Wednesday, April 02, 2025

NYC Court Holds Stun Guns are not Arms Protected by 2A


Judge Eduardo Ramos, the U.S. District Judge for the Southern District of New York,  has issued an Opinion & Order that a ban on stun guns is not unconstitutional. A New York State law prohibits the private possession of stun guns and tasers; a New York City law prohibits the possession and selling of stun guns. Judge Ramos has ruled these laws do not infringe on rights protected by the Second Amendment of the United States Constitution.

The case is Calce v. City of New York, filed in October of 2021.  Ramos' court is the first court to conclude that stun guns have not been established as "arms" covered by the text of the Second Amendment, since the Supreme Court rebuked the Massachusetts Supreme Court in the Caetano case. In Caetano, the Court unanimously 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)

Prima facie means "on its face".  The Supreme Court in the three cases of Heller, McDonald and Caetano, has repeatedly stated the text of the Second Amendment extends to all instruments that constitute bearable arms.  The statement is very clear. It goes back to the establishment of what the words in the text of the Second Amendment mean. In Heller, the meaning of "arms" is established, by reference to the dictionary definition at the time:

Before addressing the verbs “keep” and “bear,” we interpret their object: “Arms.” The 18th-century meaning is no different from the meaning today. The 1773 edition of Samuel Johnson’s dictionary defined “arms” as “weapons of offence, or armour of defence.” 1 Dictionary of the English Language 107 (4th ed.) (hereinafter Johnson). Timothy Cunningham’s important 1771 legal dictionary defined “arms” as “any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another.” 1 A New and Complete Law Dictionary (1771); see also N. Webster, American Dictionary of the English Language (1828) (reprinted 1989) (hereinafter Webster) (similar).

Heller clearly establishes the word "arms" in the Second Amendment refers to "any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another. " There is not question of the definition of "arms" in the text of the Second Amendment.

Once the action in question in the court is established to be covered by the text of the Second Amendment, the burden of proof shifts to the government to show there were longstanding legal traditions which established exceptions to the text, such as limitations on "dangerous and unusual" weapons.

Courts which are defying the Supreme Court have hit on a strategy to dilute and deny Second Amendment rights. Those courts claim the burden of proof is on those supporting the Second Amendment to prove particular arms in a case are in "common use" to be covered by the Second Amendment text.

In the New York case, this is the tactic Judge Ramos uses to find in favor of New York City. Judge Ramos claims it is the burden of the plaintiffs to prove stun guns and tasers are "in common use" for them to be covered by the text of the Second Amendment. From Judge Ramos:

 “[T]he Second Amendment does not protect those weapons not typically
possessed by law-abiding citizens for lawful purposes.” Heller, 554 U.S. at 625. Therefore, Plaintiffs must show that stun guns and tasers are in “common use” today, and that they are “typically possessed by law-abiding citizens for lawful purposes.”

Analysis:

Judge Ramos is turning the burden of proof on its head. Just because some weapons may not be protected by the Second Amendment does not mean they are not covered by the text of the Second Amendment.

Most jurisdictions and courts are ruling differently. Several jurisdictions have removed their bans on various weapons, including in New York State. For example,  On 14 December 2018, a New York District judge, Pamela K. Chen, an Obama appointee, has struck down a ban on nunchakus, as unconstitutional. In Rhode Island, District Judge William E. Smith found the burden falls to the state to prove particular weapons are not protected by the Second Amendment.

This correspondent views this ruling as another effort by judges who dislike the Second Amendment to delay and delay, hoping for a miracle to reverse current Supreme Court decisions on the Second Amendment.

©2025 by Dean Weingarten: Permission to share is granted when this notice and link are included.

Gun Watch



 

VA: Martinsberg Intruder Shot During Altercation

FRANKLIN COUNTY, Va. (WFXR) – The Franklin County Sheriff is investigating after a man allegedly entered a home in Martinsville and was then shot on March 30.

According to the sheriff, deputies responded to the 100 block of Blue Spruce Drive around 9:30 p.m. after reports that a man was shot during an altercation when he allegedly entered a homeowner’s property. At the scene, deputies immediately began emergency first aid until EMS arrived.


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NC: Larinburg Robbery Attempt Gunfight, Suspect Killed, Victim Wounded

After investigation, officers said the 19-year-old was in the store playing a 'skills game' when Henry came inside with three men.

Officers said Henry pointed a firearm at the 19-year-old in what appeared to be an attempted robbery.

Henry shot the firearm, and the 19-year-old pulled out a firearm and shot back.

They both struck each other. Henry fled the scene and the 19-year-old collapsed inside.

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LA: Baton Rouge Gunfight with Vehicle Burglary Suspects, Victim Wounded

EAST BATON ROUGE, La. (WAFB) - A man is recovering after being shot in the arm following a confrontation with two alleged vehicle burglars, according to law enforcement.

Officials with the East Baton Rouge Sheriff’s Office say the shooting happened early Saturday morning, Mar. 29., around 1 a.m. in the 8800 block of Mable Drive.

Deputies responded to the scene where they learned the victim had confronted two males who were allegedly attempting to commit vehicle burglaries. According to officials, the victim and two others later followed the two males to the end of Marionette Drive where one of the alleged burglars opened fire.

The victims group returned fire and the two males fled, deputies say. Their identities are currently unknown.


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MO: Gunfight/Road Rage? in Charleston, Shots Fired One Wounded

CAPE GIRARDEAU, Mo. (KFVS) - A shooting in Charleston, Mo. sent one man to the hospital and landed another behind bars.

According to court documents, 35-year-old Laterence Caldwell is accused of shooting the victim in the leg near Boomland on Saturday, March 29.

