NEW YORK STATE RIFLE AND PISTOL ASSOCIATION, INC., WESTCHESTER COUNTY FIREARMS OWNERS ASSOCIATION, INC., SPORTSMEN‘S ASSOCIATION FOR FIREARMS EDUCATION, INC., NEW YORK STATE AMATEUR TRAPSHOOTING ASSOCIATION, INC., BEDELL CUSTOM, BEIKIRCH AMMUNITION CORPORATION, BLUELINE TACTICAL & POLICE SUPPLY, LLC, BATAVIA MARINE & SPORTING SUPPLY, WILLIAM NOJAY, THOMAS GALVIN, ROGER HORVATH v. ANDREW M. CUOMO, in his official capacity as Governor of the State of New York, ERIC T. SCHNEIDERMAN, in his official capacity as Attorney General of the State of New York, JOSEPH A. D‘AMICO, in his official capacity as Superintendent of the New York State Police, GERALD J. GILL, in his official capacity as Chief of Police for the Town of Lancaster, New York, LAWRENCE FRIEDMAN, FRANK A. SEDITA, III, in his official capacity as District Attorney for Erie County
Nos. 14-36-cv (Lead); 14-37-cv (XAP); 14-319-cv
United States Court of Appeals for the Second Circuit
October 19, 2015
AUGUST TERM 2014; ARGUED: DECEMBER 9, 2014
BARBARA D. UNDERWOOD, Solicitor General of the State of New York (Anisha S. Dasgupta, Claude S. Platton, Office of the Solicitor General, on the brief), for Eric T. Schneiderman, Attorney General for the State of New York, New York, NY, for Defendants-Appellees-Cross-Appellants Andrew M. Cuomo, et al.
MAURA B. MURPHY OSBORNE, Assistant Attorney General of the State of Connecticut (Perry Zinn Rowthorn, Michael K. Skold, Gregory T. D‘Auria, Office of the Attorney General, on the brief), for George Jepsen, Attorney General of the State of Connecticut, Hartford, CT, for Defendants-Appellees Dannel P. Malloy, et al.
Before the Court are two appeals challenging gun-control legislation enacted by the New York and Connecticut legislatures in the wake of the 2012 mass murders at Sandy Hook Elementary School in Newtown, Connecticut. The New York and Connectiсut laws at issue prohibit the possession of certain semiautomatic “assault weapons” and large-capacity magazines. Following the entry of summary judgment in favor of defendants on the central claims in both the Western District of New York (William M. Skretny, Chief Judge) and the District of Connecticut (Alfred V. Covello, Judge), plaintiffs in both suits now press two arguments on appeal. First, they challenge the constitutionality of the statutes under the Second Amendment; and second, they challenge certain provisions of the statutes as unconstitutionally vague. Defendants in the New York action also cross-appeal the District Court‘s invalidation of New York‘s seven-round load limit and voiding of two statutory provisions as facially unconstitutionally vague.
We hold that the core provisions of the New York and Connecticut laws prohibiting possession of semiautomatic assault weapons and large-capacity magazines do not violate the Second Amendment, and that the challenged individual provisions are not void for vagueness. The particular provision of New York‘s law regulating load limits, however, does not survive the requisite scrutiny. One further specific provision—Connecticut‘s prohibition on the non-semiautomatic Remington 7615—unconstitutionally infringes upon the Second Amendment right. Accordingly, we AFFIRM in part the judgment of the District Court for the District of Connecticut insofar as it upheld the prohibition of semiautomatic assault weаpons and large-capacity magazines, and REVERSE in part its holding with respect to the Remington 7615. With respect to
JOSÉ A. CABRANES, Circuit Judge:
Before the Court are two appeals challenging gun-control legislation enacted by the New York and Connecticut legislatures in the wake of the 2012 mass murders at Sandy Hook Elementary School in Newtown, Connecticut. The New York and Connecticut laws at issue prohibit the possession of certain semiautomatic “assault weapons” and large-capacity magazines. Following the entry of summary judgment in favor of defendants on the central claims in both the Western District of New York (William M. Skretny, Chief Judge) and the District of Connecticut (Alfred V. Covello, Judge), plaintiffs in both suits now press two arguments on appeal. First, they challenge the constitutionality of the statutes under the Second Amendment; and second, they challenge certain provisions of the statutes as unconstitutionally vague. Defendants in the New York action also cross-appeal the District Court‘s invalidation of New York‘s separate seven-round load limit and voiding of two statutory provisions as facially unconstitutionally vague.
