discretion of the states all the others.

It is easy to forget today that the primary focus of the Convention was to design a workable model for more efficient republican style government, not to reinvent from scratch all theories of government. That former task which they actually chose turned out to be so complex and contestable that it chastened ambitions to go farther. At the end, the problems were more about abandoning novel ambitions than about perfecting them.

[Brett Bellmore]

So, your complaint is that this isn't a take on enumerating rights held by the people who had to be dragged kicking and screaming into enumerating rights? No kidding, of course it isn't. The Federalists didn't WANT a Bill of Rights, remember?

And when you look at the shit they pulled once they were in power, such as the Alien and Sedition acts, you can see why.

So in a sense the Federalists did agree with the anti-Federalists about the purpose of a Bill of Rights, and that's why they didn't want one!

[Stephen Lathrop]

Bellmore — You are mistakenly characterizing the Federalists generally, even if closer to accurate in the case of one of them, John Adams. In his case, an infamously prickly ego marred his administration. But other Federalists, such as Hamilton, Madison, and James Wilson, did not oppose rights. They genuinely supposed a notion that enumerating some rights would disparage others which had been left unenumerated. They were clear on that. I add that only extreme historical ignorance could review the written records left by Wilson and Madison, and conclude what you assert in their cases.

I think experience on the disparagement theory has been mixed in practice. It is doubtless true that the enumerated rights have had far greater judicial effort devoted to their protection than unenumerated rights typically received. That is a point I think you ought to concede to Wilson and Madison. You might think the opposite.

On the whole, I favor having the Bill of Rights over leaving it off. But none of that discussion critiques at all my comment above, about distinguishing federal rights protections from state rights protections. You insistently bypass that critique, which of course misses a chance to be persuasive—if you think you have anything persuasive to say.

[MaddogEngineer]

Enumerated fundamental rights do not need proving to be protected or enjoyed.

No one has to prove a weapon serves a particular purpose you think you can find in the Second Amendment to be allowed for common ownership. You continue to presume something that has been debunked: that only weapons usable or authorized for (state) militia service get any protection.

That's not what Heller and Bruen have said about the militia. The armed citizenry is the militia, and its existence pre-exists the state, because it derives from a fundamental right to self-defense. The Second Amendment merely recognizes and "secures" that right. The state cannot regulate the militia out of existence, by disbanding it or infringing on gun ownership. Contrary to your framing. Gun controllers like you turn that proposition on its head, with your "mother may I?" talk.

[Stephen Lathrop]

No one has to prove a weapon serves a particular purpose you think you can find in the Second Amendment to be allowed for common ownership.

Maybe so, if you can find state protection for the purpose you have in mind. But you damn well do have to prove a weapon serves a legitimately 2A protected purpose if you want to invoke the 2A to vindicate the right. How can that even be contested? It's like a truism.

Luckily for the more insistent style of gun advocates, for the present, Heller and Bruen have basically said, "To hell with that." So for now you get the kinds of gun rights protections that go with the rule, "To hell with that." Lucky you.

But Heller was wrongly decided, and Bruen ranks among the worst-reasoned decisions ever handed down by the Supreme Court. I expect those decisions to outlast me, maybe. I doubt they will turn out permanent.

[Brett Bellmore]

" I expect those decisions to outlast me, maybe. I doubt they will turn out permanent."

Well, I hope not, because they're at best only a way station on the way to actually restoring 2nd amendment rights of the sort most Americans enjoyed when you, I assume, and certainly I, were kids. You know, back when you could buy anti-materiel rifles and machine guns mail order, through ads in the backs of magazines?

[TaioF920]

Ahh, yes another leftist who says he "supports" the 2nd Amendment while simultaneously claiming that Heller was wrongly decided

[MaddogEngineer]

Heller was not wrongly decided. This rambling response just further demonstrated that.

A husband never has to prove he doesn't beat his wife. That's what you're demanding every time you demand proof of legitimate 2A protected purpose. Just like the state can't make the threshold for a concealed carry permit impossibly high, with the applicant needing to prove a need. That's not how this works. That's not how any of this works.

But I will say, you've almost got it, when you "how can that even be contested?" I can't. That's the point. That's how an enumerated fundamental right works. There is no balancing of interests here. The default condition is no restrictions. Unless government can show it pre-existed the Bill of Rights adoption. Not a truism. True.

[Stephen Lathrop]

The default condition is no restrictions.

MaddogEngineer — Do you suppose you can find even one founding era citation which argues that position? The closest you will come is no restrictions for a select few, among a slaveholding elite. That will not include even white freemen, whom the elite never quite got over fearing as class enemies.

Just say what you want, no restrictions. Stop pretending you can dignify that as history.
You can't.

[MaddogEngineer]

I don’t have to prove a negative, when it comes to a fundamental right recognized in the Constitution. It’s why it’s been helpful that people commenting here (and other blog posts) substitute First Amendment language for the Second.

That there a few restrictions historically proves my point. Because throughout most of our history, this right was accepted without controversy. Like the air we breathe. Plenty of guns, everywhere, as the continent was settled. People would have died (or been killed) without them. It's weird you consider your position the default and obvious, and demand others prove you wrong from history. Again, not how enumerated fundamental rights work.

[wvattorney13]

I'm not quite following you. A stun gun is a device capable of being borne that is used for self defense or a/k/a an "arm." I don't see the argument otherwise.

