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Federal Court Upholds Most Of New York State Gun Control Law

Gun Flag

In the wake of the tragic shootings at Sandy Hook Elementary School, there was a massive push for enhanced gun control laws on a scale unseen since the early years of the Clinton Administration. On both the State and Federal levels, legislators advanced bills for enhanced background checks, limitations on the number of bullets that could be in a clip, and a ban on so-called “Assault Weapons.” As I’ve noted in the past, these efforts largely failed on the Federal level, even an effort to pass relatively popular background checks didn’t make it through the Senate. For political and practical reasons, this wasn’t likely to succeed and it’s even less likely that there will be any movement on the issue before either the 2014 or 2016 elections. Indeed, it’s unlikely that gun control will be a major issue in the upcoming election notwithstanding the efforts of groups like those established by Gabrielle Giffords and former NYC Mayor Michael Bloomberg.

On the state level, though, there has been more success. New gun control laws passed rather easily, not surprisingly, in Connecticut, where the Sandy Hook shootings took place, and in Colorado, although that vote was followed by recall elections that resulted in the ouster of two of the top advocates of the laws that passed there. There were also several bills passed in California and New Jersey, although their impact was muted by the fact that Democratic Governor Jerry Brown and Republican Governor Chris Christie vetoed several of the more stringent bills while signing others into law. Some of the most stringent laws, though, were passed rather easily in New York State, where bills banning several types of “Assault Weapons,” along with other bills purporting to restrict the size of magazines for weapons that remained legal and another bill that purported to make it harder for people with mental illnesses to own weapons, although that last bill has had some notable problems in its implementation.

Not surprisingly, all of these laws are facing legal challenges of one form or another and, earlier this week, we got the first known ruling on the new laws in the form of a ruling from a New York Federal Judge who upheld most of the provisions of the state’s new law:

A federal judge ruled on Tuesday that New York’s strict new gun laws, including an expanded ban on assault weapons, were constitutional, but struck down a provision forbidding gun owners to load more than seven rounds into a magazine.

The ruling offered a victory to gun control advocates at the end of a year in which efforts to pass new legislation on the federal level suffered a high-profile defeat in Congress, although some new restrictions were approved in state capitals.

The judge, William M. Skretny of Federal District Court in Buffalo, said expanded bans on assault weapons and high-capacity magazines were legally sound because they served to “further the state’s important interest in public safety.”

The new laws in New York, enacted in January 2013, are among the most restrictive in the country. Gov. Andrew M. Cuomo, a Democrat, pushed for the state to be the first to take action after the mass school shooting in Newtown, Conn.; gun rights groups accused him of ramming through new gun restrictions they called ill-conceived, poorly understood and unconstitutional.

In a 54-page ruling, Judge Skretny struck down a well-known but troubled portion of the law, which prohibited gun owners from loading more than seven rounds into a magazine. He called the limit “an arbitrary restriction” that violated the Second Amendment.

But, saying that “whether regulating firearms is wise or warranted is not a judicial question; it is a political one,” he found that Mr. Cuomo and lawmakers had acted within their bounds when they drafted the gun laws, and specifically cited the Bushmaster rifle and 30-round magazine used in the Newtown shooting.

“Of course, this is only one incident,” Judge Skretny wrote. “But it is nonetheless illustrative. Studies and data support New York’s view that assault weapons are often used to devastating effect in mass shootings.”

He said that the gun law “applies only to a subset of firearms with characteristics New York State has determined to be particularly dangerous and unnecessary for self-defense; it does not totally disarm New York’s citizens; and it does not meaningfully jeopardize their right to self-defense.”

Even after the Newtown shooting, states passed more legislation in the last year loosening gun laws than tightening them. But gun control advocates, who celebrated the New York measure as a leading success story, said the ruling confirmed their position that the government had the right to pass strict controls on firearms.

“A lot of states can take courage and take heart from this ruling, and maybe even Congress will take notice,” said Leah Gunn Barrett, the executive director of New Yorkers Against Gun Violence. “The Second Amendment does not preclude reasonable regulation. It doesn’t mean you can have guns that are extremely dangerous, like assault weapons.”

In many ways, this case is one of first impression for a Federal Court in that it is apparently the first case dealing with an efort to ban certain types of weapons, in this case so-called “Assault Weapons” in the wake of the Supreme Court’s decisions in District of Columbia v. Heller and McDonald v. Chicago and the limited number of cases that have followed. Heller, of course, is the case that struck down the District of Columbia’s incredibly restrictive ban on handgun ownership,establishing that at least as a preliminary matter, the 2nd Amendment protects an individual right to own a firearm for lawful purposes such as self-defense. McDonald extended that rights to the states by ruling that, like the rest of the first eight Amendments in the Bill Of Rights, the 2nd Amendment is applicable to the states via the 14th Amendment. Subsequent cases, which have not gotten beyond the Circuit Court level at this point, have dealt with issues such as the right to possess firearms in a public housing project where one lives and, in a case out of the 7th Circuit, the Constitutionality of Illinois’ restrictive concealed carry laws, which resulted in the state legislature modifying the laws to comply with the Court’s decision rather than appealing the matter to the Supreme Court. This case, however, is the first notable case testing the limits of Heller beyond handguns and similar types o weapons.

Keeping that in mind, what Judge Skretny had to say about “Assault Weapons” and the Heller/McDonald precedents is of particular interest:

Plaintiffs contend that many of the outlawed features do not make firearms more lethal; instead, according to Plaintiffs, several of the outlawed features simply make the firearm easier to use. For instance, they argue that a telescoping stock, which allows the user to adjust the length of the stock, does not make a weapon more dangerous, but instead, like finding the right size shoe, simply allows the shooter to rest the weapon on his or her shoulder properly and comfortably. Another outlawed feature, the pistol grip, also increases comfort and stability. The same goes for the “thumbhole stock,” which, as the name suggests, is a hole in the stock of the rifle for the user’s thumb. It too increases comfort, stability, and accuracy according to Plaintiffs.

