A federal lawsuit filed this week argues that the Supreme Court's recent ruling against New York's restrictions on public possession of firearms implies that the state's ban on "assault weapons" is likewise unconstitutional. The Firearms Policy Coalition (FPC) notes that the Court unambiguously rejected the "two-step analytical framework" that a federal appeals court applied when it upheld that law in 2015.
In the landmark 2008 case District of Columbia v. Heller, the Supreme Court said the Second Amendment applies to weapons "in common use" for "lawful purposes," which made a blanket ban on handguns unconstitutional. The FPC argues that the firearms New York has "tendentiously labeled 'assault weapons'" clearly fall into the same category.
"Rifles built on an AR-style platform are a paradigmatic example of the type of arm
New York bans," the complaint says. "AR-15 rifles are among the most popular firearms in the nation, and they are owned by millions of Americans. A recent survey of gun owners indicates that about 24.6 million Americans have owned up to 44 million AR-15 or similar rifles….And according to industry sources, more than one out of every five firearms sold in recent years were rifles of the type banned by New York."
Such rifles are rarely used in crimes. In 2019, according to FBI numbers cited by the FPC, "there were only 364 homicides known to be committed with rifles of any
type, compared to 6,368 with handguns, 1,476 with knives or other cutting instruments, 600 with personal weapons (hands, feet, etc.) and 397 with blunt objects." Only a subset of those rifles would qualify as "assault weapons." Prior to the federal "assault weapon" ban that expired in 2004, according to a widely cited study published that year, guns covered by such laws "were used in only a small fraction of gun crimes"—"about 2% according to most studies and no more than 8%." Most of those were pistols rather than rifles.
You might think these facts would be enough to establish that so-called assault weapons are "in common use" for "lawful purposes." As the FPC notes, millions of Americans use rifles covered by New York's ban for "defense of self in the home" as well as "hunting or sport shooting." Yet when the U.S. Court of Appeals for the 2nd Circuit considered that law in the 2015 case New York State Rifle & Pistol Association v. Cuomo, it claimed there was insufficient evidence to determine whether such rifles were mainly used for lawful purposes, even as it conceded that they were "in common use."
Following the approach used by other federal appeals courts, the 2nd Circuit assumed, without deciding, that "assault weapons" were covered by the Second Amendment. But because the court thought the burden imposed by New York's law was less than "severe," it proceeded to uphold the ban under "intermediate scrutiny," which requires that a restriction be "substantially related" to a "compelling" government interest.
It is "beyond cavil," the 2nd Circuit noted, that a state's interest in "public safety and crime prevention" is compelling. Hence the only question was whether the ban was "substantially related" to that interest. In considering that question, the court said, "we afford 'substantial deference to the predictive judgments of the legislature,'" which is "far better equipped than the judiciary" to decide which gun regulations make sense.
Under that approach, it was inevitable that the 2nd Circuit would conclude that New York's ban was consistent with the Second Amendment. But the court went through the motions anyway.
"These weapons are disproportionately used in crime, and particularly in criminal mass shootings," the 2nd Circuit said. It did not mention that most mass shooters—77 percent, according to a recent National Institute of Justice report—use handguns. It did acknowledge that handguns account for an even larger share of total gun homicides: more than 90 percent in cases where the type of firearm was specified, according to the FBI's 2019 data. "That evidence of disproportionate criminal use," the 2nd Circuit noted, "did not prevent the Supreme Court from holding that handguns merited constitutional protection."
The 2nd Circuit also asserted that "assault weapons" are "especially hazardous." It endorsed the argument that the "net effect" of the "military combat features" targeted by New York "is a capability for lethality—more wounds, more serious, in more victims—far beyond that of other firearms in general, including other semiautomatic guns."
That claim is dubious. As the Associated Press Stylebook notes, the assault adjective "convey[s] little meaning about the actual functions of the weapon." Yesterday on Twitter, the A.P. reminded reporters that they should avoid the term assault weapon, which is "highly politicized."
If you look at how New York defines "assault weapons," you will understand why the A.P. says that. Under New York's law, a semiautomatic rifle that accepts detachable magazines is prohibited if it has any of several features, including a folding or telescoping stock, a pistol grip, a bayonet mount, a flash suppressor, or a threaded barrel. Possessing such a gun is a felony punishable by up to seven years in prison and a fine of $2,000 to $10,000. Yet removing the illegal features does not affect a rifle's "lethality" in any fundamental way: It still fires the same ammunition at the same rate (once per trigger pull) with the same muzzle velocity.
