The Second Amendment protects the ownership and possession of non-lethal “arms” such that New York’s ban on Stun Guns and Tasers is improper for it is a constitutionally protected right. New York State allows on a limited and regulated basis private individuals to own, possess and carry firearms, but forbids the possession of non-lethal stun guns and electronic dart guns. It is this total prohibition that runs counter to the 2nd Amendment.
It is commonly thought that the Second Amendment protects firearms, hand or long guns, but recent United States Supreme Court rulings counter the commonly held thinking about the reaches of the 2nd Amendment.
New York State’s Legislature and Governor took great pride in the passage of the SAFE Act which is one of the Nation’s strictest regulations of firearms. The 2013 SAFE act placed additional restrictions on the possession and sale of assault-type weapons and prohibited the sale and possession of large-capacity “ammunition feeding devices (10 rounds or greater). Fn1.
Remarkably, New York allows and regulates the possession, sale, and ownership of a variety of firearms, yet universally and unequivocally outlaws and bans possession of all Stun Guns, and related non-lethal weapons. It is this universal and total ban that runs afoul of the protections afforded in the Second Amendment.
Both Electric Dart Guns and Stun guns are defined at P.L. 265.00 (15-a), added 1976, and Electronic Stun Guns, P.L. 265.00 (15-c). Fn 2
A review of the legislative history reveals that the prohibition of stun guns was added in 1990 because it was akin to the already outlawed Dart Gun or Taser which shoots a barb and delivers a shock while the Stun Gun delivers the same shock only by direct contact. “While the effect of the charge is to stun, knock out or paralyze a person and is temporary, it causes great pain and may well be lethal to a person in poor health.” Fn 3
“Accordingly for both weapons, possession per se is a crime. Penal Law 265.01(1), 265.02 (1).” Id.
Notwithstanding the fact as reported by the United States Supreme Court, in Caetano v. Massachusetts, infra, ‘[h]undreds of thousands of Tasers and stun guns have been sold to private citizens’, “who it appears may lawfully possess them in 45 State.”, possession in New York is subjects one to criminal prosecution. Fn 4.
A review and analysis of a Trilogy of recent and controlling US Supreme Court decisions interpreting and incorporating the 2nd Amendment’s protection and prohibitions reveal, to this writer, that New York’s total ban on non-lethal stun and Taser guns runs counter to Federal Constitutional mandates.
District of Columbia v. Heller: Federal Protections & Prohibitions
The first of the Trilogy, Heller, involves Justice Scalia’s landmark and historical analysis of the 2nd Amendment in which the District of Columbia’s handgun total ban was struck down.
Fn. 5 The D.C. law was something akin to Alice in Wonderland. The D.C. made criminal the possession of all handguns unless registered and licensed, but simultaneously, prohibited all licensing and registration of handguns. The issue presented in Heller revolved around the interpretation of the three clauses contained in the 2nd Amendment:
Well-regulated Militia, being necessary to the security of a Free State,
The right of the people to keep and bear Arms,
Shall not be infringed.
The Four dissenting Justice’s reasoned that the two clauses are connected and that the right to bear arms is for the use and in connection of the State’s Militia, only.
The Decision traces the roots of the Amendment by applying, “the words and phrases in their normal and ordinary meaning, to be best understood by voters, and not technically applied. A common-sense reading of the clauses yields two distinct rights.
Justice Scalia cogently noted that if the Constitution ratified by the voters was intended to only allow citizens to keep and bear arms in the context of a well-regulated State Militia, they would have said so.
Next, the Court swats away the contention that only “arms” or weapons that are used and specially designed for military use are protected. The Court reasoned that “arms” historically and presently are any weapon for offense or defense, or simply meant “to have weapons.” ; not only military-grade.
Ironically, this argument advanced by the anti-gun lobby, if embraced, would prove to actually limit and prevent New York’s SAFE Act and others that enact Assault weapons (Assault Rifles) Gun Restrictions because those presently regulated and prohibited firearms are specially designed for military use.
The next argument in support of the ban on personal handguns in the home was that the 2nd Amendment only protected “arms” that were in existence in the 18th Century. Justice Scalia demonstrated the folly of this argument and its frivolous advancement. The Bill of Rights and our Constitution are not interpreted based on the time it was written. If so this would mean that only projections for free speech would be the verbal word, pen or maybes a single handset printing press, and not any other modern-day forms of media: not Twitter, Face book, broadcast, cable, satellite or internet-based statements would have any free speech protections.
So it is the 2nd Amendment protects citizens and prohibits the Federal Government from the complete and universal denial of all ‘arms” even those not specially designed for military use or those “arms “not even imagined at the time of the Constitution’s enactment.
Regrettably, space limitation does not allow a detailed analysis of Heller, but suffice it to say, Justice Scalia’s use of common sense, logic, ordinary application of words, historical analysis of pre-dated State’s Constitution, prior Courts precedents all formed the basis for determining that the 2nd Amendment prohibits the Federal total ban on personal “arms” ownership and home possession.
The Court cautions that no right is absolute, and “ the “[c]ourt’s opinion should not be taken to cast doubt on longs standing prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places . . . or law imposing conditions and qualifications on the commercial sale of arms. Fn 6.
Heller’s application was limited to Federal Government infringements, the District of Columbia being a Federal enclave; thus, its application to the States was left open.
McDonald v. Chicago: State’s Prohibitions
Two years later the second of the Trilogy wad decided; McDonald v. Chicago, 130 S.Ct 3020 ( 2010) which examined under what circumstances the Bill of Rights are to be applied to or incorporated to the State, Incorporation Doctrine. Again space limitation does not allow a detailed review of the competing Incorporation theories of Federal Constitutional protections imposed on the State: Privileges and Immunity, all of the Bill of Rights (total Justice Hugo Black), or Selective, Procedural or Substantive Fundamental Due Process Rights.