We hold that the core provisions of the New York and Connecticut laws prohibiting possession of semiautomatic assault weapons and large-capacity magazines do not violate the Second Amendment, and that the challenged individual provisions are not void for vagueness. The particular provision of New York‘s law regulating load limits, however, does not survive the requisite scrutiny. One further specific provision—Connecticut‘s prohibition on the non-semiautomatic Remington 7615—unconstitutionally
BACKGROUND
I. Prior “Assault Weapon” Legislation
New York and Connecticut have long restricted possession of certain automatic and semiautomatic firearms that came to be known as “assault weapons.” In 1993, Connecticut‘s General Assembly adopted the state‘s first assault-weapon ban, which criminalized the possession of firearms “capable of fully automatic, semiautomatic or burst fire at the option of the user,” including 67 specifically enumerated semiautomatic firearms.1
The following year, after fivе years of hearings on the harms thought to be caused by certain firearms, the U.S. Congress enacted legislation restricting the manufacture, transfer, and possession of
Following the passage of the federal assault-weapons ban, both New York, in 2000, and Connecticut, in 2001, enacted legislation that closely mirrored the federal statute, including the two-feature test for prohibited semiautomatic firearms.5 Unlike the federal statute, however, these state laws contained no sunset
On December 14, 2012, a gunman shot his way into Sandy Hook Elementary School in Newtown, Connecticut and murdered twenty first-graders and six adults using a semiautomatic AR-15-type rifle with ten large-capacity magazines. This appalling attack, in addition to other recent mass shootings, provided the immediate impetus for the legislation at issue in this appeal.6
II. The New York Legislation
New York enacted the Secure Ammunition and Firearms Enforcement Act (SAFE Act) on January 15, 2013.7 The SAFE Act expands the definition of prohibited “assault weapons” by replacing the prior two-feature test with a stricter one-feature test. As the name suggests, the new test defines a semiautomatic firearm as a prohibited “assault weapon” if it contains any one of an enumerated list of military-style features, including a telescoping stock, a conspicuously protruding pistol grip, a thumbhole stock, a bayonet mount, a flash suppressor, a barrel shroud, and a grenade launcher.8
This statutory definition encompasses, and thereby bans, the semiautomatic weapon used by the mass-shooter at Sandy Hook. New York law makes the possession, manufacture, transport, or disposal of an “assault weapon” a felony.9 Pursuant to the SAFE
The SAFE Act also bans magazines that can hold more thаn ten rounds of ammunition or that can be readily restored or converted to accept more than ten rounds.11 Although New York had restricted possession of such magazines since 2000, the SAFE Act eliminated a grandfather clause for magazines manufactured before September 1994.
The SAFE Act‘s large-capacity-magazine ban contains an additional, unique prohibition on possession of a magazine loaded with more than seven rounds of ammunition.12 (For the purpose of this definition, a round is a single unit of ammunition.) As originally enacted, the SAFE Act would have imposed a magazine capacity restriction of seven rounds. Because very few seven-round magazines are manufactured, however, the law was subsequently amended to impose a ten-round capacity restriction coupled with a seven-round load limit. Thus, as amended, the statute permits a New York gun owner to possess a magazine capable of holding up to ten
III. The Connecticut Legislation
Several months after New York passed the SAFE Act, and after extensive public hearings and legislative and executive study, Connecticut adopted “An Act Concerning Gun Violence Prevention and Children‘s Safety” on April 4, 2013, and later amended the statute on June 18, 2013.14 Like its New York analogue, the Connecticut legislation replaced the state‘s two-feature definition of prohibited “assault weapons” with a stricter one-feature test,15 using a list of military-style features similar to New York‘s, including a telescoping stock, a thumbhole stock, a forward pistol grip, a flash suppressor, a grenade launcher, and a threaded barrel capable of accepting a flash suppressor or silencer.16 Unlike its counterpart in
The June 2013 amendment to the Connecticut legislation criminalizes the possession of “[l]arge capacity magazine[s]” that can hold, or can be “readily restored or converted to accept,” more than ten rounds of ammunition.19 Unlike its New York counterpart, however, the Connecticut legislation contains no additional “load limit” rule.
