Second Circuit Upholds Most of NY SAFE Act and CT Ban

[Aguila Blanca]

Originally Posted by Bartholomew Roberts

I found it to be a grossly partisan decision.

And that pretty well sums it up, I think.

Question: This originally started out as two separate cases at the district court level, one for NY and one for CT. I may be mistaken, but I don't think the two cases were actually consolidated at the circuit court level, I think they were just heard/argued at the same time.

Assuming that both the NY and CT plaintiffs go forward with appeals, will there be two separate appeals, or will the NY and CT cases forever be bound together from here forward? After all, despite there being only one decision, the case is still about two different state laws, and two different groups of plaintiffs.

[44 AMP]

OK, let me see if I got this right, they upheld the law saying you can't have more than a 10rnd magazine, but struck down the law saying you can't put more than 8 in your 10rnd magazine??

Is that right?


in-barking-credible.....

[Aguila Blanca]

Originally Posted by Bartholomew Roberts

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.

Just to keep everyone on the same page, and relating to my post #27, this decision was not about "a law" that affects two states. It was about two separate acts of legislature, in two different states, each of which revised, repealed, and/or create numerous laws within each of the respective state's body of statutes. IIRC, the Connecticut act alone ran to 169 pages, and affected numerous individual section of Connecticut statutes. The NY "SAFE Act" did pretty much the same thing in New York.

[ronl]

Now that the court has ruled, let's go out on a limb and postulate possible results. Enforcement in the states by the legal system? Considering the non-compliance rate in both states it is a certain thing that there would be bloodshed. Possible executive order placing the same restrictions on guns nationwide? Certainly would seem like political suicide, but would not surprise me in the least, especially concerning the rhetoric spewing forth from the nation's capital these days. Let's look at what this portends for gun owners nationwide. Does it have any affect whatsoever? Will it have any affect on public opinion? These are questions that need to be considered.

[LogicMan]

One thing I've been reading is that the court here made a major blunder in making the statement that, "These weapons are used disproportionately in crimes..." the thing is, the exact opposite is the case. People are killed very rarely and crimes period are committed very rarely with weapons like AR-15s or weapons labeled as "assault weapons" period.

[LogicMan]

Now that the court has ruled, let's go out on a limb and postulate possible results. Enforcement in the states by the legal system? Considering the non-compliance rate in both states it is a certain thing that there would be bloodshed. Possible executive order placing the same restrictions on guns nationwide? Certainly would seem like political suicide, but would not surprise me in the least, especially concerning the rhetoric spewing forth from the nation's capital these days. Let's look at what this portends for gun owners nationwide. Does it have any affect whatsoever? Will it have any affect on public opinion? These are questions that need to be considered.

I don't think that it is possible to ban "assault weapons" by Executive Order. I believe that if it was, it already would have been done.

[ronl]

Logicman, I would hope that is the case, but we have seen EO's used to ban gun imports, ammo, etc. Let's just say that an EO is ordered banning all evil black rifles and handguns. What recourse do we the public have? Legislation could be enacted to reverse it and passed, but vetoed. It would take time for such a legal battle to work itself through the courts and it would still be on the books the entire time. Even if it did work through the courts, it could be dicey. I realize that this scenario is a stretch, but not as long a one as I would like for it to be.

[imp]

Executive orders only apply to the members and subordinates of the executive branch. While the president could order the ATF and it's director to change a policy or regulation, he cannot write law.

Granted, the Congress seems to have no spine to tell him that...

[natman]

I don't think that it is possible to ban "assault weapons" by Executive Order. I believe that if it was, it already would have been done.

If it were possible, the Clintons would have done it. It's not.

[natman]

Can anyone explain how the decision can quote Heller: "Instead, the Second Amendment protects only those weapons ‘in common use’ by citizens 'for lawful purposes like self ‐ defense'.” then reason, correctly:

"In the absence of clearer guidance from the Supreme Court or stronger evidence in the record, we follow the approach taken by the District Courts and by the D.C. Circuit in Heller II and assume for the sake of argument that these “commonly used” weapons and magazines are also “typically possessed by law ‐ abiding citizens for lawful purposes.” In short, we proceed on the assumption that these laws ban weapons protected by the Second Amendment. ",

yet still somehow uphold the very same laws?

Anyone who's a regular reader to this subforum should be familiar with the levels of scrutiny: strict scrutiny, intermediate scrutiny and rational scrutiny.

I would suggest that the Second Circuit has invented a new level: irrational scrutiny.

[imp]

While I'm certainly no legal scholar, I wonder why US vs Miller was not cited. Obviously, a modern militia would require rifles that accept normal capacity magazines, same as the military.

[Frank Ettin]

Originally Posted by imp

....I wonder why US vs Miller was not cited. Obviously, a modern militia would require rifles that accept normal capacity magazines, same as the military.

I suggest that you re-read Miller. There's nothing in the opinion that could reasonably be cited to support that proposition.

Furthermore, Miller is a largely discredited and superseded opinion. Basically it's a mess. Heller has pretty much eroded Miller, and it would be best for the opinion in Miller to fade away into the obscurity it deserves.

