How New York’s ‘Assault Weapon’ Ban Passed Constitutional Muster

On Tuesday a federal judge
ruled that New York’s seven-round ammunition limit violates gun
owners’ Second Amendment rights. At the same time, U.S. District
Judge William Skretny rejected a Second Amendment challenge to
another major provision of New York’s SAFE Act: its ban on
so-called assault weapons. The difference is mainly due to
Skretny’s assessment of the distinctions drawn by the “assault
weapon” ban, which he deemed less arbiitrary than the ammunition
rule.

Skretny
concluded that both provisions apply to guns in common use for
lawful purposes—the sort of weapons that the Supreme Court has said
are covered by the Second Amendment. He also concluded that both
provisions “impose a substantial burden on Plaintiffs’ Second
Amendment rights.” Applying “intermediate scrutiny,” he asked
whether the provisions were “substantially related to the
achievement of an important governmental interest.” For reasons
I discussed in
a post earlier today, Skretny ruled that the ammunition limit,
which allows a gun owner to use a 10-round magazine as long as he
puts no more than seven rounds in it, fails this test. But Skretny
took a different view of the “assault weapon” ban, deeming the
“military-style” features on which it focuses potentially useful to
mass murderers but inessential to law-abiding gun owners.

Contrary to popular misconceptions,
the defining characteristics of “assault weapons” have nothing to
do with rate of fire, caliber, or ammunition capacity. Under the
SAFE Act, for example, any one of these features transforms a
semiautomatic rifle with a detachable magazine into an “assault
weapon”: a folding or telescoping stock, a pistol grip, a thumbhole
stock, a second hand grip, a threaded barrel (for attaching a flash
suppressor or muzzle brake), a bayonet mount, or a grenade
launcher. It seems safe to ignore the last two, since mass shooters
rarely deploy bayonets and cannot legally obtain grenades, without
which a grenade launcher is pretty useless. Are the other features
functionally important in attacks on defenseless moviegoers or
schoolchildren?

No matter how you answer that question, the analysis cuts both
ways. If the “military-style” features that define the prohibited
weapons are mainly cosmetic and do not make an important difference
in the context of mass shootings, banning these guns won’t do much
good, but it also won’t have much effect on self-defense and other
legitimate uses of firearms. And to the extent that the politically
disfavored characteristics are functionally significant, they are
useful to law-abiding people as well as criminals. Skretny
highlights the two-edged nature of the arguments used by the
organizations challenging the ban:

Plaintiffs contend that many of the outlawed features do not
make firearms more lethal; instead, according to Plaintiffs,
several of the outlawed features simply make the firearm easier to
use. For instance, they argue that a telescoping stock, which
allows the user to adjust the length of the stock, does not make a
weapon more dangerous, but instead, like finding the right size
shoe, simply allows the shooter to rest the weapon on his or her
shoulder properly and comfortably. Another outlawed feature, the
pistol grip, also increases comfort and stability. The same goes
for the “thumbhole stock,” which, as the name suggests, is a hole
in the stock of the rifle for the user’s thumb. It too increases
comfort, stability, and accuracy according to Plaintiffs.

But Plaintiffs later argue that the banned features increase the
utility for self-defense— which is just another way of saying that
the features increase their lethality. Plaintiffs make this
explicit:”Where it is necessary for a crime victim to shoot the
aggressor, and lethal or incapacitating injury will stop him, the
lethality of the defender’s firearm is a precondition to her
ability end the criminal attack.” The National Rifle Association of
America, as amicus curiae, make a similar argument, describing how
the banned features improve a firearm’s usability.

There thus can be no serious dispute that the very features that
increase a weapon’s utility for self-defense also increase its
dangerousness to the public at large.

The reverse is also true, however, and here is where the level
of scrutiny chosen by Skretny makes a crucial difference:

Pointing to the benefits of these features to those who might
use them defensively, Plaintiffs argue that the SAFE Act ought to
be struck down. But under intermediate scrutiny, this Court must
give “substantial deference to the predictive judgments of the
legislature.”

Still, Skretny is more deferential than he needs to be,
consistently preferring the analysis of gun control supporters to
that of skeptics in reaching the conclusion that New York’s
“assault weapon” ban is “substantially related” to the goal of
protecting public safety. For example, he cites the
Mother Jones tally of mass shootings since 1982,
which has been criticized for misleadingly
suggesting that such incidents are on the rise. But even the
Mother Jones analysis found that handguns were by far
the preferred weapon of mass shooters. “Assault weapons” (as
defined by Dianne Feinstein’s 2013 bill) accounted for just 14
percent of the guns the killers used. Skretny obscures that point
by saying “the study found that assault weapons, high-capacity
magazines, or both were used in over half of all mass
shootings.”

Even if it were true that most mass shooters use “assault
weapons,” that would not necessarily mean banning those guns would
reduce the death toll from mass shootings. It is not reasonable to
expect any measurable effect from such laws as long as equally
lethal alternatives are readily available, and that will be true as
long as people have a constitutional right to armed
self-defense.