Second Circuit Upholds Most of NY SAFE Act and CT Ban

Bartholomew Roberts · October 19, 2015, 09:57 AM

http://law-policy.com/wp-content/upl...N-10192015.pdf

Short version: 57 page decision upholds most of the NY Safe Act and CT Bans. The provision on load limits in 10rd magazines does not survive scrutiny in NY and the ban on the Remington 7615 in CT is held to be unconstitutional. The Second Circuit affirms the ban on magazines holding more than 10rds and all semi-autos however.

Of interest, SCOTUS had already been petitioned to hear a similar case regarding the constitutionality of semi-auto bans; but had not yet agreed to hear the case. Apparently the Second Circuit decided to avoid the rush and give their opinion before SCOTUS indicated whether they would take up the subject.

Just did a fast skim of the decision and it is even worse than it sounds. The only reason Second Circuit overturned the parts they did was because neither state offered ANY evidence in support of those provisions and Second Circuit couldn't very well claim they were applying "heightened scrutiny" and then fail to overturn a law that had no evidence in support. They did make it abundantly clear though that if any future law went so far as to offer evidence in support of those provisions, they would probably support it too.

Glenn E. Meyer · October 19, 2015, 10:41 AM

So we did not ascend to paradise on the angelic wings of the Lord Scalia?

I said it from the get-go that 'reasonable restrictions' were a terrible weakness and in fact a justification for bans.

Bart - I, obviously, didn't read this yet. Does it discuss the mental health provisions and why they are legit in their view?

heyjoe · October 19, 2015, 10:44 AM

no it does not, nor the ban on direct internet sales of ammunition

kilimanjaro · October 19, 2015, 10:47 AM

Gavin Newsom is salivating in California right now.

**Aguila Blanca** · October 19, 2015, 11:19 AM

Cabranes and Droney -- stacked deck.

carguychris · October 19, 2015, 11:38 AM

Quote:

Originally Posted by Glenn E. Meyer

I said it from the get-go that 'reasonable restrictions' were a terrible weakness and in fact a justification for bans.

+1. Also—at least at first glance—this court decision backs up my assertion that 10rd (or whatever) mag capacity limitations are best challenged at the ballot box rather than in the courtroom.

I find that many of our arguments against such limits are weaker than we think, or sometimes even inherently self-contradictory.

Bartholomew Roberts · October 19, 2015, 11:57 AM

It is the same old two-step used in every negative Second Amendment decision thus far.

The court assumed that the banned firearms and banned magazines were protected by the Second Amendment. They then found that banning only certain semi-auto firearms and magazines with more than 10 rounds did not infringe on the "core right" protected by the Second Amendment because you still had some semi-auto firearms and detachable magazines of 10 rounds or less. Then they applied "heightened scrutiny" which in this case appears to have been "Did the government offer any evidence in support of this provision of the law? If yes, then heightened scrutiny met. If no, then that provision overturned."

Quote:

Originally Posted by Glen E. Meyer

I said it from the get-go that 'reasonable restrictions' were a terrible weakness and in fact a justification for bans.

There was no other way that we were going to get an individual rights decision that I can see in Heller, weakness or not. First, the Heller case was narrowly tailored to a specific set of circumstances in order to prevent broadly overturning huge swaths of Federal law. In this respect it was following the civil rights strategy of 1950's integration efforts.

Second, there isn't a court system in the country that is funded or staffed to a level that even 50% of those who are entitled to a speedy trial can receive one. A narrow ruling on Heller without the "presumptively reasonable restrictions" language has the likely effect of creating a tsunami of run of the mill criminals protesting their convictions on Second Amendment grounds. Many of those cases would have extremely unattractive plaintiffs that are likely to create bad precedent in how that individual right is interpreted.

That presumptively reasonable restriction language gives the lower courts an easy out to deal with those challenges - and to the extent it discourages actual legal scholarship by courts by giving them a lazy solution to their docket, it actually helps us in the long run. In this case, the court did not consider the banned weapons to be "dangerous or unusual" (one of the presumptively reasonable restrictions), so it really had no effect on the outcome other than the court noted that the language clearly indicates some restrictions are OK right before it goes on to bash SCOTUS for not giving any guidance on determining which restrictions are OK.

Honestly, I'd have much preferred if many of the courts doing the two-step analysis and applying it to laws would have just cited Scalia's "presumptively reasonable" language and sent it on down the line. Every time that does happen, it at least leaves that decision open to attack from a wide variety of angles.

