Investigative & Security Professionals for Legislative Action

Second Amendment: 2nd Circuit Decision of Note

19 Oct 2015 5:41 PM | Anonymous member (Administrator)

New York State Rifle & Pistol Ass’n, Inc., et al. v. Cuomo, et al.

Connecticut Citizens’ Defense League, et al. v. Malloy, et al.

1436cv(L); 14319cv

Laws in New York and Connecticut prohibiting certain semiautomatic assault weapons and large-capacity ammunition magazines do not violate the Second Amendment, the U.S. Court of Appeals for the Second Circuit ruled. Upholding laws passed in the wake of the 2012 murder of 20 students and six adults at the Sandy Hook Elementary School in Newtown, Connecticut, the Second Circuit said the measures do not violate the Second Amendment's guarantee of "the right of the people to keep and bear arms."

In the first case, the court upheld, with one exception, Western District Judge William Skretny's grant of summary judgment to New York. The circuit held only that one provision of New York's law regulating load limits on guns did not survive scrutiny.

In the second case, the circuit upheld summary judgment for Connecticut granted by U.S. District Judge Alfred Covello of the District of Connecticut except on one provision: the state's prohibition of the non-automatic Remington 7615 "unconstitutionally infringes upon the Second Amendment right," Judge Jose Cabranes wrote for the court.

Cabranes said the court was adopting a two-step analytical framework for challenges under the Second Amendment in light of the U.S. Supreme Court's decision in District of Columbia v. Heller, 554 U.S. 570 (2008) and the case law as it has developed since Heller.

Heller struck down the District of Columbia's ban on handgun possession as it affirmed the individual right to possess and carry weapons in "common use" and "for lawful purposes like self-defense."

Read more: http://www.newyorklawjournal.com/id=1202740139708/NY-CT-Gun-Laws-Do-Not-Violate-2nd-Amendment-Circuit-Says#ixzz3p3BpmIQV

Read more: http://www.newyorklawjournal.com/id=1202740139708/NY-CT-Gun-Laws-Do-Not-Violate-2nd-Amendment-Circuit-Says#ixzz3p39OmUR2

Investigative and Security Professionals should consider reviewing the 57-page opinion of the U.S. Circuit Court for the Second Circuit with regard to appeals in New York and Connecticut. What follows is merely an ISPLA summary of just a few key points.

Before the Second Circuit Court were two appeals challenging guncontrol legislation enacted by the New York and Connecticut legislatures in the wake of the 2012 mass murders at Sandy Hook Elementary School in Newtown, Connecticut. The New York and Connecticut laws at issue prohibit the possession of certain semiautomatic “assault weapons” and largecapacity magazines. Following the entry of summary judgment in favor of defendants on the central claims in both the Western District of New York (William M. Skretny, Chief Judge) and the District of Connecticut (Alfred V. Covello, Judge), plaintiffs in both suits pressed two arguments on appeal. First, they challenged the constitutionality of the statutes under the Second Amendment; and second, they challenged certain provisions of the statutes as unconstitutionally vague. Defendants in the New York action also crossappeal the District Court’s invalidation of New York’s separate sevenround load limit and voiding of two statutory provisions as facially unconstitutionally vague.

CONCLUSION OF SECOND CIRCUIT:

To summarize, we hold as follows:

(1) The core prohibitions by New York and Connecticut of assault weapons and largecapacity magazines do not violate the Second Amendment.

         (a) We assume that the majority of the prohibited conduct falls within the scope of Second Amendment protections. The statutes are appropriately evaluated under the constitutional standard of “intermediate scrutiny”—that is, whether they are “substantially related to the achievement of an important governmental interest.

         (b) Because the prohibitions are substantially related to the important governmental interests of public safety and crime reduction, they pass constitutional muster.

We therefore AFFIRM the relevant portions of the judgments of the Western District of New York and the District of Connecticut insofar as they upheld the constitutionality of state prohibitions on semiautomatic assault weapons and largecapacity magazines.

(2) We hold that the specific prohibition on the non semiautomatic Remington 7615 falls within the scope of Second Amendment protection and subsequently fails intermediate scrutiny.

Accordingly, we REVERSE that limited portion of the judgment of the District of Connecticut. In doing so, we emphasize the limited nature of our holding with respect to the Remington 7615, in that it merely reflects the presumption required by the Supreme Court in District of Columbia v. Heller that the Second Amendment extends to all bearable arms, and that the State, by failing to present any argument at all regarding this weapon or others like it, has failed to rebut that presumption. We do not foreclose the possibility that States could in the future present evidence to support such a prohibition.

(3) New York’s sevenround load limit does not survive intermediate scrutiny in the absence of requisite record evidence and a substantial relationship between the statutory provision and important state safety interests.

We therefore AFFIRM the judgment of the Western District of New York insofar as it held this provision.

The following concerns the SevenRound Load Limit, a controversial measure that passed in New York during the "Dead of Night" within weeks after the shooting

"Though the key provisions of both statutes pass constitutional muster on this record, another aspect of New York’s SAFE Act does not: the sevenround load limit, which makes it 'unlawful for a person to knowingly possess an ammunition feeding device where such device contains more than seven rounds of ammunition.

"As noted above, the sevenround load limit was a secondbest solution. New York determined that only magazines containing seven rounds or fewer can be safely possessed, but it also recognized that sevenround magazines are difficult to obtain commercially. Its compromise was to permit gun owners to use tenround magazines if they were loaded with seven or fewer rounds. On the record before us, we cannot conclude that New York has presented sufficient evidence that a sevenround load limit would best protect public safety. Here we are considering not a capacity restriction, but rather a load limit. Nothing in the SAFE Act will outlaw or reduce the number of tenround magazines in circulation. It will not decrease their availability or in any way frustrate the access of those who intend to use tenround magazines.

"To be sure, the mere possibility of criminal disregard of the laws does not foreclose an attempt by the state to enact firearm regulations. But on intermediate scrutiny review, the state cannot 'get away with shoddy data or reasoning.' To survive intermediate scrutiny, the defendants must show 'reasonableinferences based on substantial evidence' that the statutes are substantially related to the governmental interest. With respect to the load limit provision alone, New York has failed to do so."

A link to the full opinion is at:

http://www.ca2.uscourts.gov/decisions/isysquery/a73bb21a-5d80-47a1-b978-c5157702e6e8/7/doc/14-36_14-319_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/a73bb21a-5d80-47a1-b978-c5157702e6e8/7/hilite/

Bruce Hulme, CFE, BAI

ISPLA Director of Government Affairs

www.ISPLA.org

                                                         ISPLA

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