Dave Kopel: 2nd Circuit Defied SCOTUS to Uphold ‘Assault Weapon’ Bans

federal-appeals-court-upholds assault weapon ban Jessica Hill AP
Jessica Hill/AP

On October 21 Independence Institute’s Dave Kopel explained that the U.S. Court of Appeals for the 2nd Circuit defied the Supreme Court of the United States (SCOTUS) in handing down a verdict upholding “assault weapons” bans in New York and Connecticut.

The verdict was contained in a joint opinion regarding New York State Rifle & Pistol Assoc. v. Cuomo, and Connecticut Citizens’ Defense League v. Malloy. It was handed down on October 19.

Writing in The Washington Post, Kopel explained that the 2nd Circuit’s ruling is fashioned in such a way as to defy the SCOTUS ruling in McDonald v Chicago (2010) and District of Columbia v. Heller (2008).  The 2nd Circuit did this by minimizing the scope of the rulings–divorcing the letter of both rulings from the spirit of the same, thereby accepting bans of weapons other than those explicitly in focus in McDonald or Heller.

Thus, whereas Heller addressed handguns, citing them as “the most popular weapon chosen by Americans for self-defense in the home” and invalidating any “complete prohibition of their use,” the 2nd Circuit hurdled that ruling by explaining that the bans in New York and Connecticut are not centered on handguns but “assault rifles.”

The 2nd Circuit did this by citing “assault weapons” as more accurate and “easier to use for ‘deadly’ purposes,” which means they “are exactly the guns that may be banned.”

Kopel opined: “By the 2nd Circuit’s reasoning, inferior guns that are less accurate, less comfortable to use and less useful supposedly enjoy greater constitutional protection.”

What this does is segregate Second Amendment rights from other rights protected by the Constitution–and it does this by dividing Second Amendment protections into classes based on whether guns are superior or inferior. It then affords protections to those considered inferior–handguns in this case–while rationalizing a complete ban on the weapons of higher classes.

This type of piece-meal approach to intrepreting the SCOTUS rulings clearly runs against McDonald, which made clear that the Second Amendment “[is not] a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.”

Follow AWR Hawkins on Twitter: @AWRHawkins. Reach him directly at awrhawkins@breitbart.com.


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