Attorney General Eric Schneiderman’s office has filed a response to Middleburgh, New York Mayor Matthew Avitabile’s federal lawsuit holding that Avitabile does not have a Second Amendment right to possess a Taser or a Stun gun – even within his own home — and questions if the devices are truly “in common use” despite the U.S. Supreme Court’s recent foray into the matter which contended they were.
Avitabile wants to buy and own a Taser for self-defense. However, New York has a ban on possessing a stun gun or a Taser, making the devices unlawful to the state’s nearly 20 million residents except for police use. Under New York law, simply having one of the electronic devices is a misdemeanor offense of Criminal Possession of a Weapon in the Fourth Degree (CPW4), punishable by up to a year in jail.
Avitable’s legal team holds the Supreme Court’s 2016 treatment of the Caetano case, which rebuked a Massachusetts conviction of a woman who bought and used a stun gun in self-defense from an abusive ex-boyfriend despite that state’s ban, laid the framework for the challenge. The high court held stun guns are protected under the Second Amendment.
Schneiderman, named as a co-defendant in the suit along with Gov. Andrew Cuomo and State Police Superintendent Lt. Col. George Beach, stands by New York law and disagrees with the interpretation of Supreme Court’s guidance in Caetano.
“Plaintiffs in this…action have seized upon a short, five-paragraph per curium decision issued by the U.S. Supreme Court…and they attempt to use that ambiguous decision to undue a 40-year ban against Tasers, as well as a 26-year ban against stun guns, prohibitions that the New York State Legislature saw fit to impose decades ago in order to protect New Yorkers from items that it deemed were highly dangerous,” notes the 22-page filing to the court, arguing that no Supreme Court or Second Circuit decision protects the devices. “Firearms are clearly protected by the Second Amendment as ‘bearable arms,’ but Tasers and stun guns are not clearly protected.”
If Avitabile wants to change the law, contends Schneiderman’s office, he needs to talk to lawmakers.
“If Plaintiffs want the ban on Tasers and stun guns lifted within New York, they should seek to do it the old-fashioned, democratic way: they should petition their representatives in the New York State Legislature to do so,” reads the filing. “That’s the proper forum for their purely policy arguments – this Court is not.”
Stephen D. Stamboulieh, one of Avitable’s attorneys, was taken aback by the motion from New York, arguing the 2008 Heller case and others provide guidance on constitutional protections for bearable arms.
“It amazes me that after three fairly clear and recent Supreme Court cases, we can be fighting over something innocuous as a Taser or stun gun and whether that type of weapon is covered by the Second Amendment,” noted Stamboulieh in his blog.
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