This Lawsuit Says a Recent SCOTUS Decision Makes It Clear That ‘Assault Weapon’ Bans Are Unconstitutional

A federal lawsuit filed this week argues that the Supreme Court’s recent ruling against New York’s restrictions on public possession of firearms implies that the state’s ban on “assault weapons” is likewise unconstitutional. The Firearms Policy Coalition (FPC) notes that the Court unambiguously rejected the “two-step analytical framework” that a federal appeals court applied when it upheld that law in 2015.

In the landmark 2008 case District of Columbia v. Heller, the Supreme Court said the Second Amendment applies to weapons “in common use” for “lawful purposes,” which made a blanket ban on handguns unconstitutional. The FPC argues that the firearms New York has “tendentiously labeled ‘assault weapons'” clearly fall into the same category.

“Rifles built on an AR-style platform are a paradigmatic example of the type of arm
New York bans,” the complaint says. “AR-15 rifles are among the most popular firearms in the nation, and they are owned by millions of Americans. A recent survey of gun owners indicates that about 24.6 million Americans have owned up to 44 million AR-15 or similar rifles….And according to industry sources, more than one out of every five firearms sold in recent years were rifles of the type banned by New York.”

Such rifles are rarely used in crimes. In 2019, according to FBI numbers cited by the FPC, “there were only 364 homicides known to be committed with rifles of any
type, compared to 6,368 with handguns, 1,476 with knives or other cutting instruments, 600 with personal weapons (hands, feet, etc.) and 397 with blunt objects.” Only a subset of those rifles would qualify as “assault weapons.” Prior to the federal “assault weapon” ban that expired in 2004, according to a widely cited study published that year, guns covered by such laws “were used in only a small fraction of gun crimes”—”about 2% according to most studies and no more than 8%.” Most of those were pistols rather than rifles.

You might think these facts would be enough to establish that so-called assault weapons are “in common use” for “lawful purposes.” As the FPC notes, millions of Americans use rifles covered by New York’s ban for “defense of self in the home” as well as “hunting or sport shooting.” Yet when the U.S. Court of Appeals for the 2nd Circuit considered that law in the 2015 case New York State Rifle & Pistol Association v. Cuomo, it claimed there was insufficient evidence to determine whether such rifles were mainly used for lawful purposes, even as it conceded that they were “in common use.”

Following the approach used by other federal appeals courts, the 2nd Circuit assumed, without deciding, that “assault weapons” were covered by the Second Amendment. But because the court thought the burden imposed by New York’s law was less than “severe,” it proceeded to uphold the ban under “intermediate scrutiny,” which requires that a restriction be “substantially related” to a “compelling” government interest.

It is “beyond cavil,” the 2nd Circuit noted, that a state’s interest in “public safety and crime prevention” is compelling. Hence the only question was whether the ban was “substantially related” to that interest. In considering that question, the court said, “we afford ‘substantial deference to the predictive judgments of the legislature,'” which is “far better equipped than the judiciary” to decide which gun regulations make sense.

Under that approach, it was inevitable that the 2nd Circuit would conclude that New York’s ban was consistent with the Second Amendment. But the court went through the motions anyway.

“These weapons are disproportionately used in crime, and particularly in criminal mass shootings,” the 2nd Circuit said. It did not mention that most mass shooters—77 percent, according to a recent National Institute of Justice report—use handguns. It did acknowledge that handguns account for an even larger share of total gun homicides: more than 90 percent in cases where the type of firearm was specified, according to the FBI’s 2019 data. “That evidence of disproportionate criminal use,” the 2nd Circuit noted, “did not prevent the Supreme Court from holding that handguns merited constitutional protection.”

The 2nd Circuit also asserted that “assault weapons” are “especially hazardous.” It endorsed the argument that the “net effect” of the “military combat features” targeted by New York “is a capability for lethality—more wounds, more serious, in more victims—far beyond that of other firearms in general, including other semiautomatic guns.”

That claim is dubious. As the Associated Press Stylebook notes, the assault adjective “convey[s] little meaning about the actual functions of the weapon.” Yesterday on Twitter, the A.P. reminded reporters that they should avoid the term assault weapon, which is “highly politicized.”

If you look at how New York defines “assault weapons,” you will understand why the A.P. says that. Under New York’s law, a semiautomatic rifle that accepts detachable magazines is prohibited if it has any of several features, including a folding or telescoping stock, a pistol grip, a bayonet mount, a flash suppressor, or a threaded barrel. Possessing such a gun is a felony punishable by up to seven years in prison and a fine of $2,000 to $10,000. Yet removing the illegal features does not affect a rifle’s “lethality” in any fundamental way: It