The case was docketed in July after petitioners asked the nation’s highest court to review an April ruling from the U.S. Court of Appeals for the Second Circuit.
New York City initially waived its right to respond.
But on September 8, the Supreme Court requested a response anyway, setting an October 8 deadline.
That does not mean the Court has agreed to hear the case. It does, however, mean the justices want to see the city’s arguments before deciding what happens next.
For Second Amendment advocates, the case could offer another opportunity to clarify how constitutional protections apply to non-firearm weapons used for self-defense.
“Frankly we’ve been disappointed by New York City’s continued defense of its unconstitutional stun gun ban, and we’re hopeful that the Supreme Court takes up the issue,” Second Amendment Foundation attorney Bill Sack told the Daily Caller News Foundation.
At the center of the dispute is a question the Supreme Court confronted a decade ago.
In 2016, the Court unanimously vacated a Massachusetts ruling that had upheld that state’s prohibition on stun guns.
The case, Caetano v. Massachusetts, involved a woman who carried a stun gun after experiencing abuse from a former boyfriend.
Massachusetts courts had concluded that stun guns were outside Second Amendment protection in part because the weapons did not exist when the amendment was adopted.
The Supreme Court rejected that reasoning.
The justices reiterated that the Second Amendment extends to “all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.”
Justice Samuel Alito, joined by Justice Clarence Thomas, went considerably further in a concurrence.
Alito wrote that stun guns are “widely owned and accepted as a legitimate means of self-defense across the country.”
The concurrence concluded that Massachusetts’ categorical prohibition therefore violated the Second Amendment.
The Supreme Court’s per curiam ruling itself was narrower: it vacated the Massachusetts judgment because the state court’s reasoning conflicted with existing Supreme Court precedent.
That distinction could become important as the justices consider the New York dispute.
A Fight Over the Meaning of Bruen
The petitioners challenging New York City’s law argue that the lower courts have also strayed from the framework established by the Supreme Court’s more recent Second Amendment cases.
Their argument centers heavily on the Court’s 2022 decision in New York State Rifle & Pistol Association v. Bruen, which rejected the use of traditional interest-balancing tests for determining whether firearm regulations comply with the Second Amendment.
Instead, courts were directed to examine the amendment’s text and the nation’s historical tradition of firearm regulation.
Critics of the Second Circuit’s handling of Calce contend that the lower court effectively placed an additional burden on people challenging the stun gun restrictions.
Dave Kopel, research director at the Independence Institute, described what he believes the proper analysis should look like.
“The proper approach would be just to say: are the weapons in question, like stun guns, are they arms? And is this a restriction on people using them?” Kopel said. “If the answer to that is yes, then you proceed to step two, where you look at that law in light of history and tradition.”
That disagreement now gives the Supreme Court an opportunity to decide whether the case deserves full review.
Self-Defense Sits at the Center of the Case
The dispute is not merely academic.
One of the plaintiffs says she displayed a stun gun while confronting an attacker, successfully stopping the encounter without having to use lethal force.
That makes the controversy especially significant for Americans who want a self-defense option but do not necessarily want to carry a firearm.
The Supreme Court discussed precisely that issue in Caetano.
Alito’s concurrence emphasized that citizens should not necessarily have to resort to deadlier weapons simply because the government prohibits another weapon they would rather use.
“Courts should not be in the business of demanding that citizens use more force for self-defense than they are comfortable wielding,” Alito wrote.
The legal landscape surrounding stun guns has also changed dramatically since Caetano.
Massachusetts’ highest court subsequently concluded that stun guns qualify as “arms” protected by the Second Amendment, after the U.S. Supreme Court rejected the reasoning behind its earlier decision.
Now New York City’s rules have put the issue back before the justices.
New York Must Answer
The next step is straightforward.
New York City has until October 8 to submit its response.
After that, the justices can consider the petition and determine whether to grant review, deny it, or take another procedural step.
A request for a response should not be confused with a ruling on the merits. The Supreme Court has not yet decided whether it will hear Calce, much less whether New York City’s law ultimately violates the Constitution.
But the city’s attempt to waive a response did not end the matter.
The Court’s docket shows the petition was filed July 7, New York submitted its waiver on August 6, and the justices formally requested the city’s response on September 8.
That puts New York in a position it apparently hoped to avoid: defending its restrictions directly before the Supreme Court.
And looming over that defense will be the Court’s own words from Caetano — a unanimous decision telling another state a decade ago that modern weapons do not automatically fall outside the Second Amendment simply because the Founders never saw them.
Whether Calce becomes the Supreme Court’s next major Second Amendment case remains undecided.
For now, however, New York City’s silence is no longer an option.
