On September 8, 2026, the Supreme Court ordered the City of New York to respond to a petition asking the Justices to strike down the city’s ban on stun guns and tasers. The case is Calce v. City of New York, No. 26-46, which had been distributed for the Justices’ September 28 conference; New York’s response is now due October 8, so the petition will be considered after the response is filed. A call for response is not a cert grant, but it is the clearest signal the Court sends before one: at least one Justice wants to hear from the City before deciding whether this case merits review. I have called this case Caetano 2.0 since the petition was filed, and every docket entry since has made the label more accurate.
What the Second Circuit Actually Held
The petition comes up from a summary order the U.S. Court of Appeals for the Second Circuit entered on April 13, 2026, No. 25-861-cv, with Circuit Judges Barrington D. Parker, Raymond J. Lohier Jr., and Sarah A. L. Merriam on the panel. Because it is an unsigned summary order, no individual judge is credited as its author — standard practice for a non-precedential disposition. The order affirmed summary judgment for New York State and New York City against a group of stun-gun owners, among them Amanda Kennedy, charged in Brooklyn in November 2021 under the city’s administrative code after she used a stun gun to stop a woman who was attacking her; the charge was resolved by an adjournment in contemplation of dismissal. The panel did not hold, categorically, that tasers are not weapons. It held something narrower, and more revealing: that the plaintiffs “failed to provide evidence that stun guns and tasers are in common use for lawful purposes,” and therefore “failed… to carry their burden at step one of the Bruen analysis.” That sentence is the whole case. The panel put the burden of proving common use on the citizens challenging the ban, at the plain-text stage, before the government ever had to justify anything.
Heller Already Defined the Word “Weapon”
The Second Circuit did not need to guess at what “arms” means. The Supreme Court answered that in 2008, in District of Columbia v. Heller, 554 U.S. 570, 582, by returning to the founding-era dictionaries a court consults when a constitutional text uses ordinary language. The Court relied on Samuel Johnson’s English dictionary, compiled at Oxford, and on Noah Webster’s dictionary, the American answer Webster wrote because he thought the young republic needed its own reference point rather than a British one. Both defined a weapon as anything usable for offensive or defensive purposes. Caetano v. Massachusetts, 577 U.S. 411 (2016), quoting Heller, distilled the rule into a single sentence: the Second Amendment’s text “extends, prima facie, to all instruments that constitute bearable arms.” A stun gun is unmistakably an instrument a person bears and uses for defense. Under that definition, the plain-text question the Second Circuit thought required evidence has already been answered by two eighteenth-century lexicographers and one unanimous Supreme Court order.
Caetano Already Settled This
The Court did not merely gesture at this answer in 2016; it delivered it in a case built on facts close to Calce’s own. Jaime Caetano carried a stun gun to defend herself against a violent ex-boyfriend, was criminally prosecuted for it, and the Massachusetts Supreme Judicial Court upheld her conviction on the theory that stun guns did not exist at the founding and were not “in common use” for military purposes. The Supreme Court summarily reversed, per curiam, holding that the state court’s reasoning conflicted with its own precedent. On remand, the Massachusetts high court held the ban unconstitutional as applied to her. Massachusetts then abandoned its ban, and Hawaii repealed its own restriction. New York City did not. It kept prosecuting residents under N.Y. Penal Law § 265.01 and N.Y.C. Administrative Code § 10-135 for carrying the very device the Supreme Court had already vindicated, and the Second Circuit blessed that choice by moving the goalposts on who bears the burden of proof. That is precisely the maneuver Justice Barrett’s footnote in her Wolford v. Lopez concurrence forecloses — courts may not, in her words, “smuggle additional limits drawn from our regulatory tradition into the plain text stage of the inquiry.” I have made the same sequencing argument at length in the AR-15 cases now pending before the Court; this is the identical error, wearing a different weapon.
A License to Carry a Handgun, but Not a Taser
The clearest evidence that New York’s position is not really about public safety is the City’s own licensing scheme. A New Yorker who obtains a concealed-carry permit is entitled to carry a loaded handgun capable of killing. That same permit holder is still forbidden from carrying a stun gun, a device designed in nearly every case not to kill. If the City genuinely believed less-lethal tools posed a greater danger than firearms, its own laws would reflect that judgment. They do not. What the record shows instead is a government that has decided which of its law-abiding residents may defend themselves and which may not, in defiance of a Supreme Court precedent already on the books for a decade. Whether the Justices grant certiorari after New York’s response is due on October 8 has not yet been decided, and I want to be candid about that: a call for response signals interest, not an outcome. But the City has been asked to explain why a unanimous, decade-old precedent should not control a case built on the same facts, and I do not believe it has an answer. I expect this Court to grant review and reverse.
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.