The Volokh Conspiracy
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Body Armor Ban Struck Down by N.Y. Federal Court
From today's decision by Judge John Sinatra (W.D.N.Y.) in Heeter v. James:
New York enacted a first-of-its-kind law prohibiting law-abiding residents-who are not engaged or employed in an eligible profession-from purchasing body armor for self-defense. New York enacted this legislation "to further strengthen gun laws." New York's body armor legislation, however, violates the Second Amendment….
In D.C. v. Heller (2008), the Court made it clear what the term "Arms" meant when the Second Amendment was ratified. In explaining that "[t]he 18th-century meaning" of the term "Arms" is "no different from the meaning today[,]" the Court quoted multiple dictionaries from the Seventeenth Century. Specifically, "[t]he 1773 edition of Samuel Johnson's dictionary defined 'arms' as '[w]eapons of offence, or armour of defence.' 1 Dictionary of the English Language 106 (4th ed.) (reprinted 1978) (hereinafter Johnson). Timothy Cunningham's important 1771 legal dictionary defined 'arms' as 'any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another.' 1 A New and Complete Law Dictionary; see also N. Webster, American Dictionary of the English Language (1828) (reprinted 1989).'' As a result, this Court is bound by Heller's textual analysis, which demonstrates that the word "arms" included armor at the Nation's founding (as it does today)….
The State submits that, during the Founding Era, armor "had become rare or even entirely obsolete in everyday American English" and "the protective leather gear of th[e] pre-Kevlar era was notoriously ineffective against bullets, meaning civilians did not typically wear such body protection either." This argument runs headlong into the definitions adopted by Heller, nevertheless indicating that the term "arms"—as it was defined in the Founding Era—included defensive body armor that (according to the State) was supposedly rarely utilized in 1791.
Body armor may be used more today than Defendants' understanding of its use in 1791. But it strains credulity to say that an arm that was rarely used during the Founding Era—yet still protected by the Second Amendment per Heller—is no longer protected despite being much more common among Americans today.
Moreover, this conclusion is consistent with Heller's clear statement that the Second Amendment "extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding." While body armor may not have been in common use at the founding—although the commonly understood definition of "arms" included body armor—neither were other arms commonly used for self-defense, such as resolvers, semiautomatic pistols, and stun guns. See Caetano v. Massachusetts (2016) (Alita, J., concurring). The defensive body armor available today is "no more exempt from the Second Amendment's protections, simply because [it was] unknown to the First Congress, than electronic communications are exempt from the First Amendment, or electronic imaging devices are exempt from the Fourth Amendment." …
Even if the definitions put forth by the Supreme Court in Heller are dicta, this Court has an "obligation to accord great deference to Supreme Court dicta," absent a change in the legal landscape. Defendants have not suggested—nor can they—that a change in the legal landscape exists that would require this Court to ignore how Heller defined the term "arms." …
Because Plaintiffs have demonstrated that body armor is an "arm" protected by the Second Amendment, the burden shifts to the State to justify its regulation by demonstrating that it is consistent with the Nation's historical tradition of arms regulation. The State fails to do so….
The State argues that there exists a "centuries-long historical tradition" demonstrating that, "when body armor has been in use, it has been subject to government regulation." Yet, the State is unable to identify a single regulation on body armor post-ratification…. The State contends that its body armor ban is consistent with "English monarchs and parliaments" who "regularly issued laws forbidding or restricting the wearing of armor …." Not only is this analogy irrelevant to the regulation of arms in the United States, but it also ignores the historical reason the right to keep and bear arms is "understood to be an individual right protecting against public and private violence." Accordingly, the Court interprets the English history put forth by the State in light of these principles and articulates that it is not "sufficiently probative" to defend New York's body armor ban….
The State points to the Statute of Northampton for support for its position that there is a long-standing tradition of restricting who can purchase body armor. The law prohibited anyone to "go, nor ride armed by night, nor by day, in fairs markets, nor in the presence of the justices or other ministers, nor in no part elsewhere, upon pain to forfeit their armor to the King and their bodies to prison, at the king's pleasure." Notwithstanding the ink that continues to be spilled over this law, the Supreme Court has stated that "the Statute of Northampton—at least as it was understood during the Middle Ages—has little bearing on the Second Amendment adopted in 1791." N.Y. State Rifle & Pistol Ass'n, Inc. v. Bruen (2022)….
The State's analogy to the Statute of Northampton is an attempt to justify its body armor ban by speculating that individuals only wear body armor to terrify the public. Yet, this ignores the reality put forth by Plaintiffs, that the public is more likely to reach for body armor to protect themselves from terrifying circumstances. In Rahimi, the Supreme Court concluded that "[a]n individual found by a court to pose a credible threat to the physical safety of another may be temporarily disarmed consistent with the Second Amendment." Here, however, the State is suggesting that a merely broad-based suspicion over the population at large is sufficient to justify a universal ban on the sale and purchase of a specific type of arm. And to the extent that the State analogizes this to prohibiting criminals from purchasing body armor, other statutes already criminalize the use of body armor while committing violent crimes. The State's categorical prohibition of a specific type of arm to law-abiding citizens at large, is untethered from any historical tradition-including the Statute of Northampton….
Nicolas J. Rotsko (Fluet) represents plaintiffs.
