Oral argument just wrapped in Calce v. City of New York at the United States Court of Appeals for the Second Circuit — a case over New York City’s absolute ban on stun guns, i.e., non-lethal electroshock weapons. This should be the easiest Second Amendment case on the docket. The Supreme Court already decided it — ten years ago.
The Supreme Court Already Answered This in 2016
In Caetano v. Massachusetts, 577 U.S. 411 (2016), the Supreme Court issued an 8–0 per curiam opinion that summarily reversed the Massachusetts Supreme Judicial Court’s stun gun ban in roughly two pages. The Court reaffirmed 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.” The Massachusetts court had said stun guns were unprotected because they weren’t in common use at the time of the founding — the Supreme Court swatted that reasoning away without needing oral argument.
That was a worse Court for the Second Amendment than the one we have today. Ruth Bader Ginsburg was on it. They still couldn’t find a way to uphold the stun gun ban. And yet, here we are in 2026, with New York City’s ban still on the books and the Second Circuit about to tell us, once again, that inferior courts know better than the Supreme Court of the United States.
The Rigged Game: Elevating Common Use to Plain Text
Here is the move. Here is the shell game that every anti-gun circuit plays. The Bruen / Heller methodology has two steps. At step one, you ask whether the plain text of the Second Amendment covers the conduct at issue. If yes, the presumption is the conduct is protected and the burden shifts to the government at step two to justify the regulation through historical tradition. At step two, in an arms-ban case, the government must prove the banned weapon is “dangerous and unusual” — meaning, among other things, not in common use by Americans for lawful purposes.
The anti-gun circuits — the Second, Fourth, Seventh, Ninth — have figured out that if they can drag “common use” out of step two and jam it into step one, they can keep the burden on the Second Amendment claimant forever. They make the rights holder prove common use before the plain text is even satisfied, so the government never has to carry its historical burden. It is completely backwards. It is the exact inversion of what the Supreme Court requires.
The Second Circuit formalized this in United States v. Gomez, a recent decision with a panel that included Judges Lohier and Jacobs. In Gomez, the court held that a weapon not established as “in common use” fails the plain text inquiry and is therefore unprotected — full stop. The panel in Calce signaled during oral argument that they intend to apply the Gomez framework here. My prediction: the Second Amendment claimants lose 3–0.
Why That Opinion Will Be Written Squirrelly
Here is what I want you to watch for when that decision drops, which will likely be months from now. The Second Circuit is in a dangerous position. If they write an opinion that expressly holds stun guns are not “arms” under the Second Amendment — or even strongly implies it — they are issuing a direct invitation for the Supreme Court to do to them exactly what it did to the Massachusetts Supreme Judicial Court in Caetano: a two-page, back-of-the-hand summary reversal that is deeply embarrassing to the circuit.
So I expect the opinion to be deliberately narrow and evasive. They will try to dodge the cleanest ground. They will write around the Caetano precedent rather than through it, hoping to thread a needle that is too small to thread. They know the Supreme Court’s clerks will read this opinion. They know the cert petition is already being drafted. And they know a per curiam summary reversal — no oral argument, no full briefing, just “you got this obviously wrong, go fix it” — would be a professional embarrassment they would rather not absorb.
The “Dangerous” Prong Seals It Regardless
Even if you grant the Second Circuit its flawed premise — even if you accept, for the sake of argument, that stun guns might be “unusual” — the city still cannot win. The dangerous-and-unusual test is conjunctive. The weapon must be both dangerous and unusual. Stun guns are non-lethal by design. And in Heller, 554 U.S. 570 (2008), the Supreme Court held that handguns — weapons that fire live ammunition capable of killing people — are not “dangerous and unusual” and cannot be banned. If handguns aren’t dangerous in the constitutional sense, a stun gun that cannot kill anyone certainly isn’t. The city’s case fails on either prong of a two-prong test. The Second Amendment claimants should win; they are going to lose.
Closing
The lesson here is structural. These anti-gun circuits — New York, Chicago, San Francisco — know the Supreme Court can only grant cert in one or two Second Amendment cases per term. They are counting on the odds. But Caetano is practically on all fours with Calce, and a squirrelly opinion from the Second Circuit is not going to obscure that. When cert is sought, the Court is going to take a hard look. And if the Second Circuit writes what I think they are going to write, they are going to get spanked — just like Massachusetts did.
This article is based on analysis by Professor Mark W. Smith, constitutional attorney and Host of the Four Boxes Diner 2nd Amendment channel. Watch the original video here. This does not constitute legal advice.