Gun laws upheld, but it�s complicated

On the surface, Monday's decision of the U.S. Court of Appeals for the 2nd Circuit upholding most of the assault weapons bans passed by New York and Connecticut is a win for gun-control advocates. But down in the weeds, the unanimous decision by a panel of three Democratic appointees nevertheless points to potential trouble for similar laws should they ever be reviewed by the U.S. Supreme Court. The court held that assault weapons do in general fall within the core protections of the Second Amendment. But the judges applied a lenient standard to uphold the laws -- and a more aggressive Supreme Court might well apply a tougher standard and strike them down.  You might think it’s settled law that states can ban assault rifles. It isn’t. The factual and legal background is more complicated. In the 1990s, Congress passed federal legislation banning what it called “semiautomatic assault rifles.” That ban lasted only a decade, until 2004, and wasn’t re-enacted.
Only after that did the Supreme Court issue its 2008 landmark decision, District of Columbia v. Heller, announcing for the first time that there was a fundamental individual right to bear arms. The court struck down D.C.’s handgun ban, but didn't rule on assault weapons. It did refer approvingly to the “historical tradition of prohibiting the carrying of dangerous and unusual weapons.” In 2010, in a case called McDonald v. City of Chicago, the court extended the logic of Heller to state gun laws.
Thus, when New York and Connecticut toughened their assault weapons bans in 2013 after the Newtown massacre, the constitutionality of these laws wasn't automatically assured. In particular, uncertainty rests upon a single sentence in the court’s Heller opinion by Justice Antonin Scalia. Scalia wrote that prior precedent “does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.”
Given this pervasiveness, the court said that it couldn't simply conclude that the weapons weren't typically possessed by law-abiding citizens for lawful purposes. Instead it assumed, without so holding, that such weapons were in fact protected by the Second Amendment.
Nevertheless, the appeals court could alternatively have said that assault rifles aren't intended for self-defense or for hunting, but for assault, which is ordinarily illegal. By assuming the contrary, the 2nd Circuit is signaling that the Supreme Court will someday also begin its analysis by saying assault weapons are covered by the Second Amendment.

The writer is a professor of constitutional and international law at Harvard University

 

Gun laws upheld, but it�s complicated

On the surface, Mondays decision of the U.S. Court of Appeals for the 2nd Circuit upholding most of the assault weapons bans passed by New York and Connecticut is a win for gun-control advocates. But down in the weeds, the unanimous decision by a panel of three Democratic appointees nevertheless points to potential trouble for similar laws should they ever be reviewed by the U.S. Supreme Court. The court held that assault weapons do in general fall within the core protections of the Second Amendment. But the judges applied a lenient standard to uphold the laws -- and a more aggressive Supreme Court might well apply a tougher standard and strike them down. You might think its settled law that states can ban assault rifles. It isnt. The factual and legal background is more complicated. In the 1990s, Congress passed federal legislation banning what it called semiautomatic assault rifles. That ban lasted only a decade, until 2004, and wasnt re-enacted. Only after that did the Supreme Court issue its 2008 landmark decision, District of Columbia v. Heller, announcing for the first time that there was a fundamental individual right to bear arms. The court struck down D.C.s handgun ban, but didnt rule on assault weapons. It did refer approvingly to the historical tradition of prohibiting the carrying of dangerous and unusual weapons. In 2010, in a case called McDonald v. City of Chicago, the court extended the logic of Heller to state gun laws. Thus, when New York and Connecticut toughened their assault weapons bans in 2013 after the Newtown massacre, the constitutionality of these laws wasnt automatically assured. In particular, uncertainty rests upon a single sentence in the courts Heller opinion by Justice Antonin Scalia. Scalia wrote that prior precedent does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns. Given this pervasiveness, the court said that it couldnt simply conclude that the weapons werent typically possessed by law-abiding citizens for lawful purposes. Instead it assumed, without so holding, that such weapons were in fact protected by the Second Amendment. Nevertheless, the appeals court could alternatively have said that assault rifles arent intended for self-defense or for hunting, but for assault, which is ordinarily illegal. By assuming the contrary, the 2nd Circuit is signaling that the Supreme Court will someday also begin its analysis by saying assault weapons are covered by the Second Amendment. The writer is a professor of constitutional and international law at Harvard University