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The unanimous Supreme Court decision in the New Jersey Caetano case is now being used against New York State’s ban on stun guns. In the Caetano per curiam decision (pdf), :

The Court has held that “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding,” District of Columbia v. Heller, 554 U. S. 570, 582 (2008), and that this “Second Amendment right is fully applicable to the States,” McDonald v.Chicago, 561 U. S. 742, 750 (2010).

A few days ago, I wrote that such a suit was to be expected. Now a lawsuit by the Firearms Policy Coalition has been filed against Governor Andrew Cuomo and others.


ALBANY, NY (December 6, 2016) — Firearms Policy Coalition (FPC), Firearms Policy Foundation (FPF), and New York resident Matthew Avitabile have filed a federal Second Amendment civil rights lawsuit against New York Governor Andrew Cuomo in an effort to strike down the state’s ban on the acquisition and possession of Tasers and other nonlethal (sometimes called “less-than-lethal”) weapons.

Individual plaintiff Matthew Avitabile is the mayor of Middleburgh, New York and would like to buy and keep a Taser for self-defense. But New York Penal Law § 265.01 states that “A person is guilty of criminal possession of a weapon” if “He or she possesses any….electronic dart gun” or “electronic stun gun,” making the crime punishable as a misdemeanor.

The complaint states that, “Given the [United States Supreme Court] decision in Heller, Defendants may not completely ban the keeping and bearing of arms for self-defense” or “impose regulations on the right to keep and carry arms that are inconsistent with the Second Amendment.”

Earlier this year, the Supreme Court dealt a blow to a similar Massachusetts law, but that case was resolved before a final decision was reached.

Said lead counsel Stephen Stamboulieh about the case, “We are pleased to be working to vindicate Mr. Avitabile’s Second Amendment civil rights and hope to expand the right to keep and bear arms for all law abiding New York residents through this lawsuit.”

From the lawsuit(pdf):

 Arms are “‘weapons of offence, or armour of defence.’ 1 Dictionary of the English Language 107 (4th ed.)” They are anything that a man [or woman] wears for his defense, or takes into his hands, or uses in wrath to cast at or strike another.’ A New and Complete Law Dictionary(1771).” District of Columbia v. Heller, 554 U.S. at 581.

Eugene Volokh one of the nation’s most prominent experts on Second Amendment jurisprudence, is one of the consulting attorneys on the case. His legal blog “The Volokh Conspiracy” is hosted by the Washington Post.

©2016 by Dean Weingarten: Permission to share is granted when this notice and link are included.

Gun Watch

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  1. Lets keep the ball rolling on this, “stun guns” are a great nail to put in the coffin of “the arms weren’t available when the founding fathers wrote the constitution” garbage.

    • I like to tell people, especially over the internet, that if the Bill of Rights only extends to technology at the time of the founding fathers, they need to get offline, buy a quill and ink, and have the argument delivered to me by a guy on horseback.

      • SCOTUS, in Heller put it as:

        “Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997), and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U. S. 27, 35–36 2001), the Second Amendment extends, prima facie, to all instruments that constitute bearable arms,even those that were not in existence at the time of the founding.”

        Which was just restating what the DC Court of Appeals ruling said:
        “Nevertheless, it has been suggested by some that only colonial-era firearms (e.g., single-shot pistols) are covered by the Second Amendment. But just as the First Amendment free speech clause covers modern communication devices unknown to the founding generation, e.g., radio and television, and the Fourth Amendment protects telephonic conversation from a “search,” the Second Amendment protects the possession of the modern-day equivalents of the colonial pistol. See, e.g., Kyllo v. United States, 533 U.S. 27, 31-41 (2001) (applying Fourth Amendment standards to thermal imaging search).”

  2. “The Court has held that ‘the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding,’ District of Columbia v. Heller …”

    If the Second Amendment extends to all bearable arms, then it extends to full-auto firearms, short barreled rifles, and short barreled shotguns as well as pump-action and semi-auto firearms. How can this not be THE controlling precedent that strikes down the 1934 National Firearms Act, the 1968 Gun Control Act, and the (1986) Hughes Amendment?

      • Curtis and Styrgwillidar,

        The oral arguments — including Supreme Court Justices’ questions and comments — as well as the dicta and holding in Heller make it clear that the U.S. Supreme Court took verbal gymnastics to an entirely new level … especially in light of the Miller case that went before the U.S. Supreme Court in the 1930s.

        In the Miller case the U.S. Supreme Court stated that the Second Amendment only applies to arms that the militia or military would use … which includes ALL firearms by the way. In the Heller case, the U.S. Supreme Court stated that the Second Amendment does not apply to all arms that the militia or military would use.

