Judge Eduardo Ramos, the U.S. District Judge for the Southern District of New York, has issued an Opinion & Order that a ban on stun guns is constitutional. A New York State law prohibits the private possession of stun guns and tasers; a New York City law prohibits the possession and selling of stun guns. Judge Ramos has ruled these laws do not infringe on rights protected by the Second Amendment of the United States Constitution.
The case is Calce v. City of New York, filed in October of 2021. Ramos’ court is the first court to conclude that stun guns have not been established as “arms” covered by the text of the Second Amendment, since the Supreme Court rebuked the Massachusetts Supreme Court in the Caetano case. In Caetano, the Court unanimously held that:
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)
Prima facie means “on its face”. The Supreme Court, in the three cases of Heller, McDonald, and Caetano, has repeatedly stated the text of the Second Amendment extends to all instruments that constitute bearable arms. The statement is very clear. It goes back to the establishment of what the words in the text of the Second Amendment mean. In Heller, the meaning of “arms” is established by reference to the dictionary definition at the time:
Before addressing the verbs “keep” and “bear,” we interpret their object: “Arms.” The 18th-century meaning is no different from the meaning today. The 1773 edition of Samuel Johnson’s dictionary defined “arms” as “weapons of offence, or armour of defence.” 1 Dictionary of the English Language 107 (4th ed.) (hereinafter Johnson). Timothy Cunningham’s important 1771 legal dictionary defined “arms” as “any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another.” 1 A New and Complete Law Dictionary (1771); see also N. Webster, American Dictionary of the English Language (1828) (reprinted 1989) (hereinafter Webster) (similar).
Heller clearly establishes the word “arms” in the Second Amendment refers to “any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another. ” There is not question of the definition of “arms” in the text of the Second Amendment.
Once the action in question in the court is established to be covered by the text of the Second Amendment, the burden of proof shifts to the government to show there were longstanding legal traditions which established exceptions to the text, such as limitations on “dangerous and unusual” weapons.
Courts defying the Supreme Court have adopted a strategy to dilute and deny Second Amendment rights. Those courts claim the burden of proof is on those supporting the Second Amendment to prove that particular arms in a case are in “common use” to be covered by the Second Amendment text.
In the New York case, this is the tactic Judge Ramos used to find in favor of New York City. Judge Ramos claims it is the burden of the plaintiffs to prove stun guns and tasers are “in common use” for them to be covered by the text of the Second Amendment. From Judge Ramos:
“[T]he Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes.” Heller, 554 U.S. at 625. Therefore, Plaintiffs must show that stun guns and tasers are in “common use” today, and that they are “typically possessed by law-abiding citizens for lawful purposes.”
Judge Ramos is turning the burden of proof on its head. Just because some weapons may not be protected by the Second Amendment does not mean they are not covered by the text of the Second Amendment.
Most jurisdictions and courts are ruling differently. Several jurisdictions have removed their bans on various weapons, including in New York State. For example, On 14 December 2018, a New York District judge, Pamela K. Chen, an Obama appointee, struck down a ban on nunchakus as unconstitutional. In Rhode Island, District Judge William E. Smith found the burden falls to the state to prove particular weapons are not protected by the Second Amendment.
This correspondent views this ruling as another effort by judges who dislike the Second Amendment to delay and delay, hoping for a miracle to reverse current Supreme Court decisions on the Second Amendment.
About Dean Weingarten:
Dean Weingarten has been a peace officer, a military officer, was on the University of Wisconsin Pistol Team for four years, and was first certified to teach firearms safety in 1973. He taught the Arizona concealed carry course for fifteen years until the goal of Constitutional Carry was attained. He has degrees in meteorology and mining engineering, and retired from the Department of Defense after a 30 year career in Army Research, Development, Testing, and Evaluation.
