A three-judge panel of the U.S. Court of Appeals for the Second Circuit has ruled that New York City’s ban on stun guns survives constitutional scrutiny — not by carrying the government’s burden under the Bruen framework, but by engineering the analysis so that burden never reaches the government at all. The summary order in Calce v. City of New York is a textbook case of the procedural gamesmanship plaguing Second Amendment litigation in hostile circuits.
The Two-Step Shell Game
Under the Bruen methodology, step one asks whether the Second Amendment’s plain text covers the individual’s conduct. If it does, the Constitution presumptively protects that conduct, and the burden shifts to the government at step two to justify its regulation through the nation’s historical tradition of firearms law.
The Second Circuit’s panel, led by Judge Raymond J. Lohier Jr., collapsed this framework by stuffing the “in common use” test into step one. The panel held that the plaintiffs — the Firearms Policy Coalition, the Second Amendment Foundation, and individual New Yorkers including lead plaintiff Nunzio Calce — bore the burden of proving that stun guns are “in common use today for self-defense” before the plain text was even implicated. Because they allegedly failed to adduce sufficient evidence on that point under Rule 56, summary judgment for the City was appropriate.
This gets the analysis backward. The Supreme Court in Heller defined “arms” as anything that can be used offensively or defensively — a definitional, linguistic inquiry rooted in founding-era dictionaries by Samuel Johnson and Noah Webster. A stun gun plainly qualifies. The “in common use” language in Heller arose during the historical analysis, where Justice Scalia identified the tradition permitting bans only on “dangerous and unusual weapons.” That is a government burden at step two, not a plaintiff burden at step one.
Circular Authority and the Inferior Court Problem
The most revealing aspect of the panel’s order is what it cited — and what it did not. The Second Circuit did not grapple with Heller’s definition of arms. It did not address Caetano v. Massachusetts, the 2016 per curiam decision in which the Supreme Court unanimously held that stun guns are protected arms. Instead, the panel relied on its own prior Second Circuit decisions. Under Article III, the Second Circuit is an inferior court bound to follow the Supreme Court. Citing yourself to avoid binding precedent from above is a circular authority game, not legal reasoning.
The Caetano problem is particularly acute. Jaime Caetano used a stun gun to defend herself against an abusive ex-boyfriend, was arrested under Massachusetts law, and the Supreme Court summarily reversed her conviction. If the nation’s highest court has already said stun guns are arms, the Second Circuit’s conclusion that plaintiffs failed to establish plain-text coverage is irreconcilable with controlling authority.
The Legislative Facts Sleight of Hand
The panel also conflated two distinct categories of evidence. It rejected materials the plaintiffs introduced on appeal — newspaper articles, a Congressional Research Service report documenting surging civilian stun gun purchases, and Justice Alito’s Caetano concurrence — on the ground that they were not presented to the district court.
But evidence of an arm’s prevalence in American society is a legislative fact, not an adjudicative fact requiring trial testimony. Courts consider legislative facts at any stage of proceedings. No witness needs to take the stand to establish that the American Revolution occurred or that the Federalist Papers exist. The same principle applies to evidence that millions of Americans own stun guns. Treating this as a failure of proof conflates two fundamentally different evidentiary categories — conveniently in the government’s favor.
The Summary Order Shield
The panel labeled its ruling a summary order with no precedential effect — a tell. A court confident in its reasoning publishes a precedential opinion. A court worried about Supreme Court review buries its work in a non-precedential format, hoping to avoid scrutiny.
Whether the Firearms Policy Coalition and Second Amendment Foundation seek certiorari remains to be seen. If they do, the Supreme Court will confront a lower court that ignored Caetano, misapplied Heller and Bruen, and ensured the government never had to carry the burden the Constitution assigns to it. A summary reversal — as the Court did in Caetano itself — would be entirely appropriate.
This article is based on analysis by Mark W. Smith on The Four Boxes Diner. Watch the original video. This does not constitute legal advice.