There’s so much Second Amendment litigation taking place right now that it’s hard to keep track of it all, and I confess that I’d missed a U.S. District Court decision earlier this year upholding New York City’s ban on stun guns until the Firearms Policy Coalition posted about the case on X on Tuesday (though Tom did cover the decision when it was issued in March).
Our opening brief is due at the Second Circuit in our Calce v. NYC lawsuit, where the district court upheld New York City’s stun gun ban.
NYC truly wants people to be defenseless, desperate, and dependent. pic.twitter.com/ixvprLZrep
— Firearms Policy Coalition (@gunpolicy) July 15, 2025
In a followup post, FPC described Calce v. New York City as a “unique” case, and that’s certainly true of the decision by U.S. District Judge Edgardo Ramos, who was appointed to the bench by Barack Obama in 2011.
Back in 2016 the Supreme Court vacated a Supreme Judicial Court of Massachusetts decision upholding the state’s ban on stun guns, ruling in a per curium opinion that the state court had erred in multiple ways; relying on the fact that stun guns “were not in common use at the time of the Second Amendment’s enactment”, concluding that stun guns are “unusual” because they are “a thoroughly modern invention”, and finding “nothing in the record to suggest that [stun guns] are readily adaptable to use in the military.”
Two years later, the Supreme Judicial Court finally accepted that stun gun bans are unconstitutional, though the Massachusetts court said they could be tightly regulated.
Ramos, however, largely disregarded the Caetano decision from the SCOTUS that led to the Massachusetts ban being struck down. In his decision issued in March of this year, the judge argued that the Supreme Court “did not, however, conclusively determine, because it was not required to, that stun guns and tasers are in ‘common use.'”
True enough, but the per curium opinion certainly suggested that was the case. Nevertheless, Ramos concluded that FPC had failed to show that stun guns are in common use for lawful purposes and granted the city’s request for summary judgement.
Plaintiffs’ reliance on “findings and conclusions” from non-binding cases is of no moment. Doc. 49 at 7; see People v. Yanna, 297 Mich. App. 137, 144 (Ct. App. 2012) (citation omitted) (“Hundreds of thousands of Tasers and stun guns have been sold to private citizens, with many more in use by law enforcement officers.”); Avitabile, 368 F.Supp. at 411 (“[B]ased on the limited data available, the parties agree there are at least 300,000 tasers and 4,478,330 stun guns owned by private citizens across the United States.”); O’Neil v. Neronha, 594 F. Supp. 3d 463, 473 (D.R.I. 2022) (“Defendants agree that millions of stun guns have been sold nationwide[.]”). Putting aside that the phrases “hundreds of thousands” and “millions” are indefinite, and that the figures in Avitabile were based on “limited data,” Plaintiffs do not provide a legal basis for the Court to adopt those findings. Moreover, Plaintiffs do not even attempt to argue how these scant sources could inform whether stun guns and tasers are commonly used for lawful purposes.
It’s true that the language cited by FPC came from cases that aren’t binding on the Second Circuit, but so what? Most citations in legal briefs don’t come from binding cases. Instead, they’re used to help advance an argument; in this case, that stun guns are in common use.
Ramos apparently wants harder statistical proof, even though there is only “limited data available”. That essentially set up a no-win situation for the plaintiffs and guaranteed that New York City’s ban would remain in place.
As the Congressional Research Service pointed out in a December, 2024 report, most Conducted Energy Devices like stun guns aren’t considered firearms, and aren’t regulated by either the Gun Control Act or the National Firearms Act. Since they’re not subject to background checks at the federal level and in the vast majority of states, it really is impossible to get a good idea of just how many of them are in circulation.
Given that reality, Ramos should have looked at other criteria to determine whether these items are in common use for lawful purposes… including the non-binding cases that FPC cited, which all indicate that “millions” of stun guns are in use across the country. The fact that stun gun bans have been repealed in at least eight U.S. states and territories (and at least five municipalities as well) is also indicative of the commonality of these devices. Instead, the judge put forth a test that was impossible to pass in order to keep New York City’s ban in place.
I’m looking forward to reading FPC’s first brief to the Second Circuit Court of Appeals, and I hope that whoever is on the panel will be more objective than Ramos was in looking at the evidence of the commonality of stun guns. New York City’s ban shouldn’t be upheld based on a Catch-22 situation of a judge’s creation, and the appellate court will soon have the opportunity (and, I would argue, the duty) to overrule Ramos and set things right.
Editor’s Note: Radical judges are doing everything they can to undermine our Second Amendment rights.
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