But Plaintiffs later argue that the banned features increase the utility for self-defense — which is just another way of saying that the features increase their lethality. Plaintiffs make this explicit: “Where it is necessary for a crime victim to shoot the aggressor, and lethal or incapacitating injury will stop him, the lethality of the defender’s firearm is a precondition to her ability end the criminal attack.” (Pls.’ Br. at 22; Docket No. 23-1.) The National Rifle Association of America, as amicus curiae, make a similar argument, describing how the banned features improve a firearm’s usability. (NRA Br. at 10; Docket No. 46.)

There thus can be no serious dispute that the very features that increase a weapon’s utility for self-defense also increase its dangerousness to the public at large. See, e.g., McDonald,130 S. Ct. at 3107 (Stevens, J., dissenting) (“Just as [firearms] can help homeowners defend their families and property from intruders, they can help thugs and insurrectionists murder innocent victims.”). Pointing to the benefits of these features to those who might use them defensively, Plaintiffs argue that the SAFE Act ought to be struck down. But under intermediate scrutiny, this Court must give “substantial deference to the predictive judgments of the legislature.” Kachalsky, 701 F.3d at 97. And “[i]n the context of firearm regulation, the legislature is ‘far better equipped than the judiciary’ to make sensitive policy judgments (within constitutional limits) concerning the dangers in carrying firearms and the manner to combat those risks.” Id. (quoting Turner Broad., 512 U.S. at 665).

(…)

To be sure, this Court’s deference is not without bounds. New York must rely on evidence that “fairly support[s]” its rationale in passing the law. City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 438, 122 S. Ct. 1728, 1736, 152 L. Ed. 2d 670 (2002). Here, New York has met that burden; substantial evidence supports its judgment that the banned features are unusually dangerous, commonly associated with military combat situations, and are commonly found on weapons used in mass shootings.

The recent mass shooting in Newtown, CT, which prompted the quick passage of this law, was no exception. The shooter armed himself with a .223-caliber Bushmaster Model XM15 rifle and a 30-round magazine. See Connecticut State Police Press Release, Jan. 18, 2013, available at http://www.ct.gov/despp/cwp/view.asp?Q=517284 (“The shooter used the Bushmaster .223 to murder 20 children and six adults inside the school; he used a handgun to take his own life inside the school. No other weapons were used in this crime.”).

Of course, this is only one incident. But it is nonetheless illustrative.

(…)

[T]o survive intermediate scrutiny, the fit between the governmental objective and the challenged regulation need only be substantial, not perfect. And while these are legitimate considerations, “it is the legislature’s job, not [this Court's], to weigh conflicting evidence and make policy judgments.” Kachalsky, 701 F.3d at 99. New York, citing the undisputed potential for mass casualty that assault weapons present, is empowered to take action to reduce the quantity of such weapons in its state. See Nat’l Rifle Ass’n, 700 F.3d at 211(quoting Buckley v. Valeo, 424 U.S. 1, 105, 96 S. Ct. 61246 L. Ed. 2d 659 (1976)) (“It is well-settled that ‘a statute is not invalid under the Constitution because it might have gone farther than it did, that a legislature need not strike at all evils at the same time, and that reform may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind.'”). The ultimate merits of this judgment remain to be seen, but, considering especially that Plaintiffs themselves concede that the banned features increase the lethality of firearms — or as Brain Siebel has testified, that the military features of semiautomatic assault weapons are “designed to enhance the capacity to shoot multiple human targets rapidly” — this Court finds that New York has satisfied its burden to demonstrate a substantial link, based on reasonably relevant evidence, between the SAFE Act’s regulation of assault weapons and the compelling interest of public safety that it seeks to advance.

As I noted above, to a large degree much of this is new law because no Court, least of all the Supreme Court, has ruled on the issue of what Heller, McDonald, and the Second Amendment mean when it comes to weapons other than handguns yet. In that regard, though, I think its important to note this section of the Heller majority opinion that was written by no less than Justice Scalia:

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g.Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152-153; Abbott333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g.State v. Chandler, 5 La. Ann., at 489-490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884). Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment , nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.26

We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.” See 4 Blackstone 148-149 (1769); 3 B. Wilson, Works of the Honourable James Wilson 79 (1804); J. Dunlap, The New-York Justice 8 (1815); C. Humphreys, A Compendium of the Common Law in Force in Kentucky 482 (1822); 1 W. Russell, A Treatise on Crimes and Indictable Misdemeanors 271-272 (1831); H. Stephen, Summary of the Criminal Law 48 (1840); E. Lewis, An Abridgment of the Criminal Law of the United States 64 (1847); F. Wharton, A Treatise on the Criminal Law of the United States 726 (1852). See also State v. Langford, 10 N. C. 381, 383-384 (1824); O’Neill v. State, 16Ala. 65, 67 (1849); English v. State, 35Tex. 473, 476 (1871); Statev. Lanier, 71 N. C. 288, 289 (1874).

While this is dicta that was not essential to the ruling in Heller, it was a clear signal from the Court to the Circuit and District Court’s that it’s decision was not intended to be, and should not be interpreted as, a blanket declaration that restrictions on gun ownership of all kinds were per se unconstitutional. In fact, Scalia was careful to say in his opinion that the basis for the Court’s ruling in Heller was based primarily on what it saw as a fundamental right of self defense in the home. To some degree, that part of Heller has been expanded to include the right to self-defense in public, but the rulings involved still only involved handguns, not more advanced weaponry. Thus, it’s difficult to say how even the Heller majority would deal with the issue of so-called “Assault Weapons.”

