Tuesday, January 15, 2013

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.


Michael L. Gantz (KC8VLG) said...

Does the restriction on Internet sales of ammunition from out of state violate the Commerce Clause?

Unknown said...

Commerce Clause? We don't need no stinkin' Commerce Clause.

But seriously, I have no idea. I doubt it but haven't put any thought into that.

Michael L. Gantz (KC8VLG) said...

Seems to me would be no different than wine.


Erwin Splittgerber said...

Condemning property, ordering people to surrender property or have it confiscated then facing arrest? Without just compensation!

I also question the law in respect to HR 218 when a qualified off duty police officer or qualified retired police officer visits the state. HR 218 is suppose to supersede state law making it legal for non-residents to carry large capacity magazines. Also does HR 218 supersede the law regarding retired police in NY State?

Anonymous said...

Do you have an opinion on the constitutionality of the magazine limitation? If you can now only buy a gun that accepts a magazine of 7 rounds or less and those magazines and models of guns that accept them either don't exist or exist in extremely limited supply would that amount to a de-facto ban of an entire class of commonly used firearms? Something which if I'm not mistaken Heller threw out when it came to handguns.

I could also not legally replace a magazine for a currently owned handgun or rifle if it does not have a 7 or less magazine available. Rendering it inoperable by law. It might be a stretch but Heller threw out laws that would force someone to make a firearm inoperable in the home, making it useless for self defense.

Caleb said...
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Anonymous said...

This analysis makes no sense. Either the "Wellregulated militia" clause is purely prefatory, as Justice Scalia held in Heller, in which case it matters not that arms are intended for military use, or it is not prefatory, but rather a substantive requirement that ownership of arms is contigent on membership in a militia.

In any event, in light of Heller and McDonald, the Supremen Court has spoken and established the law of the land with respect to the Second Amendment. As you know, the doctrine of stare decisis dictates that until Heller and McDonald are overturned, they remain the final word on Second Amendment jurisprudence. While you are entitled to your opinion, it is just an opinion which for the time being is incorrect as a matter of law.

Barbara said...

I don't see how this new legislation would've prevented what happened in Connecticut. A lot of people seem very pleased with it, but is it really worth it?

I noticed that with all the horror associated with the idea that in America the people are free to own these weapons, nobody was too terrified to show up outside the gun show in Saratoga Springs. All that heavy artillery on display, all those men lined up waiting to get inside and maybe purchase some. Men who know how to load and use these weapons, don't forget. Why were so many people unafraid to be in proximity to them?

Unknown said...

Well said Barbara!

I remember when I went to a gun show at the Empire State Plaza years ago. Security had traffic backed up a half-mile. They let people in with guns, ammo, etc. What were they keeping out?

A gun show filled with armed rednecks is probably one of the safest places in the world.

Anonymous said...

So, does anyone really know what the new laws are? Im trying to find out, but cant seem to. Even the state police do not know. I purchased an ar15 lower receiver on January 12th, three days before the ban. Coming from out of state, it arrived at the local FFL on the 18th. The dealer says he doesnt think he can transfer it to me, but nobody can answer that. Since I purchased it three days before the ban, shouldnt it be ok? I really dont think its right to say it cant be transfered, it is just a stripped lower receiver, and does not currently have "any" so-called evil features. I know I heard Cuomo say that one feature is still ok. Could someone please tell what the new law says in regards to this? Thank you

Unknown said...

I believe you are correct that it is legal. Because it does not have any of the features. But who is the manufacturer?

Unknown said...

The Governor put out a list of manufacturers: http://www.governor.ny.gov/assets/documents/RiflesthatAREclassifiedasassaultweapons.pdf

betuadollarucant said...

The problem with attorneys, no offense, is that they often miss the point.

I am assuming, perhaps falsely, that Cuomo's new requirement of a gun license will be linked with a requirement to register all guns under that license; if one owns no firearms, there shall be no need of a license. Since no license can be valid indefinitely, it has the ability of nullifying the right to bear arms, as those guns confiscated under the loss of license. This would prohibit the generational possession of arms, even if they did, in fact, fall fully under the original intent as even contemporaneous, historic firearms.

