Gun Control

How New York's 'Assault Weapon' Ban Passed Constitutional Muster

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On Tuesday a federal judge ruled that New York's seven-round ammunition limit violates gun owners' Second Amendment rights. At the same time, U.S. District Judge William Skretny rejected a Second Amendment challenge to another major provision of New York's SAFE Act: its ban on so-called assault weapons. The difference is mainly due to Skretny's assessment of the distinctions drawn by the "assault weapon" ban, which he deemed less arbiitrary and more likely to reduce gun violence than the ammunition rule.

Skretny concluded that both provisions apply to guns in common use for lawful purposes—the sort of weapons that the Supreme Court has said are covered by the Second Amendment. He also concluded that both provisions "impose a substantial burden on Plaintiffs' Second Amendment rights." Applying "intermediate scrutiny," he asked whether the provisions were "substantially related to the achievement of an important governmental interest." For reasons I discussed in a post earlier today, Skretny ruled that the ammunition limit, which allows a gun owner to use a 10-round magazine as long as he puts no more than seven rounds in it, fails this test. But Skretny took a different view of the "assault weapon" ban, deeming the "military-style" features on which it focuses potentially useful to mass murderers but inessential to law-abiding gun owners.

Contrary to popular misconceptions, the defining characteristics of "assault weapons" have nothing to do with rate of fire, caliber, or ammunition capacity. Under the SAFE Act, for example, any one of these features transforms a semiautomatic rifle with a detachable magazine into an "assault weapon": a folding or telescoping stock, a pistol grip, a thumbhole stock, a second hand grip, a threaded barrel (for attaching a flash suppressor or muzzle brake), a bayonet mount, or a grenade launcher. It seems safe to ignore the last two, since mass shooters rarely deploy bayonets and cannot legally obtain grenades, without which a grenade launcher is pretty useless. Are the other features functionally important in attacks on defenseless moviegoers or schoolchildren?

No matter how you answer that question, the analysis cuts both ways. If the "military-style" features that define the prohibited weapons are mainly cosmetic and do not make an important difference in the context of mass shootings, banning these guns won't do much good, but it also won't have much effect on self-defense and other legitimate uses of firearms. And to the extent that the politically disfavored characteristics are functionally significant, they are useful to law-abiding people as well as criminals. Skretny highlights the two-edged nature of the arguments used by the organizations challenging the ban:

Plaintiffs contend that many of the outlawed features do not make firearms more lethal; instead, according to Plaintiffs, several of the outlawed features simply make the firearm easier to use. For instance, they argue that a telescoping stock, which allows the user to adjust the length of the stock, does not make a weapon more dangerous, but instead, like finding the right size shoe, simply allows the shooter to rest the weapon on his or her shoulder properly and comfortably. Another outlawed feature, the pistol grip, also increases comfort and stability. The same goes for the "thumbhole stock," which, as the name suggests, is a hole in the stock of the rifle for the user's thumb. It too increases comfort, stability, and accuracy according to Plaintiffs.

But Plaintiffs later argue that the banned features increase the utility for self-defense— which is just another way of saying that the features increase their lethality. Plaintiffs make this explicit:"Where it is necessary for a crime victim to shoot the aggressor, and lethal or incapacitating injury will stop him, the lethality of the defender's firearm is a precondition to her ability end the criminal attack." The National Rifle Association of America, as amicus curiae, make a similar argument, describing how the banned features improve a firearm's usability.

There thus can be no serious dispute that the very features that increase a weapon's utility for self-defense also increase its dangerousness to the public at large.

The reverse is also true, however, and here is where the level of scrutiny chosen by Skretny makes a crucial difference:

Pointing to the benefits of these features to those who might use them defensively, Plaintiffs argue that the SAFE Act ought to be struck down. But under intermediate scrutiny, this Court must give "substantial deference to the predictive judgments of the legislature."

Still, Skretny is more deferential than he needs to be, consistently preferring the analysis of gun control supporters to that of skeptics in reaching the conclusion that New York's "assault weapon" ban is "substantially related" to the goal of protecting public safety. For example, he cites the Mother Jones tally of mass shootings since 1982, which has been criticized for misleadingly suggesting that such incidents are on the rise. But even the Mother Jones analysis found that handguns were by far the preferred weapon of mass shooters. "Assault weapons" (as defined by Dianne Feinstein's 2013 bill) accounted for just 14 percent of the guns the killers used. Skretny obscures that point by saying "the study found that assault weapons, high-capacity magazines, or both were used in over half of all mass shootings."

Even if it were true that most mass shooters use "assault weapons," that would not necessarily mean banning those guns would reduce the death toll from mass shootings. It is not reasonable to expect any measurable effect from such laws as long as equally lethal alternatives are readily available, and that will be true as long as people have a constitutional right to armed self-defense.