Instead of acknowledging that point, the 2nd Circuit tried to turn one of the plaintiffs' arguments against them. If any of the prohibited features are useful to law-abiding gun owners, it reasoned, they also are useful to mass murderers. "Plaintiffs explicitly contend that these features improve a firearm's 'accuracy,' 'comfort,' and 'utility,'" the court noted. "This circumlocution is…a milder way of saying that these features make the weapons more deadly."
The converse, of course, is also true. If these features are useful to mass murderers, as New York insists they are, they also are useful to law-abiding gun owners.
The FPC argues, for example, that folding or telescoping stocks allow a firearm to "be better fitted to an individual shooter"; "increase maneuverability in tight home quarters…as well as enabling safe storage of defense instruments in accessible spaces"; "allow for safe transportation, including in a hiking pack, an ATV, or a boat"; "ease carrying over long distances while hunting"; and, along with pistol grips, "open hunting and sport-shooting to those for whom recoil represents a high barrier to entry." It notes that pistol grips "improve accuracy and reduce the risk of stray shots by stabilizing the firearm while firing from the shoulder." It says "flash suppressors promote accuracy in target-shooting and hunting (especially at dawn)."
In essence, the 2nd Circuit weighed the interests of law-abiding gun owners, who account for the vast majority of "assault weapon" users, against the risk that the features they value might make a difference in the rare instances when someone uses such a firearm to murder people. Since the court deferred to the legislature's judgment about which was more important, its "intermediate scrutiny" amounted to little more than a toothless "rational basis" test. New York stated reasons why it expected the ban to promote public safety, and that was good enough.
The Supreme Court's June 23 ruling in New York State Rifle & Pistol Association v. Bruen, which concluded that the state had violated the Second Amendment by requiring residents to show "proper cause" for exercising the right to bear arms, made it clear that the 2nd Circuit's analysis in Cuomo was fundamentally misguided. According to the majority opinion, Heller and McDonald v. Chicago, the 2010 decision that applied the Second Amendment to state and local governments, "expressly rejected" the use of "any judge-empowering 'interest-balancing inquiry' that 'asks whether the statute burdens a protected interest in a way or to an extent that is out of proportion to the statute's salutary effects upon other important governmental interests.'"
The lower federal courts, which for more than a decade after Heller routinely rubber-stamped gun regulations, evidently did not get the memo. Their "two-step analytical framework" was a dance choreographed to conceal what was really going on: If a gun law struck judges as sensible, they would uphold it, either by denying that it implicated the Second Amendment or by declaring that the burden it imposed was no big deal.
In Bruen, the Supreme Court delivered an unmistakable message: Cut it out. The decision rejected "interest-balancing" standards in favor of a historical approach that asks whether a challenged law is analogous to restrictions that have traditionally been viewed as consistent with the right to keep and bear arms. A week later, the Court vacated four appeals court decisions upholding gun control laws, remanding the cases for reconsideration in light of Bruen. Those cases included a 4th Circuit decision that upheld Maryland's "assault weapon" ban, which reinforces the FPC's argument that the 2nd Circuit's reasoning in Cuomo was invalid.
That does not necessarily mean New York's "assault weapon" ban is doomed. Heller noted the "historical tradition of prohibiting the carrying of 'dangerous and unusual
weapons.'" New York can still claim the guns it prohibits fall into that category. But as the FPC points out, it is implausible, given the wide popularity of those firearms, to suggest that they are "both dangerous and unusual."
The 2nd Circuit briefly considered the "dangerous and unusual" claim in Cuomo. "This analysis is difficult to manage in practice," it said. "Because the AR–15 is 'the civilian version of the military's M–16 rifle,' defendants urge that it should be treated identically for Second Amendment purposes. But the Supreme Court's very choice of descriptor for the AR–15—the 'civilian version'—could instead imply that such guns 'traditionally have been widely accepted as lawful.'"
