Laws in New York and Connecticut banning certain semiautomatic assault weapons and large-capacity ammunition magazines do not violate the Second Amendment, the U.S. Court of Appeals for the Second Circuit ruled Monday.
Upholding the “core prohibitions” on guns with military-style features passed in the wake of the 2012 murder of 20 students and six adults at the Sandy Hook Elementary School in Newtown, Connecticut, the Second Circuit said the measures do not violate the Second Amendment’s guarantee of “the right of the people to keep and bear arms.”
“When used, these weapons tend to result in more numerous wounds, more serious wounds, and more victims,” the court said. “These weapons are disproportionately used in crime, particularly in criminal mass shootings like the attack in Newtown.”
The decision was delivered by Judges Jose Cabranes, Raymond Lohier and Christopher Droney in a pair of cases: New York State Rifle and Pistol Association v. Cuomo, 14-36-cv, and The Connecticut Citizens’ Defense League v. Malloy, 14-319-cv.
David Thompson, managing partner at Cooper & Kirk in Washington, D.C. who argued for the plaintiffs, said Monday he intends to appeal the ruling to the U.S. Supreme Court.
Writing for the court, Cabranes said there was a “dearth of evidence that law-abiding citizens use these weapons for self-defense.”
In the first case, the court upheld, with one exception, Western District Judge William Skretny’s grant of summary judgment to New York on the Secure Ammunition and Firearms Enforcement (SAFE) Act, enacted on Jan. 15, 2013. The circuit held only that the provision of New York’s law regulating load limits on guns did not survive scrutiny. And it reversed Skretny’s judgment that found certain language, including “muzzle breaks” to be unconstitutionally vague as it rejected claims of vagueness made against both laws.
In the second case, the circuit upheld summary judgment for Connecticut granted by U.S. District Judge Alfred Covello of the District of Connecticut except on one provision: the state’s prohibition of the non-automatic Remington 7615, which Cabranes said “unconstitutionally infringes upon the Second Amendment right.”
Cabranes said the court was adopting a two-step analytical framework for Second Amendment challenges in light of the U.S. Supreme Court’s decision in District of Columbia v. Heller, 554 U.S. 570 (2008), and the case law as it has developed since Heller.
Heller struck down Washington, D.C.’s ban on handgun possession while affirming the individual right to possess and carry weapons in “common use” and “for lawful purposes like self-defense.”
But Cabranes said “Heller stopped well short of extending its rationale to other firearms restrictions.”
“Most importantly here,” he said, “Heller also endorsed the ‘historical tradition of prohibiting the carrying of dangerous and unusual weapons.”
Under the circuit’s two-step framework, the panel first examined whether the statutes impinged on Second Amendment rights and then fixed the level of scrutiny to apply to the laws. The level of scrutiny is a question that was left undecided by Heller.
On the first step, Cabranes said, “This much is clear: Americans own millions of the firearms that the challenged legislation prohibits,” and the same is true of large-capacity magazines, so the court found the laws “impose a substantial burden on Second Amendment rights” but not enough to be unconstitutional.
At oral argument in 2014, New York Solicitor General Barbara Underwood told the panel that New York’s SAFE Act, passed in 2013 after Sandy Hook gunman Adam Lanza was able to fire 154 rounds inside of five minutes using an AR-15 assault rifle, was all about “the number of rounds that can be fired without pause to reload” (NYLJ, Dec. 10).
Connecticut Assistant Attorney General Maura Murphy Osborne insisted that bans on large-capacity magazines like the one in Connecticut Public Act 13-3, passed after Sandy Hook, have been shown to reduce the presence of the magazines in the market over time.
But Thompson argued that restrictions on assault weapons and ammunition magazines have done nothing to stem mass shootings and they infringe on the right of people to possess guns for their own protection and amusement.
The plaintiffs in their brief had argued that there is no class of firearms called “semiautomatic assault weapons”—a description they claim is a political one that doesn’t reflect how guns actually work. In any event, they said, the laws bar “firearms of a universally recognized type—semiautomatic.”
“Not so,” Cabranes said Monday. “Rather, both New York and Connecticut ban only a limited subset of semiautomatic firearms, which contain one or more enumerated military-style features.”
Cabranes said the fact that the laws impinge on Second Amendment rights triggers some form of heightened scrutiny but not the highest level—”strict scrutiny”—which typically spells the end for a law.
“Semiautomatic assault weapons and large-capacity magazines are commonly owned by many law-abiding Americans, and their complete prohibition, including within the home, requires us to consider the scope of Second Amendment guarantees ‘at their zenith’,” he said, citing Heller. “At the same time, the regulated weapons are not nearly as popularly owned and used for self-defense as the handgun, that ‘quintessential self-defense weapon’.”
While the laws are “broad and burdensome,” he said, there are alternatives open to people in Connecticut and New York.
“In both states, citizens may continue to arm themselves with non-semiautomatic weapons or with any semiautomatic gun that does not contain any of the enumerated military-style features,” he said. “Similarly, while citizens may not acquire high-capacity magazines, they can purchase any number of magazines with a capacity of 10 or fewer rounds.”
These alternatives, he said, call for the laws to be analyzed by intermediate scrutiny, wherein the court will examine them to see if the bans are substantially related to achievement of an important governmental interest.
Applying that standard, Cabranes said the record showed both New York and Connecticut tailored their legislation to address “these particularly hazardous weapons” and prevent shootings like that in Newtown.
“Plaintiffs complain that mass shootings are ‘particularly rare events’ and thus, even if successful, the legislation will have a ‘minimal impact’ on most violent crime,” he said. “That may be so. But gun control legislation ‘need not strike at all evils at the same time’ to be constitutional.”
Attorney General Eric Schneiderman said in a statement he was pleased that “almost every aspect” of the law was upheld. “Now that the court has ruled, it is time for everyone involved in the critical debate about how to keep weapons out of the hands of dangerous and unstable people to come together to work toward sensible solutions that will keep our communities safe,” he said.
“Today, common sense prevailed,” Gov. Andrew Cuomo said in a separate statement. “This case validates a simple, fundamental truth about gun control: that it is possible to have strong laws that keep our communities safe, while at the same time respecting the rights of law-abiding gun owners. New York has set the example—and it’s far past time for Washington to follow suit and pass a sensible national gun control policy.”
BY Mark Hamblett, New York Law Journal