The Supreme Court has forced New York City to justify its ban on stun guns after the city's own lawyers tried to waive their right to respond, a procedural move that Second Amendment advocates say signals the justices may be ready to act.
New York City's Law Department filed paperwork on August 6 telling the Supreme Court it would not bother responding to a petition challenging the city's stun gun ban in Calce v. New York City. The Court overruled that decision and ordered the city to file a response by October 8, the Daily Caller News Foundation reported.
The case was brought by the Second Amendment Foundation, which argues that a federal appeals court ignored a decade-old Supreme Court ruling, Caetano v. Massachusetts, when it upheld New York City's prohibition on stun guns. SAF's petition opens by calling the case "Caetano 2.0."
When a losing party asks the Supreme Court to hear a case, the other side typically files a brief explaining why the justices should decline. New York City chose not to do that. Its lawyers filed a waiver, effectively telling the Court the case was not worth the city's time.
The Court disagreed. By requesting a full response, the justices signaled that at least some of them want to see both sides briefed before deciding whether to take the case. Konstadinos Moros, SAF's Director of Legal Research and Education, told the Daily Caller News Foundation in August that the Court's request for a response indicated potential interest in hearing the case.
Bill Sack, SAF's Senior Director of Legal Operations, put it more directly. He told the Daily Caller News Foundation:
"The fact that the Court has requested a response from the city is a positive sign because any case the justices are sincerely considering needs to be fully briefed by both sides."
That reading carries weight. The Supreme Court receives thousands of certiorari petitions every year and grants only a small fraction. Ordering a response after the opposing party waived its right to file one is not routine, it takes active interest from the justices.
SAF's argument rests on a straightforward claim: the Supreme Court already settled this question. In March 2016, the Court issued a unanimous, unsigned opinion in Caetano v. Massachusetts, striking down that state's categorical ban on stun guns as a violation of the Second Amendment.
The ruling was not close. Every justice agreed. Justice Samuel Alito, in a concurring opinion, laid out the practical case for stun gun ownership:
"While less popular than handguns, stun guns are widely owned and accepted as a legitimate means of self-defense across the country. Massachusetts' categorical ban of such weapons therefore violates the Second Amendment."
Alito noted that hundreds of thousands of stun guns had been sold across dozens of states. The weapons were not exotic novelties. They were common tools of self-defense, and banning them categorically ran headlong into the Court's Second Amendment precedent.
SAF's petition argues the federal appeals court that upheld New York City's ban did exactly what the Massachusetts court did before Caetano reversed it. The petition states that the lower court's decision "similarly flouted this Court's precedent to reject a challenge to a ban on stun guns."
In other words, the appeals court had a clear Supreme Court ruling on point and chose to go the other way. SAF is asking the justices to correct the same error they corrected a decade ago.
The stun gun challenge does not exist in a vacuum. SAF has other major Second Amendment cases on the Supreme Court's docket this term, and Sack suggested the outcomes could reinforce each other. He told the Daily Caller News Foundation:
"There's also a likelihood that the outcome in our Viramontes and Grant assault weapons ban cases being argued this term will speak directly to this issue."
The Court has already shown a willingness to strike down firearms restrictions in recent terms, and the current docket suggests that willingness has not faded. If the justices rule broadly in the assault weapons cases, the legal ground under New York City's stun gun ban could erode further before the city even files its response.
Sack made no effort to hide his frustration with New York City's posture in the case:
"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."
Legal commentator Jonathan Turley flagged the case on X on September 12, noting that the Court "previously held that the Second Amendment does not cover only weapons in existence at the time of ratification." Turley described the order as "an interesting development."
The city's decision to waive its response was a gamble, one that appears to have backfired. By declining to engage, the Law Department may have hoped the Court would simply deny the petition without a fight. Instead, the justices demanded the city show up and make its case.
That puts New York City in an awkward position. It now must defend a categorical ban on a self-defense tool that the Supreme Court unanimously ruled unconstitutional in a different state ten years ago. The city must explain why its ban is different from the one the Court struck down, and it must do so on a timeline the Court imposed, not one the city chose.
The Supreme Court has not been shy about issuing consequential rulings that progressive cities and states find uncomfortable. New York City's stun gun ban may be the next policy to face that scrutiny.
For residents of a city where violent crime remains a daily concern, the stakes are concrete. Stun guns are non-lethal self-defense tools, legal in most of the country, sold by the hundreds of thousands, and recognized by the Supreme Court itself as constitutionally protected arms. New York City bans them anyway.
The Court's willingness to intervene when lower courts and local governments ignore its precedents is one of the few mechanisms that keeps constitutional rights from becoming regional privileges.
October 8 is the deadline. New York City tried to avoid this fight. The Supreme Court just told them they do not get to walk away from it.