The FPC argues that "assault weapons" are "common categorically, as they are all functionally semiautomatic in their operation"; "common characteristically, as they are all popular configurations of arms (e.g., rifles, shotguns, handguns) with varying barrel lengths and common characteristics like pistol grips"; and "common jurisdictionally, lawful to possess and use in the vast majority of states now and throughout relevant history for a wide variety of lawful purposes including self-defense, proficiency training, competition, recreation, hunting, and collecting." It concludes that "there is no constitutionally relevant difference" between the guns New York prohibits and the guns it allows.
David Kopel, a gun policy scholar and research director at the Independence Institute, concurs. "Under Heller," he notes, "all bearable arms are presumptively protected by the Second Amendment, and the state bears the burden of proving otherwise—such as by proving the arms to be 'dangerous and unusual.'" It seems clear, Kopel says, that "assault weapons" are "in common use," whether that status is measured by the total number owned, the percentage of gun owners who have them, or the number of jurisdictions that allow them. "Nothing that is 'in common use' can be 'dangerous and unusual,'" he concludes.
At least two of the six justices in the Bruen majority share this view. One of them, Brett Kavanaugh, dissented from a 2011 decision in which the U.S. Court of Appeals for the D.C. Circuit upheld the District of Columbia's "assault weapon" ban.
"There is no meaningful or persuasive constitutional distinction between semi-automatic handguns and semiautomatic rifles," Kavanaugh wrote. "Semi-automatic rifles, like semi-automatic handguns, have not traditionally been banned and are in common use by law-abiding citizens for self-defense in the home, hunting, and other lawful uses. Moreover, semi-automatic handguns are used in connection with violent
crimes far more than semi-automatic rifles are. It follows from Heller's protection of semi-automatic handguns that semi-automatic rifles are also constitutionally protected and that D.C.'s ban on them is unconstitutional."
Justice Clarence Thomas, who wrote the majority opinion in Bruen, likewise takes a dim view of such laws. In 2015, when the Supreme Court declined to hear a case involving a local "assault weapon" ban, he vigorously objected. In his dissent, Thomas noted with dismay that "several Courts of Appeals" had "upheld categorical bans on firearms that millions of Americans commonly own for lawful purposes," which he viewed as clearly inconsistent with Heller.
Concurring in Bruen, Justice Samuel Alito emphasized that the ruling did not "decide anything about the kinds of weapons that people may possess." Alito, who wrote the majority opinion in McDonald, "made clear that his opinion in McDonald stands, including the analysis about 'longstanding prohibitions' and 'dangerous and unusual weapons,'" South Texas College of Law professor Josh Blackman writes. "Do not expect Alito to be a lock on…challenges to assault weapon bans."
Alito's concurring opinion in the 2016 case Caetano v. Massachusetts, which addressed a state ban on stun guns, nevertheless suggests that he would be open to arguments like the FPC's. "The pertinent Second Amendment inquiry," he said, "is whether stun guns are commonly possessed by law-abiding citizens for lawful purposes today." By that standard, "assault weapons," like stun guns, would be covered by the Second Amendment, even though the prohibited models did not exist when the amendment was written and ratified.
As a judge on the U.S. Court of Appeals for the 3rd Circuit, Alito dissented from a 1996 decision that upheld convictions under a federal law that restricts the transfer of machine guns. But his objection was based on the concern that the law exceeded the federal government's powers under the Commerce Clause, not the conclusion that it violated the Second Amendment.
In 2017, Justice Neil Gorsuch joined Thomas in objecting when the Supreme Court declined to hear a challenge to California's restrictions on public possession of firearms. But it's not clear where he stands on the constitutionality of "assault weapon" bans. Likewise for Justice Amy Coney Barrett, who in 2019 wrote a striking 7th Circuit dissent concluding that the blanket federal ban on gun possession by people with felony records was inconsistent with the Second Amendment.
Concurring in Bruen, Kavanaugh noted that "the Second Amendment allows a 'variety' of gun regulations," and he quoted Heller's reference to "dangerous and unusual weapons." Judging from his 2011 D.C. Circuit dissent, he does not read that exception as a license for "assault weapon" bans. But Chief Justice John Roberts, who joined Kavanaugh's concurrence, may view the issue differently.
In short, it's not clear whether a majority of the Court is inclined to rule that "assault weapon" bans are unconstitutional. But it is clear that courts like the 2nd Circuit will need to rethink their rationale for upholding them.
[This post has been updated to note Alito's 1996 dissent in a 3rd Circuit case involving federal machine gun restrictions.]