IV. Procedural History
Plaintiffs—a combination of advocacy groups, businesses, and individual gun owners—filed suit against the governors of New York and Connecticut and other state officials, first in the Western District of New York on March 21, 2013 and then in the District of Connecticut on May 22, 2013. In both actions, plaintiffs sought declaratory and injunctive relief for alleged infringement of their
Following plaintiffs’ motions for preliminary injunctions, parties in both suits cross-moved for summary judgment. On December 31, 2013, Chief Judge Skretny of the Western District of New York granted in part and denied in part the cross-motions for summary judgment.21 Specifically, the District Court found that New York‘s ban on assault weapons and large capacity magazines burdened plaintiffs’ Second Amendment rights, but did not violate the Second Amendment upon application of so-called intermediate scrutiny.22 The Court also held, however, that the seven-round load limit did not survive intermediate scrutiny. The Court further found that three specific provisions were unconstitutionally vague, and
On January 30, 2014, Judge Covello of the District of Connecticut granted defendants’ motion for summary judgment in its entirety.25 Like his counterpart in New York, Judge Covello held
Plaintiffs thereafter appealed. In the New York action only, defendants cross-appeal the District Court‘s judgment insofar as it invalidated the SAFE Act‘s seven-round load limit and voided as unconstitutionally vague the SAFE Act‘s prohibitions on the misspelled “muzzle break”27 and “semiautomatic version[s]” of an automatic rifle, shotgun, or firearm.28
DISCUSSION
These appeals present two questions: first, whether the Second Amendment permits the regulation of the assault weapons and large-capacity magazines at issue here; and second, whether the challenged provisions of the statutes provide constitutionally sufficient notice of the conduct proscribed.
V. Second Amendment Challenge
We conclude that the core challenged prohibitions of assault weapons and large-capacity magazines do not violate the Second Amendment. Guided by the teachings of the Supreme Court, our own jurisprudence, and the examples provided by our sister circuits, we adopt a two-step analytical framework, determining first whether the regulated weapons fall within the protections of the Second Amendment and then deciding and applying the appropriate level of constitutional scrutiny. Only two specific provisions—New York‘s seven-round load limit, and Connecticut‘s prohibition on the non-semiautomatic Remington 7615—are unconstitutional.
The Second Amendment provides that “[a] well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”31 Our analysis of that amendment begins with the seminal decision in District of Columbia v. Heller.32 In Heller, the Supreme Court, based on an extensive textual and historical analysis, announced that the Second Amendment‘s operative clause codified a pre-existing “individual right to possess and carry weapons.”33 Recognizing, however, that “the right secured by the Second Amendment is not unlimited,” Heller emphasized that “the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”34 Instead, the Second Amendment protects only those weapons “‘in common use‘” by citizens “for lawful purposes like self-defense.”35
Having established these basic precepts, Heller concluded that the District of Columbia‘s ban on possession of handguns was unconstitutional under the Second Amendment.36 The Supreme
Heller stopped well short of extending its rationale to other firearms restrictions. Indeed, Heller explicitly identified as “presumptively lawful” such “regulatory measures” as “prohibitions on the possession of firearms by felons and the mentally ill, . . . laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, [and] laws imposing conditions and qualifications on the commercial sale of arms.”38 Most importantly here, Heller also endorsed the “historical tradition of prohibiting the carrying of dangerous and unusual weapons.”39
Aside from these broad guidelines, Heller offered little guidance for resolving future Second Amendment challenges. The Court did imply that such challenges are subject to one of “the standards of scrutiny that we have applied to enumerated constitutional rights,” though it declined to say which,40 accepting
That doubt persisted after McDonald v. City of Chicago, 561 U.S. 742 (2010), in which the Supremе Court invalidated municipal statutes banning handguns in the home.42 McDonald was a landmark case in one respect—the Court held for the first time that the
Lacking more detailed guidance from the Supreme Court, this Circuit has begun to develop a framework for determining the constitutionality of firearm restrictions.45 It requires a two-step inquiry.
First, we consider whether the restriction burdens conduct protected by the
This two-step rubric flows from the dictates of Heller and McDonald and our own precedents in Kachalsky and Decastro.48 It also broadly comports with the prevailing two-step approach of other courts, including the Third, Fourth, Fifth, Sixth, Seventh, Ninth, Tenth, Eleventh, and D.C. Circuits,49 and with the approach used in “other areas of constitutional law.”50
As an initial matter, then, we must determine whether the challenged legislation impinges upon conduct protected by the
i. Common Use
The parties contest whether the assault weapons at issue here are commonly owned. Plaintiffs argue that the weapons at issue are owned in large numbers by law-abiding Americans. They present statistics showing that nearly four million units of a single assault weapon, the popular AR-15, have been manufactured between 1986
This much is clear: Americans own millions of the firearms that the challenged legislation prohibits.
