Magazine and AR-15 Bans Upheld by 2nd Circuit

2nd-circuit-decisionWe wish we had better news for our Law Shield members regarding the Oct. 19 decision by the U.S. District Court for the Second Circuit in New York State Rifle and Pistol Assoc., Inc., v. Cuomo.

Unfortunately, that case largely upheld Connecticut and New York laws passed in the wake of the Sandy Hook tragedy. The laws banned modern semi-auto rifles, including the AR-15, and magazines for any firearm with a capacity of greater than 10 rounds.

Although AR-15s and other semi-automatic rifles have been America’s best-selling types for several years, including for home defense, the Second Circuit nevertheless found they could be completely banned, disregarding the analytical framework set up in Heller and McDonald v. Chicago.

The Second Circuit basically ignored the prevalence of a certain firearm mechanism as important: “This much is clear: Americans own millions of the firearms that the challenged legislation prohibits.” It also acknowledged, “The same is true of large‐capacity magazines, as defined by the New York and Connecticut statutes.”

It then considered whether these implements could be characterized as “dangerous and unusual” in the hands of law‐abiding civilians” and found that the evidence on this point was inconclusive.

Still, the Court assumed “for the sake of argument that these ‘commonly used’ weapons and magazines are also ‘typically possessed by law‐abiding citizens for lawful purposes’” and that the laws therefore “ban weapons protected by the Second Amendment.”

The Second Circuit then admitted, “The laws at issue are both broad and burdensome” and create “a ‘serious encroachment’ on the Second Amendment right.” However, the court refused to apply “strict scrutiny,” the most stringent form of Constitutional analysis, and instead applied “intermediate scrutiny,” a standard that has led other courts to uphold nearly every gun control law that has come before them.

Arguments and evidence produced by the plaintiffs were dismissed by the Court as “not strong enough to overcome the ‘substantial deference’ we owe to ‘predictive judgments of the legislature’ on matters of public safety.”

“The same logic applies a fortiori to the restrictions on large capacity magazines,” the Court said. (The phrase a fortiori broadly means “all the more so.”) That means, basically, that “large capacity” magazines are more subject to misuse in crime and therefore receive less constitutional protection.

This creates a bizarre outcome: something that enhances the utility or effectiveness of a firearm otherwise protected by the Second Amendment makes that firearm more vulnerable to prohibition.

Two minor pluses in the decision were that the Second Circuit invalidated a provision of New York’s misnamed SAFE Act that imposed a seven-round load limit on firearms used for self-defense, even though magazines of up to 10 rounds remain legal.

It also held that Connecticut could not ban a pump-action Remington 7615 firearm identified by name under its “assault weapon” law because the State failed to present any evidence about its “dangerous” and “unusual” character. It noted, however, that if such evidence were produced, a future such ban might survive.

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