A Stunning Case in the Making? The Supreme Court Orders New York to Respond in Second Amendment Case

One of the cases that I have been following as we approach the October term of the Supreme Court is Calce v. New York, a case challenging New York’s ban on stun guns. While it is important not to overplay the significance of the order, some justices clearly want to hear more on the case before deciding whether to grant a writ of certiorari for review. New York City was just ordered to file a response to the petition. With the two other major Second Amendment cases on the docket, a review in Calce could be one of the most impactful Second Amendment terms in decades.

Calce is a challenge brought by the Firearms Policy Coalition, Second Amendment Foundation, and individual plaintiffs against New York City’s ban on stun guns. They argue that “electronic arms” like stun guns and lasers are protected under the Second Amendment. The only difference is that, rather than a projectile, such weapons “work by producing electrical pulses that make the target’s muscles spasm, and thus quickly but temporarily disable him.”

Notably, nine years ago, the Court issued a per curiam opinion in Caetano v. Commonwealth of Massachusetts that sent back a case to the First Circuit that challenged a similar ban. The Court rejected the logic of the First Circuit, which held that they were not in common use at the time of the Second Amendment’s enactment. The Court pointed out that in District of Columbia v. Heller, 554 U. S. 570, 582 (2008), it expressly rejected that argument and held that the Second Amendment “extends . . . to . . . arms . . . that were not in existence at the time of the founding.” It also rejected two other rationales.

Massachusetts responded to the loss by changing its law. In so doing, Massachusetts shows a modicum of strategic sense to avoid another likely loss. However, New York City (as usual) was undeterred.

Notably, the district court judge and the Second Circuit upheld the ban on the ground that the challengers failed to “provide any evidence that stun guns and tasers are in common use.” That seems strikingly close to Caetano.

Calce could clarify not only the “common use” element but also the burden on challengers in such cases. The Second Circuit seems to have departed from the guidance of last year’s decision in  Wolford v. Lopez, rejecting Hawaii’s “Vampire law” limiting areas where lawful weapons could be carried in the state without prior approval.

New York City must now respond by October 8, and the Court could decide on review at the October 15 conference.

If granted, the case would join an already weighty Second Amendment docket. The Court will be hearing arguments in Viramontes v. Cook County and Grant v. Higgins. Both cases will address the move in various blue states to ban AR-15 and other semi-automatic weapons, including the popular Glock 9mm. The addition of Calce would make this a formidable Second Amendment term.

These cases also show how the same blue jurisdictions continue to feed the Court with Second Amendment cases that will likely only reinforce the rights that they are seeking to limit. I have previously written how New York, D.C., and Chicago are examples of Democratic cities that routinely commit lasting self-inflicted wounds to gun control efforts with poorly conceived and poorly drafted measures.

Calce has the makings of a truly stunning Second Amendment case in extending protections to electronic arms.

Jonathan Turley is a law professor and the New York Times best-selling author of “Rage and the Republic: The Unfinished Story of the American Revolution.”