The same is true of large-capacity magazines, as defined by the New York and Connecticut statutes. Though fewer statistics are available for magazines, those statistics suggest that about 25 million large-capacity magazines were available in 1995, shortly after the federal assault weapons ban was enacted, and nearly 50 million such
Even accepting the most conservative estimates cited by the parties and by amici, the assault weapons and large-capacity magazines at issue are “in common use” as that term was used in Heller. The D.C. Circuit reached the same conclusion in its well-reasoned decision in Heller II, which upheld the constitutionality of a District of Columbia gun-control act substantially similar to those at issue here.58
To be sure, as defendants note, these assault weapons and large-capacity magazines are not as commonly owned as the handguns at issue in Heller, which were “the most popular weapon chosen by Americans for self-defense in the home.”59 But nothing in Heller limited its holding to handguns; indeed, the Court emphasized that “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms,” not just to a small subset.60
We must next determine whether assault weapons and large-capacity magazines are “typically possessed by law-abiding citizens for lawful purposes.”61 While “common use” is an objective and largely statistical inquiry, “typical[] possess[ion]” requires us to look into both broad patterns of use and the subjective motives of gun owners.
The parties offer competing evidence about these weapons’ “typical use.” Plaintiffs suggest that assault weapons are among the safest and most effective firearms for civilian self-defense.62 Defendants disagree, arguing that these weapons are used disproportionately in gun crimes, rather than for lawful pursuits like self-defense and hunting.63
Even if defendants are correct,64 however, the same could be said for the handguns in Heller. Though handguns comprise only about one-third of the nation‘s firearms, by some estimates they
Looking solely at a weapon‘s association with crime, then, is insufficient. We must also consider more broadly whether the weapon is “dangerous and unusual” in the hands of law-abiding civilians. Heller expressly highlighted “weapons that are most useful in military service,” such as the fully automatic M-16 rifle, as weapons that could be banned without implicating the
In the absence of clearer guidance from the Supreme Court or stronger evidence in the record, we follow the approach taken by the District Courts and by the D.C. Circuit in Heller II and assume for the sake of argument that these “commonly used” weapons and magazines are also “typically possessed by law-abiding citizens for lawful purposes.”72 In short, we proceed on the assumption that these laws ban weapons protected by the
d. Second Step: Level of Scrutiny
Having concluded that the statutes impinge upon
Though Heller did not specify the precise level of scrutiny applicable to firearms regulations, it rejected merе rational basis review as insufficient for the type of regulation challenged there.76
i. The Core of the Right
By their terms, the statutes at issue implicate the core of the
ii. The Severity of the Burden
In Decastro, we explained that heightened scrutiny need not apply to “any marginal, incremental or even appreciable restraint on the right to keep and bear arms.”81 Rather, “heightened scrutiny is triggered only by those restrictions that (like the complete prohibition on handguns struck down in Heller) operate as a substantial burden on the ability of law-abiding citizens to possess and use a firearm for . . . lawful purposes.”82 Our later decision in Kachalsky confirmed this approach, concluding that “some form of heightened scrutiny would be appropriate” for regulations that impose a “substantial burden” on
The practice of applying heightened scrutiny only to laws that “burden the Second Amendment right substantially” is, as we noted in Decastro, broadly consistent with our approach to other fundamental constitutional rights, including those protected by the
The scope of the legislative restriction and the availability of alternatives factor into our analysis of the “degree to which the challenged law burdens the right.”88 No “substantial burden” exists—and hence heightened scrutiny is not triggered—“if adequate alternatives remain for law-abiding citizens to acquire a firearm for self-defense.”89
The laws at issue are both broad and burdensome. Unlike statutes that “merely regulate the manner in which persons may
Heightened scrutiny need not, however, “be akin to strict scrutiny when a law burdens the Second Amendment“—particularly when that burden does not constrain the Amendment‘s “core” area of protection.93 The instant bans are dissimilar from D.C.‘s unconstitutional prohibition of “an entire class of ‘arms’ that is overwhelmingly chosen by American society for [the] lawful purpose” of self-defense.94 New York and Connecticut have not banned an entire class of arms. Indeed, plaintiffs themselves
D.C. Circuit that “the prohibition of semi-automatic rifles and large-capacity magazines does not effectively disarm individuals or substantially affect their ability to defend themselves.”99 The burden imposed by the challenged legislation is real, but it is not “severe.”100
