Court upholds post-Newtown gun laws in Conn., N.Y.

An AR-15

A modified AR-15 still legal in Connecticut

A federal appeals court Monday upheld the sweeping gun control laws passed by the New York and Connecticut legislatures in response to the mass murders of 26 children and staff at Sandy Hook Elementary School in Newtown.

A three-judge panel of the U.S. Court of Appeals for the 2nd Circuit unanimously rejected gun owners’ claims of a Second Amendment right to own large-capacity magazines and military-style weapons such as the AR-15, the popular semi-automatic rifle used in the massacre.

“We hold that the core provisions of the New York and Connecticut laws prohibiting possession of semiautomatic assault weapons and large‐capacity magazines do not violate the Second Amendment, and that the challenged individual provisions are not void for vagueness,” the court concluded in a 57-page decision by Judge Jose Cabranes.

Their ruling affirms a decision of Senior U.S. District Judge Alfred V. Covello, an appointee of President George H.W. Bush. Covello concluded in January 2014 that the Connecticut ban burdens the constitutional rights of gun owners, but was “substantially related to the important governmental interest of public safety and crime control.”

The 2nd Circuit decision, which appears to be the first federal appellate case involving a statewide ban, attempts to define the limits of gun ownership and regulation under the framework articulated seven years ago by the U.S. Supreme Court. It jointly considered separate challenges to the two state laws.

In 2008, the U.S. Supreme Court voted 5-4 in District of Columbia v. Heller to strike down a handgun ban in Washington, D.C., asserting for the first time an individual right to own firearms in “common use” for self-defense. But Heller offered minimal guidance over what limitations are constitutional.

Attorney General George Jepsen

Attorney General George Jepsen

“This case gives them a solid opportunity to do so,” said Attorney General George Jepsen, whose office defended the Connecticut law. “It actively engages that exact question: How far are states free to roam?”

Gov. Dannel P. Malloy, a defendant in the case, said the decision ratified what he called Connecticut’s reasonable and bipartisan approach to a shocking act of gun violence.

“Connecticut has struck the right constitutional balance between access to firearms and public safety,” he said. “Today’s decision acknowledges our state government’s obligation to take every sensible step toward reducing gun violence. One thing remains clear: Connecticut would be better off if every state and the federal government enacted similar, sensible gun safety rules.”

Scott Wilson of the Connecticut Citizens Defense League said he and the other plaintiffs would petition to have the decision reviewed by the U.S. Supreme Court.

“We know that we are on the right side of this matter, and Connecticut gun owners will not surrender our constitutional rights. We will exhaust every possible avenue to preserve those rights,” Wilson said.

Ron Pinciaro, the executive director of Connecticut Against Gun Violence, said, “We know that smart gun laws work and that common-sense laws do not interfere with Second Amendment rights.”

The Connecticut law expanded the state’s background checks for purchasers of guns and ammunition. It banned the retail sale of magazines capable of holding more than 10 rounds and a list of specific firearms, as well as any centerfire, semi-automatic rifle capable of accepting a detachable magazine and having one of several features, including a pistol grip, bayonet lug, collapsible stock, flash suppressor or grenade launcher.

In their decision, the appellate judges said Monday the Heller decision required them to work within this framework: “The Second Amendment protects only ‘the sorts of weapons’ that are (1) ‘in common use’ and (2) ‘typically possessed by law‐abiding citizens for lawful purposes’. ”

With millions in private ownership, the judges concluded that the firearms and magazines in question were in common use and moved on to the question of whether they were “typically possessed by law‐abiding citizens for lawful purposes.”

“While ‘common use’ is an objective and largely statistical inquiry, ‘typical[] possess[ion]’ requires us to look into both broad patterns of use and the subjective motives of gun owners,” they wrote.

On this question, the judges again sided with the gun owners.

But the court disagreed with the gun owners on a crucial remaining question: Should the judges subject the laws to strict scrutiny or intermediate scrutiny? The strict scrutiny standard requires the least restrictive available means to serve a governmental interest, while the lesser standard gives legislatures greater deference in furthering public safety.

“In determining whether heightened scrutiny applies, we consider two factors: (1) ‘how close the law comes to the core of the Second Amendment right’ and (2) ‘the severity of the law’s burden on the right,’” they wrote. “Laws that neither implicate the core protections of the Second Amendment nor substantially burden their exercise do not receive heightened scrutiny.”

The judges rejected a claim by the plaintiffs that the New York and Connecticut laws banned an overly broad class of semiautomatic weapons.

“Not so,” they concluded. “Rather, both New York and Connecticut ban only a limited subset of semiautomatic firearms, which contain one or more enumerated military‐style features. As Heller makes plain, the fact that the statutes at issue do not ban ‘an entire class of ‘arms’ ’makes the restrictions substantially less burdensome.”

In fact, gun manufacturers still offer AR-15 rifles modified to meet the Connecticut law. Among the changes: the Connecticut versions can only fire rimfire ammo, which is less powerful than centerfire rounds.

The judges wrote that New York and Connecticut had demonstrated that the weapons covered by the laws posed an unusual public risk.

“When used, these weapons tend to result in more numerous wounds, more serious wounds, and more victims,” the court said. “These weapons are disproportionately used in crime, and particularly in criminal mass shootings like the attack in Newtown. They are also disproportionately used to kill law enforcement officers: one study shows that between 1998 and 2001, assault weapons were used to gun down at least twenty percent of officers killed in the line of duty.”

The panel struck down minor provisions of each law.

In New York, they let stand a ban on magazines with a capacity greater than 10 rounds, but invalidated a section that limited gun owners to loading no more than seven rounds. (New York originally banned magazines with a capacity of more than seven rounds, but those either do not exist or are extremely rare.)

In Connecticut law, they found that a pump-action rifle, the Remington 7615, was improperly included on the list of banned weapons.

Two of three judges on the appellate panel that heard the case are from Connecticut: Cabranes, a former Yale general counsel appointed to the U.S. District Court by Jimmy Carter in 1979 and to the appeals court in 1994 by Bill Clinton; and Christopher F. Droney, a former U.S. attorney named to the U.S. District Court by Clinton in 1997 and to the appeals court by Barack Obama in 2011. Also on the panel was Raymond J. Lohier, an assistant U.S. attorney from New York named to the court by Obama in 2010.

New York and Connecticut passed the gun laws in 2013, months after the December 14, 2012, assault on Sand Hook Elementary.

In addition to the restrictions on magazines and types of firearms, the Connecticut law imposes universal background checks on gun purchasers, creates the nation’s first gun-offender registry and imposes the same rules on the sale of ammunition as now apply to firearms.

Those provisions were not challenged.

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