The good news from this decision is that it was a Motion for Summary Judgment. As a result, the Second Circuit has identified a number of factual issues that might be important to future Second Amendment litigation and we have an idea of what kind of information is necessary to shape court opinion.

Armed_Chicagoan · October 19, 2015, 12:29 PM

Quote:

Ultimately, then, neither the 1 Supreme Court’s categories nor
2 the evidence in the record cleanly resolves the question of whether
3 semiautomatic assault weapons and large‐capacity magazines are
4 “typically possessed by law‐abiding citizens for lawful purposes.”69
5 Confronting this record, Chief Judge Skretny reasonably found that
6 reliable empirical evidence of lawful possession for lawful purposes
7 was “elusive,”70 beyond ownership statistics.71 We agree.

These judges were unable to determine if "assault weapons" were typically possessed for lawful purposes???

**44 AMP** · October 19, 2015, 01:03 PM

Quote:

These judges were unable to determine if "assault weapons" were typically possessed for lawful purposes???

No, I don't think that's what they said. I think they are taking the same dodge SCOTUS took in the Miller case (NFA 34).

Essentially they are saying that "no evidence was presented", which is slightly different in legalese, but essentially the same in effect as "we could not determine.."

It would seem a simple question to me, using established definition of semi automatic assault weapon (despite my personal disgust and objections to the term), take the sales numbers of these guns, subtract the numbers of these guns recovered from crimes, and presto, the remainder are lawfully possessed or possessed for lawful purposes.

Simple arithmetic that even a Judge could do. If they chose to.

But they don't have to choose to, and nothing requires them to. Determining what is or isn't reality is not their concern, or their job. What is their job is to rule on what is brought before them.

If you don't present what they consider proof, of something, they don't have to consider it. They might, probably they should, but they don't have to.

Bartholomew Roberts · October 19, 2015, 02:40 PM

I'm speculating; but I think one of the reasons they found the evidence "elusive" is that this was a motion for summary judgment. In order for that motion to be granted, the judge must determine (or the parties must agree) that there is no dispute as to material facts affecting the case.

The thing is, there is clearly a dispute as to the material facts behind this case. In that situation, the proper thing for the judge to do is to interpret the facts in the light most favorable to the Plaintiffs to see if there is an issue as a matter of law that would allow summary judgment. I'm having a difficult time seeing how the Second Circuit or the lower court did that in this case.

I'm not sure if the Plaintiffs stipulated to facts that included cites to Violence Policy Center for strategic reasons or if the judge found there was no material fact dispute over the objection of the Plaintiffs or what; but it seems to me that there is a material fact issue and that it was not viewed in the light most favorably to the Plaintiff, the judges' decision in the matter notwithstanding.

Accordingly, in the opinion the Second Circuit acknowledges several times that the Plaintiff and Defendant have different views of key issues that would affect the analysis used by the Second Circuit in determining what type of scrutiny applies. The Second Circuit even appears to be arguing at times that it is quite willing to be convinced that the weapons are not in common use either.

**Aguila Blanca** · October 19, 2015, 03:53 PM

Quote:

Originally Posted by Bartholomew Roberts

Second, there isn't a court system in the country that is funded or staffed to a level that even 50% of those who are entitled to a speedy trial can receive one. A narrow ruling on Heller without the "presumptively reasonable restrictions" language has the likely effect of creating a tsunami of run of the mill criminals protesting their convictions on Second Amendment grounds. Many of those cases would have extremely unattractive plaintiffs that are likely to create bad precedent in how that individual right is interpreted.

That presumptively reasonable restriction language gives the lower courts an easy out to deal with those challenges - and to the extent it discourages actual legal scholarship by courts by giving them a lazy solution to their docket, it actually helps us in the long run. In this case, the court did not consider the banned weapons to be "dangerous or unusual" (one of the presumptively reasonable restrictions), so it really had no effect on the outcome other than the court noted that the language clearly indicates some restrictions are OK right before it goes on to bash SCOTUS for not giving any guidance on determining which restrictions are OK.

I have also said since Heller that Mr. Justice Scalia didn't do us any favors with that "presumptively legal" language. The problem is, ever since then the lower courts have been cheerfully misinterpreting it.

Just as the lower courts (many of them, anyway) try to limit the entire scope of the 2A to "in the home" on the basis that Heller only addressed in the home, they also get lazy and proceed on the basis that, since Scalia said all existing gun restrictions are "presumptively" legal, they pretend that he actually said they are legal.