Unless you go with the militia purpose and say that a stun gun is not suitable for militia use so it is not protected. Then is your argument that ONLY weapons powerful enough for militia duty is an "arm"?

[ObviouslyNotSpam]

I think you (or, rather, you if you were a Supreme Court justice) could rationally decide that the militia reference "set the stage" for the 2nd Amendment, thus permitting the police-power restriction of arms without a militia purpose, e.g., handguns, possibly shotguns.

But there's no rational basis for deciding that it permits infringement of the right to keep and bear what are, logically, militia-related weapons.

[Stephen Lathrop]

ObviouslyNotSpam — Back in the day, handguns were commonplace in military use, especially among artillery crews. I do not think they serve that purpose alike today. But I concede handguns as legitimate military equipment even now.

I am also on record advocating full access to military style small arms for modern militia purposes, especially including fully automatic weapons. But I would restrict that to use under discipline matching the military pattern of storage and access, under the control of officers, with the arms returned to secure armories thereafter.

I am a serious supporter of the 2A. I am not a supporter of free-form armed insurrectionism, and I insist that federal gun policy has to be empowered to distinguish the two.

[Absaroka]

"with the arms returned to secure armories thereafter. "

So, not like the militia :-).

[Stephen Lathrop]

Entirely like the militia, but with other uses protected by state constitutions and state laws. If your state said so, you could keep your musket and hunt with it. If you had to attend a muster, in principle you brought your musket and used it under military discipline.

Many colonial musters were shams, of course. So much given over to drunkenness that tavern-keepers learned to favor traditional muster sites as prime locations to set up business.

[Absaroka]

"If you had to attend a muster, in principle you brought your musket and used it under military discipline. "

...and then took it home after drill. The requirements that people possess firearms was in no way a ban on their owning them.

[MaddogEngineer]

Narrator voice:

Lathrop is not, in fact, a serious supporter of the 2A. He does enjoy misrepresenting it.

[Stephen Lathrop]

MaddogEngineer — I have also challenged the gun advocates here to endorse the Swiss system of militia-style defense organization. I would do that. But no takers among the gun advocates so far. First they think it looks good, and then look it up and discover it is not a charter for unfettered gun ownership and use.

The U.S. Constitution, in its body and in the 2A, wisely insists on well regulated use. That did not mean at the time, gun control, as we understand that term. It meant gun use under military discipline. That was the extent of gun use the founders were content to vindicate nationally. They left questions of other uses open to state protection, with the states free to decide according to their various policies.

The gun advocacy typical on this blog is transparently pro-vigilantist, and pro-insurrectionist. It is foolish to insist the U.S. Constitution supports that, and unwise policy to permit those tendencies to increase.

[MaddogEngineer]

As you've been told by many, well regulated does not mean what you think it means. It is not about firearm ownership. I will say again, a "right" that can be regulated out of existence is not a right. It belongs to the people, not the state. The militia's existence preceded the state's, and cannot be abolished by it through extreme regulation.

Your name calling of pro-vigilantist/insurrectionist shows an embarrassingly shallow intellect on your part.

[MaddogEngineer]

Yes, that's perhaps the silliest aspect of the gun control rhetoric here. Wanting to keep military style weapons out of the hands of individuals. If you want to tether to a stilted view of the amendment, tied to some kind of militia service, the one type of weapon that would absolutely be protected is an assault rifle.

Of course, that's the other shoe they want to drop, with a well-regulated militia meaning that people can only have access to those weapons when they are on militia duty. Nonsense. The militia was not and is not today's state national guard, a weekend a month and 2 weeks per year. In the historical militia, citizens often brought their own personal firearms, were required to do so by law, which the amendment was recognizing and protecting. Therefore a state cannot regulate the militia out of existence by removing an individual's personal access to firearms and choosing not to provide them. As Lanthrop proposes.

(Handguns absolutely do have military utility too, so excluding them is equally nonsense.)

[wvattorney13]

"(Handguns absolutely do have military utility too, so excluding them is equally nonsense.)"

Maybe. But it certainly isn't a militia weapon. If we were all reporting to militia duty I think we would tell the guy who showed up with a handgun to go home and get a rifle.

Not that any of that matters for 2A purposes, but a handgun is of questionable utility in the militia, even if we point to military uses of them.

Which, at least to me, is why Heller is so odd. It bans from protects THE firearm that is suited for a military and self defense purposes, the M-16, while protecting a class of weapons of limited utility in militia service such as handguns. We can own guns for self defense as defined as those weapons suitable for militia purposes. But not too suitable.

It would be like saying the First Amendment doesn't apply to the internet because that's just too much speech and the framers never imagined that people could reach so many people with ease.

[MaddogEngineer]

You don't think militia officers had use of handguns? Really?

A sword and a pistol were 2 historical weapons of such leaders. Note that I did not claim a pistol was the sole militia weapon. Let's not forget the bayonet, which is a kind of knife/sword.

One of the reasons Washington greatly disliked militia was their minimal training and discipline. In that era, a bayonet charge was often more effective than musket fire, something inexperienced militia could not execute. You could break a green opposing force with a bayonet charge. Knives, swords, and pistols useful in such close quarter fighting. Arms are not just firearms, certainly not just long guns.