        Of course, in order to justify this glaring contradiction, the Court vomits words about partial bans versus total bans, intermediate versus strict scrutiny, and government interests. Oh, and they had to have thrown out ye olde “public safety” comment somewhere.

        Please tell me that I am not the first person to see and state this glaring contradiction.

    • As Curtis points out, the ruling (available at in Heller does mention some firearms can be banned. However, they address that in Miller, a short barreled shotgun ban was constitutional because that type of firearm is not suitable for military use. That led to a bit of speculation about the other types of weapons you mention, the subject even came up at orals, with the Solicitor General who was arguing in support of the DC gun ban, speculating that he would have a hard time justifying the banning of machine guns based on the lower court reasoning. (Parker at the DC Court of Appeals, name was changed to Heller at SCOTUS due to Parker being dropped off the suit)

      From the Heller ruling: Case No. 07–290.
      “It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.”

      • Continued- Here’s where the issue came up during orals. Realize, the only two issues before the court were-
        1. Was the DC ban on handguns constitutional?
        2. Were the DC requirements for firearm storage in the home constitutional?
        They were not considering anything else.

        Anyway, here is the bit in orals talking about technological progress, suitability for military use, and the current NFA ban:

        GENERAL CLEMENT: Well, Justice Scalia, I think our principal concern based on the parts of the court of appeals opinion that seemed to adopt a very categorical rule were with respect to machine guns, because I do think that it is difficult — I don’t want to foreclose the possibility of the Government, Federal Government making the argument some day — but I think it is more than a little difficult to say that the one arm that’s not protected by the Second Amendment is that which is the standard issue armament for the National Guard, and that’s what the machine gun is.
        CHIEF JUSTICE ROBERTS: But this law didn’t involve a restriction on machine guns. It involved an absolute ban. It involved an absolute carry prohibition. Why would you think that the opinion striking down an absolute ban would also apply to a narrow one — narrower one directed solely to machine guns?
        GENERAL CLEMENT: I think, Mr. Chief Justice, why one might worry about that is one might read the language of page 53a of the opinion as reproduced in the petition appendix that says once it is an arm, then it is not open to the District to ban it. Now, it seems to me that the District is not strictly a complete ban because it exempts pre-1976 handguns. The Federal ban on machine guns is not, strictly speaking, a ban, because it exempts pre -pre-law machine guns, and there is something like 160,000 of those.
        JUSTICE SCALIA: But that passage doesn’t mean once it’s an arm in the dictionary definition of arms. Once it’s an arm in the specialized sense that the opinion referred to it, which is — which is the type of a weapon that was used in militia, and it is – it is nowadays commonly held.
        JUSTICE SCALIA: If you read it that way, I don’t see why you have a problem.
        GENERAL CLEMENT: Well, I — I hope that you read it that way. But I would also say that I think that whatever the definition that the lower court opinion employed, I do think it’s going to be difficult over time to sustain the notion — I mean, the Court of Appeals also talked about lineal descendants. And it does seem to me that, you know, just as this Court would apply the Fourth Amendment to something like heat imagery, I don’t see why this Court wouldn’t allow the Second Amendment to have the same kind of scope, and then I do think that reasonably machine guns come within the term “arms.” Now, if this Court wants to say that they don’t — I mean — I mean — we’d obviously welcome that in our — in our obligation to defend the constitutionality of acts of Congress.

      • The ugly words I remember from the Heller decision are:

        “Weapons… in common use…”
        So the government can restrict uncommon weapons. And of course, the only way for a weapon to become “common” is if it can be lawfully sold to a lot of people. Outlaw whatever obscure or innovative weapon you want, and it will never become common.

        “… sensitive places such as schools and government buildings,”
        While I still don’t know what makes a school or government building “sensitive,” they leave the door open for governments to determine what places are “sensitive” and to prohibit firearms in those places.

        • Additional ugly words were citing prior cases (Robertson), where bans on concealed carry were considered constitutional (however, open carry was legal so there was a means to still ‘bear arms’). California currently bans open carry and via discretionary issue prohibits concealed for the vast majority of citizens. As the initial three judge panel stated in Peruta– to say a constitutional right of the people is being respected because some very small subset enjoy it, is an affirmation that the people are being denied the right.

          Common use doesn’t bother me as much, since the argument based on prior rulings doesn’t limit ‘common use’ to those currently sold/used to US citizens but common use in the world for infantry personal weapons. That’s the argument I’d make, and in fact the Solicitor General conceded was a valid point.

