On Monday the U.S. Court of Appeals for the 2nd Circuit upheld most of the 2013 arms prohibition laws enacted in New York and Connecticut. The circuit issued a joint opinion in two related cases, New York State Rifle & Pistol Assoc. v. Cuomo, and Connecticut Citizens’ Defense League v. Malloy. The decision was written by Judge José Cabranes, who was appointed a federal district judge by President Carter and elevated to the 2nd Circuit by President Clinton. The opinion was joined by Judges Raymond Lohier (a President Obama appointee) and Christopher Droney (appointed to the district bench by Clinton and to the 2nd Circuit by Obama).

I am not an unbiased observer; I co-authored an amicus brief in the Connecticut appeal. The brief explained that magazines over 10 rounds were invented in the 15th century and have been common in the United States since the mid-19th. (For more, see my article in the Albany Law Review, “The History of Firearms Magazines and Magazine Prohibition.”) Further, I am representing 54 of Colorado’s elected sheriffs in a magazine ban case currently before the 10th Circuit. Oral argument was Sept. 28.

The 2nd Circuit decision exemplifies the pattern in many lower federal courts of defying the Supreme Court’s admonition in McDonald v. Chicago that the Second Amendment is not “a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.” The approach of some lower courts seems to be that Heller stands for little beyond its holding that handgun bans are unconstitutional. In Heller, the court chastised lower courts for having “overread” the court’s 1939 decision in United States v. Miller; the Miller court had upheld the federal tax and registration system for sawed-off shotguns, but many lower courts asserted that Miller had ruled that the Second Amendment is a “collective right” that no individual can assert. Among the lower courts which, according to Heller, placed “erroneous reliance” on an incorrect interpretation of Miller, was the 2nd Circuit, in United States v. Scanio, No. 97–1584, 1998 WL 802060 (2d Cir., 1998).

Today, the trend is opposite, with some courts, including the 2nd Circuit, straining to under-read Heller. It seems that Heller is not a well-liked opinion among some federal judges, and, for some of them, barely a controlling opinion.

The 2nd Circuit opinion had three key flaws: finding that guns that are more accurate and easier to use may be prohibited because of these advantages; not following the Heller/McDonald methodology for review of arms bans; and creating a second-class, weak version of intermediate scrutiny for the Second Amendment. I will address the first two issues today and the intermediate scrutiny issue tomorrow.

More accurate guns are bad

NYSRPA involved laws banning magazines over 10 rounds and banning “assault weapons.” An “assault weapon” is defined as a semi-automatic firearm that has a supposedly “military” feature, such as an adjustable stock, a separate grip, or a thread for attaching a muzzle brake. Ever since the “assault weapon” issue was invented in the 1980s, gun prohibition lobbies have asserted that these features were created so that a gun can be wildly “spray-fired” from the hip. The 2nd Circuit did not adopt this rationale. The plaintiffs had argued that the prohibited features make a gun more accurate and easier to use. For example, a forward grip helps stabilize the gun; a muzzle brake reduces recoil; and an adjustable stock makes the gun a better fit for a person who is shorter or taller than the average user. The 2nd Circuit considered this to be a damning admission:

Indeed, plaintiffs explicitly contend that these features improve a firearm’s “accuracy,” “comfort,” and “utility.” This circumlocution is, as Chief Judge Skretny [W.D.N.Y.] observed, a milder way of saying that these features make the weapons more deadly.

This is a milder way of saying that a gun which is better-suited for self-defense than other guns may be prohibited. Contrast NYSRPA with Heller, where a gun’s high utility for fighting home invaders helped show why it could not be prohibited:

There are many reasons that a citizen may prefer a handgun for home defense: It is easier to store in a location that is readily accessible in an emergency; it cannot easily be redirected or wrestled away by an attacker; it is easier to use for those without the upper-body strength to lift and aim a long gun; it can be pointed at a burglar with one hand while the other hand dials the police.

So handguns are faster to deploy, easier to control in a confined space, easier for some people to shoot and easier to use to control a burglar. In other words, they are “more deadly.” And that is one reason why “the American people have considered the handgun to be the quintessential self-defense weapon.” So, “Whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid,” said Heller.

The 2nd Circuit took the opposite approach: Guns that are more accurate and easier to use for “deadly” purposes (whether against home invaders or while hunting) are exactly the guns that may be banned. This is in tension with Heller.

By the 2nd Circuit’s reasoning, inferior guns that are less accurate, less comfortable to use and less useful supposedly enjoy greater constitutional protection. That is a Bizarro Second Amendment.

Epithetical statutes: Banning guns by name

Besides banning guns because of features that make them more useful for lawful self-defense, the New York and Connecticut statutes outlawed many firearms by name, as well as “copies or duplicates thereof with the capability of” of such firearms — regardless of whether the copies have a “feature.” This is irrational. If there is something about a gun that makes it bad, then a statute should be able to describe what it is — rate of fire, caliber, barrel length or whatever. The Connecticut legislature outlawed 183 firearms by name but was unable to specify why these guns are different from other guns. This is like an obscenity law that bans some movies by having a certain feature (e.g., “depicts non-marital sexual intercourse”) and separately bans a list of movies by name (e.g., “Hair,” “Bob and Carol and Ted and Alice”). If there is something legally objectionable about a film or a firearm, then lawmakers ought to be able to identify and name the relevant characteristics. Logically, a ban-by-name is indefensible. The 2nd Circuit opinion did not address this issue.

The Heller and McDonald methodology for arms bans

According to the Second Circuit, “Neither Heller nor McDonald, then, delineated the precise scope of the Second Amendment or the standards by which lower courts should assess the constitutionality of firearms restrictions.” This is true for restrictions that were not at issue in Heller and McDonald, such as registration or licensing laws. However, regarding arms prohibition, the Supreme Court was not as opaque as the 2nd Circuit asserts. Heller spent many pages analyzing the nature of the Second Amendment: Was it an individual right, and did it apply to people who were not militiamen? Once Heller resolved these issues, the handgun ban was easy. The court separated arms into two classes: “Dangerous and unusual” arms could be banned. Paradigmatic examples were sawed-off shotguns (from Miller) and machine guns. The opposite of “dangerous and unusual” were arms that were “in common use,” which were “typically possessed by law-abiding citizens for lawful purposes.” Handguns were obviously in the latter category, according to Heller, and that was the end of the case. In contrast with Justice Breyer’s dissenting opinion, the Heller court totally ignored all the pro/con social science evidence about the benefits of handgun possession vs. the benefits of handgun prohibition, the use of handguns in mass murders or other violent crime, whether people really “need” handguns for self-defense when long guns are available, and so on. As McDonald summarized Heller: “we found that this right applies to handguns. . . . Thus, we concluded, citizens must be permitted ‘to use [handguns] for the core lawful purpose of self-defense.'”

The Michigan Court of Appeals straightforwardly followed Heller/McDonald in a case involving a prohibition on electric stun guns. Once the court determined that these arms are Second Amendment-protected arms, the case was finished. Prohibition was illegal. People v. Yanna, 824 N.W.2d 241 (Mich. App. 2012). In contrast, the 2nd Circuit, like other federal courts that have upheld bans on so-called “assault weapons” and on standard magazines, contended that when striking down arms bans, Heller and McDonald left the lower courts with no guidance about how to deal with cases involving arms bans. A stun gun ban affects far fewer people than does a handgun ban; the Yanna court recognized that Heller and McDonald had provided a methodology for reviewing all arms bans, not just handgun bans.