Second Amendment Roundup: 2nd Circuit Upholds Connecticut's Semiautomatic Firearm Ban

The court substitutes an “unusually dangerous” test for Heller’s “dangerous and unusual” test.

In National Association for Gun Rights v. Lamont, the Second Circuit decided that a Second Amendment challenge to Connecticut's ban on many semiautomatic firearms does not have a likelihood of success.  The court assumed that possession of the firearms is constitutionally protected per Bruen's textual step 1, but held that the ban is consistent with our Nation's historical tradition of firearm regulation under step 2.  That conclusion is in blatant conflict with Heller's holding that arms that are in common use are protected by the Second Amendment and may not be banned.

Connecticut defines "assault weapon" to include a semiauto centerfire rifle that accepts a detachable magazine and one "military-style" feature, a .22 rimfire rifle with two such features, a list of firearms based on make and model, and an "other" category which applies to a pistol with a stabilizing brace.  The feature of the pistol grip is supposedly for "spray[ing] … a large number of bullets … without having to aim," which would actually mean fewer hits.  If that is true, why do single-shot rifles and even airguns, including those used in the Olympics, have similar pistol grips?  Check out the precision Feinwerkbau air rifles here.

A "telescoping stock" supposedly makes a rifle "easier to conceal," even though it still meets the minimum overall length for rifles.  Flash suppressors allegedly "help shooters avoid detection," but in reality reduce blinding in low-light conditions, such as home defense at night.  Such are the usual clichés that bear no relation to reality, as I've explained in detail in America's Rifle.

Plaintiffs brought a facial challenge but provided no evidence for many of the law's provisions, and thus could not show that no set of circumstances existed under which the entire statute would be valid under the Salerno rule.  The court thus focused on the law as applied to AR-15 type rifles, a .300 Blackout "other" firearm, and magazines with a capacity of over ten rounds.  Following Supreme Court precedent, the distinction between facial and as-applied challenges "goes to the breadth of the remedy employed by the court, not what must be pleaded in a complaint." See Citizens United v. Fed. Election Comm'n (2010).

The court thus decided that it could "consider partial invalidation … when evaluating facial challenges," adding that it "accept[ed] Plaintiffs' theory that we may consider their challenge as limited to the portions of the statutes restricting possession of their desired firearms and magazines and proceed to consider the constitutionality of only those specific sections of the statutes."

The court quoted U.S. v. Miller (1939) as holding "that the sorts of weapons protected were those 'in common use at the time,'" to which D.C. v. Heller (2008) added that limitations on Second Amendment protections for certain types of arms are "fairly supported by the historical tradition of prohibiting the carrying of 'dangerous and unusual weapons.'"  The court then proceeds blatantly to reject that test.  While "assuming arguendo that the desired firearms and magazines are 'typically possessed' and 'in common use," for lawful purposes, the court states, they may nonetheless be banned if they are "unusually dangerous," a term never used by the Supreme Court.

Under Heller, once it is clear that the arms that are banned are in common use, that ends the matter – the ban is unconstitutional.  D.C. argued that handguns are used in most violent crimes, including mass shootings, and are unnecessary for self-defense.  D.C.'s amicus Violence Policy Center recounted such tragedies, noting, "In the recent Virginia Tech shooting, a single student with two handguns discharged over 170 rounds in nine minutes, killing 32 people and wounding 25 more."  Heller rejected those arguments and held that handguns are in common use for self-defense by American citizens, and they – not the government – get to decide their preferred arms.

Bruen repeated that holding and added that a ban on carrying handguns was not justified by proper historical analogues.  Bruen also reflected: "While the historical analogies here and in Heller are relatively simple to draw, other cases implicating unprecedented societal concerns or dramatic technological changes may require a more nuanced approach."  (Emphasis added.)  Heller's common-use test applicable to arms-ban cases, and Bruen's text-history test applicable to carry-ban cases, are simple to follow and are not the "other cases" that are subject to "a more nuanced approach" based on "unprecedented societal concerns or dramatic technological changes."  Such "concerns" and "changes" have no application to the tests that Heller and Bruen have decided.  For a detailed analysis, see Mark W. Smith, What Part of "In Common Use" Don't You Understand? How Courts Have Defied Heller in Arms-Ban Cases—Again, JLPP (2023).

That leaves Connecticut's ban on firearms and magazines that are not "dangerous and unusual" (i.e., in common use) unconstitutional.  Heller, Bruen (5 times), and Rahimi consistently used the term "dangerous and unusual," as did James Wilson and other treatise writers quoted by the Court.  The term "dangerous or unusual" appears only when the Court quoted Blackstone, who wrote that "riding or going armed with dangerous or unusual weapons, is a crime against the public peace, by terrifying the good people of the land." That described the offense of an affray, which requires riding or going armed to terrorize others, not mere possession of any type of arm.

