Protected by the Second Amendment?

Photographer: Spencer Platt/Getty Images

Gun Laws Upheld, But It's Complicated

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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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.

QuickTake Guns in America

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.”

Behind the double negative, Scalia could plausibly be read as saying that the government may only ban weapons that aren't used by law-abiding people for lawful purposes. But do assault weapons fall into that category?

The 2nd Circuit began its analysis by saying that roughly 7 million assault weapons exist in the U.S. today, including almost 4 million AR-15s. (The AR-15 is usually described as the civilian version of the military's M16.) Large capacity magazines, also banned by the state laws, are also widely owned in the U.S.

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.

Pragmatically, there's little doubt the judges wanted to avoid holding that assault weapons aren't covered by the Constitution -- because they feared that might get the Supreme Court to overturn their decision.

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.

In the arcane world of appellate review, once it's been determined that a right is being infringed, the court must then say what level of scrutiny it’s going to apply to it. The 2nd Circuit said that the New York and Connecticut laws substantially burden the core of the Second Amendment right.

That left the court with two choices. It could apply “strict scrutiny,” which would mean that the law would have to serve a compelling government interest and be narrowly tailored to achieving it. Or it could apply looser “intermediate scrutiny,” which requires only that the government has an important interest and that the law be substantially related to it.

The court said it was clear that there’s a compelling government interest in controlling assault weapons. What mattered, then, was how close the fit needed to be between the law and the goal: narrowly tailored or only substantially related.

Everything turned on this distinction. If the court had said that narrow tailoring was required, it would've been difficult to say that the general ban on semiautomatic weapons with one or more features of assault weapons was truly necessary to protect against mass shootings. Such shootings, after all, can be carried out by non-automatic weapons. In theory, you could even commit a massacre without guns at all.

The moment narrow-tailoring analysis enters the picture, indeed, the court would find itself trying to argue that the legislative response to the Newtown shooting was really the only way to avoid such attacks in the future. The laws would be struck down, because that's surely not the case -- there are other mechanisms that could be used that don't affect the right to bear arms.

By instead saying that the laws needed only to be substantially related to the goal of preventing massacres, the 2nd Circuit could uphold them. But it's clear that the Supreme Court, if it wanted to, could easily apply strict scrutiny. After all, the 2nd Circuit has already conceded that assault weapons are within the core protection zone of the Second Amendment. And ordinarily, when you get into the core of an individual constitutional right, strict scrutiny applies.

In practice, the Supreme Court may not get a case considering the issue. That would probably take a split between the circuits, which in turn would require liberal states to adopt such bans and conservative courts of appeal to overturn them. That isn't an impossible scenario, of course, because the fit between the politics of the federal appellate circuits and the states is far from exact. But if it does happen, expect the level of scrutiny to be where the case is fought. The resulting Supreme Court decision might well be different than the one in the 2nd Circuit.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Stacey Shick at sshick@bloomberg.net