The case wasn’t a total victory for New York though, because Judge Skertny took a very different view of the SAFE Act’s provisions purporting to attempt to regulate magazine size. Here’s how he put it in his opinion:

It stretches the bounds of this Court’s deference to the predictive judgments of the legislature to suppose that those intent on doing harm (whom, of course, the Act is aimed to stop) will load their weapon with only the permitted seven rounds. In this sense, the provision is not “substantially related” to the important government interest in public safety and crime prevention.

Indeed, Heller found that the Second Amendment right is at its zenith in the home; in particular, the Court highlighted the right of a citizen to arm him or herself for self-defense. But this provision, much more so than with respect to the other provisions of the law, presents the possibility of a disturbing perverse effect, pitting the criminal with a fully- loaded magazine against the law-abiding citizen limited to seven rounds.

Although Plaintiffs make this type of argument with respect to all aspects of the SAFE Act, the distinction here is plain. This Court has ruled that New York is entitled to regulate assault weapons and large-capacity magazines under the principal presumption that the law will reduce their prevalence and accessability in New York State, and thus, inversely, increase public safety. The ban on the number of rounds a gun owner is permitted to load into his 10-round magazine, however, will obviously have no such effect because 10-round magazines remain legal. As described above, the seven-round limit thus carries a much stronger possibility of disproportionately affecting law-abiding citizens.

Defendants contend, pointing to a study conducted by the NRA, that the average citizen using his or her weapon in self-defense expends only two bullets. Thus, New York argues, citizens do not truly need more than seven rounds, and the restriction minimizes the danger without hampering self-defense capabilities. But as an initial matter, New York fails to explain its decision to set the maximum at seven rounds, which appears to be a largely arbitrary number. And even if a person using a weapon in self-defense needs only a few rounds, and even if that is a rational reason for adopting the law, under intermediate scrutiny there must a “substantial relation” between the means and the end. The State’s justification for the law need not be perfect, but it must be “exceedingly persuasive.” Windsor v. United States, 699 F.3d 169, 185 (2d Cir. 2012) (quoting United States v. Virginia, 518 U.S. 515, 533 (1996)). This peripheral rationale, which is possibly meant to protect bystanders when a firearm is being discharged lawfully, or victims of impromptu acts of violence, is largely unsupported by evidence before this Court. It thus fails the more demanding test and must be stuck down.

In the wake of Heller and McDonald, I noted that the Supreme Court had opened up an entirely new area of the law that would take decades to flesh out. Partly, this is because, for the most part, there had been an incredibly limited amount of Supreme Court precedent on the Second Amendment prior to Heller, my own rough count found one case in the late 19th Century and a handful of cases in the 20th Century dealing with things such as the mid-1930s laws that regulated the circumstances under which someone could legally obtain a fully automatic weapon, a law that remains largely intact and is unlikely to be seriously challenged at any time in the future. Once the Court ruled as it did in Heller, though, it guaranteed that we would see years of litigation on what exactly the right that its decision outlined via the historical evidence available from the time the Amendment was ratified actually entailed. As noted, we’ve already seen the beginnings of that in the lower courts, and this case is now added to that list. The coalition of gun rights groups, gun manufacturers,and gun owners that filed this lawsuit has already announced that they would be appealing Judge Skertney’s decision, so the next Court we’ll be hearing from is the Second Circuit Court of Appeals. From there, it would head to the Supreme Court, assuming that they accept the case. It’s possible that they won’t, of course, but at some point these issues raised by Heller will come before the Justices and we’ll begin to see just how far the right protected by the Second Amendment extends. Given how long it took for similar issues to be decided with regard to the other parts of the Bill of Rights, that’s likely to be a process that could take years, if not decades.

Here’s Judge Skertney’s Opinion:

NYS Rifle and Pistol Assn v. Cuomo Et Al by Doug Mataconis

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. legion says:

    He said that the gun law “applies only to a subset of firearms with characteristics New York State has determined to be particularly dangerous and unnecessary for self-defense; it does not totally disarm New York’s citizens; and it does not meaningfully jeopardize their right to self-defense.”

    I think this is the key graf right here. It’s not enough to say “ban all assault weapons!” – you have to have a specific set of characteristics that make weapons both excessively dangerous and useless for personal defense. You need research backing these definitions up. You need legislators who are willing to actually do some work and learn something about the subject. But given that, it _is_ possible to craft a constitutional compromise on how the 2nd Amendment fits in with everyone else’s right to safety & security.

    Like or Dislike: Thumb up 6 Thumb down 2

  2. KM says:

    @legion:

    But given that, it _is_ possible to craft a constitutional compromise on how the 2nd Amendment fits in with everyone else’s right to safety & security.

    Of course you can. But far too many people are being irrational about this – screaming about the inviolate and sacred 2nd Amendment does no good when sensible people realize that maybe not having some basic restrictions for everyone’s safety is a bad (if not contradictory) idea. In theory, you can afford perfect freedom to a rational set. In practice, there are practical compromises needed in order to function in an imperfect populace – something most 2nd Amendment proponents abhor.

    Like or Dislike: Thumb up 2 Thumb down 4

  3. rudderpedals says:

    Keep your powder dry; this will certainly be appealed. It’s probably best to read the opinion as a brief for the 2nd Circuit.

