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As Second Amendment attorney Peter H. Tilem reported in a blog on April 24, 2016, New York and New Jersey’s outright ban on stun guns and tasers were unconstitutional.  stungunNow today, a Federal District Judge in upstate New York confirmed that opinion and enjoined the New York State Police from enforcing New York Penal Law sec 265.01 (1) as it applies to “Electronic Dart Guns” and “Electronic Stun Guns.”  The case entitled Avitabile v. Beach was decided earlier today by US District Judge David N. Hurd of the United States District Court for the Northern District in New York.  While the case is not necessarily binding in New York City, the case applies the U.S. Supreme Court ruling in Caetano v. Massachusetts, which struck down the Massachusetts state ban on stun guns.

The issue actually began with the famous Second Amendment Case of Heller which was decided in 2008.  In knocking out a ban on handguns in Washington DC, the US Supreme Court in Heller ruled that the Second Amendment applied to “bearable” arms.  The Caetano decision, in knocking down a stun gun conviction in Massachusetts, made it very clear that a stun gun was a bearable arm as that term was used in Heller.

Besides being illegal, bans on stun guns and tasers are inherently illogical.  All states permit the possession of handguns to a degree.  Even New Jersey and New York City which effectively ban the possession of handguns outside the home, permit handgun possession in the home, with the appropriate license (in New York).  However, prior to today’s ruling, New York and New Jersey have a complete and total ban on the civilian possession of stun guns and tasers which are non-lethal.  This complete and total ban includes both possession inside the home and outside the home and does not even permit possession with a license.

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Recently, the United States Supreme Court issued a written opinion in an interesting case discussing the Eighth and Fourteenth Amendments to the United States Constitution. Specifically, the case involved the Excessive Fines Clause of the Eighth Amendment and required the Court to determine if the rights contained in the Clause applied to both federal and state proceedings. Ultimately, the Court concluded that when the Fourteenth Amendment was passed, it incorporated the rights contained in the Excessive Fines Clause (as it did with most other rights included in the Bill of Rights).

The Facts of the Case

According to the Court’s opinion, the defendant was arrested on drug and theft charges while he was driving a Land Rover SUV that he had just purchased with the proceeds from an insurance policy after the death of his father. The defendant paid $42,000 for the SUV.

The defendant pled guilty to both charges. While the maximum allowable punishment would have resulted in a jail sentence and a $10,000 fine, the defendant was placed on house arrest and fined approximately $1,000. After the case was over, the government claimed that the SUV was involved in the transport of drugs, and sought civil forfeiture of the vehicle.

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