Second Circuit Upholds Most of NY SAFE Act and CT Ban

[Bartholomew Roberts]

http://law-policy.com/wp-content/uploads/2015/10/NYSRAP-vs-Cuomo-OPINION-10192015.pdf

Short version: 57 page decision upholds most of the NY Safe Act and CT Bans. The provision on load limits in 10rd magazines does not survive scrutiny in NY and the ban on the Remington 7615 in CT is held to be unconstitutional. The Second Circuit affirms the ban on magazines holding more than 10rds and all semi-autos however.

Of interest, SCOTUS had already been petitioned to hear a similar case regarding the constitutionality of semi-auto bans; but had not yet agreed to hear the case. Apparently the Second Circuit decided to avoid the rush and give their opinion before SCOTUS indicated whether they would take up the subject.

Just did a fast skim of the decision and it is even worse than it sounds. The only reason Second Circuit overturned the parts they did was because neither state offered ANY evidence in support of those provisions and Second Circuit couldn't very well claim they were applying "heightened scrutiny" and then fail to overturn a law that had no evidence in support. They did make it abundantly clear though that if any future law went so far as to offer evidence in support of those provisions, they would probably support it too.

 

[Yo Mama]

It's a freaking mess. Very disappointing, but not unexpected.

 

[627PCFan]

The United States Court of Appeals for the Second Circuit (in case citations, 2d Cir.) is one of the thirteen United States Courts of Appeals. Its territory comprises the states of Connecticut, New York, and Vermont, and the court has appellate jurisdiction over the district courts in the following districts:

District of Connecticut
Eastern District of New York
Northern District of New York
Southern District of New York
Western District of New York
District of Vermont



Did this surprise anyone?

 

[Red Wind]

The 2nd Circuit is now the East Coast version of the 9th.

The Bill of Rights appears to be TP to these Judges.

 

[Devonai]

The "load limit" decision in NY should have been applied to the equally ridiculous limitation here in CT that standard capacity magazines, legal due to either registration or elitist status, must be under-loaded to 10 rounds if carried outside the home, or can only be carried as the primary magazine regardless of the capacity.

That this natural extension of the same logic was ignored with regards to the limitations in CT is of course offensive, if not surprising. However, I am glad that NY residents got a teeny tiny reprieve from the 7-round restriction. Let's hope that another SCOTUS case is heard, and soon.

 

[mbopp]

From the local news:

"The appeals court said the claim by gun rights groups that the ban on assault weapons will primarily disarm law-abiding citizens was "speculative at best, and certainly not strong enough to overcome the substantial deference we owe to predictive judgments of the legislature on matters of public safety."

So the Court gave the go-ahead to trample Constitutional rights in the interest of "public safety." The Press would scream if the Government instituted censorship for the same reason.

 

[Spats McGee]

So the Court gave the go-ahead to trample Constitutional rights in the interest of "public safety." The Press would scream if the Government instituted censorship for the same reason.

Particularly if the court bowed to "the substantial deference we owe to predictive judgments of the legislature" in A1 matters. . . . So, umm, no. I can see the statute now: "A Bill to Prohibit the Publication of Offensive News Stories Because Such Stories Will Offend Someone and Cause Trouble." . . .

Caveat: I haven't read the linked decision yet.

 

[Spats McGee]

I'm just beginning to read the decision, but my first thought is this: Given the way in which the SAFE Act was rammed through the legislature, why in the world didn't anyone raise a Due Process claim?!?

 

[Devonai]

The last-minute, midnight hour nature of the passing of the CT law has been the subject of a lot of controversy here. However, I don't believe any of it is actionable. Rumors are that nothing will change until Malloy is out of office.

 

[Spats McGee]

The last-minute, midnight hour nature of the passing of the CT law has been the subject of a lot of controversy here. However, I don't believe any of it is actionable. Rumors are that nothing will change until Malloy is out of office.

I'm not so sure. I'm also not entirely sure of the story surrounding the CT law, but IIRC, the NY SAFE Act was passed on about 15 minutes notice, no debate, no time to read the bill. Were I the Plaintiff's lawyer, I'd have raised a Due Process argument of some sort. Even if I got shot down by the trial court, I'd have an appealable issue.

 

[ilbob]

I don't think anyone expected anything different. My guess is that the outrageous nature of some of the claims the judges made to support this decision may prove to help kill it off.

or not. it is hard to tell where these things are headed. one would have thought by now that NYC would be forced to issue permits on a more reasonable basis, but there is no sign of that.