What he was actually saying was, "We weren't asked about those other laws today, so we won't talk about them today. We'll presume they're legal until they have their own day in court." And that would be a proper way to proceed, except that the lower court judges now play as if all those other laws have already HAD their day in court, and have been ruled legal by the Supreme Court. And that's just not what actually happened.

Bartholomew Roberts · October 19, 2015, 03:58 PM

Quote:

What he was actually saying was, "We weren't asked about those other laws today, so we won't talk about them today. We'll presume they're legal until they have their own day in court." And that would be a proper way to proceed, except that the lower court judges now play as if all those other laws have already HAD their day in court, and have been ruled legal by the Supreme Court. And that's just not what actually happened.

The thing is, if the courts were going to rule against the Second Amendment anyway, that is not a bad result. It leaves a ruling that is easy to challenge and it discards a lot of bad plaintiffs that might otherwise be cluttering up the scene with bad precedent.

To the extent a court looks at that language dispassionately and decides "Eh, looks like the safe thing to do is deny this challenge and quote that part", it is bad for us. But my gut feeling is that many of the courts quoting that language had their minds made up and are looking for an easy way to justify it. Scalia gave them easy language to justify the decision without ever building a good base of legal reasoning that would stand up under scrutiny.

**Aguila Blanca** · October 19, 2015, 04:04 PM

Quote:

Originally Posted by Bartholomew Roberts

To the extent a court looks at that language dispassionately and decides "Eh, looks like the safe thing to do is deny this challenge and quote that part", it is bad for us. But my gut feeling is that many of the courts quoting that language had their minds made up and are looking for an easy way to justify it. Scalia gave them easy language to justify the decision without ever building a good base of legal reasoning that would stand up under scrutiny.

Agreed.

A few months back I attended a lecture by the president of the NY State Rifle and Pistol Association (I think that was the correct name of the group). His take back then was that the circuit court's ruling was going to be appealed regardless of which side prevailed. I think it's fair to say that just about everyone expected that the ruling would be in favor of the states, and it would not surprise me if both NY and CT plaintiffs have had their appeals 90 percent drafted already. All they need to do is fill in the blanks from the circuit court's ruling and BAM!

I expect to see appeals filed by both plaintiffs in a very short time.

Tinbucket · October 19, 2015, 05:13 PM

The Court is in error again. There is no such thing as Judicial Supremacy, under our Constitution.
That doesn't matter now.
At some point perhaps People will get angry enough to remove these Activist Judges off the Court.
Ny and Cn Citizens will jsut have to gird themselves and recognize the Constitution and not accept these illegal Laws and Judges.
Honorable citizens in these states and others are already under persecution and many prosecuted for enjoying our Rights protected from Government by our Constitution.
The price of freedom is such.
Cristi as Governor could do something about it and get these laws offf Cn books.
He is showing his stripes by not defending our Constitution and Citizens.
No way in hades, he will be elected to President.
The anti freedom, anti Constitution, and Americans are succeeding in polarizing America, extremly, with their persecution and denial of our Rights.
To all Nyers and Conn Citizens keep your resolve. Elect County Sheriffs and local Police an Mayors that are Patriots and ostracize an minimize the Socialists/Communist.
They come into a Restaurant or business leave.
Don't sell to them or do any business with them. Don't be friends with them. Ask the clubs etc you are. Members in to ask them to resign.
Raise petitions to cut their pay and perks and limit their power and to recall them.
They are waring on our Rights and Constitution and our freedoms.
They like Victims and Citizens who cannot resist.

steve4102 · October 19, 2015, 07:23 PM

Quote:

Originally Posted by Tinbucket

Cristi as Governor could do something about it and get these laws offf Cn books.

Umm, Christie is Governor of New Jersey.

As a Governor he cannot "Do Something" without the help of the State Legislators to get "laws off the books". A governor is not a dictator and cannot just remove laws or enact laws as he/she sees fit.

heyjoe · October 19, 2015, 07:46 PM

when Christie was a legislator in the New Jersey Legislature he was pro gun control and co sponsored gun control bills.

**Aguila Blanca** · October 19, 2015, 09:22 PM

Quote:

Originally Posted by heyjoe

when Christie was a legislator in the New Jersey Legislature he was pro gun control and co sponsored gun control bills.

