Gun control statutes in New York and Connecticut are aimed at weapons like the AR-15, which has been produced in many different versions. Adam Lanza used an AR-15 in the Sandy Hook Elementary School shooting in Newtown, Connecticut in 2012.

Almost immediately after the Dec. 14, 2012 massacre at Sandy Hook Elementary School in Newtown, Connecticut, New York Gov. Andrew Cuomo promised that New York State would pass the toughest gun control law in the nation. One month later, the Secure Ammunition and Firearms Enforcement Act’s (SAFE Act) was introduced into the Legislature at night under a “message of necessity,” bypassing the normal requirement for a three day legislative review period. Cuomo signed it the next day, despite there having been no opportunity for the public, advocacy and interest groups or even legislators to read it, much less question or comment on it.

The SAFE Act includes an assault weapons ban, a ban on large capacity ammunition loading devices, reporting requirements for medical professionals who have reason to believe that a patient is likely to engage in conduct that would result in significant harm to self or others, the extension of background checks to firearms transfers between private persons, controls on ammunition sales and a number of other less salient prohibitions, regulations and new offences. This entire omnibus gun control law deserves careful attention, but the recent decision by the U.S. Court of Appeals for the Second Circuit in New York Pistol & Rifle Club v. Cuomo, upholding the assault weapons ban, provides an opportune moment to review and assess that important part of the law.

The SAFE Act extends the state’s 2000 assault weapons ban, passed after the 1999 high school massacre at Columbine High School in Colorado. Both bans were patterned after the 1994 federal assault weapons ban which Congress permitted to sunset in 2004. New York State’s 2000 assault weapons ban prohibited manufacture, sale, purchase and possession of certain semi-automatic firearms (including rifles, shotguns and handguns) that possess two or more military-like features, such as a telescoping (folding) stock, a conspicuously protruding pistol grip, bayonet mount, flash suppressor or grenade launcher mount. The SAFE Act prohibits firearms with just one of these features.

Thus, overnight, thousands of New Yorkers, who prior to the SAFE Act owned lawful, unregulated and expensive semi-automatics, became owners of ‘assault weapons,’ which they are required to register with the State Police and are prohibited from selling or otherwise transferring to other in-state residents.

Because the definition of assault weapon varies between state jurisdictions and from time to time within the same jurisdiction, we cannot be confident in estimates of the number of assault weapons in New York State or nationally. However, such firearms are definitely popular. Colt started selling the AR-15 in 1963; today, it is the best selling rifle in the U.S. There are also many other assault weapon models produced domestically and abroad.

Contrary to popular misunderstanding, assault weapons are not machine guns or automatics. They are functionally indistinguishable from hundreds of other semi-automatic models; like all semi-automatics they expel one bullet with each trigger pull. Nor do they do fire larger caliber bullets. Gun enthusiasts strongly object to the characterization of these firearms as more dangerous than other semi-automatics. They argue, with strong logical and empirical support, that “so-called” assault weapons are anathema to gun control proponents because of the way they look, not the way they function.

The SAFE Act’s assault weapons ban ignited a groundswell of protest. Owners insisted that they legitimately use their “assault weapons,” a label they call an irrational epithet for firearms used for self-defense, target shooting and hunting. They make a strong argument that the military-like features targeted by the assault weapons ban present no greater risk to public safety than hundreds of unbanned semi-automatics. They are rarely used to commit crimes and infrequently used by mass murderers. In fact, they argue that some of the features that cause their semi-automatics to be classified as assault weapons actually increase the firearm’s comfort, utility and safety.

Assault weapons owners mobilized resistance to the registration requirement. Data released by the State Police pursuant to court order showed a compliance rate of less than 5 per cent. Moreover, practically every county in the state outside of New York City passed a resolution condemning the Act. The New York State Sheriffs’ Association strongly criticized the ban arguing that, lacking technical firearms expertise, police officers will fall back on “subjective interpretations” of the ban, inevitably leading to unreliable stops, searches and seizures. Officers will be put in the “unenviable position of guessing whether individuals exercising their Second Amendment rights should be arrested under the new laws. And while the laws are difficult for citizens to comprehend, they are worse for law enforcement.

Officers are not only expected to enforce the laws against those seeking to exercise fundamental rights, they are likely to face suits for wrongful arrests and have prosecutions dismissed. Some retailers, stuck with inventories of now unsellable assault weapons, removed bayonet mounts and reconfigured offensive pistol grips. Critics excoriated them for loopholing, while retailers called it compliance.

