Second Circuit Upholds SAFE Act, Mostly

This is not really much of a surprise, as the Second Circuit has been in open defiance of Heller and McDonald since the Court handed down those decisions. The Second Circuit sustained the unconstitutionality of the seven round load limit, made by the lower court, but also invalidated the ban on the pump-action Remington 7615.

You can read the whole opinion here. They followed the same reasoning as the Heller II court, arguing that they are indeed in common use, and typically possessed for lawful purposes. But they put all that aside and said they could be banned anyway. The reasoning is even worse than in Heller II.

Heightened scrutiny need not, however, “be akin to strict  scrutiny when a law burdens the Second Amendment” — particularly when that burden does not constrain the Amendment’s “core” area of protection. The instant bans are dissimilar from D.C.’s unconstitutional prohibition of “an entire class of ‘arms’ that is overwhelmingly chosen by American society for [the] lawful purpose” of self‐defense.94 New York and Connecticut have not banned an entire class of arms. Indeed, plaintiffs themselves acknowledge that there is no class of firearms known as “semiautomatic assault weapons”—a descriptor they call purely political in nature.95 Plaintiffs nonetheless argue that the legislation does prohibit “firearms of a universally recognized type—semiautomatic.” Not so. Rather, both New York and Connecticut ban only a limited subset of semiautomatic firearms, which contain one or more enumerated military‐style features.

In other words, it bans an entire class of arms, but we’ll just use some trickery and tell you how it really doesn’t. After that it’s your basic Intermediate Scrutiny two-step. One wonders why the Court of Appeals even bothered with the first part of the analysis.

Again, the lower courts are in open revolt against Heller and McDonald, and I do not think the Supreme Court has any stomach to put the revolt down. If we can win the White House in 2016, we need to call on Congress to save the states which treat the Second Amendment as if it were toilet paper.

11 Responses to “Second Circuit Upholds SAFE Act, Mostly”

  1. Archer says:

    One wonders why the Court of Appeals even bothered with the first part of the analysis.

    The legalese language translates roughly as, “There’s no argument you can make that we can’t talk our way around. Because you’re stupid and we hate you. So there. Neener neener.”

    Including that jab (albeit using larger words) justifies itself.

  2. HSR47 says:

    We need to make congress do something regardless of what happens in the 2016 election. Regardless of what the president does, the courts need to see congress acting, so that they see the clear will of the people.

    • Patrick says:


      Maybe the next Speaker will let the rank and file start attaching amendments to bills, or to at least vote on them. Imagine pro-gun amendments to EPA funding bills.

      That has been the big issue: GOP leadership locked down committees and rules to prevent House members from even proposing amendments (where the real action lives).

      Hillary just went all gun-control and is pushing it harder than lady-parts issues. She went from “War On Womyn” to “War on Bitter-Clingers”. She seems to think it is a dividing line worth fighting for – does the GOP think the same?

      Time will tell.

      • Stephen says:

        If we elect a Democrat President and don’t punish at least some of the Democrats in Congress (or worse yet — let them take over the Senate or House again) then the people WILL have spoken. The Dems have made it clear as a party they are going all-out anti-gun. And if they get elected anyway … well, they will have proof the American people are OK with taking guns away.

        Forget voting for individuals these days. It’s pretty much all party politics. A vote for just about any democrat (I know there are exceptions, like Webb, but they are still riding the party platform) is a vote against guns.

  3. Maxpwr says:

    Time for an new, clearer right to keep and bear arms amendment. Constitutional Convention if we need to.

  4. Maxpwr says:

    And regarding the fact that they didn’t ban the Remington 7615…they just said that they didn’t have enough evidence to ban them but come back in a few years and we’ll let you ban them too. Nothing is safe. Not even your FUDD guns.

    • Brad says:

      Clearly I am not up to speed on the SAFE ACT. Is it so badly written that even a pump action rifle is at risk? How?

      • Chris from AK says:

        IIRC, the 7615 was banned by name in CT’s law.

        The Court negated the ban because… well… the reasoning was unclear to me as to how it was much different than anything else. I guess because it doesn’t have “military style” features?

  5. Windy Wilson says:

    I’m curious here. What parts of the First, Fourth, Fifth, and Sixth Amendments have “heightened scrutiny” and not “strict scrutiny”? Which parts of the various Articles of the Constitution have “intermediate scrutiny”, “heightened scrutiny” and not “strict scrutiny”?
    Also, when we’re talking about phrases and rights from the Constitution and its amendments, why does “rational basis” play any part at all?

  6. The reasoning is that like saying that freedom of speech is not impaired by a ban on burning the U.S. flag because, to parody the decision of p. 33: because “adequate alternatives remain for law‐abiding citizens to express their opposition to the U.S.: signs and chanting.”


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