NY: More Fruit of Caetano: Ban on Stun Guns Challenged

The unanimous Supreme Court decision in the New Jersey Caetano case is now being used against New York State's ban on stun guns. In the Caetano PER CURIAM decision (pdf), the Court 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).

A few days ago, I wrote such a suit was to be expected.  A lawsuit by the Firearms Policy Coalition has been filed against Governor Cuomo and others. From firearmspolicy.org:

ALBANY, NY (December 6, 2016) — Firearms Policy Coalition (FPC), Firearms Policy Foundation (FPF), and New York resident Matthew Avitabile have filed a federal Second Amendment civil rights lawsuit against New York Governor Andrew Cuomo in an effort to strike down the state’s ban on the acquisition and possession of Tasers and other nonlethal (sometimes called “less-than-lethal”) weapons.

Individual plaintiff Matthew Avitabile is the mayor of Middleburgh, New York and would like to buy and keep a Taser for self-defense. But New York Penal Law § 265.01 states that “A person is guilty of criminal possession of a weapon” if “He or she possesses any….electronic dart gun” or “electronic stun gun,” making the crime punishable as a misdemeanor.

The complaint states that, “Given the [United States Supreme Court] decision in Heller, Defendants may not completely ban the keeping and bearing of arms for self-defense” or “impose regulations on the right to keep and carry arms that are inconsistent with the Second Amendment.”

Earlier this year, the Supreme Court dealt a blow to a similar Massachusetts law, but that case was resolved before a final decision was reached.

Said lead counsel Stephen Stamboulieh about the case, “We are pleased to be working to vindicate Mr. Avitabile’s Second Amendment civil rights and hope to expand the right to keep and bear arms for all law abiding New York residents through this lawsuit.”

From the lawsuit(pdf):

 Arms are “‘weapons of offence, or armour of defence.’ 1 Dictionary of the English Language 107 (4th ed.)” They are anything that a man [or woman] wears for his defense, or takes into his hands, or uses in wrath to cast at or strike another.’ A New and Complete Law Dictionary(1771).” District of Columbia v. Heller, 554 U.S. at 581.

Eugene Volokh is one of the consulting attorneys on the case. Volokh is one of the most famous writers and experts on Second Amendment jurisprudence. His legal blog "The Volokh Conspiracy" is hosted by the Washington Post. 


©2016 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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