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53 responses to “How New York's 'Assault Weapon' Ban Passed Constitutional Muster

  1. That man has some Oompa-Loompa blood in him.

  2. Suck it New York!

  3. I don’t think it cuts both ways at all. Pistol grips and telescoping stocks cut down on carpal tunnel pain after firing a few hundred rounds off at the range. Pretty irrelevant to a sociopath looking to up the latest high score.

  4. but it also won’t have much effect on self-defense and other legitimate uses of firearms.

    Wow, really? You mean to say that a thumbhole stock, meant to help increase accuracy, will not have much effect on legitimate gun users? Or a ‘pistol style’ grip which makes carrying a hunting rifle ready to use when moving long distances? That doesn’t have ‘much of an effect’?

    I’d say that *any* restriction on 2nd amendments rights that provides *no* increased protection from gun crime is a major effect on gun-users, no matter how minor the requirements. Sure, painting your gun pink won’t stop criminals but its only a little requirement right? Doesn’t effect you too much right – therefore it should be all good. How about a constant sounding buzzer being required to be attached to all firearms – won’t affect how the weapon functions or reduce gun-crime, but its only a minor restriction, right?

    1. How about a constant sounding buzzer being required to be attached to all firearms…

      You mean like Homer’s “Everything’s OK!” alarm?

      1. Or the highly endangered Screamapillar, which could be fitted with a locked picatinny mount.

  5. But under intermediate scrutiny, this Court must give “substantial deference to the predictive judgments of the legislature.”

    Translation: under intermediate scrutiny, the Court must give substantial deference to the legislature’s skills in reading auguries from the flight characteristics of birds.

  6. Gun control is always about the elites and the proles. Nothing else. The elites love it when they have significantly more gun privileges legally than the proles. It’s one of the markers of being better.

    1. I have a friend who is a department director at a nearby university. Intelligent guy, right? He has a farm, knows what to do with it and owns a few rifles.
      I took two mechanically identical 10/22 rifles to his farm. First one has walnut burl stocks, Leupold 2-7×28 scopes, a 10-round (flush) magazine inserted. The second has black synthetic stocks, a reflex holographic sight and a 25-round magazine inserted. He thought the second should be banned.
      It took a minute to switch the optics and magazines and he was conflicted. I explained switching the stocks would take less than half an hour. The anguish was fascinating.

      1. It’s their ignorance that powers their opinions.

      2. Also, maybe somebody should sit the guy down and explain to him that the 2nd amendment isn’t for hunters or sportsmen – its for self-defense. Self-defense *doesn’t* just mean defense from a burglar or mugger, its also for defense against large groups of people using the color of law to deprive you of your rights/property/life.

        Those attachments/designs that are intended to allow the wielder to hurt large number of people in rapid succession are *necessary* to be able to do that.

    2. Since New Yorkers have historically acted as cowards, this doesn’t surprise me. Remember, New York was the only state that did not vote for independence from Britain.

      1. You are a collectivist moron. Congratulations, moron.

        1. I guess you never read about the New York City draft riots either. Hmm. I guess if it’s not in a sci-fi comic, you wouldn’t know about it.

          1. What’s wrong with rioting against the draft?

            1. It got them shelled by the Navy?

        2. I’m not a collectivist, but I sure as shit feel confident in ripping on New York for its generally collectivist tendencies. How does it make one a collectivist to say that New York is shit?

  7. But, but, but.. Scary looking guns are more deadly because they’re scary looking!

    Reminds me of the Hitchhiker’s Guide to the Galaxy and the Kill-o-Zap.

    The designer of the gun had clearly not been instructed to beat about the bush. ‘Make it evil,’ he’d been told. ‘Make it totally clear that this gun has a right end and a wrong end. Make it totally clear to anyone standing at the wrong end that things are going badly for them. If that means sticking all sort of spikes and prongs and blackened bits all over it then so be it. This is not a gun for hanging over the fireplace or sticking in the umbrella stand, it is a gun for going out and making people miserable with.’

  8. I don’t know the details of the SAFE act, but I do recall that other AWBs have banned rifle grenade launchers, and not actual grenade launchers.

    (Ones capable of launching actual grenades are NFA-registered Destructive Devices, and thus “banned” in effect by being heavily regulated, though not impossible to get.

    Smaller-diameter pseudo-grenade-launchers (37mm vs 40mm for grenades) are not DDs, as their intent and general ammunition is non-explosive and non-projectile; they’re flare and smoke and gas launchers.

    Combine that with the way anti-gun forces have a loose connection with honesty, and how politicians rarely know what the hell they’re talking about, and we get things like “banning grenade launchers”.)

    1. I’m a little confused by your post.

      As far as I know its possible to purchase and own M-79 or M-203 40mm grenade *launchers* but the grenades themselves are DD – 40mm grenades come in a variety of destructive flavors along with smoke and flare.

