The Second Circuit’s oral argument in Calce v. City of New York showed exactly how hostile courts can keep anti-gun laws alive without ever honestly grappling with the Second Amendment.

At issue is New York City’s ban on civilian possession of stun guns and tasers—electronic arms commonly marketed as less-lethal self-defense tools. The plaintiffs, backed by the Second Amendment Foundation and Firearms Policy Coalition, say that should have been an easy case after the Supreme Court’s 2016 decision in Caetano v. Massachusetts, which made clear that stun guns are “arms” and cannot be excluded from Second Amendment protection simply because they are modern weapons. But during argument, the Second Circuit panel looked less interested in confronting Caetano head-on and more interested in whether it could dispose of the case on a technical evidentiary ground instead.

This has become a popular post-Bruen tactic that anti-gun courts have used to push the burden on gun owners and never force the government to justify its ban with real historical analogues.

The Real Fight Was Over “Common Use” and Who Has to Prove It

At argument, plaintiffs’ counsel told the panel the district court got the threshold question wrong by treating electronic stun guns and electronic dart guns as outside the Second Amendment’s plain text unless the challengers first proved they were in “common use.” He argued that the textual question should be simple: if the item is a weapon, it is an “arm,” and only after that does the burden shift to the government under Bruen to justify a ban through historical tradition. But the panel immediately pushed back with Gomez.

One judge pointed counsel to the Second Circuit’s 2025 decision in United States v. Gomez, which treated “common use” as part of Bruen step one and suggested the plaintiff bears the burden of proving the weapon is commonly used for lawful self-defense. From there, the questioning focused on the record: What actual evidence did plaintiffs submit? How many stun guns are out there? How are they used? Is there admissible proof they are commonly possessed by ordinary civilians for lawful purposes?

That line of questioning is important because it shows where the panel may be headed. Instead of announcing that stun guns are not protected arms, the court may simply say the plaintiffs did not submit enough evidence to prove common use under Rule 56. Bloomberg Law described the hearing the same way, reporting that the judges signaled there was not enough evidence in the record to fully analyze whether New York City’s ban violates the Second Amendment.

That would be a narrow ruling on paper, but the practical effect would still be to keep the ban alive.

The City Tried to Recast the Case as Purely Procedural

The city’s lawyer leaned hard into that narrower approach. According to the argument, New York City did not tell the panel stun guns are categorically not “arms.” Instead, the city argued that the district court simply lacked enough evidence to decide the question in plaintiffs’ favor. The city’s position was that after Gomez, plaintiffs bear the burden at step one to show common use for lawful purposes, and that they failed to supply reliable record evidence on how many stun guns and tasers are in civilian hands, how they are typically used, and whether they are commonly possessed for self-defense.

The city even attacked the kinds of sources the challengers relied on—other court decisions, a Congressional Research Service source, a New York Post article, and Justice Alito’s concurrence in Caetano—as insufficient proof for summary judgment. During argument, the judges repeatedly returned to that point, asking whether newspaper articles and findings from other courts could really carry the plaintiffs’ burden in this record. The court also seemed ready to ignore the superior court’s, which in this case is the United States Supreme Court’s, opinion on this matter.

Why That “Narrow” Approach Is Still a Problem for Gun Owners

Gun owners should not be fooled by the “this is just Rule 56” framing. The district court already granted summary judgment to New York City in March 2025, holding that plaintiffs failed to establish that stun guns and tasers are presumptively protected arms because they did not show those arms were in common use. The opinion expressly treated common use as part of the threshold analysis rather than as part of the government’s historical burden.

That is exactly the sort of doctrinal sleight of hand that has become common after Bruen. If lower courts can move “common use” into the plain-text stage, then the citizen challenging the law carries the burden early, and the government may never have to prove that the ban matches the Nation’s historical tradition of firearm regulation. NRA-ILA’s amicus brief in the case made that point directly, arguing that the burden should not be on plaintiffs to prove stun guns are “common enough” before receiving constitutional protection, because bearable arms are presumptively covered and it is the government’s job to show otherwise.

So while the city framed its argument as procedural modesty, the effect is substantive. A court can keep an anti-gun law in place simply by saying the plaintiff did not bring enough evidence to pass a gatekeeping test the Supreme Court never clearly assigned to the plaintiff in the first place.

Caetano Is Still the Problem the Second Circuit Cannot Escape

That is why Caetano hangs over this case, no matter how carefully the Second Circuit tries to write around it.

In Caetano, the Supreme Court summarily reversed a Massachusetts decision that had upheld a stun gun ban. The Court rejected the idea that weapons are unprotected because they were not in common use at the Founding or because they are modern inventions. Justice Alito’s concurrence went further, pointing to evidence that hundreds of thousands of stun guns had been sold to private citizens and emphasizing that the Second Amendment does not protect only arms that existed in the 18th century.

The challengers in Calce leaned on that. At oral argument, their lawyer argued that the district court had become an outlier and noted that other courts, including the Illinois Supreme Court and federal courts in New York, had treated stun guns as protected arms or at least had not adopted the district court’s cramped approach.

That leaves the Second Circuit in an awkward spot. If it says too much, it risks inviting Supreme Court review. If it says too little, it still leaves in place a ban on a class of arms the Supreme Court has already ruled are protected.

The judges did not sound fully sold on the city’s theory that stun guns are outside the Second Amendment. At one point, a judge openly suggested having “a hard time” with the argument that stun guns or tasers are not within the meaning of protected arms, especially given that they are less lethal than handguns. But the panel also repeatedly pressed plaintiffs on the weakness of their evidentiary record and on why they had not submitted more concrete proof about civilian ownership and lawful use.

The case remains active in the Second Circuit under docket number 25-861, and no decision has been issued yet.

If the panel affirms on narrow grounds, New York City will still have won what matters most in the short term: the ban stays in place. But a decision like that would also sharpen the larger question for higher review—whether “common use” is really a Bruen step-one burden on the citizen, or whether lower courts are using that theory to keep dodging the Supreme Court’s command that the government must justify modern gun-control laws with actual history.

That is the real fight in Calce. The stun gun issue is important on its own. But the bigger issue is whether lower courts get to nullify Bruen by turning every arms-ban case into a battle over plaintiff-supplied statistics before the government ever has to prove its ban is constitutional.

As Mark Smith of the Four Boxes Diner put it, this should be a layup under Caetano, and if the Second Circuit still twists itself into a narrow ruling to protect New York City’s ban, it will just prove once again that some lower courts are still looking for ways to dodge the Supreme Court’s Second Amendment framework.