    Like or Dislike: Thumb up 2 Thumb down 0

  4. alanstorm says:

    “you have to have a specific set of characteristics that make weapons both excessively dangerous and useless for personal defense. ”

    Pray elaborate how characteristics that are “excessively dangerous” (whatever THAT may mean, if anything) can make a weapon “useless for personal defense”?

    You are contradicting the judge’s finding while agreeing with it.

    When you get done with that, please list the “excessively dangerous” characteristics you refer to, and explain how they make a given weapon “useless for personal defense.”

    Or is this simply another example of “Liberal Logic” in action?

    KM, can you provide an example of the compromise you allude to? (Hint: the NY law isn’t one.)

    Like or Dislike: Thumb up 4 Thumb down 9

  5. James Pearce says:

    ….(C)onsidering especially that Plaintiffs themselves concede that the banned features increase the lethality of firearms — or as Brain Siebel has testified, that the military features of semiautomatic assault weapons are “designed to enhance the capacity to shoot multiple human targets rapidly” — this Court finds that New York has satisfied its burden to demonstrate a substantial link…

    This brings to mind all the discussions about how these features were mostly “cosmetic.” Maybe that will come up again on appeal….

    (Who the chuck is “Brain” Siebel? Is he related to Brian?)

    Also, Magpul has finally pulled out of Colorado. The factory is moving to Wyoming and the corporate headquarters to Texas.

    Gotta love this, though:

    Randy Bruns, CEO of Cheyenne’s economic development organization, said it is working with Magpul on a financial package that could include up to $13 million in state grants and loans to help the company move to Cheyenne.

    Of course….

    These days, if the government isn’t paying for it, the company ain’t doing it.

    Like or Dislike: Thumb up 6 Thumb down 0

  6. PD Shaw says:

    It doesn’t seem consistent to me that a seven round limit is arbitrary, while so-called “assault weapon” ban is not. And the justification for banning something labeled “assault weapons” appears actually to be that they are semi-automatics, combined with the idea that self-defense needs can be met by substituting (semi-automatic) handguns. I question whether the judge is applying the standard of scrutiny consistently, and whether on appeal its both or neither that are unconstitutional.

    Like or Dislike: Thumb up 2 Thumb down 0

  7. JKB says:

    Well, the solution is not so much to be found in court. Politicians don’t fear judicial decision. Especially now we have the precedent of just ignoring laws they don’t like by not enforcing them.

    But the best path is as happened in Colorado. Politicians do fear having to find honest work so throwing them out of office is an effective way to control them. New York is dying. It has seen 59% more people leave the state than moved there over the last 10 years. And we have the gift of Progressive governance just now taking effect in NYC. How many years before New Yorkers are rabid gun fans when NYC slides back into the 1980s street scene? It is then to move to remove the legislators and fix the gun laws.

    Like or Dislike: Thumb up 3 Thumb down 7

  8. JKB says:

    @PD Shaw:

    Well, this being NY there could have been some back room deals. Seems the NY governor and legislator forgot to exempt the police from the 7 round limit. This way, they lose little and don’t have to open up the legislation while people are paying attention but fix the commonsense mistakes that seem to fill Democrat legislation.

    Like or Dislike: Thumb up 0 Thumb down 5

  9. KM says:

    @alanstorm:

    KM, can you provide an example of the compromise you allude to? (Hint: the NY law isn’t one.)

    The dreaded database. I’m sorry, but in order to prevent individuals with mental issues and others who shouldn’t be purchasing or getting access to weapons, we need to have a better tracking system. This makes sense from a security standpoint – every armory keeps track of their weapons and who has what for eminently practical reasons. While I’m aware that many feel this is a violation of privacy, it’s no more a violation then know what car belongs to what person. We accept “violations” like this on a regular basis from both corporations and governments so why is this one subject so touchy? Exempting paranoia, why do you object to a database tracking your guns when you accept databases that track your money and your location?

    Another is high capacity currently in favor. What do you need the ability to fire dozens of rounds extremely quickly for? Even if you are in a fight for your life, are you saying spray and pray is a viable option? In a break-in situation, you are not likely to be facing dozen of people – one or two is the norm. This is not a last stand against an army – even facing multiple opponents, you aren’t likely to need the ability to kill 5+ people in seconds without a pause. What is the purpose of this, then? It’s like having a car that can go 140mph when the standard speed limit is 55 – what’s the point other then because you can?

    A gun is a tool, a very dangerous one. It should be treated with the gravitas and respect a potential deadly device should. You can own them but there should be some kind of reasonable premise at play. The current premise seems to be own a tool that has the ability to do as much damage as possible in the shortest amount of time just because. Overpowered for most people’s needs and causes a hell of a lot of trouble when misused. A sledge hammer when a ball peen is more appropriate.

    Like or Dislike: Thumb up 4 Thumb down 2

  10. grumpy realist says:

    Maybe if we starting holding people responsible for the harm that their guns did….

    And maybe if we didn’t keep patting people on the head and saying “there, there, it was an accident” when the doofus leaves a loaded gun around and one of his kids picks it up and kills some other kid. Throw the idiot in jail for accidental manslaughter. Leaving a loaded gun around where someone else can pick it up should be considered criminal negligence.

    I’m for requiring insurance on guns, plus linking a gun to an individual. You own a gun, you’re responsible for any damage the gun does. Strict liability.

    Like or Dislike: Thumb up 12 Thumb down 2

  11. al-Ameda says:

    @JKB:

    But the best path is as happened in Colorado.

    Yes, it’s always a good thing when the gun cultists prevail.

    Like or Dislike: Thumb up 3 Thumb down 0

  12. Stonetools says:

    @KM:
    Unfortunately , in this society, a gun isn’t a tool. It’s a “man card”. It’s a mystical penis extender and symbol of manhood and freedom. That’s what’s going on . If it was seen as simply one of a class of dangerous weapons like dynamite or Samurai swords, no one would have a problem regulating it in logical fashion. But that’s not where we are in the US yet.