Accordingly, we conclude that intermediate, rather than strict, scrutiny is appropriate. This conclusion coheres not only with that reached by the D.C. Circuit when considering substantially similar gun-control laws, but also with the analyses undertaken by other courts, many of which have applied intermediate scrutiny to laws implicating the
e. Application of Intermediate Scrutiny
Though “intermediate scrutiny” may have different connotations in different contexts,102 here the key question is whether the statutes at issue are “substantially related to the
i. Prohibition on “Assault Weapons”
To survive intermediate scrutiny, the “fit between the challenged regulation [and the government interest] need only be substantiаl, not perfect.”105 Unlike strict scrutiny analysis, we need not ensure that the statute is “narrowly tailored” or the “least restrictive available means to serve the stated governmental interest.”106 Moreover, we have observed that state regulation of the right to bear arms “has always been more robust” than analogous regulation of other constitutional rights.107 So long as the defendants
In making this determination, we afford “substantial deference to the predictive judgments of the legislature.”109 We remain mindful that, “[i]n the context of firearm regulation, the legislature is ‘far better equipped than the judiciary’ to make sensitive public policy judgments (within constitutional limits) concerning the dangers in carrying firearms and the manner to combat those risks.”110 Our role, therefore, is only to assure ourselves that, in formulating their respective laws, New York and Connecticut have “drawn reasonable inferences based on substantial evidence.”111
Both states have done so with respect to their prohibitions on certain semiautomatic firearms.112 At least since the enactment of the
The record reveals that defendants have tailored the legislation at issue to address these particularly hazardous weapons. The dangers posed by some of the military-style features prohibited by the statutes—such as grenade launchers and silencers—are manifest and incontrovertible.116 As for the other enumerated
The legislation is also specifically targeted to prevent mass shootings like that in Newtown, in which the shooter used a semiautomatic assault weapon. Plaintiffs complain that mass shootings are “particularly rare events” and thus, even if successful, the legislation will have a “minimal impact” on most violent
Defendants also have adduced evidence that the regulations will achieve their intended end of reducing circulation of assault weapons among criminals.122 Plaintiffs counter—without record evidence—that the statutes will primarily disarm law-abiding citizens and will thus impair the very public-safety objectives they were designed to achieve.123 Given the dearth of evidence that law-abiding citizens typically use these weapons for self-defense, see ante Section V.c.ii, plaintiffs’ concerns are 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.124 The mere possibility that some subset of people intent on breaking the law will indeed ignore these statutes does not make them unconstitutional.
ii. Prohibition on Large-Capacity Magazines
The same logic applies a fortiori to the restrictions on large-capacity magazines.127 The record evidence suggests that large-capacity magazines may “present even greater dangers to crime and violence than assault weapons alone, in part because they are more prevalent and can be and are used . . . in both assault weapons and non-assault weapons.”128 Large-capacity magazines are disproportionately used in mass shootings, like the one in
We therefore conclude that New York and Connecticut have adequately established a substantial relationship between the prohibition of both semiautomatic assault weapons and large-capacity magazines and the important—indeed, compelling—state interest in controlling crime. These prohibitions survive intermediate scrutiny.
iii. Seven-Round Load Limit
Though the key provisions of both stаtutes pass constitutional muster on this record, another aspect of New York‘s SAFE Act does not: the seven-round load limit, which makes it “unlawful for a
As noted above, the seven-round load limit was a second-best solution. New York determined that only magazines containing seven rounds or fewer can be safely possessed, but it also recognized that seven-round magazines are difficult to obtain commercially. Its compromise was to permit gun owners to use ten-round magazines if they were loaded with seven or fewer rounds.133
On the record before us, we cannot conclude that New York has presented sufficient evidence that a seven-round load limit would best protect public safety. Here we are considering not a capacity restriction, but rather a load limit. Nothing in the SAFE Act will outlaw or reduce the number of ten-round magazines in circulation. It will not decrease their availability or in any way frustrate the access of those who intend to use ten-round magazines for mass shootings or other crimes. It is thus entirely untethered from the stated rationale of reducing the number of assault weapons and large capacity magazines in circulation.134 New York has failed to present evidence that the mere existеnce of this load limit will convince any would-be malefactors to load magazines capable of holding ten rounds with only the permissible seven.
