New York's not so "SAFE" Act: the Second Amendment in an 'Alice in Wonderland' world where words have no meaning.

• Author: Halbrook, Stephen P.
• Position: Secure Ammunition and Firearms Enforcement Act - The Right to Keep and Bear Arms in the 21st Century

1. Introduction

   Use and manipulation of the pejorative term "assault weapon" is a classic case of "an Alice-in-Wonderland world where words have no meaning." (1) The Second Amendment provides that "the right of the people to keep and bear Arms, shall not be infringed." (2) Arms, such as rifles, pistols, and shotguns, do not lose their constitutional protection because the legislature describes them with a derogatory term. Indeed, "no pronouncement of a legislature can forestall attack upon the constitutionality of the prohibition which it enacts by applying opprobrious epithets to the prohibited act ...," (3)

   The term "assault weapon" generically means a weapon used in an assault. (4) Military usage refers to certain fully automatic machine guns as "assault rifles." (5) Military forces worldwide issue assault rifles to their troops, not semiautomatic rifles made for civilian use. (6) One could just as well say that having a barrel on a rifle is "military-style," as it is found on every military rifle and is far more significant than the shape of a grip or stock. In short, "assault weapon" has become "a political term, developed by antigun publicists" to ban firearms "on the basis of undefined 'evil' appearance." (7)

   In 1994, Congress passed a law defining and restricting "semiautomatic assault weapons"--itself an oxymoron--to include a short list of named firearms and certain firearms with two specified generic characteristics. (8) It did not restrict possession of such firearms that were lawfully possessed on its effective date. (9) Magazines holding more than ten rounds were similarly restricted but grandfathered. (10) After the law expired ten years later, Congress saw fit not to reenact it. (11)

   Neither the federal law nor its expiration had any effect on the homicide rate, which had been falling since almost two years before the enactment of the law in September 1994 and has continued to remain low since the law expired in 2004. (12) The Bureau of Justice Statistics has reported: "Firearm-related homicides declined 39%, from 18,253 in 1993 to 11,101 in 2011." (13) Moreover, while the banned "assault weapons" are mostly rifles, they are used in disproportionately fewer crimes: "About 70% to 80% of firearm homicides and 90% of nonfatal firearm victimizations were committed with a handgun from 1993 to 2011." (14)

   In 2000, New York passed a law nearly identical to the federal law, defining "assault weapon" based on two generic features. (15) But on January 15, 2013, after the bill was just introduced the day before, (16) the Secure Ammunition and Firearms Enforcement (SAFE) Act was signed into law, declaring countless numbers of ordinary firearms to be "assault weapons" based on a single generic characteristic. (17) Having been so relabeled, these firearms purportedly lost their Second Amendment protection and were banned, other than those registered by a deadline. (18) Yet nothing changed other than how the word was used. As the Supreme Court once noted: "This recalls Lewis Carroll's classic advice on the construction of language: 'When I use a word, Humpty Dumpty said, in rather a scornful tone, it means just what 7 choose it to mean-neither more nor less.'" (19)

   Constitutional rights may not be extinguished by such linguistic manipulation. The test for Second Amendment protection is not based on what a legislature may call various arms, but, as the Supreme Court held in District of Columbia v. Heller, (20) on whether they are "in common use" and "typically possessed by law-abiding citizens for lawful purposes." (21)

   The following analyzes the basis of Heller's "common use" test. It then discusses the settled fact that the firearms and magazines that the SAFE Act bans are in common use by millions of law-abiding citizens for self-defense, sport, and hunting. Next, it puts the particular features that are banned under a microscope to ask what makes these features so "dangerous and unusual" that they must be prohibited. Following that, the analysis shifts to why the ban on standard magazines and on having more than seven rounds in a magazine violates the Second Amendment. Finally, given that the right to keep arms is fundamental, it discusses whether strict scrutiny or intermediate scrutiny applies. It concludes that the arguments that seek to justify the SAFE Act reflect a fundamental misunderstanding of the basic nature of the right to keep and bear arms and of the nature of the actual firearms and their features that are prohibited.