    Like or Dislike: Thumb up 7 Thumb down 4

  13. alanstorm says:

    @KM:

    “Exempting paranoia, why do you object to a database tracking your guns when you accept databases that track your money and your location? ” Assumes facts not in evidence. Why do you assume I do NOT object to being tracked this way?

    You are close with the mental health angle (the only commonality among mass shootings like Newtown) but the question becomes “Who makes that judgement, and what are the checks and balances?”

    “Another is high capacity currently in favor. What do you need the ability to fire dozens of rounds extremely quickly for? Even if you are in a fight for your life, are you saying spray and pray is a viable option?” “spray and pray” is never a viable option. Careful, aimed fire is what you need.

    Apparently, you get your firearms information from Hollywood. In the real world, one bullet can not be counted on to stop an attacker, and you can’t always guarantee hitting your target. Even if you HIT your target, with a fatal wound, he (or she) may keep going for quite a while.

    “In a break-in situation, you are not likely to be facing dozen of people – one or two is the norm.”

    And this can be counted on, how, exactly? Also, see response above. I hope it never happens tom me, but should an attack occur, I would rather have rounds left over than not having enough.

    “A gun is a tool, a very dangerous one. It should be treated with the gravitas and respect a potential deadly device should.” Finally! You got one right! And then you ruin it…” The current premise seems to be own a tool that has the ability to do as much damage as possible in the shortest amount of time just because.”

    No, the premise is to “own a tool that has the ability to do as much damage as possible in the shortest amount of time” because you might need that capability! I hope it never happens, but I would rather be prepared.

    Like or Dislike: Thumb up 3 Thumb down 3

  14. john personna says:

    @PD Shaw:

    This:

    But Plaintiffs later argue that the banned features increase the utility for self-defense — which is just another way of saying that the features increase their lethality.

    The assault rifle boosters have a contradiction on their hands.

    Like or Dislike: Thumb up 2 Thumb down 0

  15. C. Clavin says:

    Well at least Fla. has a well-regulated militia.
    http://m.dailycommercial.com/news/article_33003592-e094-5200-a3ec-867efe986cfa.html?mode=jqm

    Like or Dislike: Thumb up 2 Thumb down 0

  16. KM says:

    @alanstorm:

    Apparently, you get your firearms information from Hollywood. In the real world, one bullet can not be counted on to stop an attacker, and you can’t always guarantee hitting your target. Even if you HIT your target, with a fatal wound, he (or she) may keep going for quite a while.

    I must disagree. While true you may need more then one bullet to bring down an attacker, the Hollywood factor is to think you need 20+ to take a guy down. I’ve worked in a hospital before and have seen multiple GSW – it takes an exceptional and determined person to keep going after a few and even then you only have moments. If you can’t escape from someone that bullet-ridden, there’s something wrong with you. And really, that’s what this is about – escaping with your life, not killing the target.

    What I meant was – exactly how many people do you think will invade your house? Burglars general don’t do tag teams so how many individuals do you think the average homeowner will have to bring down? If you’re being robbed, its more likely a few people, not a crowd.

    Also, you brought up a point. You have to HIT THEM. If you don’t, the bullet still goes somewhere. That’s just science. Maybe the wall, maybe through the wall. Maybe through you if walking by the wall. Higher capacity=higher chance of random bullet going where it doesn’t belong. I believe in aiming and marksmanship; there is a reasonable amount of ammo you need to get the job done. If you need more, you’re either a shitty shot or in way over your head (in which case, more ammo may not be the answer after all).

    Again, I don’t begrudge people to have a decent amount of ammo. My point is, there comes a point when it stops being about being a decent shot and starts being about how many you can fire to make the target fall.

    Like or Dislike: Thumb up 4 Thumb down 0

  17. john personna says:

    @alanstorm:

    Apparently, you get your firearms information from Hollywood. In the real world, one bullet can not be counted on to stop an attacker, and you can’t always guarantee hitting your target. Even if you HIT your target, with a fatal wound, he (or she) may keep going for quite a while.

    One round of what? For what it’s worth, the US military explicitly shifted to low caliber, high velocity, rounds *knowing* that they had reduced stopping power at close range. They thought at the time that battles would be fought at 200+ yards, and that with even one .223 (etc.) in him, an enemy would not be likely to keep running. This allowed them to downsize, increasing the number of rounds a soldier could carry per unit weight. (It is optimum for the walking, self-supplied shooter, which is what makes it such a good spree-shooting choice.)

    Part of the weirdness of the “tactical” movement is that it does prefer a longer range round for home protection.

    Like or Dislike: Thumb up 3 Thumb down 0

  18. KM says:

    @alanstorm:

    No, the premise is to “own a tool that has the ability to do as much damage as possible in the shortest amount of time” because you might need that capability! I hope it never happens, but I would rather be prepared.

    Prepared for what, exactly?
    Why would you need “the ability to do as much damage as possible in the shortest amount of time”? You do what you need to get out of the situation, not go hog wild.
    What scenario do you envision that turns the average citizen into Rambo?

    Remember the end goal – escaping with your life, not killing the target. Killing the target might get you to that goal but ultimately the point is supposed to be you survive. Every self-dense class I’ve ever taken, every lesson my father, uncles and instructors have also told the same thing- the point is that you live, not to destroy the other guy. Granted, I work with blades, not guns but the principle is the same…

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  19. grumpy realist says:

    @alanstorm: The question is balancing your judgment of how much firepower you need “to be prepared” vs. the possibility that you’re a nut job who will take your high-firepower one day and start killing everyone in sight because “God said to kill these people.” Or that you happen to be someone with dangerous anger control issues who will whip out a pistol and kill someone simply because the person looked at him funny.

