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”
- SayUncle » Second Circuit Mostly Upholds SAFE Act - […] I concur, it’s not much of a surprise given the circuit’s past decisions on gun control (hint, they like…