However, based on the limited data available, the parties agree there are at least 300,000 tasers and 4,478,330 stun guns owned by private citizens across the United States. Plaintiff contends these stipulated figures are more than sufficient to establish that tasers and stun guns are a class of bearable arms that are in “common use” by private citizens across the country.
The State's position on this issue is more muddled. In its cross-motion and opposition, defendant suggests that only stun guns, and not tasers, are in “common use.” Defendant analogizes the smaller number of tasers (300,000) to the relatively small number of civilian-owned machine guns that were sold prior to the 1986 federal ban on those weapons. As defendant points out, the Fifth Circuit has suggested that the number of those particular weapons believed to exist (176,000) would probably be insufficient to establish their “common use.” See Hollis, 827 F.3d at 450 (refusing to undertake the analysis given the dearth of record evidence).
Avitabile rejects the premise implicit the State's assertion: that tasers and stun guns are separable “classes” of arms for purposes of the Second Amendment. Plaintiff argues that the Supreme Court in Heller did not try to parse out which particular types of handguns (e.g., revolvers or semi-automatics) were entitled to constitutional protection but rather spoke more broadly about handguns as a “class” of bearable arms.
Avitabile argues the same sort of conclusion is appropriate here. Plaintiff emphasizes that tasers and stun guns have the same basic functionality; that is, both utilize an electric charge to incapacitate an attacker. In fact, plaintiff argues, a taser operated in “drive-stun” mode is functionally identical to a stun gun. According to plaintiff, these weapons are better understood as a single class of “electric arms” that, taken together, number in the millions.
In reply to this argument, the State reiterates its assertion that the 300,000 figure for tasers is insufficient to establish “common use” because that number almost certainly represents the entire domestic market. According to defendant, Axon (formerly TASER) enjoys a virtual monopoly on the domestic sale of tasers. However, defendant goes on to indicate that it is willing to concede for purposes of this motion practice that tasers and stun guns are both in “common use.”
Even if the State were to refuse to make such a concession, Avitabile would *412 still have the better of this argument. Whether or not the parties' agreed-upon figure for tasers is closer to the ceiling or the floor when it comes to the number of electronic dart guns sold in this country, at least one other court has found the “common use” requirement satisfied with a substantially lower figure. Maloney, 351 F.Supp.3d at 237-38 (finding same as to metal and wood nunchakus where at least 64,890 were sold to private citizens).
Avitabile v. Beach, 368 F. Supp. 3d 404, 411–12 (N.D.N.Y. 2019)