    Guns are to protect your body. Too bad too many people use them to protect their egos.

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  20. grumpy realist says:

    P.S. and if you’re a would-be hunter who thinks that something moving around in the bush is automatically a DEER and not a DOG or a COW or a HUMAN, please just avoid traveling out of NYC altogether. We have enough tragedies Upstate caused by you idiots.

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  21. legion says:

    @alanstorm:

    No, the premise is to “own a tool that has the ability to do as much damage as possible in the shortest amount of time” because you might need that capability!

    The simple fact that you can type that sentence unironically is de facto evidence that you are a terribly irresponsible gun owner.

    The fact that it is possible for the human mind to conceive of a situation where you are being attacked by a large group of people in such a way that it is impossible for you to reload – despite the fact that such home invasions simply don’t happen – does not give you the right to carry a squad support weapon everywhere you go. You are not in Afghanistan. You are not in Libya. Hell, even downtown Detroit doesn’t require that kind of “protection”. A perfectly ordinary pistol or shotgun will protect you & yours in any situation you are ever going to find yourself in outside of active military combat duty. If your ego needs more support than that, buy a Corvette.

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  22. Stonetools says:

    @KM:

    The reality is that for these guys, it’s less about self defense and more about macho notions of “firepower ” . Clearly, he doesn’t even think of stray bullets going elsewhere and killing innocent bystanders, because in his ( ironically Hollywood inspired) fantasies , stray bullets don’t kill bystanders. As for the likelihood of your home being invaded by a dozen people, there’s more likelihood of being hit by lightning and a bus at the same time, but let’s plan for the extremely unlikely eventuality, because GUNZ RULE…

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  23. john personna says:

    @Stonetools:

    I guess we can “suspect” motives, because we are not them … but I suspect that many have a reinforcing “preparedness” thing going on. We might even call it low grade paranoia.

    What’s worse is that it might be self-reinforcing. Once you have a gun you might need more ammunition. Once you have that you might start to think about the cases where you need a different gun, and so you get that one too, and more ammo. Then you realize that all those guns are at home and you are not, and so you apply for a carry permit. So you need a concealable gun and more ammunition …

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  24. Rick DeMent says:

    @alanstorm:

    You are close with the mental health angle (the only commonality among mass shootings like Newtown)

    Actually there is on more iron clad commonality, none of them were executed with the use of a fully automatic weapon, which as you may know are heavily regulated (to the point of being banned in all practicality).

    Home invasions are astonishingly rare. Even burglaries where the inhabitants are home are freakishly rare. Home invasions where the perpetrators seek to harm the inhabitants are pretty much a statistical anomaly. The idea that you would ever find yourself in a situation where you need anything more then a 5 round clip is so insignificant it’s like buying a parachute because you work on the 50th floor of a high rise and you are afraid of another 9/11 style terrorist attack.

    Statistically speaking you could visit downtown Detroit every moth of your life and never ever find yourself having to deal with a situation more threatening then a beggar asking for money (sums up my experience). Pistols in the hands of someone who does not actively train (2-3 times a week) to to confront an active shooter are mind mindbogglingly ineffective. To easy to be disarmed at close range, too inaccurate to hit anything at even medium range. The best you can hope for is that the perpetrator is unarmed and too skittish to engage anyone regardless if they are armed or not (which sums up most of the brave tails of people “defending” themselves with firearms). Your best bet for “home defense” is to not engage the perp at all, if you have to use a shotgun with a 5 round mag. But even then most people would be better advised to use a 34″ aluminum baseball bat.

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  25. PD Shaw says:

    @john personna: The judge also wrote:

    “There thus can be no serious dispute that the very features that increase a weapon’s utility for self-defense also increase its dangerousness to the public at large.”

    I would actually quibble: A more accurate gun may be more lethal to the intended target, but it would nonetheless be less lethal to bystanders or unintended targets. For example, a fully automatic weapon improves lethality, while reducing accuracy since its harder to discriminate targets. Also some improvements to a gun might be equalizers, features that provide better grip and ease of handling that benefit the regular civilian more than they would then an obsessive gun nut.

    I think KM’s proposed ban on large capacity magazine is reasonable, though won’t make much of a difference. A larger capacity makes the weapon more lethal without any obvious benefit to self defense outside of hypotheticals where a rocket launcher might be preferable.

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  26. HarvardLaw92 says:

    It doesn’t help that the people pushing these lawsuits invariably tend to be of the “the second amendment is a blanket grant that allows me to own whatever weapon I want, including an Uzi, & carry it wherever I want and whenever I want” mentality.

    They also have a healthy dose of “the government is coming to take away my guns” and “I need an arsenal in order to be prepared for the coming revolution”.

    I’ve strolled through their various websites on occasion, and I can attest that the above represents the norm for the folks pushing this litigation, not the exception. Frankly, they’re just this side of insane.

    It doesn’t take a genius to recognize why they keep losing, in court after court, pushing bad cases that just hamstring them further. It’s the archetype of poorly strategized, emotionally driven litigation.

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  27. john personna says:

    @PD Shaw:

    “There thus can be no serious dispute that the very features that increase a weapon’s utility for self-defense also increase its dangerousness to the public at large.”

    I think the sad part is that this is contingent on scenarios, and thus various levels of paranoia.

    If your vision is “a robber, late at night” probably all you need is to shout “I have a shotgun!”

    On the other hand, we start to hear from people who “prepare” for “three or four well-armed attackers.”