  3. This is low hanging fruit. Electric weapons aren’t being used by gang bangers, school shooters or terrorists. They have a very limited range and don’t throw bullets through walls or vehicles. Heck, they don’t even have detachable magazines! In other words, they don’t make liberals wet their diapers like firearms do.

    While I hope for every success in challenging unconstitutional taser laws, I just don’t see these suits having an affect on firearms restrictions.

    • No, they don’t have an immediate, direct impact on firearms restrictions. But decisions like these establish precedent, shiny some healthy sunshine on faulty logic, and create cracks in gun grabbers’ walls that can and will lead to a full restoration of the Second as the Founding Fathers intended it.

      • Don’t be so sure. Handgun bans in Chicago and D.C. were rationalized with the argument of “Well, we still let you have shotguns and rifles, so it’s not like we’re preventing you from defending yourself.” It’s not much of a leap to predict they’ll use the same argument by pretending that stun guns are legal and perfectly effective for self-defense, so you don’t need a firearm.

        You read it here first.

    • I hear you and had the EXACT same thought today!

      And why did I have such a thought today? Recent experience is revealing the full extent of the benevolent malevolent state in my small corner of the world.

  4. I’m not old enough to recall the motivations behind banning stun guns. Was there high profile criminal use? Some kid accidentally kill another while playing with one? Was a legislator punk’d by the Jackass crew? Did black people like them?

    Seems like banning stun guns is just lawmakers being dicks for the sake of being dicks. I hope this ends stun gun bans and costs these dicks a whole lot of money defending their dickness.

    • like a lot of things the cops wanted to make sure only THEY had stun guns. Big mags, hollow points, 6 round shotguns, body armor, and good luck charms are LEO items in their mind. The idea you could defend yourself with any of it is as alien as tax cuts.

      • Last time I checked LEOs don’t make the laws. Maybe you’re thinking of politicians?

        Sometimes the latter force cops to stand behind them at a press conference (or the chief forces the cops to be there) but that doesn’t mean the police actually support them.

    • “Seems like banning stun guns is just lawmakers being d!cks for the sake of being d!cks.”

      Lawmakers banned stun guns for the same reason that they banned (or wanted to ban) all other tools, firearms, and weapons: because someone could possibly use them to attack someone.

      Don’t believe me? There are states that literally ban possession of every conceivable item that someone could use to attack others — explicitly spelling out knives, dirks, daggers, stilettos, switchblades, brass knuckles, blackjacks, slungshots, billy clubs, sand clubs, sand bags, bludgeons, firearms, pneumatic guns, and portable devices which emit incapacitating electrical current, impulse, waves, or beams. (That last all-encompassing category includes tasers and electric stun guns.)

      Heaven forbid the police pull you over in one of those states for speeding and you have a baseball bat in your passenger compartment!

      So, yeah, I guess that is consistent with lawmakers just being d!cks.

  5. “one of the nation’s most prominent experts on Second Amendment jurisprudence, is one of the consulting attorneys on the case.”

    Break it down and what you have is the Triad. Legislators, judges and prosecutors collecting coin over what 27 words mean. Meanwhile citizens denied their rights, continue to suffer assaults, robbery, rape and murder and volumes of lies from Bloombergs crew.

    Simplify shall not be infringed and gun control doesn’t exist.

  6. Caetano is a massachusetts case, not NJ. NJ is looking to change their stun gun ban but the Caetano case isn’t from NJ.

    • Yeah. For a minute there, I thought I’d jumped out of the frying pan (MA) into a flaming pile of sh!t (NJ).

    • Once the SCOTUS is stacked with 5 or 6 real conservatives we can dissect NJ gun laws and maybe even california. Like that famous movie line in Gladiator, some people don’t know when they are conquered.

  7. Well, The Supremes having noted that “arms means arms”, shifts the discussion from eeeeee-vil guns, to what are the human and civil rights of – er – humans and citizens, where it ought to be. The “No guns for you!” folk on the court clearly did not think this through. Hoist by their own cleverness, it seems.

    So, they helped frame the issue in a way that works out better for the “pro” side. And we’ve learned that The Supremes, for all their agenda-mongering, can’t help themselves when there’s a chance to be all clever and in charge. Set up the 2A challenges so the answer we want lets them swat somebody down, by being all clever, and our odds go up. Good to know.

  8. At some point we will get around to New Jersey’s ban on airsoft guns, bb guns and slingslot. Spitballs probably are controlled there too.

  9. Hi from Massachusetts, where we still can’t possess stun guns, despite the ruling (they still haven’t changed the law).

  10. I don’t know why my other comment didn’t post, but we are going to file these cases everywhere there is a ban on Tasers/Stun Guns. New Jersey, New Orleans and now New York.

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