Departing from the Supreme Court's clear statements, the court asserts that "both the conjunctive and disjunctive formulations were traditionally understood as meaning 'unusually dangerous.'"  For that it cites nothing more than the declaration of non-lawyer, history professor Saul Cornell.  Doubling down, Judge Nathan states in his concurring opinion, joined by the other two panel judges: "It would seem a serious subversion of our commitment to history to enshrine a conjunctive test based on the Heller opinion's possible misquote of Blackstone."  So Supreme Court "misquotes" must be corrected by a supposed expert witness.

"Unusually dangerous," the court continues, identifies weapons that legislators presume "are not used or intended to be used for lawful purposes," contrary to the actual use and intended use by millions of Americans.  The overwhelming actual use of AR-15 rifles is target shooting, and their intended use for countless Americans includes self-defense.

The court repeats the Fourth Circuit's characterization in Snope v. Brown of Heller's common-use test as a "trivial counting exercise" that would sanction protection for "the W54 nuclear warhead" if it became popular before the government could ban it.  As Justice Thomas wrote dissenting from denial of cert in Snope, "To fend off the fantastical threat of Americans lobbing nuclear warheads at one another, the Fourth Circuit has allowed the very real threat of the government depriving Americans of the rifle that they most favor for protecting themselves and their families."

The court finds that "assault weapons" represent "dramatic technological changes," ignoring that semiautomatic rifles that use detachable magazines have been commonly possessed since the turn of the twentieth century.  Heller characterized the argument as "bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment," which "extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding."  Heller's common-use test already accounts for technological changes by ensuring that the Second Amendment's protection extends to all firearms that are in common use at the time a court conducts the "in common use" analysis.

While historically "mass murders … involved the use of multiple people and multiple weapons," the court continues, the banned firearms allow "a single gunman carrying out a mass murder in seconds."  Heller rejected such arguments in invalidating the handgun ban.  And it goes without saying that there are few limits to the depravity that may occur regardless of the type of weapon.  One arsonist murdered 87 people at the Happy Land Nightclub in the Bronx in 1990.  Mass stabbings occur in countries that ban firearms, e.g., Japan's 2016 Sagamihara massacre in which a knife wielder murdered 19 people and injured 26.

The court states that "the AR-15 is more lethal … than ordinary handguns," but it is no more lethal than the semiautomatic Ruger Mini-14 which, the court concedes, Connecticut does not ban.  Both rifles are available in the .223 Remington cartridge, which the court fantastically claims "exacts serious injuries tantamount to being shot 'with a Coke can.'" Seriously?  That round is not even powerful enough for deer hunting!

The court further asserts that "the AR-15, unlike an ordinary handgun, has features that actually limit its usefulness for self-defense."  It's supposedly "more difficult to use," although many find a rifle easier to use than a handgun.  Recall that the District of Columbia and its amici argued in Heller that rifles are more suitable for self-defense than handguns.  And Heller held that the people, not the state, get to decide what to use for self-defense.

The court next moves on to the following dramatic claim about historical "comparators": "Like the weapons regulated by the challenged statutes, dirk and Bowie knives were technological advancements over ordinary defensive arms because they were designed 'expressly for fighting,' with longer blades, crossguards to protect fighters' hands, and clip points to facilitate cutting or stabbing adversaries."  Technological advancements?  Medieval daggers and other edged weapons had those features and more.  A visit to the arms and armor collection at the Museum of Art in Philadelphia brings that technology to life.

Moreover, the court ignores Bruen's contrast between medieval lances and daggers as follows: "In the medieval period, '[a]lmost everyone carried a knife or a dagger in his belt.' … While these knives were used by knights in warfare, '[c]ivilians wore them for self-protection,' among other things…. Respondents point to no evidence suggesting the Statute [of Northampton] applied to the smaller medieval weapons that strike us as most analogous to modern handguns."

As the court concedes, the antebellum states that regulated edged weapons mostly only banned concealed carry.  The court partially quotes Aymette v. State (Tenn. 1840), that "[t]he Legislature … ha[d] a right to prohibit the wearing or keeping [of] weapons dangerous to the peace and safety of the citizens…." But the court deleted the rest of the sentence adding "and which are not usual in civilized warfare, or would not contribute to the common defence." Aymette thus upheld the right to keep the very kinds of "military-style" arms that the court says can be banned.

The court also cites Cockrum v. State (Tex. 1859), which rejected a constitutional challenge to a law imposing higher penalties for murder committed with a Bowie knife or dagger.  Far from supporting a possession ban, Cockrum stated, "The right to carry a bowie-knife for lawful defense is secured."  Nor does the court's position  find support in State v. Workman (W. Va. 1891), which opined that the "arms referred to in the [second] amendment" are "the weapons of warfare to be used by the militia."

The court concludes that it joins "the First, Fourth, Seventh, Ninth, and D.C. Circuits (every Circuit to address the question) in approving restrictions on assault weapons and large capacity magazines."  That's because most states don't ban such arms and the courts in those states thus do not have occasion to opine thereon.  All the more reason for the Supreme Court to take up this issue, as Justice Kavanaugh suggested when cert was denied in Snope, stating that "this Court should and presumably will address the AR-15 issue soon, in the next Term or two."