    I’ve been given that one in these OTB threads. I’ve asked “who the heck are you to be targeted thus,” only to be voted down by the contingent who thinks *everyone* should be prepared to fight off three or four well-armed attackers.

    The circular nature of the paranoia is obvious. Any gun you get, those three or four attackers might get too. Need more! Wash, rinse, repeat.

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  28. JKB says:

    @al-Ameda: Yes, it’s always a good thing when the gun cultists prevail.

    I’m so glad you agree. It is good for everyone when those who believe in an individuals right to keep and bear arms prevail. Where there is concealed carry, thuggish crime is down. Streets are safer and the only major danger spots are where the lawful carry of firearms is prohibited. Unfortunately, these latter locations include places children frequent so we have a lot of tragic shootings in these locations.

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  29. Stonetools says:

    @HarvardLaw92:

    Unfortunately, they are winning in Republican state legislatures, which allow these cretins to not only own high powered firearms and all the ammo they want, but also to carry them in public places.
    Some day in the future, generations are going to wonder why we allowed obvious paranoiacs to go around heavily armed in public places. Ah well.

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  30. JKB says:

    @Stonetools: It’s a “man card”.

    That must be why so many women are buying and carrying firearms. The loss of femininity in our society. These women need penis extenders? Or could it be brute strength equalizers.

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  31. john personna says:

    @JKB:

    And guns are still more likely to kill their owners (and family members).

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  32. KM says:

    @JKB:

    Or could it be brute strength equalizers.

    Speak for yourself – I’ve never needed a gun to win a fight. In fact, it’s shockingly easy to disarm a person – especially if they’re walking around with an inflated sense of victory due to a “brute strength equalizer”.

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  33. JKB says:

    @Rick DeMent: Pistols in the hands of someone who does not actively train (2-3 times a week) to to confront an active shooter are mind mindbogglingly ineffective.

    So you are saying the police are ineffective? And all but the most elite special forces in the military? Interesting. Police generally only qualify annually, although I’ve known one police chief who went years without having done his quals. And those are just point and shoot quals, pass/fail. SWAT teams train once a month.

    So you think a bat is more effective? How are you going to pull off the self-defense justification when you lie in wait? The firearm is to stop an attacker. If someone is in your house, you make your presence known then if they continue to approach or remain, you use the firearm to end the threat.

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  34. HarvardLaw92 says:

    @Stonetools:

    No argument, and that is unfortunate. I try to take the longer view, in that possibly the best tool we have for building a public consensus around the need for sensible nationwide policy (i.e. federal policy that preeempts the states) is that same bunch of paranoiacs walking around with their penis extensions amongst Sally Suburbanite.

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  35. JKB says:

    @KM:

    And if a rapist is lying on top of a woman trying to pull his pants down, she doesn’t need some mythical adrenaline rush. She needs to draw her weapon, and pull the trigger.

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  36. HarvardLaw92 says:

    @JKB:

    Where there is concealed carry, thuggish crime is down. Streets are safer and the only major danger spots are where the lawful carry of firearms is prohibited.

    This is somewhat of a post hoc, ergo propter hoc fantasy.

    NYC, for example, has what can only be termed draconian gun control laws, yet our murder rate is quite low, even in comparison to many rural areas.

    New Orleans, just as an example, has very lax gun control laws, yet it has a very high crime rate.

    You can’t factor poverty out of the causalities of crime, nor can you enshrine guns as the only factor which have an effect on lowering it. Trying to do so is both self-serving and grossly simplistic.

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  37. KM says:

    @JKB:

    And if a rapist is lying on top of a woman trying to pull his pants down, she doesn’t need some mythical adrenaline rush. She needs to draw her weapon, and pull the trigger.

    And get to the gun how moron? If you’re pinned like that, you’re not going to get to your purse or your hip (unless you’re suggesting women tend to wear shoulder holsters). If you’re on the ground, your options are limited. What you can do however, is headbutt the SOB or a bunch of dirty tricks to get away.

    Please don’t try to tell a woman who’s been there on how to do this. As I’ve said, I’ve never needed a gun to win a fight. Have you ever attended a women’s self-defense class or are you talking out your ass?

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  38. HarvardLaw92 says:

    @JKB:

    No. The odds in that scenario overwhelmingly favor that gun being taken away from her and used against her.

    What she needs to do is what we train women to do in self-defense classes – gouge out his eyes with your fingers, scream fire at the top of your lungs, and target his groin with whatever you can bring into forceful contact with it.

    Your scenario probably ends up with her being dead. The latter one results in her getting away.

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  39. PD Shaw says:

    @john personna: The “paranoia” comes from the approach taken by gun regulators. The concept of “assault weapons” was created to confuse the public into believing the weapons were “high-powered” or fully automatic.

    In a September 1988 report on “assault weapons” that he prepared for the Education Fund to End Handgun Violence, gun control advocate Josh Sugarmann candidly observed: “The weapons’ menacing looks, coupled with the public’s confusion over fully automatic machine guns versus semi-automatic assault weapons—anything that looks like a machine gun is assumed to be a machine gun—can only increase the chance of public support for restrictions on these weapons. In addition, few people can envision a practical use for these guns.”

    Gun rights advocates, like abortion rights advocates, have figured out their opponents simply want fewer guns/abortions and will use any pretext, real or imagined, to impose restrictions. In both cases the courts will decide the policies now, and it will be the government’s burden to prove its restrictions will reduce unwanted fatalities/injuries without jeopardizing the right of self defense.

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  40. john personna says:

    @PD Shaw:

    I think you would have done better to address scenarios of defense, rather than to retreat to rhetoric.

