Why the Cuomo Gun Ban Violates the Second Amendment

NY Governor Andrew Cuomo's new gun control, the so-called SAFE Act (Secure Ammunition and Firearms Enforcement Act), is unconstitutional. I'll explain in some detail below, but in short the new law flies directly in the face of the purpose of the Second Amendment.

The law explicitly goes after "military-style" firearms while purporting to protect hunting and sporting purposes. The Second Amendment is not about hunting and sporting uses of arms. Despite all the disputes about the phrasing, there can't be any question that it refers to "militia" and "the security of a free state." Neither of these has anything to do with hunting or sports.

Some of the key language showing the improper purpose is in the Statement of Support of the Senate's NY SAFE Act legislation.

While the Second Amendment protects the right to keep and bear arms, the Supreme Court has said that that right is "not unlimited." ... The Court also recognized there is a "historical tradition of prohibiting the carrying of 'dangerous and unusual' weapons."... Some weapons are so dangerous and some ammunition devices so lethal that we simply cannot afford to continue selling them in our state. Assault weapons that have military-style features unnecessary for hunting and sporting purposes are this kind of weapon.

The key language here shows that the legislative intent is to discriminate against "military-style" features, and favoring (in a relative sense) hunting and sporting purposes.

In the earlier part of the quote they refer to Supreme Court decisions, mainly quoting Heller. But there is a problem from United States v. Miller, a 1939 case involving a short-barreled shotgun. Here's what the Miller Court said back then:

In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment, or that its use could contribute to the common defense.

The Miller Court ruled that Mr. Miller (and his friend Mr. Layton) were not protected by the Second because a short-barreled shotgun was not military equipment and had no relationship to militia use. This is precisely the opposite of what Cuomo is going for with his gun ban.

Unfortunately for those of us who support the Constitution, Justice Scalia threw us a curve ball in the Heller decision.

We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.” ... It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.

To which the only sensible response is: Huh?

Scalia was unusually and dangerously loose with his language here. It certainly sounds like he's saying the M-16 can be banned, and acknowledges that this detaches the right from its purpose. Not only does he mention the automatic M-16, but also "the like." By "the like" does he mean the semi-automatic AR-15, which is visually but not functionally similar? Or does he mean similar military rifles that are also automatic and used in actual military service. What does he mean by dangerous? Aren't all firearms dangerous? The AR-15 is perceived by many gun owners as less lethal because its .223 cartridge has less energy and a smaller bullet than more powerful hunting rifles like the .308 and the 30-06. What does he mean by unusual? The AR-15 is hardly unusual among gun owners - it's one of the most popular rifles.

Since the underlying case in Heller was about handguns, this portion is what lawyers call dicta. It's not a holding but a more casual comment that does not have much value as precedent. But it's troubling all the same.

It's as if Scalia is arguing with himself (and losing). Earlier in the decision, Scalia defended the Second as an individual right, referring to the prefatory clause:

Logic demands that there be a link between the stated purpose and the command. The Second Amendment would be nonsensical if it read, “A well regulated Militia, being necessary to the security of a free State, the right of the people to petition for redress of grievances shall not be infringed.” That requirement of logical connection may cause a prefatory clause to resolve an ambiguity in the operative clause .... But apart from that clarifying function, a prefatory clause does not limit or expand the scope of the operative clause. ... 

Does the preface fit with an operative clause that creates an individual right to keep and bear arms? It fits perfectly, once one knows the history that the founding generation knew and that we have described above. That history showed that the way tyrants had eliminated a militia consisting of all the able-bodied men was not by banning the militia but simply by taking away the people’s arms, enabling a select militia or standing army to suppress political opponents.

This, it should be noted, is in the holding and is thus more important as precedent than Scalia's confused comments in dicta. Now Scalia sounds like Alex Jones, talking about tyrants suppressing political opposition.

When the Cuomo gun ban heads to SCOTUS (as the Supreme Court of the United States is sometimes known), the Court will have to first come to grips with the purpose of the Second Amendment. While the only sensible reading is that in includes military arms, we can't count on the Court being sensible. With anemic conservatives like Kennedy and Roberts on the bench, we could end up with a ruling that leaves no purpose at all.

This would bring us to the next step - scrutiny of the challenged law. It seems likely that SCOTUS will retain the notion that there is still an individual right to keep and bear arms. Being a fundamental right, the Court will likely apply strict scrutiny: Asking whether the law narrowly tailored to a compelling state interest.

On the latter point, the Court will find that preventing gun violence is compelling. Pretty much anything is a compelling state interest anyway. But the narrow tailoring may be a problem for Governor Cuomo.

The stated purpose of the legislation is:

This legislation will protect New Yorkers by reducing the availability of assault weapons and deterring the criminal use of firearms while promoting a fair, consistent and efficient method of ensuring that sportsmen and other legal gun owners have full enjoyment of the guns to which they are entitled. A thoughtful network of laws provides the toughest, most comprehensive and balanced answer in the nation to gun violence.

So the Court should address whether the new law protects New Yorkers, deters the criminal use of firearms, and reduces gun violence.

If the law is challenged on this ground, it should have substantial problems. First, the prohibited weapons are rarely used in crimes. Back in 1997 the Bureau of Justice Statistics (pdf) found that "military-style" guns were used in less than 2% of crimes. This definition was broader, including machine guns (which are already illegal). If the banned weapons are rarely used in crimes, the law is not narrowly tailored to the purpose of deterring the criminal use of firearms.

Another phrase often used in strict scrutiny analysis is whether the law uses the least restrictive means necessary to achieve the goal. Here the Cuomo ban is highly and broadly restrictive. It bans "semi-automatic guns with detachable magazines that possess one feature commonly associated with military weapons." From reading the language, it appears the features are listed in subsection 22 of Penal Law §265.00. This would ban nearly all semi-automatic rifles, shotguns and pistols. Caliber is irrelevant, extending even to .22LR guns which pack less punch than a home run ball.

Assuming the Court properly applies strict scrutiny (and that is a big assumption), Governor Cuomo and the State of New York will have the burden - they will have to prove - that this law is narrowly tailored and uses the least restrictive means. The law is so broad in what it bans that it's hard to imagine SCOTUS finding it meets the test.

Then the question will be how the Court resolves the case. Second Amendment supporters should hope they discard Scalia's odd dictum and acknowledge the military purpose of the Amendment. If so, the Court should reject the whole statute, as its stated purpose (banning military-style weapons) is unconstitutional. If not, the Court will have to pick and choose which weapons are properly banned, which cannot be banned, and they will likely leave an unclear middle ground of guns that should get some other treatment. This would spark decades of litigation over that middle ground, enriching lawyers like me beyond the dreams of avarice.

Update: For an FAQ from Cuomo - Governor's NY SAFE Act FAQ Second update: Apparently the law was written so hastily they forgot to exempt police from it: Reason.

As for Governor Cuomo, during his 2010 campaign some referred to him as the Status Cuomo, a play on status quo. He has now proven that this moniker really should be the Statist Cuomo. But that's not a surprise.

Full Disclosure: I ran against Governor Cuomo in that 2010 election as the Libertarian candidate. As for my constitutional analysis, I have little experience with appeals, mostly losing, and even less experience in federal court. So take anything I say here with a couple grains of salt. And maybe a drink.