Suffice it to state, the Court ruled for the first time that the 2nd Amendment protections fully apply to the States, and any State’s total ban of handguns is prohibited.
Much of the analysis by the Justice Alito in the seven Justice majority was aimed at countering the Justice Stevens and Breyer’s dissent and their proposed application of the Incorporation Doctrine. In retrospect, Justice Steven’s proposed limits of the protections of the 2nd now become more focused as he has recently demonstrated his anti-gun position when he opined that he 2nd Amendment should be repealed to counter the NRA’s fraudulent theories and grip upon the Nation. Fn 7
McDonald addressed Chicago’s total ban on handgun ownership similar to those restrictions imposed by D.C in Heller, and for the first time held the 2nd Amendment is applicable to the States as a Fundamental Right under the 14th Amendment. The Court ruled the 2nd Amendment reflected “Fundamental” rights to our scheme of ordered liberty so the 2nd Amendment applies to the States.
Once the Incorporation hurdle was overcome, it followed easily that Heller’s protection against “Arms Infringement” applied with equal vigor to the States resulting in the striking down of Chicago’s total handgun ban as offensive to the 2nd Amendment.
Caetano v. Massachusetts: State’s Stun Guns Prohibitions
The third of the Trilogy and its application to Stun Guns was addressed in 2016. In a Per Curium Decision, Caetano v. Massachusetts, 136 S. Ct. 1027 (2016), Justice Alito, author of McDonald with Justice Thomas joining wrote his own concurrence expanding the reaches of the 2nd Amendment’s protections.
Massachusetts as does New York, supra, makes criminal the possession of all stun guns. The Court took the State to the task and held that “the Second Amendment extends, prima fascia, to all instruments that constitute bearable arms, even those that were not in existence at the time of Founding” quoting and citing Heller and McDonald.
The Court scoffed at Massachusetts’s attempt to save its ban on stun guns and rejected its claims that stun guns have no 2nd Amendment protection because they were not in common use nor existed at the time of its enactment. Heller’s clear statements “that the Second Amendment extends . . . to . . . arm . . . that were not in existence at the time of the founding”, defeats the State’s claim .Id.
The Court had little trouble dismissing the State’s next contention that “dangerous and usual weapons” were never protected by the 2nd Amendment. Caetano ruled that just because stun guns are a “thoroughly modern invention” does not make them “dangerous and unusual “: because to do so would render all modern “Arms” ” beyond the reach of the protections of the 2nd Amendment.
Finally, Massachusetts’s use of a “contemporary lens” prohibiting stun guns because they are not used by the military was quickly rejected by the teachings in Heller. Recall, the 2nd Amendment protects all arms, not just those designed for military use and not those in existence at the time of the Founding.
The Concurrence further illustrates the Court’s disdain and the fallacy of the stun gun total ban. Ms. Caetano never actually used the non-lethal weapon, only brandished it for her own protection against an abusive threatening ex-boyfriend and father of her children. Her “mere possession of the stun gun that may have saved her life made her a criminal.” Alito and Thomas Caetano, Concur.
This irony is not lost on the Court when it notes it would have been her right to obtain a licensed handgun and killed the father of her children, but because she chose a non-lethal defense when the State failed to protect her, she is prosecuted criminally. Notwithstanding that the non-lethal stun guns are available in 45 of the States.
If the Fundamental right of self-defense does not protect . . . , then the safety of all Americans is left to the mercy of the state authorities who may be more concerned about disarming the people than about keeping them safe. Id. Alito with Thomas Concurrence.
Lastly, the Court easily disarmed the State’s contention that because the possession of stun guns is “dwarfed” by the number of handguns such that stun guns, by comparison, are not commonly possessed, there is no 2nd Amendment protection. Just as in Heller, the Court again crushed the State’s contention
and demonstrated its folly that only military-style weapons are protected. Caetano demonstrated the absurdity in the State’s argument that the uncommon use of non-lethal stun guns is not protected Arms.
“This observation may be true, but it is beside the point. Otherwise, a State would be free to ban all weapons except handguns.” Id.
New York’s ban on all Stun Guns, P.L. 265.00(01), likewise, will face a similar fate as it is contrary to the protections afforded under the 2nd Amendment as incorporated to all the States under the authority of the Trilogy of Heller, McDonald, and Caetano.
FN 1 2013 NY SAFE Act, L. 2013 c; Legislative history and Memorandum which inter alia prohibits sale and possession of large-capacity “ammunition feeding devices (10 rounds or more).
FN 2 See Generally Practice Commentaries by William C. Donnino, (McKinney’s Penal Law § 265.00, Westlaw, eff July 5, 2013.
FN 3 Bill Jacket L. 1976, c. 217, cited Commentary Donnino. The 1990 Governor’s Approval Mem, 31 reported that the ‘availability and use’ of a weapon ‘which passes a high voltage electrical shock to a person by means of direct contact or without resort to a projectile’ is the same threat as the dart gun. Donnino, Id.
Fn 4 Caetano, quoting Massachusetts High Court up-holding the total ban.
FN 5 District of Columbia, v. Heller, 128 S.Ct. 2783 (2008).
FN 6 Heller, Id.
“When organizations like the National Rifle Association disagreed (with Burger’s Courts thinking that the 2nd Amendment did not prevent State and Federal limitations) and began their campaign claiming that federal regulation of firearms curtailed the Second Amendment rights, Chief Burger publically characterized the NRA as perpetrating “one of the greatest pieces of fraud, I repeat the word fraud, on the America public . . . that I have ever seen in my lifetime.”
John Paul Stevens: Repeal the Second Amendment, New York Times Op-Ed, March 27, 2018; citations omitted.