The law as I understand it "dis-includes" firearms exchanged between family members. But would not an order to revoke a license, for example, for non-payment, result in loss of those firearms? (What purpose a license if not to prohibit possession?)

Are we only to be licensed to those firearms purchased commercially or privately from non-family members; are not those of family excluded from license?

How will the court determine a privately purchased non-family firearm from that acquired through family? The answer is very simple: if there is no public record of the exchange, ultimately is an effort to ensure possession, it will be labeled a family firearm.

Clearly the requirement of a gun license itself is unconstitutional. And I think it reasonable to challenge this requirement.

Anonymous said...

Governor Cuomo and President Obama hold an opinion in that these weapons pose a threat to our communities which must be eliminated but if in fact these opinions are based on personal bias and are discriminatory . In order to maintain a non bias and non discriminatory legislation shouldn’t all vehicles capable of exceeding 70 miles per hour be eliminated due to so many fatalities and injuries having been directly attributed to speeding. The speed limit thru out the United States does not exceed 70 mph there fore why are vehicles produced to exceed the legal speed limit? The elimination of alcohol would also be needed to truly ensure that no hint is present of any bias or discriminatory legislation. Alcohol has been a proven cause either directly or indirectly to crime, birth defects, injuries, diseases and deaths. With items other than firearms maintaining an identical proven track record which also falls under the opinion of Governor Cuomo and President Obama why is no legislation in place to ban these items, unless there opinions are in fact discriminatory and bias against lawful gun enthusiasts and target shooters. No gun, vehicle or alcohol is manufactured with the intent of it being used toward a crime therefore to only target a type of firearm without also targeting a type of car or a type of alcohol is based on personal bias and would have the end result of discriminating against the persons that would purchase that firearm, vehicle or alcohol. The last time I checked it is prohibited to take action against a person or organization based on personal bias is considered a form of discrimination and that is prohibited in our society!

Anonymous said...
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Anonymous said...

Very good analysis, thanks. I had forgotten about that part of the Miller case. Until I read this I was banking on the idea that a challenge might be based on the idea that a 7 round limit on the amount of ammo a gun can legally hold might, in and of itself infringe on one's ability to bear arms.

Paul Rusin said...

Here's an excellent question, IMHO. The law relies on psychological determinations, as well as banning certain arms. First, let me start with infringe which means "to encroach, to hinder, to negate, to trespass on or upon the rights...of another, et al. Encorach means to go beyond what is original, proper, or customary; to make inroads. Since all these weapons were legal prior to the ban, these bans are inroads. Further, there is no compelling state interest to ban these weapons unless the ban is to negate the ability to right the ship of state's imposed tyranny.
But, let's get to the nitty gritty which is in this law. The permit system will now be renewable at 5 year intervals. If a fee is required, it is a de facto, tax. A tax is legal (Justice Roberts), but it is illegal to tax a right (see poll tax). Then let us apply the Shuttlesworth/Staub decision which states that "permits for rights are unconstitutional censorships or prior restraints" stating that anyone "faced with such a licensing law may ignore it and engage with impunity in the right...fir which the law purports to require a license." Not only that, but this is a long history f precedent(s) as noted in the decision's quote where the justice states, "and our decisions have made clear..."

Lastly, we must consider the implications of using psychology as a reason for determining who may, or may not "keep & bear arms." The Soviet Union used psychology to denounce all those who disagreed with it as crazy. If one states when asked if they could kill, that they could, would one be denied? What if they say they couldn't kill? Would they be asked why they felt then that they needed a weapon? If they can see no reason, could they not then be denied? What does killing in self defense if one sees that as a reason to kill justify? Does that mean that if one is willing to kill someone who may harm them, then will they be denied, because remember, at that juncture, they can be determined to be a threat to others?

Anonymous said...

Being one of the armed rednecks of NY state I have to say this law was written more for Bloomberg and NY city. There is a state north of Utica and I90. This law is not needed what so ever. It came to light the other day that the shooter in Newington, CT never used the AR rifle in the attak at all. I think this was planned for but they had just been waiting for an opertunity to trot it out when the support was garenteed. I just wish more reps had listens to their people. Is there anything we can do besides vote them out next election?

Unknown said...

The mag restriction violates the Second Amendment because 30-round mags are not unusual, following Heller.