What does that have to do with the New York and Connecticut anti-gun laws, and the circuit court decision? New Jersey is not part of this discussion.

heyjoe · October 19, 2015, 10:13 PM

nothing, its off topic

carguychris · October 20, 2015, 12:30 PM

Quote:

Originally Posted by Tinbucket

The Court is in error again. There is no such thing as Judicial Supremacy, under our Constitution.
That doesn't matter now.
At some point perhaps People will get angry enough to remove these Activist Judges off the Court.
Ny and Cn Citizens will jsut have to gird themselves and recognize the Constitution and not accept these illegal Laws and Judges.

Be careful, that blade cuts both ways. Many of the civil liberties we enjoy are there because of so-called "activist judges".

Quote:

Originally Posted by Tinbucket

Cristi as Governor could do something about it and get these laws offf Cn books.

For the record, the current governor of CT (not Cn), and the one who signed the new CT gun laws, is Dannel Malloy.

Tinbucket · October 20, 2015, 02:51 PM

I should not have thrown Cristi in there. He is the same problem of NJ Citizens, I should have explained if i was going to expand it.
He's running for President all the while being a closet liberal.

LogicMan · October 20, 2015, 03:20 PM

My fear is that the SCOTUS, provided they agree to hear this case, will find a weasel way to uphold it, like they did with Obamacare (I am not agreeing or disagreeing with Obamacare specifically here, just I mean the upholding of it was rather fudged by Justice Roberts IMO). I can't imagine them actually overturning an assault weapons ban considering the number of such bans in place around the country right now.

**Aguila Blanca** · October 20, 2015, 06:24 PM

http://www.ccdl.us/

Quote:

Originally Posted by CCDL

"We knew all along that we would end up appealing to the Supreme Court to overturn this clear injustice of our 2nd Amendment rights. We have 90 days from this ruling, and our attorneys will file a petition for certiorari within that time frame".

I need to make time to read the entire decision. An attorney of my acquaintance mentioned today that the circuit court actually found that the so-called "assault weapons" banned by both states are, in fact, in common use. That should have invalidated the bans under strict scrutiny, but the circuit court applied intermediate scrutiny to uphold [most of] the bans. That should be a simple, procedural matter to overturn.

"Should be" being the key term ...

Bartholomew Roberts · October 20, 2015, 10:14 PM

They didn't find the banned firearms and magazines were in common use. They just assumed it for the purposes of this opinion (probably because it was an MSJ). They can change their minds later still.

Also, the Second Circuit uses the "core rights" analysis which means that strict scrutiny isn't applied unless the law infringes on the core right described in Heller (different courts taking different views as to the extent of the core right according to their biases). So just finding the firearm is in common use only gets some form of intermediate scrutiny (and a very mild flavor of that in the 2nd Cir. it seems).

LogicMan · October 21, 2015, 01:27 AM

Being a total amateur at the law, is not using strict scrutiny a weasel way to find arguments to uphold gun control laws? Shouldn't strict scrutiny be applied in all gun rights cases? Is strict scrutiny used most of the time in cases regarding other rights? I mean I can't imagine the courts at any level upholding restrictions on free speech, privacy, religion, etc...that they uphold on guns.

Bartholomew Roberts · October 21, 2015, 05:32 AM

Being libertarian-oriented, I would probably favor an application of strict scrutiny far beyond what the courts currently use. However, intermediate scrutiny is used in many areas of law besides just gun issues. For example, many laws dealing with gender discrimination and sexual orientation receive intermediate scrutiny.

Likewise, content-neutral laws (the law applies equally to all speech regardless of the content of the speech) affecting free-speech receive intermediate scrutiny (which has led to things like "free-speech zones").

The problem with "intermediate scrutiny" (also called "heightened scrutiny" by the Second Circuit) is that it isn't well defined and as a result courts can (and do) apply a standard that is really little more than rational basis test to cases that should be holding the government to a higher standard.

In this particular case, that is exactly what happened. The only parts of the law the Second Circuit didn't strike down were those that the government literally made no effort at all to defend. This was a complex law affecting two different states and composed of hundreds of smaller provisions. It removed rights that had existed in these states since the founding of this country and directly touched on the Bill of Rights and the Second Circuit's version of heightened scrutiny upheld every single restriction the government submitted evidence on.

And then they went further and included in their decision things like "We'll assume these firearms are protected by the Second Amendment even though for these reasons that might not be the case..." which was basically a "How to"guide for gun control groups to argue the issue of common use against semi-autos. And even the two parts they overturned, they practically invited the government to submit evidence on that and try again.