  9. he asked whether the provisions were “substantially related to the achievement of an important governmental interest.”

    I’ve never read the words “important governmental interest” in the Constitution. Who makes this stuff up? It’s only a Right until it’s important to the government that it not be a Right? Damn. That concept pretty much jeopardizes every single freedom a person might possess.

    1. The constitution grants the government the power to do what is “necessary and proper” to protect “general welfare” and “regulate commerce”.

  10. If by “Passed Constitutional Muster” you mean “some asshole in a robe managed to cogitate a half-assed reasoning for it” then sure. If you mean “is actually constitutional” then no. Just no.

  11. Any feature that makes a gun more usable in a crime makes it more usable for self-defense. The only difference between a criminal shooting and a self-defense shooting is the state of mind of the shooter, which is not affected at all by these laws.

    I can’t even get them past “rational basis” scrutiny, much less “intermediate” scrutiny. This is like outlawing red cars to reduce speeding.

    1. Red cars with spoilers, decals, alloy wheels, and tinted windows.

      1. Awesome!!

    2. “Any feature that makes a gun more usable in a crime makes it more usable for self-defense.”

      The cops need “assault weapons” because they’re afraid of being outgunned by the criminals.

      But there’s no reason for civilians to worry about being outgunned becasue…

      Look, a squirrel!

  12. “The difference is mainly due to Skretny’s assessment of the distinctions drawn by the “assault weapon” ban, which he deemed less arbiitrary and more likely to reduce gun violence than the ammunition rule.”

    Is it common to consider the efficacy of violating the Constitution in these decisions?

    Yeah, it violates the Constitution, but it does what it’s trying to do really well. And it isn’t too arbitrary–and isn’t that what’s really important?

    1. I mean, did somebody pass an amendment that says it’s okay if a law violates someone’s Constitutional rights, so long as it doesn’t do so too arbitrarily?

  13. Gotta love those bought and paid for lawmakers lol.

    http://www.BeinAnon.tk

  14. These infringements of the right to self defense DO NOT “pass constitutional muster”, as anyone who can read will know. The judge failed to do his duty, which is standard procedure for government lawyers employed in the practice of rationalizing usurpations.

    -jcr

    1. That sums it up nicely.

      Essentially what he did was to give government agents permission (permission he is not empowered to give) to engage in criminal behavior.

  15. Judge Skretny’s next ruling:

    “While it is true that gunsights, handgrips, and shoulder stocks can increase the utility of a gun for self-defense, it is just as true that such features make them more dangerous to the public at large. It is also true that every mass shooting has involved a gun with at least two of these features. Therefore, this Court must give substantial deference to the predictive judgments of the legislature, and allow the law banning them to stand.”

  16. The left will say and do ANYTHING to try to limit our 2nd Amendment Rights. And it matters little to them that their reasoning is unsound or irrational. They could just as easily say, “It’s a cloudy day with a 90% chance of precipitation, thus this gun is banned so that bullets won’t rain down on us”

  17. …”military-style” features on which it focuses potentially useful to mass murderers but inessential to law-abiding gun owners…”

    Because things like ‘muzzle brakes’ or ‘recoil compensators’ have no reasonable application to target shooters, or small-statured people/or women shooting heavier caliber rifles.

    collapsible stocks? The convenience of a variable length-of-pull for comfort in a variety of shooting positions or while wearing different seasonal clothing is something that could only possibly apply to the Infantry Soldier in Combat.

    And who could possibly have wrist problems, requiring use of vertical/pistol-patterned grips?

    This idea that ‘ease of use’, or improved features somehow “add to lethality” is patently absurd. I kind of want to go to the judge with a Blunderbuss packed with AIDS-pellets and have him explain how it is inherently ‘less lethal’ than a 10/22 with a pistol grip and a suppressor. Or a @#*$&@ ball-peen hammer for that matter.

    I still find it hard to believe that no decent lawyer has yet torn these idiotic decisions to shreds

    1. In fairness to the judge, the idea that ease of use/ improved features add to lethality was applied by both sides, meaning that for the case in question the lethality if those features was assumed

      1. again = this is horseshit no matter how its applied.

        One cannot argue a double-barreled 12g is ‘less lethal’ than a 10/22 with pistol grip, muzzle brake, etc.

        One can’t argue that any 2 otherwise identical shotguns with these different features are any different in their ‘lethality’.

        one cannot demonstrate that these features do anything other than provide ‘some people’ in ‘some instances’ more versatility and comfort in use.

        and by, ‘in use’, I mean their vast variety of non “mass murdering” applications.

        So being a ‘better gun’ does not equate to ‘more appropriate for mass killing’.

    2. I still find it hard to believe that no decent lawyer has yet torn these idiotic decisions to shreds

      You don’t even need a lawyer to do that, the rulings are obviously absurd. This shyster is only there to help the government pretend that these things were considered in a court of law.

