Twisted Legal Logic by Tom Reynolds
In the case NYSRPA v Bruen, the Supreme Court of the United States (SCOTUS) reinforced that ‘arms’ are protected by the 2nd Amendment of the United States Constitution (2A). Once something is classified as ‘arms,’ there has to be an historical precedent for banning them and that ban must go back to 1791, when 2A was passed*. (In other words, 2A should be interpreted by what it meant when it was passed, not what someone wishes it meant by their own modern standards.)
Immediately after the Bruen decision in 2022, the gun grabbers on the Left tried various strategies to work around Bruen, including trying to ban anything that looked like a gun, including toy guns – and also tasers and stun guns.
Massachusetts passed a law banning tasers. The constitutionality of that state law was challenged in Caetano v Massachusetts when Massachusetts argued that tasers did not exist in 1791 and, thus, were not covered by 2A. (Imagine applying that same logic to the 1A right of ‘free speech;’ radio, tv, internet, telephones, etc. would not enjoy free speech protections since they were not in existence in 1791.)
SCOTUS used that Massachusetts’ Taser law for Skeet practice. SCOTUS shot it down in courteous legal terms that basically said, “can’t you guys read.”
SCOTUS rejected the ‘not in existence in 1791’ idea as it had previously ruled that weapons are protected even if they were not in existence at the Founding. As a result of SCOTUS’ decision, tasers should be legal in Massachusetts and since this was a SCOTUS decision, tasers should be legal nationwide**. However, saying it doesn’t make it so.
New York City banned civilian possession of stun guns and tasers, not because they didn’t read Caetano but just because they can pass a law and if you don’t like it you can sue NY City - if you have the money for a long legal case to prove the law was unconstitutional.
Calce v City of New York, (backed by the Second Amendment Foundation and Firearms Policy Coalition) did just that and sued NY City. On March 25th, Calce was argued before a three-judge panel of the 2nd District Court. (The court directly below SCOTUS.)
It seems as if it should have been an easy case after Caetano but do not underestimate the ability of lawyers on the public payroll to run up their opponents legal bill with twisted logic. NY City’s lawyers - and some of the justices on the court - seemed intent on working around Caetano to keep the taser ban alive.
SCOTUS had previously ruled that arms were protected by 2A. Once an ‘arm’ is protected by 2A, to create an exception, the burden is on the government to prove a 2A protected weapon is not in common use***. In other words, the burden of proof was on the government, not on the people.
NYC’s strategy in Calce is to flip the burden of proof and force Calce to prove that a weapon is in common use before it can be classified as ‘arms’ - and protected by the 2nd Amendment.’ (This would effectively eliminate any newly introduced weapon from being classified as arms because, being new, they would not be in common use.) Under Rule 56, if Calce fails to properly support an assertion of fact (that tasers are in common use) the court may grant Summary Judgment to NY City. This would leave the law in place and the petitioners would have to start over.
All is not lost. Some observers believe the judges did not sound fully sold on NY City’s theory that stun guns are outside the Second Amendment. At one point, a judge openly suggested having “a hard time” with the argument that stun guns or tasers are not within the meaning of protected arms, especially given that they are less lethal than handguns.
But the issue is whether courts below SCOTUS get to nullify Bruen by turning every arms-ban case into a battle over plaintiff-supplied statistics before the government ever has to prove its ban is constitutional.
SCOPE will keep you informed on this issue.
*The Left likes to argue that 2A protection only goes back to 1868 when the 14th Amendment was passed. This would allow them to use Jim Crow laws as justification for banning a weapon.
**In New York State, tasers are:
- Legal to own: Yes, for self-defense.
- Age requirement: 18+ (some sources suggest 21+ for certain purchases)
- Prohibited locations: Schools, courthouses, airports, government buildings,
- Use: Only in reasonable self-defense; misuse can lead to criminal charges.
***In Caetano, Justice Alito’s concurrence pointed to evidence that hundreds of thousands of stun guns had been sold to private citizens.
