A three-judge panel on the Second Circuit Court of Appeals has declined to issue an injunction against Connecticut’s ban on so-called assault weapons and “large capacity” magazines, concluding that the “laws, which impose targeted restrictions on unusually dangerous weapons while preserving numerous legal alternatives for self-defense and other lawful purposes, are consistent with our Nation’s historical tradition of regulation of such weapons.”
The decision involves two separate challenges to the state’s ban brought by National Association for Gun Rights, Connecticut Citizens Defense League, Second Amendment Foundation, and a number of individual plaintiffs. Two years ago, U.S. District Judge Janet Bond Arterton denied the injunctions sought by the groups on the grounds that the “proposed ownership ofassault weapons and LCMs is not protected by the Second Amendment because they have not demonstrated that the specific assault weapons and LCMs in the Challenged Statutes are commonly sought out, purchased, and used for self-defense.”
That is not the standard set by the Supreme Court, which has stated that arms that are in common use for lawful purposes including (but not limited to) self-defense are protected by the Second Amendment. Arterton went on to claim that “when a modern innovation in firearm technology results in a particular type of weapon or method of carrying being utilized for unlawful purposes to terrorize and endanger the public, the Nation has a longstanding history and tradition of regulating those aspects of the weapons or manners of carry that correlate with rising firearm violence.” Given that rifles of any kind are rarely used in crimes, it beggars belief that AR-15s and other semi-automatic long guns are used in more criminal activity than lawful purposes.
Unfortunately, while the Second Circuit didn’t exactly adopt Arterton’s illogical arguments, it still reached the same illogical conclusion.
Heller and Bruen provide that the Second Amendment “protects only the carrying of weapons that are those ‘in common use’ at the time, as opposed to those that ‘are highly unusual in society at large.’” The cases do not hold that the Second Amendment necessarily protects all weapons in common use. They do not shield popular weapons from review of their potentially unusually dangerous character. And further, Plaintiffs’ proposed “common use” standard would strain both logic and administrability, as it would hinge the right on what the Fourth Circuit aptly called a “trivial counting exercise” that would“lead[] to absurd consequences” where unusually dangerous arms like the M-16 or “the W54 nuclear warhead” can “gain constitutional protection merely because [they] become[] popular before the government can sufficiently regulate [them].”
As opposed to Arterton’s absurd conclusion that bolt-action rifles and single-barrel shotguns aren’t protected by the Second Amendment because they’re not commonly used for self-defense. Indeed, under Arterton’s reasoning the only arms protected by the Second Amendment would be handguns, since they’re by far the most popular choice among firearms for self-defense.
The Supreme Court has recognized an “historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.’” Defendants argue that the challenged statutes fall within this tradition. Plaintiffs and their amici counter that this limitation on the Second Amendment right applies only to those weapons that, unlike AR-15s and large-capacity magazines, are both dangerous and unusual. We conclude, however, that this historical tradition encompasses those arms that legislators determined were unusually dangerous because of their characteristics.
Well that’s just an intentional misreading of what the Supreme Court has said. If the Court meant “unusually dangerous” that’s what it would have said. But also, “unusually dangerous” compared to what? Is a multi-shot revolver unusually dangerous compared to a cap and ball pistol? Is a lever-action rifle that can hold 14 rounds unusually dangerous compared to a single-shot muzzleloading rifle? Under the Second Circuit’s rationale, any gun beyond the muskets and single-shot pistols available at the time of the Founding would be “unusually dangerous” and beyond the scope of the Second Amendment.
Unusually dangerous is the obvious fit to describe weapons that are so lethal that legislators have presumed that they are not used or intended to be used for lawful purposes, principally individual self-defense.
That gives far too much deference to the presumptions of lawmakers, and gives too little weight to the text and history of our Second Amendment rights. It also ignores the fact that the Supreme Court has acknowledged that the AR-15 is the most popular rifle in the country, yet rifles of any kind are rarely used in violent crimes. If semi-automatic rifles are not intended to be used for lawful purposes, then there are millions of Americans who are misusing them, since they’re not using them for carjackings, home invasions, armed robberies, or mass murder.
At the same time that the Connecticut statutes restrict access to unusually dangerous weapons, Defendants show, the statutes still allow the lawful possession of many popular weapons, including semiautomatic weapons deemed to be less dangerous by the legislature for self-defense and other lawful purposes.
Again, this gives the legislature far too much deference. What if those same lawmakers decide tomorrow that some or all of those popular weapons are, in fact, too dangerous for citizens to possess? What would cause the Second Circuit to second guess that decision?
Today’s decision is completely unsurprising, given that the Second Circuit has previously upheld other “assault weapon” bans. The arguments deployed in defense of Connecticut’s gun and magazine ban, though, are incredibly frustrating and untethered to our actual national tradition of gun ownership. The Supreme Court should have taken up an “assault weapon” ban case last year instead of kicking the can down the road “a term or two” (to quote Justice Brett Kavanaugh), and now we can only hope that the justice was right that the Court will soon grant cert to another gun ban case and state the obvious: the most popular rifle in the country is, in fact, protected by the right to keep and bear arms.
Editor’s Note: Radical leftist judges are doing everything they can to hamstring our Second Amendment rights.
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