VI. Vagueness Challenge
We turn now to plaintiffs’ second challenge to the New York and Connecticut laws—their claim that provisions of both statutes are unconstitutionally vague. The New York defendants cross-appeal Chief Judge Skretny‘s ruling that two provisions of the SAFE Act are void because of vagueness.
a. Legal Standards
Grounded in due process principles, the void-for-vagueness doctrine provides that “[n]o one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes.”137 The doctrine requires that “a penal statute define the
Because plaintiffs pursue this “pre-enforcement” appeal before they have been charged with any violation of law, it constitutes a “facial,” rather than “as-applied,” challenge.141 Under the standard set forth by the Supreme Court in United States v. Salerno, to succeed on a facial challenge, “the challenger must establish that no set of circumstances exists under which the Act
Seeking to avoid this prohibitively high bar, plaintiffs urge us to follow the different approach that a plurality of the Supreme Court took in City of Chicago v. Morales.144 In that case, three Justices held that a criminal law lacking a mens rea requirement and burdening a constitutional right “is subject to facial attack” “[w]hen vagueness permeates the text of such a law.”145 This Court, however, has determined that, because the test set forth by the Morales plurality has not been adopted by the Supreme Court as a whole, we are not required to apply it.146 We have prеviously declined to specify a preference for either test,147 and we need not do so here, because the challenged provisions are sufficiently clear to survive a facial challenge under either approach.
b. Application
Both the New York and Connecticut statutes criminalize the possession of magazines that “can be readily restored or converted to accept” more than ten rounds of ammunition.148 In both suits, plaintiffs allege that the phrase is unconstitutionally vague because whether a magazine “can be readily restored or converted” depends upon the knowledge, skill, and tools available to the particular restorer, and the statutes are silent on these details.149
This statutory language dates at least to the 1994 federal assault-weapons ban and later appeared in New York‘s 2000 law. As Chief Judge Skretny noted, there is no record evidence that it has given rise to confusion at any time in the past two decades.150 This Court found a similar phrase in another gun law—“may readily be converted“—to be “sufficiently definite” as to provide “clear[] warn[ing]” of its meaning.151 Plaintiffs’ reliance on a Sixth Circuit
Plaintiffs’ purported concern—that this provision might be unfairly used to prosecute an ordinary citizen for owning a magazine that only a gunsmith equipped with technical knowledge and specialized tools could “readily convert”153—is implausible. Should such a prosecution ever occur, the defendant could bring an “as applied” vagueness challenge, grounded in the facts and context of a particular set of charges. That improbable scenario cannot, however, adequately support the facial challenge plaintiffs attempt to bring here.
In sum, we affirm the judgments of both District Courts finding that this phrase is not unconstitutionally vague.
ii. Capacity of Tubular Magazines
The New York plaintiffs contend the SAFE Act‘s ten-round magazine restriction154 is vague insofar as it extends to tubular magazines, the capacity of which varies according to the size of the particular shells that are loaded. This challenge fails as a threshold matter for the reasons stated by the District Court: the provision is
iii. “Copies or Duplicates”
Plaintiffs challenge the Connecticut statute‘s definition of assault weapon to include certain specified firearms and any “copies or duplicates thereof with the capability of” the listed models.155 They argue that the prоvision provides inadequate notice of which firearms in particular are prohibited.
We review the statutory language within its context, relying if necessary on the canons of statutory construction and legislative history.156 In the context of the legislation as a whole, this “copies or duplicates” language is not unconstitutionally vague. All firearms that the statute prohibits by model name also exhibit at least one of the prohibited military-style features.157 Hence, the statute provides
In this manner, the Connecticut legislation avoids the deficiency of an assault-weapons ban struck down by a sister Circuit as unconstitutionally vague in Springfield Armory, Inc. v. City of Columbus.158 In Springfield, the municipal ordinance at issue defined assault weapons simply by naming 46 individual models and extending the prohibition to weapons with “slight modifications or enhancements” to the listed firearms. The Sixth Circuit explained that the ordinance was invalid because it “outlaw[ed] certain brand names without including within the prohibition similar assault weapons of the same type, function or capability [and] . . . without providing any explanation for its selections [of prohibited firearms].”159 The Sixth Circuit found it significant that the ordinance offеred no “explanation for drafting the ordinance in terms of brand name rather than generic type or category of weapon.”160 In the instant case, by contrast, Connecticut has provided not only an
We therefore agree with Judge Covello that the “copies or duplicate” provision of the Connecticut statute at issue here is sufficiently definite to survive a void-for-vagueness challenge.
