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

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.