SCOTUS Directs NYC to Offer Defense of Its Stun Gun Ban

The Supreme Court wants to hear from the city of New York after the Firearms Policy Coalition, Second Amendment Foundation, and several individual plaintiffs asked the Court to accept their lawsuit challenging the Big Apple’s ban on stun guns. The request from the High Court doesn’t guarantee that the justices will grant cert in Calce v. New York, but it does indicate that one or more justices are interested in the lawsuit. 

Back in 2016, SCOTUS issued a per curiam opinion in Caetano v. Commonwealth of Massachusetts that rejected the state’s arguments in favor its own stun gun ban. The Court reminded the First Circuit that the Second Amendment doesn’t only protect those arms that existed in 1791, but modern arms as well. SCOTUS didn’t directly strike down the stun gun ban, but it did negate the argument used to uphold it. …………………

While Massachusetts ended its outright prohibition shortly thereafter, New York City has kept its ban on the books. A district court judge and the Second Circuit Court of Appeals have upheld the ban, arguing that the plaintiffs failed to “provide any evidence that stun guns and tasers are in common use.”

The cert petition filed with the Court not only questions the Second Circuit’s opinion on the validity of the stun gun ban, but how the Court reached its conclusion. Does a challenger to a ban on a type of arm have to first demonstrate that the arm is “in common use” to establish that the ban implicates the Second Amendment’s plain text? Or is it up to the defenders of the ban to demonstrate that the arm is not in common use for lawful purposes? 

In the Wolford decision, Justice Samuel Alito and a majority of justices explained how this process is supposed to work:

First, a court must determine whether the challenged law falls within the plain text of the Amendment’s language by asking whether the law applies to “the people” (i.e., all members of the political community) and restricts the “keep[ing]” (i.e., possession) or“bear[ing]” (i.e., carrying) of “Arms” (i.e., weapons customarily used for offensive or defensive purposes). If a challenged law falls within the plain text, it is presumptively unconstitutional—which means that it may violate the preexisting right that the Amendment codified. But the government may show that its challenged law did not infringe the historical understanding of the codified right.

The Second Circuit panel wrote in Calce that “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.” That seems squarely contradicted by the Wolford guidance, which doesn’t mention anything about “common use” at step one. Instead, if the law in question restricts any arm customarily used for offensive or defensive purposes then it’s presumptively unconstitutional and the burden shifts to the defendants. 

The Second Circuit’s decision hinged on the plaintiffs not presenting evidence that stun guns are in common use, but it really should have been up to New York to demonstrate that they’re not commonly owned or used for lawful purposes like self-defense. That alone may give justices enough heartburn to grant cert to the case. From the cert petition:

There simply is no room for a dispute at this point that the Second Circuit erred in holding that, to state a claim under the Second Amendment, Petitioners must affirmatively prove that “stun guns” and other electronic arms are “in common use” before they can be treated as “arms” within the Second Amendment’s plain text.

The plaintiffs suggest that the Court could issue another per curiam opinion reversing the Second Circuit and directing the lower courts to actually adhere to its guidance going forward, but holding the case until the Viramontes case (challenging bans on so-called assault weapons) has been decided and then sending Calce back to the lower courts for a do-over in light of the Court’s opinion would be acceptable as well. 

New York City’s response is due on October 8, and the Court will probably discuss Calce during its October 15 conference, so I wouldn’t expect anything to come from SCOTUS until late October at the earliest. I’d like to think there are at least five justices who would sign on to a per curiam opinion pointing out the error made by the Second Circuit, but either way I suspect it’s pretty unlikely that the Court will just let the Second Circuit’s decision upholding New York City’s stun gun ban to remain in place. 

Editor’s Note: President Trump and Republicans across the country are doing everything they can to protect our Second Amendment rights and right to self-defense.

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