SAFE Act does not violate the Second Amendment

After the gun slaughter in Newtown, the State of New York and the Commonwealth of Connecticut enacted gun-control legislation, including the SAFE Act, which among other things prohibits possession of semi-automatic assault weapons and large-capacity magazines. The Court of Appeals holds that these restrictions do not violate the Second Amendment.

The case is New York State Rifle & Pistol Association v. Cuomo, decided on October 19. The Second Amendment was a dormant constitutional provision until the Supreme Court in 2008 decided the Heller case, which said the Second Amendment confers an individual right to own guns. But the Court in Heller did not say you have an unrestricted right. The Second Circuit now applies Heller and fleshes out what the Second Amendment really means.

The two-part test governing Second Amendment claims is as follows. The Amendment only protects weapons that are in common use and are typically possessed by law-abiding citizens for lawful purposes. The Court of Appeals says large-capacity magazines are in common use, as 25 million of them were available in 1995 (when Congress outlawed them) and nearly 50 million of them were approved for import by 2000. In addition, there are millions of assault weapons in circulation in the United States, including many that are just lying around the house. As for whether these weapons are typically possessed by law-abiding citizens for lawful reasons, the Court cannot decide that difficult issue. But it does not have to, because even if they are, the Court finds, New York and Connecticut are still able to prohibit them.

The next analytical test the Court must work through is what is the appropriate level of constitutional scrutiny in reviewing the legality of these laws. The Second Circuit (Cabranes, Lohier and Droney) goes with heightened scrutiny, which means the laws will satisfy constitutional requirements if they do not substantially burden the ability of law-abiding citizens to use guns for legal purposes. For you non-lawyers out there, the Constitution of course does not have language like this, but courts create these tests and legal standards to help apply otherwise vague constitutional provisions. Under this test, these gun restrictions are legal.

First, deferring to the states' legislative policy judgements about public safety, the Court says semiautomatic assault weapons are designed to kill many people at once, and are mostly used in committing crimes and often kill police officers.The prohibition is also intended to prevent mass-shootings like the one that took place in Newtown and happen regularly in the U.S. So this prohibition is legal. And for these reason, the ban on large-capacity magazines is also legal. The states are able to find as a matter of public policy that these restrictions are necessary to prevent mass shootings.

The Court does, however, rule that the prohibition against  seven-round load limits violates the Second Amendment. New York has nor produced enough evidence that the seven-round load limit is necessary to protect public safety.