New York Stun Gun Ban Challenged In Court

(AP Photo/Bob Child, File)

Next month, the Supreme Court will consider whether or not the state’s two-tiered “may issue” carry laws violate the Second Amendment rights of residents, but that’s not the only gun control law in the Empire State facing scrutiny by a judge. On Tuesday the Second Amendment Foundation, Firearms Policy Coalition, and three New York City residents filed suit in federal court taking on the city and state’s ban on stun guns and Tazers.

As the lawsuit points out, the Supreme Court has already discussed the constitutionality of bans on stun guns. In a case called Caetano v. Massachusetts the Court vacated the conviction of Jamie Caetano, who was convicted of possessing a stun gun in order to protect herself from an abusive ex-boyfriend. In a per curium opinion, the Supreme Court reminded the Massachusetts courts that in its Heller decision, the Court found that the Second Amendment does not only protect those arms that were in existence at the time of its ratification. Stun guns, while “unusual” according to the Court, don’t fall outside the scope of the Second Amendment.

While the Supreme Court opinion didn’t officially declare all stun gun bans to be unconstitutional, since it was released most courts (and some states) have concluded that the bans should be wiped off the books. That includes New York courts, which found in a case called Avitabile v. Beach that the state’s ban is unconstitutional. The court even enjoined the New York State Police from enforcing the law. In New York City, however, officials have simply ignored what the courts have had to say.

Notwithstanding this, the City of New York continues to enforce the State and City laws that prohibit the possession of stun guns and tasers. Among other things, the City and Commissioner Shea continue to train officers that stun guns and tasers are illegal under State and City law and to instruct them to bring charges against individuals found in possession of them. NYPD officers continue to arrest and/or summons individuals they find to be in possession of them.

When the individual Plaintiffs—Nunzio Calce, Raymond Pezzoli and Shaya Greenfield— contacted their local NYPD precincts to inquire, NYPD officers to each of them that stun guns and tasers are illegal.

Under New York City’s law, possession of an “electronic dart gun” is a class A misdemeanor punishable by 364 days in jail, a $1000 fine, or both. And since the plaintiffs have all been told by the NYPD that possession of a stun gun is a crime, “each of these individuals is afraid that NYPD officers will arrest and/or summons them if they possess a stun gun or a taser.”

So now the plaintiffs are suing to get this law off the books, or at least declared unenforceable.

Stun guns and tasers are bearable arms, and further, they are in common use for the purpose of self-defense. Indeed, the Superintendent of the New York State Police stipulated in litigation that hundreds of thousands of tasers and millions of stun guns are owned by private citizens in the United States. Those numbers undoubtedly have increased since that stipulation was made. Electric arms such as stun guns and tasers are legal for private citizens to possess in the vast majority of the states.

I think we’re up to at least 47 states now, though it may be more. And frankly, given the clear guidance from the Supreme Court in Caetano, it should be all 50 states.

I fully expect New York City to have its rear end handed to them in this case. Even the Second Circuit, which has taken a pretty hostile view towards the right to keep and bear arms, is going to have a difficult time getting around the Supreme Court’s previous opinion. The fact that a federal judge has already declared the state’s ban to be unconstitutional doesn’t hurt either.

New York City could have easily avoided this lawsuit by simply following the determination of that federal judge. Once the state statute could no longer be enforced by the state police, the NYPD should have stopped enforcing the local ban as well. But because New York City refuses to recognize the right to keep and bear arms, and instead insists on treating it as a privilege, that was never a realistic possibility.

At this point, I wouldn’t be surprised if the city ends up repealing the law, but not until the case is about to go trial. Making the plaintiffs spend some money on attorneys fees before removing the obviously unconstitutional stun gun ban from the books seems like something the anti-gun, anti-civil rights, anti-individual liberty politicians in New York City would do, and in fact we’ve already seen them employ that strategy when it comes to other gun control laws that were about to be overturned by the courts. And once they eventually do get rid of their outright ban, rest assured that they’ll replace it with a licensing scheme that’s designed to make it a costly and time-consuming process to legally own a stun gun for self-defense. Until and unless the courts make it clear that the Second Amendment isn’t a second class right, much less a privilege, I have no doubt that New York City will continue to put as many barriers as possible between the People and their rights.