Some more bad news on the Second Amendment front came out of New York (where else?) this week… at least for now. The Federal District Court in Buffalo heard arguments from plaintiffs asking that most of the provisions of the Empire State’s odious SAFE Act – one of the most restrictive gun laws in the nation – be struck down on constitutional grounds. Unfortunately for those concerned with gun owners’ rights, the judge in this case upheld most of the law.
The ruling offered a victory to gun control advocates at the end of a year in which efforts to pass new legislation on the federal level suffered a high-profile defeat in Congress, although some new restrictions were approved in state capitals.
The judge, William M. Skretny of Federal District Court in Buffalo, said expanded bans on assault weapons and high-capacity magazines were legally sound because they served to “further the state’s important interest in public safety.”
The new laws in New York, enacted in January 2013, are among the most restrictive in the country. Gov. Andrew M. Cuomo, a Democrat, pushed for the state to be the first to take action after the mass school shooting in Newtown, Conn.; gun rights groups accused him of ramming through new gun restrictions they called ill-conceived, poorly understood and unconstitutional.
If there was any good news in this ruling, it was a very small crumb on a vastly larger plate. The ruling did strike down the ludicrous and frequently lampooned mandate saying that you couldn’t load more than seven rounds into your weapon even if it was designed to hold more.
In a 54-page ruling, Judge Skretny struck down a well-known but troubled portion of the law, which prohibited gun owners from loading more than seven rounds into a magazine. He called the limit “an arbitrary restriction” that violated the Second Amendment.
This case is obviously being kicked upstairs and the plaintiffs will next head to the Second Circuit Court of Appeals. From there, the next stop is the Supreme Court, assuming it needs to go that far and the Justices agree to hear it. But there are indications that they will, given the fact that they didn’t shy away from taking on both the Heller and McDonald v Chicago cases. But how successful will they be? I’m tempted to think that Skretny’s decision will run into problems, particularly given some of the bizarre arguments he makes. Here’s just one example which caught my attention.
But, saying that “whether regulating firearms is wise or warranted is not a judicial question; it is a political one,” he found that Mr. Cuomo and lawmakers had acted within their bounds when they drafted the gun laws, and specifically cited the Bushmaster rifle and 30-round magazine used in the Newtown shooting.
“Of course, this is only one incident,” Judge Skretny wrote. “But it is nonetheless illustrative. Studies and data support New York’s view that assault weapons are often used to devastating effect in mass shootings.”
I find it rather shocking that a seated federal judge would declare the question of whether or not the government can infringe the right to keep and bear arms to be “a political question” and not a judicial one. That statement alone would, in my non-lawerly opinion, call the entire judgement into question right there. Still, assuming this challenge reaches the SCOTUS, the ruling in Heller is no assurance of a positive outcome, as an actual lawyer, Doug Mataconis, points out.
As I noted above, to a large degree much of this is new law because no Court, least of all the Supreme Court, has ruled on the issue of what Heller, McDonald, and the Second Amendment mean when it comes to weapons other than handguns yet. In that regard, though, I think its important to note this section of the Heller majority opinion that was written by no less than Justice Scalia:
Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152-153; Abbott333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489-490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884). Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment , nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.
Doug goes on to point out that, as much as we may take the Second Amendment for granted as a line in the sand for personal rights, much of this is really uncharted territory in terms of how the highest court will rule. And we may be waiting a long time for any complete sort of answer.
In the wake of Heller and McDonald, I noted that the Supreme Court had opened up an entirely new area of the law that would take decades to flesh out. Partly, this is because, for the most part, there had been an incredibly limited amount of Supreme Court precedent on the Second Amendment prior to Heller, my own rough count found one case in the late 19th Century and a handful of cases in the 20th Century dealing with things such as the mid-1930s laws that regulated the circumstances under which someone could legally obtain a fully automatic weapon, a law that remains largely intact and is unlikely to be seriously challenged at any time in the future. Once the Court ruled as it did in Heller, though, it guaranteed that we would see years of litigation on what exactly the right that its decision outlined via the historical evidence available from the time the Amendment was ratified actually entailed. As noted, we’ve already seen the beginnings of that in the lower courts, and this case is now added to that list.
Doug has a very lengthy analysis at the link which is well worth your time to read, as it includes much of the case history which will come to bear on this case and other similar ones in the pipeline. There are a number of disturbing elements hiding under the covers, too. Even the most conservative justices have shown that, while they support the concept of the Second Amendment as an individual right held by all citizens, they simultaneously recognize the government’s ability to impose limits on that right. This leads to the usual “gray lines” where future battles will be fought. But perhaps even more troubling is the fundamental reason for having the right to keep and bear arms cited by Scalia, as Doug explains.
While this is dicta that was not essential to the ruling in Heller, it was a clear signal from the Court to the Circuit and District Court’s that it’s decision was not intended to be, and should not be interpreted as, a blanket declaration that restrictions on gun ownership of all kinds were per se unconstitutional. In fact, Scalia was careful to say in his opinion that the basis for the Court’s ruling in Heller was based primarily on what it saw as a fundamental right of self defense in the home. To some degree, that part of Heller has been expanded to include the right to self-defense in public, but the rulings involved still only involved handguns, not more advanced weaponry. Thus, it’s difficult to say how even the Heller majority would deal with the issue of so-called “Assault Weapons.”
If you set in stone that the Right to Keep and Bear Arms is tied to the right to self defense, you may as well codify that it’s tied to hunting or fighting in a war. That opens the door to all manner of future limitations, rather than the general language of the Second Amendment saying that the Right shall not be infringed. Period.
So as Mataconis points out, we shouldn’t expect any sort of sweeping, permanent clarity to come from this case any more than it did from Heller (which really only dealt with handguns). McDonald gained a lot more ground, essentially stating that all the states have to recognize the right, but the door remained open for broad ranging restrictions which could be used to find back door routes to gun confiscation such as we’ve already seen in New York. Still, this one should add to the body of precedent once it’s closed out, and hopefully more of this horrible law will eventually be struck down.