Last week a Federal judge in New York rendered the first decision on New York’s new gun law, the Safe Act, that was rammed through the Legislature by Andy Cuomo on the heels of the massacre at Sandy Hook. New York’s new law effectively bans the sale of AR-style rifles to state residents and also set semi-auto magazine limits at a maximum of seven rounds. Judge William Skretny, appointed by Bush 41, is known as a careful, almost scholarly reviewer of legal texts, and in this instance he went to great lengths to analyze the pros and cons of the new law.
Basically his decision contained both good news and bad news for gun owners in New York. The good news is that Judge Skretny invalidated the 7-round magazine capacity as being ‘arbitrary’ and not shown to really protect public safety as New York State claimed. The bad news is that he also found that the ability of the State to deny access to certain types of weapons did not undermine the 2nd Amendment guarantees of self-protection and was consistent with “the state’s important interest in public safety.”
As more and more gun cases pile up in what Judge Skretny calls the “terra incognita” of post-Heller jurisprudence, the trend seems to be moving towards a recognition of the government’s ability to regulate and even ban certain types of weapons (most notably ‘assault’ rifles) as long as such measures do not deny access to other types of weapons that are commonly used for self defense. Ironically, the claim by the NRA and its friends that high-capacity, semi-automatic rifles afford the greatest degree of self protection is being turned against them by multiple Court decisions which find that the defensive utility of these guns based on their lethality is exactly what justifies their regulation given the public safety responsibilities vested in the state.
The NRA has spent the last thirty years noisily promoting the notion that an armed citizenry is our most effective method of dealing with crime. And if nothing else, the coincidence of increased gun sales and a decline in violent crime over the past 20 years would seem to bolster their case. The NRA further argues that banning ‘assault’ rifles is a red herring because even though such weapons are used on rare occasions for mass assaults, like Aurora, the overwhelming bulk of shootings involves handguns as the weapon of choice.
Which was exactly the point made by Judge Skretny and other jurists who have been hearing gun cases since Heller was decided in 2008. The fact that AR-15 rifles are touted by the NRA and the manufacturers as more effective self-defense weapons than handguns is exactly why the government may be able to ban them while leaving 2nd Amendment guarantees intact. The dangerousness of guns can be played both ways, because the fact that high-capacity, military-style weapons are used in only a few instances of gun violence doesn’t invalidate the government’s right to keep them out of everyone’s hands, particularly if citizens can still own other weapons, like handguns, that provide a reliable means for self defense.
In their raptures over Heller the pro-gun lobby conveniently ignored the majority decision’s explicit statement that the 2nd Amendment was not an unlimited “right.” Instead, the author of the Heller decision, Antonin Scalia, made it clear that further judicial activity would have to take place in order to more clearly define the degree to which government could limit access to guns. If the New York and other recent decisions are straws in the wind, nobody at the NRA headquarters should assume that unlimited gun ownership will continue into the future; in fact it may soon become a legal doctrine whose best days have already passed.