The Firearms Policy Coalition and the Second Amendment Foundation, joined by five individual New Yorkers, filed a petition for a writ of certiorari with the United States Supreme Court on July 7, 2026, asking the Justices to strike down New York City’s ban on the possession of stun guns and tasers. The case is Calce v. City of New York, and the petition itself supplies the best shorthand for what is at stake: this is Caetano 2.0. A decade after the Supreme Court summarily corrected a state court for denying Second Amendment protection to stun guns, a federal appeals court has made precisely the same mistake — and I expect the Court to take this case.
A Panel That Ignored Its Own Precedent
The Second Circuit affirmed a grant of summary judgment for the City in an unsigned summary order on April 13, 2026, following oral argument on March 25, 2026. Notably, the panel declined to publish the order in the official reporters or treat it as precedential. I read that choice as an implicit admission that the panel knew its reasoning would not hold up. Circuit Judge Raymond J. Lohier Jr. sat on that panel. I have known Judge Lohier since my years at NYU Law School, when he was clerking for Judge Robert P. Patterson Jr. in the Southern District of New York and hired me as an intern in those chambers, and I respect his career. But on this record, the panel got the Second Amendment analysis badly wrong, holding that a stun gun ban does not even implicate the plain text of the Amendment absent evidence that stun guns are “in common use.”
What Caetano Already Settled
The Supreme Court answered this question in 2016. In Caetano v. Massachusetts, 577 U.S. 411 (2016), the Court summarily vacated a Massachusetts Supreme Judicial Court decision that had denied Second Amendment protection to a stun gun, holding that the Amendment “extends, prima facie, to all instruments that constitute bearable arms.” Justice Alito, joined by Justice Thomas, wrote separately to excoriate the lower court’s reasoning. The Calce petition puts the point plainly:
“The decision below by the U.S. Court of Appeals for the Second Circuit similarly flouted this Court’s precedent to reject a challenge to a ban on stun guns.”
If firearms — objects that can kill — are protected arms under the plain text, then non-lethal stun guns and tasers are protected a fortiori. That is not a close question.
The Common-Use Test Puts the Burden on Government
The deeper doctrinal error is about sequencing. Under the Bruen framework — plain text first, history second — an arm is covered at the threshold if it is a bearable weapon customarily carried for defense. Whether that arm is “in common use” only matters at the second, historical step, where the government bears the burden of proving the weapon is dangerous and unusual. The petition gets this exactly right, and it tracks the argument I laid out in “What Part of ‘In Common Use’ Don’t You Understand?” in the Harvard Journal of Law & Public Policy: the citizen challenging a ban never has to prove common use at the plain-text stage. The government has to prove its absence at the historical stage, for a handgun, an AR-15, or a stun gun alike.
A Ready-Made Pairing With the AR-15 Cases
The timing here is not incidental. Just two weeks before this petition was filed, the Supreme Court decided Wolford v. Lopez, No. 24-1046, striking down Hawaii’s default rule barring concealed-carry permit holders from private property open to the public absent express owner consent — and the majority opinion in Wolford discusses Caetano at length. The Court already has the AR-15 question before it in Viramontes v. Cook County and Grant v. Higgins, No. 25-566, both granted and consolidated for argument in October Term 2026. Pairing a non-lethal-arms case with the lethal-arms cases would let the Court resolve the common-use methodology once, across the full spectrum of bearable arms. I expect argument this fall and a decision by June 2027, though that timeline is my own projection, not a confirmed Court calendar.
New York City’s Contempt for Its Own Residents
Adam Kraut, Executive Director of the Second Amendment Foundation, captured the absurdity of the underlying policy:
“The fact that residents of New York City cannot decide for themselves if they’d like to use a stun gun or taser for self-defense borders on the ridiculous. Prohibiting law-abiding peaceable citizens from carrying non-lethal means of self-defense not only violates the Constitution, but transparently communicates the real disdain New York City lawmakers have for the residents they represent.”
New York City permits its residents to possess firearms under a licensing regime while banning weapons that cannot kill. That is not a coherent public-safety policy. It is a statement about who city government trusts to defend themselves, and the answer, as it has been for decades, is no one.
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.