I found it to be a grossly partisan decision.

October 19, 2015, 09:57 AM	#1
Bartholomew Roberts member Join Date: June 12, 2000 Location: Texas and Oklahoma area Posts: 8,462	Second Circuit Upholds Most of NY SAFE Act and CT Ban http://law-policy.com/wp-content/upl...N-10192015.pdf Short version: 57 page decision upholds most of the NY Safe Act and CT Bans. The provision on load limits in 10rd magazines does not survive scrutiny in NY and the ban on the Remington 7615 in CT is held to be unconstitutional. The Second Circuit affirms the ban on magazines holding more than 10rds and all semi-autos however. Of interest, SCOTUS had already been petitioned to hear a similar case regarding the constitutionality of semi-auto bans; but had not yet agreed to hear the case. Apparently the Second Circuit decided to avoid the rush and give their opinion before SCOTUS indicated whether they would take up the subject. Just did a fast skim of the decision and it is even worse than it sounds. The only reason Second Circuit overturned the parts they did was because neither state offered ANY evidence in support of those provisions and Second Circuit couldn't very well claim they were applying "heightened scrutiny" and then fail to overturn a law that had no evidence in support. They did make it abundantly clear though that if any future law went so far as to offer evidence in support of those provisions, they would probably support it too. Last edited by Bartholomew Roberts; October 19, 2015 at 10:24 AM.

October 19, 2015, 10:41 AM	#2
Glenn E. Meyer Senior Member Join Date: November 17, 2000 Posts: 20,064	So we did not ascend to paradise on the angelic wings of the Lord Scalia? I said it from the get-go that 'reasonable restrictions' were a terrible weakness and in fact a justification for bans. Bart - I, obviously, didn't read this yet. Does it discuss the mental health provisions and why they are legit in their view? __________________ NRA, TSRA, IDPA, NTI, Polite Soc. - Aux Armes, Citoyens

October 19, 2015, 05:13 PM	#14
Tinbucket Senior Member Join Date: January 17, 2015 Posts: 355	Second Court of upholds most of SAFE Act and CT Ban The Court is in error again. There is no such thing as Judicial Supremacy, under our Constitution. That doesn't matter now. At some point perhaps People will get angry enough to remove these Activist Judges off the Court. Ny and Cn Citizens will jsut have to gird themselves and recognize the Constitution and not accept these illegal Laws and Judges. Honorable citizens in these states and others are already under persecution and many prosecuted for enjoying our Rights protected from Government by our Constitution. The price of freedom is such. Cristi as Governor could do something about it and get these laws offf Cn books. He is showing his stripes by not defending our Constitution and Citizens. No way in hades, he will be elected to President. The anti freedom, anti Constitution, and Americans are succeeding in polarizing America, extremly, with their persecution and denial of our Rights. To all Nyers and Conn Citizens keep your resolve. Elect County Sheriffs and local Police an Mayors that are Patriots and ostracize an minimize the Socialists/Communist. They come into a Restaurant or business leave. Don't sell to them or do any business with them. Don't be friends with them. Ask the clubs etc you are. Members in to ask them to resign. Raise petitions to cut their pay and perks and limit their power and to recall them. They are waring on our Rights and Constitution and our freedoms. They like Victims and Citizens who cannot resist.

October 20, 2015, 02:51 PM	#20
Tinbucket Senior Member Join Date: January 17, 2015 Posts: 355	Second Circuit Court upholds most of NY SAFE Act and CT Ban I should not have thrown Cristi in there. He is the same problem of NJ Citizens, I should have explained if i was going to expand it. He's running for President all the while being a closet liberal.

October 19, 2015, 10:44 AM	#3
heyjoe Senior Member Join Date: November 20, 2007 Posts: 438	no it does not, nor the ban on direct internet sales of ammunition

October 19, 2015, 10:47 AM	#4
kilimanjaro Senior Member Join Date: November 23, 2009 Posts: 3,963	Gavin Newsom is salivating in California right now.

October 19, 2015, 11:19 AM	#5
Aguila Blanca Staff Join Date: September 25, 2008 Location: CONUS Posts: 18,468	Cabranes and Droney -- stacked deck.

