A federal appeals court is defying a pivotal Supreme Court opinion on the Second Amendment and making New Yorkers less safe by upholding a New York City ban on nonlethal electronic weapons like Tasers and stun guns, legal experts warn.
“The 2nd Circuit [Court of Appeals] has found a way to undermine” a key Supreme Court precedent on the Second Amendment, Dave Kopel, research director at the Independence Institute, told the Daily Signal.
In 2021, five prospective stun gun owners sued New York City and NYPD Commissioner Dermot Shea, alleging that New York Penal Law §265.0, which prohibits the possession of stun guns and Tasers, violates the Second Amendment.
A federal district court decided in favor of New York City last year, upholding the ban. The plaintiffs appealed to the U.S. Court of Appeals for the 2nd Circuit, which delivered its opinion last month.
“No reasonable jury could return a verdict that stun guns and Tasers are presumptively protected by the Second Amendment,” the three-judge panel stated.
Defying the Supreme Court?
In New York State Rifle & Pistol Association v. Bruen (2022), the Supreme Court created a two-step test to determine whether a law violates a person’s Second Amendment right.
David Kopel, a Second Amendment scholar who serves as research director at the Colorado-based think tank Independence Institute, told the Daily Signal that the 2nd Circuit’s ruling conflicts with the Bruen standards.
The Bruen standard ought to be a simple test, Kopel claimed. “The proper approach would be just to say: are the weapons in question, like stun guns, are they arms? And is this a restriction on people using them?”
“If the answer to that is yes, then you proceed to step two, where you look at that law in light of history and tradition,” Kopel said.
Zack Smith—a senior fellow at the Institute for Constitutional Government at the Heritage Foundation—said the New York legislation fails the Bruen test on both counts.
“The United States does not have a historical tradition of prohibiting these nonlethal types of weapons,” Smith told the Daily Signal.
According to the appellate court, the plaintiffs failed to establish the first point of the Bruen test because stun guns and Tasers are not “weapons in common use today for self-defense.”
Smith explained the turn to “common use” to justify the ruling: “Some would argue that the government may have more leeway to regulate those types of weapons than they would a weapon that’s in everyday use.”
“But there’s some debate about when that common usage has to apply, how it should apply specifically,” Smith added.
Plaintiffs’ Response
To respond to the “common use” claim, plaintiffs cited a Congressional Research Service report from 2019 to 2020 that shows a large increase in civilian purchases of stun guns.
The court, however, decided this was “insufficient to establish that stun guns and Tasers are in common use” and amounted to “unsubstantiated speculation.”
The plaintiffs maintained that electronic weapons are included in the terminology and historical understanding of the Second Amendment. Tasers and stun guns are weapons, and “as weapons, they are indisputably within the meaning of the term ‘arms.’”
According to Kopel, the 2nd Circuit’s opinion made the Bruen standard much more complicated than it was intended to be. If the court had rightly applied Bruen, “it would be impossible to justify a ban.”
The 2nd Circuit added an additional step to the Bruen test, Kopel said, by placing the burden on the plaintiff to actually prove that the arms were in “common use” for self-defense. This allowed the court to claim that weapons like stun guns are not protected under the Second Amendment.
Not only did this ruling “undermine” the Bruen test, according to Kopel, but it also makes it “much more difficult for plaintiffs seeking Second Amendment relief.”
Prospect for Second Amendment Rights
What does this ruling mean for Second Amendment law in the future?
Smith said, “If the lower federal court rulings stand, states will have far more leeway—at least in the 2nd Circuit—to regulate nonlethal weapons.”
According to the plaintiffs, the New York law not only violated the constitutional standard, but it also will have dangerous consequences.
“New York City, through its enforcement of state and local restrictions on ‘electronic arms’ like stun guns and Tasers, perversely denies citizens the right to opt for a nonlethal alternative to handguns or other deadly weapons for use in self-defense,” the plaintiff brief stated.
Smith agreed. “Clearly, it would make New Yorkers less safe. It’s taking away a less lethal mechanism for citizens or those visiting New York to be able to protect themselves and their families.”
The Second Amendment Foundation—one of the plaintiffs in the case— posted on X that they will be “be reviewing the decision and our next options in the case soon.”
For this case to continue, the plaintiffs must petition for a rehearing or ask the Supreme Court to grant certiorari. But, according to Kopel, “The Court rarely grants certiorari.”
Kopel added, “You can’t rule it out, but it’s definitely an uphill battle.”
“Keep in mind, you only need 4 justices to agree to hear a case in order for the court to take it up,” Smith said. “I think certainly the Supreme Court should probably take up this case. But whether they will, that remains to be seen.”
