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NEW YORK AND NEW JERSEY STUN GUN BANS PROBABLY UNCONSTITUTIONAL AFTER US SUPREME STRIKES DOWN MASSACHUSETTS BAN – OTHER WEAPONS PROBABLY NEXT

New York has banned the possession of stun guns by listing them as “per se” weapons in the Penal Law. Possession by a civilian even in a person’s home constitutes Criminal Possession of a Weapon in the Fourth Degree, a class “A” misdemeanor, punishable by up to one year in jail. There is no license available for civilians to be able to possess stun guns. Rather New York, like Massachusetts and New Jersey have a total ban on civilian possession of stun guns. However, last month, in the first Second Amendment case decided by the Supreme Court in years and in a stunning rebuke of the Supreme Judicial Court of Massachusetts, the United States Supreme Court struck down Massachusetts’ total ban on stun guns and found that stun guns, like any “bearable arms” are subject to the protections of the Second Amendment.

In Heller, in 2008 the United States Supreme Court ruled 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.” Bearable arms, is a very broad term that encompasses much more than firearms which are the usual focus of Second Amendment jurisprudence thanks in large part to the National Rifle Association and other similar groups. As a result of the focus on firearms very little has been written about other “bearable arms.” Two years later in McDonald, the Supreme Court ruled that the Second Amendment is fully applicable to the States.

In the case of CAETANO v. MASSACHUSETTS, decided last month by the US Supreme Court, the Court criticized the Supreme Judicial Court of Massachusetts’ analysis of the Massachusetts stun gun ban. The Massachusetts high court offered three explanations for why stun guns were not protected by the Second Amendment and the US high court rebuked them for each one explaining that each reason given was inconsistent with the Heller decision. First, the Massachusetts Court tried to explain that Stun Guns were not in general use at the time of ratification of the Second Amendment despite the fact that Heller specifically rejected that argument in 2008. Next the Massachusetts Court argued that Stun Guns were not adaptable for military use another argument specifically rejected in Heller. Lastly, the Massachusetts Court suggested that Stun Guns were an unusual weapon an argument that the Supreme Court equated with the first argument that they were not around during the time of ratification of the Second Amendment.

In reversing the Massachusetts Court the US Supreme Court reiterated its willingness to protect the inherent right to self-defense. In a concurring opinion Justice Alito wrote: “The reasoning of the Massachusetts court poses a grave threat to the fundamental right of self-defense.”

For New York residents, this decision will have a far reaching effect well beyond stun guns. New York presently bans the per se possession of a whole list of items that Courts will likely find to be “bearable arms”, including: gravity knives, switchblades, blackjacks, billys, cane swords, plastic knuckles, metal knuckles, chucka sticks, kung fu stars, wrist brace style slingshots and others. No permits are available for these weapons. In addition, in New York City bans additional items such as handcuffs, pepper spray, knives over 4 inches and knives in plain view and “ammunition feeding devices.” While there have not been any reported decisions citing Caetano yet, It is very likely that these bans are unconstitutional and will be overturned in the near future.