Key Takeaways
- The Firearms Policy Coalition and the Second Amendment Foundation challenged New York City’s ban on stun guns and tasers in the Supreme Court.
- They argue that previous courts incorrectly placed the burden of proof on plaintiffs regarding the common use of these weapons.
- The petition references the Second Circuit’s ruling as contrary to the Bruen framework established in prior Supreme Court cases.
- FPC President Brandon Combs emphasized that governments cannot bypass the Constitution by denying the status of certain arms.
- The petitioners seek a comprehensive review or reversal from the Supreme Court, linking their case to other significant arms ban litigations.
Estimated reading time: 4 minutes
WASHINGTON, D.C. — The Firearms Policy Coalition and the Second Amendment Foundation have asked the Supreme Court to take up their challenge to New York City’s ban on stun guns and tasers, filing a petition for certiorari on July 7 in Calce v. City of New York.
The petition, filed by Cooper & Kirk attorneys David H. Thompson, Peter A. Patterson, and William V. Bergstrom, opens by calling the case “essentially Caetano 2.0.” That is a reference to the Court’s 2016 decision summarily vacating a Massachusetts ruling that had denied Second Amendment protection to stun guns.
A federal court struck down the state ban in 2019 in Avitabile v. Beach, and the state never appealed. According to the petition, that leaves New York City as one of the only jurisdictions in the country, and possibly the last, still enforcing a categorical ban on these nonlethal arms. Stun guns can now be lawfully possessed in all 50 states.
The individual petitioners include Amanda Kennedy, who displayed a stun gun to stop a woman who was hitting her through her car window in Brooklyn. The display worked and the attack ended without anyone being hurt. When NYPD officers responded, they charged Kennedy with a crime for possessing the weapon. The charge was later resolved through an adjournment in contemplation of dismissal, but the petition notes she still faces the threat of prosecution if she carries one again.
The district court granted summary judgment to the city in March 2025. On April 13, 2026, the Second Circuit affirmed in an unpublished summary order. Both courts held that the plaintiffs bore the burden of proving stun guns and tasers are in “common use” before the Second Amendment’s plain text even applies, and that they failed to produce enough statistical evidence to do so.
The petition argues that gets the Bruen framework exactly backwards. Under Heller, the Second Amendment’s plain text covers all bearable arms. Whether an arm is “dangerous and unusual” rather than in common use is a historical question at Bruen’s second step, where the government carries the burden. The petition says the Second Circuit’s approach lets anti-gun jurisdictions insulate arms bans from review by demanding statistical proof that rights holders should never have to produce.
The timing matters. Just twelve days before this filing, the Supreme Court decided Wolford v. Lopez, striking down Hawaii’s default ban on licensed carry on private property open to the public. Wolford laid out the plain text inquiry as three questions, and none of them includes common use. Justice Barrett’s concurrence went further, rejecting attempts to “smuggle additional limits” from regulatory tradition into the plain text stage. The petition argues the Second Circuit did precisely what Wolford forbids.
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The petition also points to a circuit split. The Second, Fourth, Seventh, and Tenth Circuits treat common use as a threshold burden on plaintiffs. The Sixth Circuit holds that common use belongs to the historical analysis, where the government must prove its case.
FPC President Brandon Combs said in a statement that “governments cannot rewrite the Constitution by pretending arms aren’t arms.”
The petitioners are asking the Court to grant full review, summarily reverse, or hold the case for Viramontes v. Cook County, the challenge to Cook County’s ban on so-called assault weapons that the Court agreed to hear on June 30. Viramontes presents the same underlying question of how courts must analyze bans on protected arms.
I will be tracking this petition as it moves through the Court, along with Viramontes and the rest of what is shaping up to be a defining stretch for arms ban litigation.
