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Supreme Court Orders New York City to Respond in Stun-Gun Ban Case

The justices have not agreed to hear Calce v. City of New York, but their September 8 request for a response means the city must now defend the lower-court ruling before the Court decides what to do with a Second Amendment challenge involving stun guns, Tasers and the meaning of 'common use.'

The Supreme Court has directed New York City to respond to a petition asking the justices to review a Second Amendment challenge to restrictions on civilian possession of stun guns and Tasers, adding a new procedural step to a case that gun-rights groups have been pursuing for nearly five years.

The development does not mean the Court has agreed to hear the case. It does not indicate how any justice views the merits, and it does not guarantee that the four votes required to grant review will ultimately be available. But it does mean the justices will not dispose of the petition solely on the challengers’ filings and the city’s initial waiver of a response.

According to the Supreme Court’s docket in Calce v. City of New York, No. 26-46, the petition for a writ of certiorari was filed on July 7 and docketed on July 10. New York City formally waived its right to respond on August 6. The case was distributed on August 19 for the Court’s September 28 conference. Then, on September 8, the Court requested a response and set an October 8 deadline for the city’s filing.

That sequence is the reason the latest order has drawn attention from the Second Amendment Foundation and other supporters of the challenge. A respondent in a Supreme Court case is not always required to oppose a petition at the outset. When the Court later asks for a response, however, the petition will not be decided without giving the respondent an opportunity to explain why review should be denied or why the lower-court judgment should remain in place.

The Second Amendment Foundation has described the request as an encouraging development. That is the organization’s interpretation, not a prediction about the Court’s eventual action. The Supreme Court receives thousands of petitions each term and grants review in only a small fraction of them. A response request can precede a grant, a denial, a relist or another procedural step.

The dispute began in 2021, when five individual plaintiffs joined the Second Amendment Foundation and the Firearms Policy Coalition in challenging New York restrictions on electronic defensive weapons. The plaintiffs contend that law-abiding residents should be permitted to possess stun guns and Tasers for self-defense and that a categorical prohibition cannot be reconciled with the Second Amendment.

The defendants are New York City and the commissioner of the New York City Police Department. The case has proceeded through the U.S. District Court for the Southern District of New York and the U.S. Court of Appeals for the Second Circuit before reaching the Supreme Court at the petition stage.

The district court ruled for the city in March 2025. The challengers appealed, and a three-judge Second Circuit panel heard argument in March 2026. On April 13, the appeals court affirmed the lower-court judgment in a summary order.

The Second Circuit’s ruling did not announce that stun guns and Tasers can never receive Second Amendment protection. Instead, the panel concluded that the plaintiffs had failed on the evidentiary record before the district court to carry their threshold burden of showing that the electronic weapons at issue are in common use for lawful purposes such as self-defense.

That distinction is central to the petition now before the Supreme Court. The challengers argue that the Second Circuit placed the common-use inquiry at the wrong point in the constitutional analysis and imposed a burden that conflicts with Supreme Court precedent.

Their petition presents three related questions. First, it asks whether a person challenging a ban on a class of arms must prove that the arms are in common use before the Second Amendment’s text is even implicated. Second, it asks whether bans on electronic arms such as stun guns and Tasers fall within the Second Amendment’s text. Third, it asks whether the challenged restrictions violate the right to keep and bear arms under the Second and Fourteenth Amendments.

Those questions place the case within the broader framework the Supreme Court has developed in modern Second Amendment decisions, including District of Columbia v. Heller, McDonald v. Chicago, New York State Rifle & Pistol Association v. Bruen and United States v. Rahimi.

Heller held that the Second Amendment protects an individual right to possess firearms for lawful purposes including self-defense. McDonald applied that right against state and local governments. Bruen later rejected the use of interest-balancing tests and instructed courts to evaluate firearm regulations by reference to constitutional text and the nation’s historical tradition of firearm regulation.

Calce, however, raises a more specific question: how courts should decide whether a type of weapon is within the Amendment’s protection in the first place, particularly when the weapon is a modern electronic device rather than a conventional firearm.

The challengers say the answer is already strongly suggested by the Supreme Court’s 2016 decision in Caetano v. Massachusetts. That case involved a woman convicted under a Massachusetts law that prohibited possession of an electrical weapon. The Massachusetts Supreme Judicial Court had concluded that stun guns were not protected because they did not exist at the time of the founding, were supposedly unusual and were not readily adaptable to military use.

The U.S. Supreme Court unanimously vacated that judgment in a brief per curiam opinion. The Court said the Massachusetts court’s three stated reasons were inconsistent with Heller. In particular, the Court emphasized that the Second Amendment can extend to bearable arms that did not exist in the eighteenth century.

Caetano is important, but its precise scope is also important. The per curiam opinion did not issue a broad final holding that every stun-gun restriction in the country is unconstitutional. It rejected the reasoning the Massachusetts court had used and sent the case back for further proceedings.

Justice Samuel Alito, joined by Justice Clarence Thomas, went further in a concurrence. Alito argued that Massachusetts’ categorical ban plainly violated the Second Amendment and wrote that stun guns were widely owned and accepted as legitimate self-defense weapons even if they were less common than handguns.

The Calce petition relies heavily on that history. The Second Amendment Foundation has described the case as essentially “Caetano 2.0,” arguing that the Second Circuit repeated a mistake the Supreme Court had already corrected by making protection turn on an improperly demanding common-use showing.

The city has not yet publicly filed its Supreme Court response, so its full argument at this stage remains to be seen. In the lower courts, however, New York defended the challenged laws and argued that the plaintiffs had not provided sufficient admissible evidence to establish the factual premise necessary for their Second Amendment claim.

That evidentiary issue became decisive in the Second Circuit. The panel concluded that the challengers had not carried their burden at the first step of the analysis and therefore did not proceed to a historical-tradition inquiry of the kind that often dominates litigation after Bruen.

The challengers now say that approach improperly turns constitutional coverage into a statistical inquiry and creates a circular problem. If a jurisdiction prohibits possession of a weapon, they argue, the weapon may be less common in that jurisdiction precisely because it is illegal. Requiring challengers to prove common use before receiving constitutional protection, they contend, risks allowing a prohibition to help create the factual conditions used to defend the prohibition.

New York can be expected to argue that the lower courts applied the governing framework to the evidentiary record actually presented and that Supreme Court review is unnecessary. The city may also emphasize procedural features of the case, including the summary-judgment record and the nonprecedential nature of the Second Circuit’s summary order, as reasons the dispute is not an appropriate vehicle for resolving a broad constitutional question.

The Supreme Court’s request for a response ensures that those arguments will now be presented before the justices decide whether to intervene.

The case also highlights the unusual place electronic weapons occupy in Second Amendment law. Stun guns and Tasers are often marketed as less-lethal alternatives to firearms. Some devices require direct contact; others can deliver an electrical charge through projectiles fired from a short distance. Their defenders argue that people who are unwilling or unable to use deadly force should not be denied access to a defensive tool simply because it relies on modern technology.

Opponents of broad constitutional protection for such devices can point to public-safety concerns and to the fact that the Supreme Court has repeatedly said the right to keep and bear arms is not unlimited. The central legal question is not whether governments may regulate electronic weapons at all, but whether they may impose restrictions as sweeping as the ones challenged here and what analytical test lower courts should use.

That is why the common-use dispute matters beyond New York City. If the Supreme Court eventually agrees to hear Calce, its decision could provide guidance on when a modern weapon qualifies as an “arm” protected by the Second Amendment and on whether common use is a threshold requirement, part of the historical analysis, or something that should be evaluated differently.