 

[yugorpk]

The 2nd Circuit is now the East Coast version of the 9th.

The Bill of Rights appears to be TP to these Judges.

The 2nd and 9th circuit are about as similar as water oil. The 9th circuit is decidedly libertarian compared to the 2nd. It is a liberal court to be sure but liberal in the context of the 9th means libertarian in regards to personal freedoms. Peruta will be the pivotal case in th e9th circuit that could require California to go shall issue.

 

[Mainsail]

Here's an analysis over on Volokh's blog.

 

[Red Wind]

The 2nd and 9th circuit are about as similar as water oil. The 9th circuit is decidedly libertarian compared to the 2nd. It is a liberal court to be sure but liberal in the context of the 9th means libertarian in regards to personal freedoms. Peruta will be the pivotal case in th e9th circuit that could require California to go shall issue.

We can all dream, cant we! Hope your dream comes to fruition. That would be cool. This ex-Californian believes it all goes up in smoke.

 

[TruthTellers]

What's done is done.

What are the chances the Supreme Court upholds the law and when can we expect a ruling if they take up the case?

And will Chief Justice Roberts screw the people again?

 

[Red Wind]

At the earliest, next June , I believe. As to John Roberts, anything, like Earl Warren or David Souter, becomes possible. You just don't know which way they'll jump.

And they have no conscience to the Constitution to how they will go. And worst of all, these people simply don't care. A legacy means absolutely nothing to them.

That is what makes Roberts so dangerous to the 2nd Amendment.

 

[RPRNY]

There is no ban on semi-autos in the SAFE Act, nor I believe in CT. "Features" of certain rifles are banned and combinations of "features" require the registration of the rifle, resulting in a de facto ban on most popular semi auto rifles. Somebody on Bloomberg' s team was clever when they wrote these laws. It's hard for a court to say that the regulation of "features" by the legislature is unconstitutional. I am surprised that the ban on owning greater than 10 round magazines was upheld. I can understand upholding a ban on their sale but expropriation is pretty severe.

 

[TruthTellers]

So, if the Supreme Court doesn't take up the appeal, this means any state can ban "features" of semi auto rifles? Basically, this means similar legislation will work it's way through less than free states, while as time and demographics pass, remaining pro gun states will change, yes?

Also, does this mean that legislation could be passed in states or even nationally that allows for "Australian style" gun control like was seen in 1996?

 

[Frank Ettin]

So, if the Supreme Court doesn't take up the appeal, this means any state can ban "features" of semi auto rifles?...

A ruling of a Federal Circuit Court of Appeal is precedent only in that Circuit.

 

[TruthTellers]

A ruling of a Federal Circuit Court of Appeal is precedent only in that Circuit.

Sounds like it might be best for the rest of the country that the Supreme's don't take up the case.

 

[Spats McGee]

So, if the Supreme Court doesn't take up the appeal, this means any state can ban "features" of semi auto rifles?...

A ruling of a Federal Circuit Court of Appeal is precedent only in that Circuit.

Frank is, of course, correct. Nonetheless, I'm going to muddy this up just a little. A ruling of a Federal Circuit Court of Appeals is binding precedent only in that Circuit, but it may be cited as persuasive authority in other Circuits.

In other words, if a similar case goes to the 7th Circuit, lawyers there might say, "Look at what the 2nd Circuit did here, judge."

 

[Arizona_Mike]

David Kopel thinks the very watered down "intermediate scrutinty" the court used is not consistant with Heller/McDonald.

https://www.washingtonpost.com/news...class-second-amendment-intermediate-scrutiny/

Mike

 

[Turftech1]

I'd like to think it would get struck down handily by SCOTUS, but I doubt it. SCOTUS rulings are more likely to follow the latest Facebook trends than the constitution.

I found it interesting that any of the "assault" rifle regulations held up, as the judge cited public safety as the reason for pealing back the 2nd amendment; and all rifles combined (110 million of them in the USA) account for about 315 annual homicides. That's less than the number of people who die annually falling in the bath tub (341) and nowhere near the number who are killed in backyard swimming pools (3,533).

To abrogate a constitutional right based on clear evidence of abuse of that right, and major harm to public safety has gotten the nod from SCOTUS in the past, but to do it based on propaganda and fear mongering.... who knows.

 

[dh1633pm]

The citizens of New York have already weighed in. The government was found wanting. The participation rate is negligible.

 

[Bartholomew Roberts]

intermediate scrutinty" the court used is not consistant with Heller/McDonald.

Well, he's not the only one to think that, though thankfully he phrased it more diplomatically than I would have.