The victim told police he felt the bullet hit his leg as a black Nissan passed his vehicle.

The victim then grabbed his gun and fired two shots through the windshield of his vehicle, according to a probable cause statement.



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2/3 of Federal Gun Confiscations are not for Criminal Acts

 

Less than one third of guns  and ammunition taken by the federal government are done through criminal forfeitures. During the Biden administration, criminal forfeitures of guns and ammunition nearly doubled, while administrative forfeitures and civil forfeitures were essentially level.  The chart shown was obtained from the Department of Justice (DOJ). It lists the three types of forfeitures by for the last five fiscal years. The federal fiscal year is the time period used for budget purposes, running from October 1 to September 30 each year. The five years covered span most of the four years of the Biden administration.

Here is a short description of the three types of forfeiture listed. They are derived form longer definitions posted at the DOJ.  

Judicial Criminal Forfeiture - the procedure by which property is forfeited by a person as part of a criminal conviction. The connection between the crime and the property must be established by a preponderance of the evidence. This type of forfeiture occurs when a claimant contests the forfeiture. This type of forfeiture accounts for 31% of the federal forfeitures of guns and ammunition.

Civil Judicial Forfeiture -  the procedure by which property alleged to be derived from or used to commit an offense is forfeited to the government. No criminal conviction is required, but a court has to find a preponderance of the evidence, presented by the government, links the property to criminal activity. This type of forfeiture amounts to about two percent of the forfeitures of guns and ammunition.

Administrative Forfeiture - the procedure by which property is forfeited without a case being filed in federal court. This occurs when no one contests the forfeiture of the assets. The seizure of the property is required to be based on probable cause. This type of forfeiture is the most common at about two thirds of the federal forfeitures of guns and ammunition. 

It is likely the judicial-criminal and administrative forfeiture of firearms and ammunition will be reduced during the President Trump administration. FY21 ran from October 1, 2020 to September 30, 2021. The first four months were during the first Trump administration. Much of the last eight months happened as the Biden administration found its footing and changed the direction of the Bureau of Alcohol, Tobacco, Firearms, and Explosives, (ATF).  The FY21 number of Judicial-criminal firearms and guns were 8,482. The number increased for the next three years to 16,858, very close to double. There was very little change in the other two types of forfeiture. 

Analysis: 

The doubling of judicial-criminal forfeitures during the Biden administration likely occurred because of the "zero-tolerance" anti-Second Amendment policy of the Biden administration. Acts which would not have been considered criminal, or would not have been prosecuted before the Biden administration, were vigorously prosecuted during the Biden administration.  The Trump administration has already put plans into effect to transfer or cut 1000 ATF agents. The ATF has about 2,600 agents. Removing a thousand ATF agents from the ATF means the ability of the ATF to infringe on Second Amendment rights will be greatly reduced. The change in focus of the ATF, away from paperwork errors and toward violent criminals will probably mean a smaller number of more important cases.


©2025 by Dean Weingarten: Permission to share is granted when this notice and link are included.

Gun Watch



CA: Los Banos Homeowner in Gunfight with Home Invaders. Two Invaders Wounded

Two people were shot by a homeowner during a home invasion early Friday morning in Los Banos.

The Los Banos Police Department says dispatch fist received calls around 2:00 a.m. for reports of gunshots in the 2000 block of Edward Street.

When officers arrived, they learned that several people forced their way into a home.

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NM: Domestic Defense? EX attempts to Force way into House; new Friend Shoots Ex

APD officers responded Friday at around 1:10 a.m. to reports of shots fired at an apartment complex, just south of San Mateo Boulevard and Osuna Road. They arrived and found a man dead with gunshot wounds.

Detectives investigated and say the man tried forcing his way into his ex-girlfriend’s apartment after a dispute. Her friend then stepped in and shot him.

After consulting with the Bernalillo County District Attorney’s Office, however, APD stated no charges will be filed at this time.

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Tuesday, April 01, 2025

TX: Houston Homeowner Shoots, Wounds Burglary Suspect

When he got to the garage, he noticed the door had been opened. That's when he found a man inside his wife's car in the driveway.

The man got out of the wife's car and started moving down the driveway. Houston police said the homeowner told him to stop. According to HPD, it was dark outside and the man made a quick movement, prompting the homeowner to open fire twice, hitting the man once in the arm and once in the leg.

The homeowner yelled at his wife to call 911 and get help as he stayed with the man.

The Houston Fire Department quickly arrived to the scene and brought the man to an area hospital where he is expected to survive. He is expected to face burglary charges.

The Harris County District Attorney's Office will investigate this incident to determine whether any charges will be filed on the homeowner.



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PA: Philadelphia Burglary Suspect Shot, Killed by 70-Year-Old Resident

In an interview with NBC10, Philadelphia Police Department Captain Shaun Butts said that police were initially unclear on the circumstances that led to the shooting.

However, in a noon update, law enforcement officials said the 70-year-old homeowner was cooperating with the investigation and investigators believe the man who died was killed during an attempted burglary.

An investigation into this incident is ongoing, officials said.

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CT: Domestic Defense, Father Shoots Wife and Son, Friend Shoots Father


A preliminary investigation determined that the father was in the process of moving out of the home, Stephens said, and the son and his friend were assisting him. He said the mother, who had been estranged from the husband and has been living in a different town, had arrived to help.

Stephens said an argument ensued between the mother and father, and the son and friend tried to intervene. The father, who was armed, shot both the mother and son.

Then, Stephens said, the son's friend, who has a legal firearms permit, took out his registered weapon and shot the father. He said the man then called 911.

"It appears he was defending himself when he shot and killed (the husband). He was fearing for his life," Stephens said of the son's friend, adding that he was "very distraught" when called 911.

 

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