N.Y., Conn. Bans on Semiautomatic Weapons Constitutional

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By Jessica DaSilva

Oct. 19 — New York's and Connecticut's bans on semiautomatic weapons and large-capacity magazines do not violate citizens' Second Amendment rights, the U.S. Court of Appeals for the Second Circuit ruled Oct. 19.

The court did, however, strike two provisions: New York's ban on a seven-round load limit and Connecticut's prohibition on a non-semiautomatic shotgun, the Remington 7615.

Both states passed and enacted the laws following the December 2012 mass shooting at Sandy Hook Elementary School in Newtown, Conn.

The lawsuit was brought by advocacy groups, businesses and individual gun owners who alleged the bans violate the Second Amendment. The court found while the bans burdened their rights, they do not constitute an outright violation.

“Because the prohibitions are substantially related to the important governmental interests of public safety and crime reduction, they pass constitutional muster,” Judge José A. Cabranes wrote for the panel.

No Ban on Machine Guns

The bans don't prohibit machine guns; rather, they forbid guns that function in the same manner as a semi-automatic handgun that shoots one bullet per trigger pull, Professor James B. Jacobs, director of the Center for Research in Crime and Justice at New York University Law School, told Bloomberg BNA Oct. 19.

The weapons described in the bans also have aesthetic features that resemble military-grade weapons, such as flash suppressors, protruding grips and barrel shrouds, the court said.

Intermediate Scrutiny Applied

In analyzing the potential Second Amendment violation, the court employed intermediate scrutiny based on its finding that the bans neither strike at the core of individual Second Amendment rights nor substantially burden those rights.

The laws don't ban a class of firearms but instead prohibit a limited subset of semiautomatic firearms that contain one or more enumerated military-style features, the court said. Because the burden imposed by the legislation is “real” but not “severe,” the court determined that strict scrutiny shouldn't apply.

Intermediate scrutiny allowed the court to give the legislature “substantial deference” in determining whether the bans present a “substantial achievement of an important government interest.” Because state legislatures are better positioned to determine proper public policy, the court's only role is to ensure that those states drew “reasonable inferences based on substantial evidence,” the court said.

“These weapons are disproportionately used in crime, and particularly in criminal mass shootings like the attack in Newtown,” the court said. “They are also disproportionately used to kill law enforcement officers: One study shows that between 1998 and 2001, assault weapons were used to gun down at least twenty percent of officers killed in the line of duty.”

The court applied similar reasoning to the use of large-capacity magazines, which it stated are “disproportionately used in mass shootings.” On the basis of its review of the legislative intent of the bans—the prevention of mass shootings, such as the mass murder at Sandy Hook—and the evidence both states relied upon, the court found the bans constitutional.

It also rejected arguments that language in the laws is unconstitutionally vague.

‘Weak Standard.'

“The Second Circuit adopted an unusually weak standard of protection of Second Amendment rights,” David B. Koppel, research director for the Independence Institute, told Bloomberg BNA in an e-mail.

“Ever since the modern gun prohibition movement was created in the 1970s, the objective has been to ban as many firearms as is politically feasible at any given point in time,” Koppel said. “The prohibitionists successfully used the Newtown murders to advance their cause in some states. The recent case reminds us that when the anti-gun lobbies say ‘regulation,' they really mean ‘prohibition.'”

Jacobs similarly stated the opinion will likely not have an impact on the future of gun control regulation, considering the bans mirror the federal ban existing between 1994 and 2004. That ban expired as a result of a sunset provision and not on constitutional grounds, Jacobs said.

Semi-automatic weapons are the vast majority of weapons owned by Americans. The ban focuses on weapons that have no functional difference but simply “look scary,” according to Jacobs.

“It presents the possibility of winning a victory that sounds good publicly even though it would have no effect on crime or mass shootings,” he said.

Judges Raymond J. Lohier, Jr. and Christopher F. Droney joined the opinion.

David H. Thompson, of Cooper & Kirk PLLC, Washington, argued for the plaintiffs. New York Solicitor General Barbara D. Underwood and Maura B. Murphy Osborne, of the Connecticut Attorney General's Office, Hartford, Conn., argued for the states.

To contact the reporter on this story: Jessica DaSilva at jdasilva@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

Full text at http://www.bloomberglaw.com/public/document/NEW_YORK_STATE_RIFLE_AND_PISTOL_ASSOCIATION_INC_WESTCHESTER_COUNT.