October 19, 2015, 02:40 PM	#10
Bartholomew Roberts member Join Date: June 12, 2000 Location: Texas and Oklahoma area Posts: 8,462	I'm speculating; but I think one of the reasons they found the evidence "elusive" is that this was a motion for summary judgment. In order for that motion to be granted, the judge must determine (or the parties must agree) that there is no dispute as to material facts affecting the case. The thing is, there is clearly a dispute as to the material facts behind this case. In that situation, the proper thing for the judge to do is to interpret the facts in the light most favorable to the Plaintiffs to see if there is an issue as a matter of law that would allow summary judgment. I'm having a difficult time seeing how the Second Circuit or the lower court did that in this case. I'm not sure if the Plaintiffs stipulated to facts that included cites to Violence Policy Center for strategic reasons or if the judge found there was no material fact dispute over the objection of the Plaintiffs or what; but it seems to me that there is a material fact issue and that it was not viewed in the light most favorably to the Plaintiff, the judges' decision in the matter notwithstanding. Accordingly, in the opinion the Second Circuit acknowledges several times that the Plaintiff and Defendant have different views of key issues that would affect the analysis used by the Second Circuit in determining what type of scrutiny applies. The Second Circuit even appears to be arguing at times that it is quite willing to be convinced that the weapons are not in common use either.

October 19, 2015, 07:46 PM	#16
heyjoe Senior Member Join Date: November 20, 2007 Posts: 438	when Christie was a legislator in the New Jersey Legislature he was pro gun control and co sponsored gun control bills.

October 19, 2015, 10:13 PM	#18
heyjoe Senior Member Join Date: November 20, 2007 Posts: 438	nothing, its off topic

October 20, 2015, 03:20 PM	#21
LogicMan Senior Member Join Date: January 16, 2013 Posts: 280	My fear is that the SCOTUS, provided they agree to hear this case, will find a weasel way to uphold it, like they did with Obamacare (I am not agreeing or disagreeing with Obamacare specifically here, just I mean the upholding of it was rather fudged by Justice Roberts IMO). I can't imagine them actually overturning an assault weapons ban considering the number of such bans in place around the country right now.

October 20, 2015, 10:14 PM	#23
Bartholomew Roberts member Join Date: June 12, 2000 Location: Texas and Oklahoma area Posts: 8,462	They didn't find the banned firearms and magazines were in common use. They just assumed it for the purposes of this opinion (probably because it was an MSJ). They can change their minds later still. Also, the Second Circuit uses the "core rights" analysis which means that strict scrutiny isn't applied unless the law infringes on the core right described in Heller (different courts taking different views as to the extent of the core right according to their biases). So just finding the firearm is in common use only gets some form of intermediate scrutiny (and a very mild flavor of that in the 2nd Cir. it seems).

October 21, 2015, 01:27 AM	#24
LogicMan Senior Member Join Date: January 16, 2013 Posts: 280	Being a total amateur at the law, is not using strict scrutiny a weasel way to find arguments to uphold gun control laws? Shouldn't strict scrutiny be applied in all gun rights cases? Is strict scrutiny used most of the time in cases regarding other rights? I mean I can't imagine the courts at any level upholding restrictions on free speech, privacy, religion, etc...that they uphold on guns.

October 21, 2015, 05:32 AM	#25
Bartholomew Roberts member Join Date: June 12, 2000 Location: Texas and Oklahoma area Posts: 8,462	Being libertarian-oriented, I would probably favor an application of strict scrutiny far beyond what the courts currently use. However, intermediate scrutiny is used in many areas of law besides just gun issues. For example, many laws dealing with gender discrimination and sexual orientation receive intermediate scrutiny. Likewise, content-neutral laws (the law applies equally to all speech regardless of the content of the speech) affecting free-speech receive intermediate scrutiny (which has led to things like "free-speech zones"). The problem with "intermediate scrutiny" (also called "heightened scrutiny" by the Second Circuit) is that it isn't well defined and as a result courts can (and do) apply a standard that is really little more than rational basis test to cases that should be holding the government to a higher standard. In this particular case, that is exactly what happened. The only parts of the law the Second Circuit didn't strike down were those that the government literally made no effort at all to defend. This was a complex law affecting two different states and composed of hundreds of smaller provisions. It removed rights that had existed in these states since the founding of this country and directly touched on the Bill of Rights and the Second Circuit's version of heightened scrutiny upheld every single restriction the government submitted evidence on. And then they went further and included in their decision things like "We'll assume these firearms are protected by the Second Amendment even though for these reasons that might not be the case..." which was basically a "How to"guide for gun control groups to argue the issue of common use against semi-autos. And even the two parts they overturned, they practically invited the government to submit evidence on that and try again. I found it to be a grossly partisan decision.