New York Law Banning Right to Bear Taser-type Arms Faces Lawsuit

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Mar 22, 2017

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NYA New York law making it illegal for members of the public to possess “electronic” arms like tasers is facing a federal lawsuit claiming that making such possession a criminal misdemeanor is a violation of the Second Amendment.

The Law

New York is one of five states outlawing electronic weapons. New York Penal Law § 265.01 says, “A person is guilty of criminal possession of a weapon in the fourth degree when: (1) He or she possesses any firearm, electronic dart gun, electronic stun gun…”

New York Lawsuit

The Firearms Policy Foundation and Matthew Avitabile, the mayor of Middleburgh, New York, is suing the State of New York. Avitabile wants to purchase a Taser for self-defense and is a member of the Firearms Policy Coalition and the Firearms Policy Foundation. The Firearms Policy Coalition describes itself as a

non-profit public benefit organization that serves its members and the public through direct and grassroots advocacy, legal action, education, and other programs. The purposes of the FPC include defending the United States Constitution and the People’s rights, privileges and immunities deeply rooted in the Nation’s history and tradition, especially the fundamental Second Amendment right to keep and bear arms.

The complaint argues that the New York State law is unconstitutional: “Defendants’ laws, customs, practices and policies generally banning the acquisition, possession, carrying and use of Tasers and other electronic arms violates the Second Amendment to the United States Constitution, facially and as applied against the Plaintiffs in this action, damaging Plaintiffs in violation of 42 U.S.C. § 1983. Plaintiffs are therefore entitled to preliminary and permanent injunctive relief against such laws, customs, policies, and practices.”

Related Lawsuits

This suit comes just nine months after the United States Supreme Court questioned the rationale behind a Massachusetts law outlawing stun guns and overturned a 2015 decision from the Judicial Court of Massachusetts which had upheld that law. The Massachusetts law in question banned stun guns and imposed a penalty of up to 2.5 years in prison for possessing one. In its decision, the Judicial Court of Massachusetts had interpreted the U.S. Constitution, ruling that its framers never envisioned the modern stun-gun device, and thus stun guns were not within the original intent of the word “arms.” The Massachusetts court also held that stun guns are not suitable for military use and that it did not matter that state lawmakers had approved the possession of handguns outside the home.

The United States overturned the decision of the Judicial Court of Massachusetts, directing the court to reconsider its analysis because its reasoning violated the U.S. Supreme Court precedent set by Heller, saying that the Second Amendment extends to weapons “not in existence at the time of the founding.”

Heller (2008) overturned a District of Columbia firearms law and held that “ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense.”

Following Heller, every single state allows a limited right to possess weapons under some circumstances. However, some states view stun guns differently from firearms and ban civilians from carrying them.

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