      -jcr

  18. yet another robed wonder making law from the bench and interjecting their opinion and that of “the media”–aka a propagandist publication; Mother Jones…to help form that “opinion”. The republic is doomed when we continue to have robed wonders

  19. the “assault weapon” ban, he deemed less arbiitrary and more likely to reduce gun violence

    What a maroon. “Assault weapons” are barely used in crimes at all, let alone gun violence. Mass shootings are essentially non-existant in New York state. One in the last twenty years, only two in the last thirty years.

  20. I have yet to see anyone point out an obvious consequence of restricting magazine capacity: gun owners will tend to shift to larger caliber pistols like .45 cal. They will be the only ones left that naturally come that way.

    Not sure the consequences of this, just doubt anyone voting on it had this in their calculations.

    1. After the 1994 magazine limit passed manufacturers began designing handguns that held 11 larger caliber cartridges, handguns that were smaller because of the limited magazines, or handguns that were a compromise of both.

      Anti-gun folks spoke of these “pocket rockets” with wailing and gnashing of teeth.

  21. It is important that we not conflate the usefulness of a handgun with the lethality of a handgun. The two concepts are related, but they are not one in the same. Certainly, a gun must have some usefulness in order to be lethal, at least in the sense that an inoperable gun is neither useful nor lethal. However, not all useful features of a gun increase lethality. The obvious example is a gun’s safety mechanism, which is incredibly useful yet decreases lethality. Because some gun features increase lethality while other features decrease lethality, judges need to consider each feature individually. Unfortunately, it does not seem that judge Skretny did so.

    Furthermore, when analyzing the usefulness and lethality of each feature, a judge needs to consider the marginal benefit, as well as the number of individuals who utilize that feature. Take for instance the thumbhole stock. It is quite beneficial to millions of target shooters, yet it offers very little benefit to the handful of mass shooters. This one should be a no brainer. In fact, most of these “cosmetic” features are no brainers. At least when gun control advocates call for magazine restrictions, their argument is plausible. But thumbhole stocks?? Give me a break.

  22. It is not reasonable to expect any measurable effect from such laws as long as equally lethal alternatives are readily available, and that will be true as long as people have a constitutional right to armed self-defense.
    Quibble. It will be true much longer, because:
    1. The black market will supply criminals with all the guns they need regardless of our lost rights.
    2. In the U.S. the three most lethal mass-murder weapons since the 1980s were a can of gasoline, a truck full of fertilizer, and a box cutter.

  23. Applying “intermediate scrutiny,”

    Well there’s your problem, he applied the wrong standard. According to even SCOTUS, the standard for 2nd amendment cases is Strict Scrutiny.

    1. ^^^THIS.

    2. They never said it was strict scrutiny and therein lies the problem. They just said it was rational basis. That’s why you have this burgeoning “somewhere in between intermediate and strict scrutiny” nonsense the courts are coming up with. But I suspect if Scalia pushed for clearly defining the standard as strict scrutiny in Heller, we would have had a much different vote, and thus, on a 5-4 decision, possibly not the one we wanted.

  24. Great point, however, how certain can we be that his ruling won’t meet the Strict Scrutiny criteria? It seems that he could argue that there is a compelling governmental interest and the law is narrowly tailored and the least restrictive means to achieve the intended objective. Of course, the ruling is still WRONG relative to unnecessarily restricting the 2nd amendment, but I’m not 100% certain that the judicial review standard will necessarily imperil the decision in the LONG run (of course, admitting that he used the wrong standard may de facto do exactly that in the short term).

    1. I didn’t read his ruling. I’ve long established that regardless of what is said at the district court level, there will be an appeal. (Too much ego on the state side and too much at stake on the citizens’ side). I’m not sure I’ll pay much attention to the exact wording of the 2nd circuit either, because that too will get appealed by someone. (Though if it is denied cert I’ll have to read it)

  25. “There thus can be no serious dispute that the very features that increase a weapon’s utility for self-defense also increase its dangerousness to the public at large.”

    Apparently, there is a great intellectual disconnect about what makes something “DANGEROUS”. A car that doesn’t steer well or predictably is dangerous…..not one that’s capable of going fast. A 20-foot portable ladder is dangerous, while a 400-foot tower’s built-in ladder isn’t particularly.

    Something is dangerous if it behaves in a way that cannot be predicted or controlled. That’s why grenades are dangerous. But anything that makes a rifle more controllable for its (lawful) user, like a pistol grip or thumbhole stock, makes a firearm LESS DANGEROUS.

    Gee, though, if you’re going to ban adjustable stocks, which make rifles more controllable by small women and large men alike, then you’re perfectly justified in banning both optical and telescopic sights. Heck … ban rifling too ….

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