At the core of Miller was the notion that a firearm needed to be suitable for use by a militia to be within the protection of the Second Amendment. Heller severed that connection. At the core of Heller is the recognition that there is a personal right to keep and bear arms for lawful purposes without regard to service in a militia.

[zukiphile]

I suggest that you re-read Miller. There's nothing in the opinion that could reasonably be cited to support that proposition.

The part of the opinion that could support that proposition is the part you note below.

At the core of Miller was the notion that a firearm needed to be suitable for use by a militia to be within the protection of the Second Amendment.

A rifle identical to one used in federal service or state organised militias would presumably be suitable for militia service, and therefore possession of such an item would be within the protection of the 2d Am. as employed in Miller.


Imp, we all know the name US v. Miller not because it was insightful or well written, but because until Heller it was the only Sup. Ct. case on the issue to look toward. Combine that with the circumstances surrounding the case and you had a half century of people combing over the text of Miller to tease out something coherent or useful as you have done above, or alternatively dismissing it as useless.

As a work of constitutional scholarship the decision in Heller does, as Frank notes, "erode" Miller to a status of tangential historical curiosity.

EDIT - I would also note another facet of the curiosity. If I recall correctly, the item at issue was a sawed-off shotgun which the court found not suitable for militia use.

As a factual matter, in the actions of the last decade plus just such an item has been employed by our services as a piece of entry equipment.

[44 AMP]

I do wonder, why it has to be one, OR the other? WHY NOT BOTH????

If your take on Miller is that "militia suitable" arms ARE protected, and Heller states that we have the right to arms, independent of the militia,

WHY CAN"T WE HAVE BOTH????

[Armed_Chicagoan]

Originally Posted by 44_AMP

I do wonder, why it has to be one, OR the other? WHY NOT BOTH????

If your take on Miller is that "militia suitable" arms ARE protected, and Heller states that we have the right to arms, independent of the militia,

WHY CAN"T WE HAVE BOTH????

Exactly! Even Justice Stevens, who dissented, is on record as saying that Heller did not overturn Miller.

[zukiphile]

Exactly! Even Justice Stevens, who dissented, is on record as saying that Heller did not overturn Miller.

Stevens wrote that as an admonition to the majority in Heller against expanding a recognition of the right to a protection of that right outside of military service.

Yes, Stevens wrote in praise of Miller. His take on Miller is that you have an individual right to serve in an organized militia and use a firearm in that militia.

While Stevens writes that he recognizes an individual right, he simultaneously argues that the protection not extend to a mere individual as an individual.

I do wonder, why it has to be one, OR the other? WHY NOT BOTH????

If your take on Miller is that "militia suitable" arms ARE protected, and Heller states that we have the right to arms, independent of the militia,

WHY CAN"T WE HAVE BOTH????

The short version of my longer answer below is that each position represents a reasoning and that while there may be overlap in the result, the reasoning itself is different.

If your read on Miller is that the core of the right extends particularly to items that are used in military service, and that's the test, then extending the protection to a lady's pocket pistol for her own personal protection doesn't make a lot of sense.

On the other hand, if you are describing a right held by free Englishmen for centuries and subject to some marginal regulation, then that lady's pocket pistol for personal protection makes lots of sense and we don't run into the purely political problem of legalizing fully automatic arms. That historical right of free Englishmen to arm themselves could extend to fully automatic arms dependent on political considerations.

As an analytical matter, I do see NFA regulations as infringing upon the right, but as a political matter with the court I imagine that the votes might have fallen very differently if that were the position taken before the court eight years ago.

[maestro pistolero]

EDIT - I would also note another facet of the curiosity. If I recall correctly, the item at issue was a sawed-off shotgun which the court found not suitable for militia use.

What the Miller court said was that it "(was) not within judicial notice" that the sawed off shotgun was useful for militia service. At this point the plaintiff was dead and the case was essentially orphaned at the courthouse steps. It is and was an incomplete mess.

Heller re-read Miller to mean only that the amendment protects the sort of weapons that citizens would commonly possess that they would supply themselves for militia service.

[zukiphile]

What the Miller court said was that it "(was) not within judicial notice" that the sawed off shotgun was useful for militia service. At this point the plaintiff was dead and the case was essentially orphaned at the courthouse steps. It is and was an incomplete mess.

Indeed.

Heller re-read Miller to mean only that the amendment protects the sort of weapons that citizens would commonly possess that they would supply themselves for militia service.

That gives the prefatory clause a function the majority didn't give it. It's lazy to quote a syllabus, but that what I've done below.

The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms

[maestro pistolero]

Heller re-read Miller to mean only that the amendment protects the sort of weapons that citizens would commonly possess that they would supply themselves for militia service.

That gives the prefatory clause a function the majority didn't give it.

That was from the majority opinion. I don't see how that reading of Heller changed the function of the prefatory clause. It actually refers to that very function. It may have narrowed the scope a bit WRT the type of weapons the amendment protects.

If I misunderstood please clarify.

[zukiphile]

If I misunderstood please clarify.

The misreading is my own.

I wouldn't say that the Court re-read Miller to be a decision on the narrow issue of the sort of arm protected, but that this is what Miller is most correctly understood to conclude.

What Heller changed was whether the prefatory clause defined the right at all. Where the Court in Miller takes the prefatory language as operative, the Court in Heller doesn't.