iv. “Version”
We apply similar logic to our analysis of New York‘s prohibition of semiautomatic pistols that are “semiautomatic version[s] of an automatic rifle, shotgun or firearm.”161 In this case, Chief Judge Skretny held that the provision was unconstitutionally vague, reasoning that “an ordinary person cannot know whether any single semiautomatic pistol is a ‘version’ of an automatic one.”162 The District Court also expressed concern that the lack of criteria might encourage arbitrary and discriminatory enforcement.163
We disagree. The SAFE Act‘s terminology has been used in multiple state and federal firearms statutes, including the 1994 federal assault-weapons ban, as well as in government reports, judicial decisions, and published books.164 Plaintiffs have shown no
v. “Muzzle Break”
Finally, Chief Judge Skretny also struck down as impermissibly vague a provision of New York‘s SAFE Act that listed among prohibited military-style features such muzzle attachments as “a flash suppressor, muzzle break, muzzle compensator, or threaded barrel designed to accommodate a flash suppressor, muzzle
This is, in our view, an overstatement. Because the misspelled homophone “muzzle break” has no accepted meaning, there is no meaningful risk that a party might confuse the legislature‘s intent. Further, its placement within a list of muzzle attachments makes the misspelled term‘s meaning even clearer. What is more, because the adjacent statutory term “muzzle compensator” is synonymous with muzzle brake, and thus independently covers the prohibited conduct, this issue is of little moment. Nonetheless, vagueness doctrine requires only that the statute provide “sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices.”168 This provision has done so. Accordingly, we reverse so much of the District Court‘s judgment as holds
To summarize, we hold as follows:
- The core prohibitions by New York and Connecticut of assault weapons and large-capacity magazines do not violate the Second Amendment.
- We assume that the majority of the prohibited conduct falls within the scope of Second Amendment protections. The statutes are appropriately evaluated under the constitutional standard of “intermediate scrutiny“—that is, whether they are “substantially related to the achievement of an important governmental interest.”
- Because the prohibitions are substantially related to the important governmental interests of public safety and crime reduction, they pass constitutional muster.
We therefore AFFIRM the relevant portions of the judgments of the Western District of New York and the District of Connecticut insofar as they upheld the constitutionality of state prohibitions on semiautomatic assault weapons and large-capacity magazines.
- We hold that the specific prohibition on the non-semiautomatic Remington 7615 falls within the scope of
Second Amendment protection and subsequently fails intermediate scrutiny. Accordingly, we REVERSE that limited portion of the judgment of the District of Connecticut. In doing so, we emphasize the limited nature of our holding with respect to the Remington 7615, in that it merely reflects the presumption required by the Supreme Court in District of Columbia v. Heller that the Second Amendment extends to all bearable arms, and that the State, by failing to present any argument at all regarding this weapon or others like it, has failed to rebut that presumption. We do not foreclose the possibility that States could in the future present evidence to support such a prohibition. - New York‘s seven-round load limit does not survive intermediate scrutiny in the absence of requisite record evidence and a substantial relationship between the statutory prоvision and important state safety interests. We therefore AFFIRM the judgment of the Western District of New York insofar as it held this provision unconstitutional.
- No challenged provision in either statute is unconstitutionally vague. Accordingly, we AFFIRM the judgments of the District of Connecticut and the Western District of New York insofar as they denied vagueness challenges to provisions involving the capacity of tubular magazines, “copies or duplicates,”
or a firearm‘s ability to “be readily restored or converted.” We REVERSE the judgment of the Western District of New York insofar as it found language pertaining to “versions” and “muzzle breaks” to be unconstitutionally vague.