2. THE SECOND AMENDMENT GUARANTEES THE RIGHT TO KEEP FIREARMS THAT ARE COMMONLY POSSESSED BY LAW-ABIDING CITIZENS FOR LAWFUL PURPOSES

   The guarantee of the Second Amendment simply does not allow a state to ban commonly possessed firearms based on arbitrarily defined features such as how they are held and the capacity of their magazines. Heller explained that "the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding." (22) The Court continued:

   The traditional militia was formed from a pool of men bringing arms "in common use at the time" for lawful purposes like self-defense.... We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns. (23) Indeed, the premise of the Second Amendment is that the right to keep and bear arms promotes "[a] well regulated Militia, [which is] necessary to the security of a free State." (24) That is why it protects "ordinary military equipment" of the type "supplied by [militiamen] themselves and of the kind in common use at the time." (25) At the founding, "weapons used by militiamen and weapons used in defense of person and home were one and the same." (26)

   Thus, "the sorts of weapons protected were those 'in common use at the time.' We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of 'dangerous and unusual weapons.'" (27) Other than that, Heller referred to longstanding restrictions, but none involve a prohibition on firearm possession by law-abiding persons. (28) Heller did draw the line at fully automatic machine guns, such as the M-16 and heavy ordnance:

   It may be objected that if weapons that are most useful in military service-M-16 rifles and the like-may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment's ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. (29) In contrast to "M-16 rifles and the like," semiautomatic rifles that fire only once per trigger pull are hardly "most useful in military service," which is why they are not issued as standard service weapons to any military force in the world. But Heller does not suggest that any "military" feature disqualifies a firearm from Second Amendment protection-the original militia would "bring the sorts of lawful weapons that they possessed at home to militia duty." (30)

   In Heller, the District of Columbia and its amici argued that handguns may be banned because persons could defend themselves with rifles and shotguns, which were argued to be superior for self-defense. (31) Heller responded: "It is no answer to say ... that it is permissible to ban the possession of handguns so long as the possession of other firearms (i.e., long guns) is allowed.... There are many reasons that a citizen may prefer a handgun for home defense...." (32) Heller further held: "The handgun ban amounts to a prohibition of an entire class of 'arms' that is overwhelmingly chosen by American society for th[e] lawful purpose [of self-defense]." (33) Reasons also exist why a citizen may prefer a rifle or shotgun.

   New York's current reading of the Second Amendment as being devoid of any real protection parallels arguments it made in support of the District of Columbia in Heller. The amici curiae brief for New York by then Attorney General Andrew M. Cuomo, among others, argued that "the Second Amendment has no application to state laws." (34) It analyzed the Second Amendment as nothing more than a provision to protect "state sovereignty over militias," (35) which did not "explicitly guarantee an individual right to own a gun." (36) Since Heller rejected those arguments, New York's fall-back position now is that it can ban any firearm it wishes by arguing that it is outside the scope of the Second Amendment.

   The Second Circuit has repeated Hellers holding that "the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes...." (37) Specifically, "the Second Amendment does not protect [defendant's] personal possession of machine guns." (38) Again, that is the type of firearm Heller said is outside the scope of the Second Amendment. (39)

   The Second Circuit also upheld a federal restriction on transport into one's state of a firearm acquired outside the state because "it does nothing to keep someone from purchasing a firearm in her home state," and thus a person had "adequate alternatives" to obtain the very same firearm. (40) By contrast, "heightened scrutiny is triggered" for restrictions "like the complete prohibition on handguns struck down in Heller," which it characterized as a "substantial burden" on the right. (41) The SAFE Act too involves complete prohibitions on common firearms and magazines. (42)

   While at the time of this writing it remains to be seen...