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  41. PD Shaw says:

    @john personna: Scenarios of defense are irrelevant in the topic of the post. FWIW, the only time I was attacked was by 3 or 4 men who jumped me from behind, and beat and kicked me in the face until I was unconscious. The small group of attacker scenario is quite common.

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  42. grumpy realist says:

    @PD Shaw: Am I more in danger from a thug with a gun or a gun-happy paranoic freaking out if he doesn’t have his penile extension with him at all times?

    For self-defense you’re probably better off with good kung-fu training and a large Doberman.

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  43. john personna says:

    @PD Shaw:

    How can self-defense needs be irrelevant to self-defense requirements?

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  44. PD Shaw says:

    @john personna: People in this country get to choose how to defend themselves. Society doesn’t get to decide for them. Its a Constitutional right now, just like abortion. Its not a relevant line of inquiry to say that the woman who was raped should have taken a self-defense class, or stayed away from dark alleys, or carried protection.

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  45. john personna says:

    @PD Shaw:

    I’m not sure how that applies to this question. The National Firearms Act of 1938 established that the Federal government could distinguish between types of guns for private ownership. This ruling says states may distinguish as well.

    Going to the well, the Constitution, changes that how?

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  46. john personna says:

    (We have the California laws as precedent as well.)

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  47. al-Ameda says:

    @JKB:

    Streets are safer and the only major danger spots are where the lawful carry of firearms is prohibited. Unfortunately, these latter locations include places children frequent so we have a lot of tragic shootings in these locations.

    Why would I feel safer your typical average person with poor judgment is carrying guns around in public places: e.g. libraries, court rooms, colleges, parks, buses, subways, city halls, and so forth?

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  48. stonetools says:

    @PD Shaw:

    The concept of “assault weapons” was created to confuse the public into believing the weapons were “high-powered” or fully automatic.

    No. The name “assault weapon” was created back in 1980 by gun manufacturers who were anxious to sell these military style weapons to “Soldier of Fortune” wannabees who wanted a “badass” looking gun.

    LINK:

    Conservatives in media have adopted the false National Rifle Association claim that the term “assault weapon” was invented by proponents of assault weapons bans in order to arbitrarily single out certain firearms for further regulation. However, before the gun industry trade association attempted to rebrand assault weapons as “modern sporting rifles” in 2009 — a change in terminology also adopted by the NRA — the gun industry and firearm publications routinely used the term assault weapon to describe the very military-style semi-automatic rifles that would be covered by Sen. Dianne Feinstein’s assault weapons ban….1980s: Semi-automatic assault weapons become widely available on the civilian market. According to the Violence Policy Center, gun manufacturers began to heavily market these weapons to make up for declining handgun sales.

    1982: Guns & Ammo magazine publishes a guide to semi-automatic assault weapons simply titled, Assault Rifles.

    Also LINK:

    The 1980s Explosion. Assault weapons quickly became hot items on the civilian market
    in the 1980s for a variety of reasons. For manufacturers, assault weapons helped
    counter the mid-1980s decline in handgun sales. Criminals—especially drug
    traffickers—were drawn to assault weapons’ massive firepower, useful for fighting
    police and especially competing traffickers. Survivalists—who envisioned themselves
    fending off a horde of desperate neighbors from within their bomb shelters—loved the
    combat features of high ammunition capacity and anti-personnel striking power of
    assault weapons. Right-wing paramilitary extremists, in their ongoing battle against the
    “Zionist Occupational Government,” made these easily purchased firearms their gun of
    choice. And for gun enthusiast fans of popular entertainment—Rambo and Miami
    Vice—semiautomatic assault weapons offered the look and feel of the “real thing.”

    Don’t like term “assault weapon?” Blame it on gun manufacturer advertising.

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  49. stonetools says:

    @john personna:

    In the eyes of gun cultists, a constitutional right is an unlimited right. Nonsensical I know, but there you go. The interesting thing is that Scalia seemingly wanted to limit the right to handguns and to exclude precisely those types of weapons that the gun lobby folks want to be able own and carry around in public-hence his weasel words about “uncommon and dangerous weapons”. I’m not sure if post Newton and other massacres, the USSC wants to give the cultists the unlimited right they’re claiming.

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  50. Rick DeMent says:

    @JKB:

    Police are actually pretty bad at hitting their target. I used to change targets for them at the local shooting range (for their competitions so these where actually the better shots). I knew a lot of those cops that had never pulled their gun in the line of duty, a lot more only once or twice. The difference is that they are drilled in protocols that insure they won’t ever have to use their guns in the first place. The vast majority of the times they draw their weapon is to hold a suspect. Look on-line at account of police shootouts and you will find that a lot of shots are fired ion order to get one hit. Yes they are better shots then most and thats the point. If the success rate of trained offers is marginal then just think about how lousy you will be when you try and man up and stare down a crook with you gun. If your lucky the crook will be shi**ing his pants as much as you are, if not, well we won’t be seeing you around here any more.

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  51. Rafer Janders says:

    @PD Shaw:

    People in this country get to choose how to defend themselves. Society doesn’t get to decide for them.

    People in this country live in society, so yes, society does get to decide for them. Even the vaunted 2nd Amendment is society deciding in the form of a constitutional amendment, legislation, and judicial decisions thereof.

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  52. Rafer Janders says:

    @PD Shaw:

    Its a Constitutional right now, just like abortion.

    Yes, I remember that case last year where a woman aborted 20 six-year old children and three adults in five minutes.

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  53. anjin-san says:

    @ PD Shaw

    People in this country get to choose how to defend themselves. Society doesn’t get to decide for them.

    Really? So I can get a Thompson machine gun to defend myself? And a bazooka? Cool!

    Thinking before you speak is a sound policy.

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