Notes
“Assault weapon” means
(a) a semiautomatic rifle that has an ability to accept a detachable magazine and has at least one of the following characteristics: (i) a folding or telescoping stock; (ii) a pistol grip that protrudes conspicuously beneath the action of the weapon; (iii) a thumbhоle stock; (iv) a second handgrip or a protruding grip that can be held by the non-trigger hand; (v) a bayonet mount; (vi) a flash suppressor, muzzle break, muzzle compensator, or threaded barrel designed to accommodate a flash suppressor, muzzle break, or muzzle compensator; (vii) a grenade launcher; or
(b) a semiautomatic shotgun that has at least one of the following characteristics: (i) a folding or telescoping stock; (ii) a thumbhole stock; (iii) a second handgrip or a protruding grip that can be held by the non-trigger hand; (iv) a fixed magazine capacity in excess of seven rounds; (v) an ability to accept a detachable magazine; or
(c) a semiautomatic pistol that has an ability to accept a detachable magazine and has at least one of the following characteristics: (i) a folding or telescoping stock; (ii) a thumbhole stock; (iii) a second handgrip or a protruding grip that can be held by the non-trigger hand; (iv) capacity to accept an ammunition magazine that attaches to the pistol outside of the pistol grip; (v) a threaded barrel capable of accepting a barrel extender, flash suppressor, forward handgrip, or silencer; (vi) a shroud that is attached to, or partially or completely encircles, the barrel and that permits the shooter to hold the firearm with the non-trigger hand without being burned; (vii) a manufactured weight of fifty ounces or more when the pistol is unloaded; or (viii) a semiautomatic version of an automatic rifle, shotgun or firearm . . . .
“Assault weapon” means . . .[a]ny semiautomatic firearm . . . that meets the following criteria:
(i) A semiautomatic, centerfire rifle that has an ability to accept a detachable magazine and has at least one of the following: (I) A folding or telescoping stock; (II) Any grip of the weapon, including a pistol grip, a thumbhole stock, or any other stock, the use of which would allow an individual to grip the weapon, resulting in any finger on the trigger hand in addition to the trigger finger being directly below any portion of the action of the weapon when firing; (III) A forward pistol grip; (IV) A flash suppressor; or (V) A grenade launcher or flare launcher; or
(ii) A semiautomatic, centerfire rifle that has a fixed magazine with the ability to accept more than ten rounds; or
(iii) A semiautomatic, centerfire rifle that has an overall length of less than thirty inches; or
(iv) A semiautomatic pistol that has an ability to accept a detachable magazine and has at least one of the following: (I) An ability to accept a detachable ammunition magazine that attaches at some location outside of the pistol grip; (II) A threaded barrel capable of accepting a flash suppressor, forward pistol grip or silencer; (III) A shroud that is attached to, or partially or completely encircles, the barrel and that permits the shooter to fire the firearm without being burned, except a slide that encloses the barrel; or (IV) A second hand grip; or
(v) A semiautomatic pistol with a fixed magazine that has the ability to accept more than ten rounds; or
(vi) A semiautomatic shotgun that has both of the following: (I) A folding or telescoping stock; and (II) Any grip of the weapon, including a pistol grip, a thumbhole stock, or any other stock, the use of which would allow an individual to grip the weapon, resulting in any finger on the trigger hand in addition to the trigger finger being directly below any portion of the action of the weapon when firing; or (vii) A semiautomatic shotgun that has the ability to accept a detachable magazine; or (viii) A shotgun with a revolving cylinder . . . .
Heller emphasizes that the “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms.” Heller, 554 U.S. at 582. In other words, it identifies a presumption in favor of Second Amendment protection, which the State bears the initial burden of rebutting. See Ezell, 651 F.3d at 702-03 (“[I]f the government can establish that a challenged firearms law regulates activity falling outside the scope of the Second Amendment . . . then the analysis can stop there . . . .” (emphasis supplied)); cf. Virginia v. Black, 538 U.S. 343, 369 (2003) (Scalia, J., concurring in part, concurring in the judgment in part, and dissenting in part) (defining “prima facie evidence” as that which, “if unexplained or uncontradicted, is sufficient to sustain a judgment in favor of the issue which it supports” (quoting Black‘s Law Dictionary 1190 (6th ed.1990)). Because the State, focused on semiautomatic wеapons, see post note 112, has failed to make any argument that this pump-action rifle is dangerous, unusual, or otherwise not within the ambit of Second Amendment protection, the presumption that the Amendment applies remains unrebutted.
To be sure, Heller also noted that certain “presumptively lawful regulatory measures” ostensibly fall outside of the Second Amendment‘s prima facie protections. Id. at 627 n.26. Nonetheless, like the D.C. Circuit in Heller II, we conclude that these particular restrictions are not entitled to “a presumption of validity.” Heller II, 670 F.3d at 1260 (emphasis supplied).
We emphasize that our holding with respect to the Remington 7615—at both steps of our analysis—reflects the State‘s failure to present any argument at all regarding this weapon or others like it. We do not foreclose the possibility that states could in the future present evidence to support such a prohibition.