The best prepared of several lawsuits challenging the SAFE Act was the suit brought by the New York State Rifle and Pistol Club, joined by Second Amendment advocacy groups, manufacturers and individual assault weapons owners. The plaintiffs argued that the SAFE Act violates the Second Amendment as interpreted by the U.S. Supreme Court’s decisions in District of Columbia v. Heller (2008) and McDonald v. Chicago (2010). The court was vague about which types of weapons people have a right to keep and bear, noting only that the right pertains to “those weapons in common use for self defensive purposes” in the home. The courts have consistently upheld Second Amendment and other challenges to assault weapon bans, using a rational basis analysis before Heller and McDonald, and intermediate scrutiny after those decisions.

New York Courts

Despite fundamental disagreement about the dangerousness of semi-automatics with one or more military-like features, the Rifle and Pistol Club lawsuit was decided on cross motions for summary judgment. Western District of New York Chief Judge William Skretny, applying intermediate scrutiny review, found that New York’s assault weapons ban applies to a subset of firearms with features the Legislature determined to be particularly dangerous and unnecessary for self-defense (a dubious conclusion given the manner in which the bill was rushed to passage in the middle of the night).

According to Skretny, the ban does not violate the core of the Second Amendment right because it “does not totally disarm New York’s citizens and does not meaningfully jeopardize their right to self-defense.” New Yorkers can still purchase, own and sell “all manner of semiautomatic weapons”; indeed, the “attributes of the banned weapons” are “present in easily-substituted unbanned, counterpart firearms.” (Ironically, this seemed to accept the plaintiffs’ principal argument, i.e. semi-automatic assault weapons are functionally indistinguishable from semi-automatic non-assault weapons.)

Skretny found that although folding stocks and pistol grips increase a firearm’s utility for self defense, they are also “unusually dangerous, commonly associated with military combat situations and commonly found on weapons used in mass shootings.” However, he did not attempt to explain why a pistol grip or folding stock makes a weapon unusually dangerous. Since the case was decided on summary judgment, perhaps no satisfactory explanation was possible. In any event, however, Skrentny is mistaken that assault weapons are “commonly used in mass shootings.” Handguns, by far, are most commonly used in mass shootings, as well as in gun crimes. For example, handguns were used to perpetrate the Virginia Tech, Charleston, Washington Navy Yard and recent Oregon Umpqua Community College shootings.

On two issues, Skretny did agree with the plaintiffs. He struck down on vagueness grounds the SAFE Act’s ban on “semi-automatic pistols that are versions of fully automatic firearms” and, on Second Amendment grounds, the prohibition on loading a 10-bullet capacity magazine with more than seven bullets.

Both parties appealed. Twenty-two state attorneys general filed an amicus brief supporting the plaintiffs’ Second Amendment challenge. They sharply criticized Skretny’s conclusion that firearms that are more comfortable to use are more dangerous. Ten states joined an amicus brief supporting the SAFE Act’s ban. New York City filed a separate brief supporting the Act.

The Second Circuit reversed Skretny’s decision overturning, on vagueness grounds, the ban on semi-automatic versions of fully automatic pistols. The panel affirmed, with little interrogation of the lower court’s reasoning, Skretny’s decision to uphold the ban on future manufacture, sale and transfers of semi-automatics with one or more military-like features. Without critically examining the factual basis for New York’s assault weapons policy, the circuit devoted only one conclusory sentence to explaining how banning assault weapons contributes to public safety.

“The dangers posed by some of the military-style features prohibited by the [New York State and Connecticut] statutes—such as grenade launchers and silencers—are manifest and incontrovertible. As for the other military-style features—such as the flash suppressor, protruding grip and barrel shroud—New York and Connecticut have determined, as did the U.S. Congress, that the “net effect of these military combat features is a capability for lethality, more wounds, in more victims, far beyond that of other firearms in general, including other semiautomatic guns.”

It remains to be seen whether the Supreme Court will write the final chapter. Until then, it will be criminal to manufacture, sell or transfer assault weapons in New York and six other states. Even in New York, thousands of grandfathered owners will continue to lawfully possess assault weapons, provided they register them. Time will tell whether those who resist registration will be actively investigated and prosecuted.

Manufacturers will continue to tweak their assault weapons models to comply with the ban, and we can be sure that these modified models will be criticized for being functionally identical to those models now banned. Gun rights groups will continue to criticize the courts for not taking the Second Amendment seriously, and lobby for repeal or at least “reform” of the SAFE Act.

Meanwhile, 90 per cent of gun crimes and gun suicides will continue to involve handguns. Deranged shooters bent on committing atrocities like Sandy Hook will have no difficulty obtaining a semi-automatic firearm, whether or not labeled as an assault weapon.