Column: Terrorists, Assault Weapons, and the Evolving Second Amendment (New York Law Journal)
by Christopher Dunn Last month’s terrorist attack on civilians in Paris rekindled discussion about federal gun-control legislation, including the possibility of barring people on a federal terrorist watch list from buying weapons. And last week’s assault-weapon attack on a Planned Parenthood clinic in Colorado has further energized public debate about weapons in our society and efforts to regulate or ban them. Against the backdrop of these incidents and what seems like an endless stream of gun-fueled violence, the courts have been grappling with a wave of legal challenges being brought by gun-rights activists emboldened by two recent Supreme Court decisions that breathed life into the long-dormant Second Amendment. The Second Circuit had issued several significant rulings before this year, but a decision it issued six weeks ago is its most important to date in terms of developing the Second Amendment standards that will govern gun-control regulations until the Supreme Court wades back into this contentious area. This recent ruling is also significant in its treatment of a subject of intense interest to civil libertarians: the relationship between the Second Amendment and other provisions of the Bill of Rights. A Brief Background The Second Amendment provides, “A well regulated Militia, being necessary to the security of a free State, the right to bear Arms, shall not be infringed.” Until recently the Supreme Court had never construed that provision as conferring on individuals any rights, with the Court having expressly rejected the proposition in 1939 in United States v. Miller.1 That all changed in 2008 when the Court in District of Columbia v.Heller2 ruled that Second Amendment protections extended to individuals subject to federal jurisdiction (namely the District of Columbia). At issue in Heller was a complete ban on handguns in District of Columbia homes, with the Supreme Court holding the ban would be unconstitutional “[u]nder any of the standards of scrutiny that we have applied to enumerated constitutional rights.” Two years later the Court vastly expanded Second Amendment rights by extending them to individuals subject to guns restrictions imposed by states and localities. In McDonald v. City of Chicago3 the Court invalidated a Chicago ordinance that, like the one at issue in Heller, banned handguns in the home. As is often the case with Supreme Court decisions, Heller and McDonald left many questions unanswered, thereby leaving the lower courts to construct an entirely new field of law. Along with other Courts of Appeals, the Second Circuit cases has started to build that law. In its first significant ruling, the Court in 2012 rejected a challenge to a federal statute that barred a person from bringing a gun into a state without having a permit from that state, holding that the statute did not place enough of a burden on the Second Amendment right even to trigger constitutional scrutiny.4 And later that year, the Second Circuit rejected a challenge to New York’s requirement that a person show an unusual need to obtain a permit to carry a concealed weapon, holding that the requirement, while imposing a substantial burden, was justified by the state’s interest in public safety and the 100-year history behind its concealed-weapons scheme.5 Against this backdrop, the Court of Appeals in late October of this year ruled on a challenge to major legislation that New York and Connecticut enacted in the aftermath of one of the country’s most devastating mass shootings. In New York State Rifle and Pistol Association v. Cuomo,6 the Second Circuit upheld the core provisions of the legislation, struck down one provision of the New York statute, and included important observations about the inter-relationship between Second Amendment jurisprudence and that of other provisions of the Bill of Rights. Weapon and Magazine Bans in Connecticut and New York On December 14, 2012, twenty elementary school children and six adults in Newtown, Connecticut died in a hail of bullets from a madman armed with a semi-automatic rifle and other weapons. That horrific incident prompted New York and then Connecticut to enact legislation barring new possession (current owners were exempted) of semiautomatic assault weapons that contained at least one military style feature (such as a grenade launcher or a silencer) and of certain types of large-capacity ammunition magazines that could be used with such weapons. In addition, New York barred those who lawfully owned large-capacity magazines from loading them with more than seven rounds of ammunition. Predictably, gun owners and gun-rights advocates rushed to challenge these restrictions. District Courts in New York and Connecticut largely rejected the challenges, and both cases were appealed to the Second Circuit, which decided the consolidated appeals on October 22. In an opinion written by Judge Jose Cabranes, the Court first outlined the basic Second Amendment doctrine emerging from the Supreme Court, the Second Circuit, and the other Courts of Appeals. As a threshold matter, the Second Circuit observed that the Supreme Court had made clear that the Second Amendment protected possession of only a limited category of weapons: In Heller, the Supreme Court, based on an extensive textual and historical analysis, announced that the Second Amendment’s operative clause codified a pre-existing “individual right to possess and carry weapons.” Recognizing, however, that “the right secured by the Second Amendment is not unlimited,” Heller emphasized that “the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” Instead, the Second Amendment protects only those weapons “ ‘in common use’ ” by citizens “for lawful purposes like self-defense.” In those instances involving an effort to regulate or ban weapons that are in “common use” for “lawful purposes like self-defense” and thus implicate the Second Amendment, the next step is to determine the level of constitutional scrutiny to be applied, an issue the Supreme Court did not meaningfully discuss in Heller or McDonald. This is a critical step of the analysis because, as with other provisions of the Bill of Rights, the higher the level of scrutiny the greater the likelihood that gun regulations will be struck down. Given the void left by Heller and McDonald, the Second Circuit drew on other Supreme Court precedent to conclude that the level of scrutiny would vary depending upon the extent to which the regulation at issue burdened Second Amendment rights:
Though Heller did not specify the precise level of scrutiny applicable to firearms regulations, it rejected mere rational basis review as insufficient for the type of regulation challenged there. At the same time, this Court and our sister Circuits have suggested that heightened scrutiny is not always appropriate. In determining whether heightened scrutiny applies, we consider two factors: (1) “how close the law comes to the core of the Second Amendment right” and (2) “the severity of the law’s burden on the right.” Laws that neither implicate the core protections of the Second Amendment nor substantially burden their exercise do not receive heightened scrutiny.With this doctrinal framework, the Court then turned to the initial question of whether the Connecticut and New York statutes even implicated the Second Amendment, which required an analysis of whether the weapons and large-capacity magazines they banned were “in common use” and were typically used for lawful purposes such as self-defense. On this first point, the Court noted that nearly four million units of a single assault weapon covered by the statutes had been manufactured between 1986 and March 2013 and that tens of millions of high-capacity magazines were lawfully owned. “Even accepting the most conservative estimates cited by the parties and by amici, the assault weapons and large-capacity magazines at issue are ‘in common use’ as that term was used in Heller.” As for whether these weapons and magazines were typically used for lawful purposes, the record was much more ambiguous. Given that and “the absence of clearer guidance from the Supreme Court,” the Second Circuit “assume[d] for the sake of argument” that they met this part of the test and therefore concluded that assault weapons and large-capacity magazines fell within the ambit of the Second Amendment. The Court then turned to the all-important question of the extent to which the legislation would be subject to heightened constitutional scrutiny. As an initial matter, it noted that the two statutes imposed statewide bans on regulated assault weapons and large-capacity magazines, which plainly substantially burdened the ability to own them. On the other hand, the statutes banned possession of only those assault weapons that included at least one military-style feature (such as a grenade launcher), which meant that they banned only a “subset of semiautomatic firearms,” and thus left people able to buy assault weapons without those features. Given that, the Court concluded the laws were subject not to “strict scrutiny” – the highest level of constitutional scrutiny – but instead to “intermediate scrutiny.” Under that standard, “the key question is whether the statutes at issue are ‘substantially related to the achievement of an important governmental interest.’” Because it was “beyond cavil” that Connecticut and New York had substantial, indeed compelling, interests in public safety and crime prevention, the Court focused its attention on whether the two laws were “substantially related” to those interests and had no trouble concluding that the laws were sufficiently related. As the Second Circuit explained, “semiautomatic weapons have been understood to pose unusual risks . . . [and] are disproportionately used in crime, particularly in criminal mass shootings like the attack in Newtown.” It has noted that the statutes were carefully tailored to address the most serious threat posed by these weapons by focusing on those with military-style features. Noting that the legislature was entitled to substantial deference in matters of weapons regulation, the Court stated, “We must merely ensure that the challenged laws are substantially – even if not perfectly – related to the articulated government interest. The prohibition of semiautomatic assault weapons passes the test.” As for the bans on large-capacity magazines, “the same logic applies a fortiari.” In a revealing exercise in line-drawing, however, the Second Circuit did strike down the provision unique to New York law that limited lawful owners of large-capacity magazines from loading them with more than seven rounds of ammunition:
On the record before us, we cannot conclude that New York has presented sufficient evidence that a seven-round load limit would best protect public safety. Here we are considering not a capacity restriction, but rather a load limit. Nothing in the SAFE Act will outlaw or reduce the number of ten-round magazines in circulation. It will not decrease their availability or in any way frustrate the access of those who intend to use ten-round magazines for mass shootings or other crimes. It is thus entirely untethered from the stated rationale of reducing the number of assault weapons and large capacity magazines in circulation.The Rest of the Bill of Rights Beyond the importance of upholding major firearms regulation, the recent decision in New York State Rifle & Pistol Assoc. is significant for the Court’s comments about the intersection between Second Amendment jurisprudence and that governing other provisions of the Bill of Rights. Since the day the Supreme Court decided Heller, constitutional advocates have agonized over the extent to which Second Amendment challenges would be used to dilute other constitutional protections or, conversely, the extent to which well-developed protections in other areas would be used to strike down a wide range of weapons-control measures. The recent Second Circuit decision offers some comfort for those seeking to separate the Second Amendment from the rest of the Bill of Rights. Though accepting the notion that the Second Amendment, like the First Amendment, only addresses significant burdens on protected activity, the Court noted that “we have historically expressed hesitance to import First Amendment principles wholesale into Second Amendment jurisprudence.” And in applying intermediate scrutiny to the assault-weapons and large-capacity magazine bans, it further observed “that state regulation of the right to bear arms has always been more robust than analogous regulation of other constitutional rights.” Looking Forward In the aftermath of the Supreme Court’s rulings in Heller and McDonald, the lower courts are developing an entire new body of constitutional law. How much of this law will survive further Supreme Court review is impossible to predict, but the evolving law indicates that a wide range of weapons regulation will remain permissible under even the revived Second Amendment. More specifically and in light of recent events in Paris and Colorado, it seems apparent that the Second Amendment would pose no barrier to efforts to regulate assault weapons or terrorist access to weapons generally. *Christopher Dunn is the associate legal director of the New York Civil Liberties Union. He can be reached at email@example.com Footnotes 1 307 U.S. 816 (1939). 2 544 U.S. 570 (2008). 3 561 U.S. 742 (2010). 4 United States v. Decastro, 682 F.3d 160 (2d Cir. 2012), cert. denied, 133 S.Ct. 838 (2013). 5 Kachalsky v. County of Westchester,701 F.3d 81 (2d Cir. 2012), cert. denied, 133 S.Ct. 1806 (2013). 6 804 F.3d 242 (2d Cir. 2015).