District Judge: Common Rifles, Pistols, Shotguns, Magazines of over 10 Rounds not Protected by the Second Amendment

On August 3, 2023, Judge Janet Bond Arterton of the United States District Court for the District of Connecticut ruled on whether the recent Connecticut law banning the possession of common semi-automatic rifles and pistols under the appellation of "assault weapons" and of standard capacity magazines which hold more than 10 rounds. Judge Arterton ruled the law is not prohibited by the Second Amendment.  She does not see it as an infringement, because, she claims, "assault weapons" and magazines over 10 rounds are not arms protected by the Second Amendment. Magazines which hold more than 10 rounds are referred to as large capacity magazines or "LCM"s by the court.  From NAGR v. Lamont:

For the reasons discussed below, the Court denies Plaintiffs’ motion for a preliminary injunction because they have failed to meet their burden to demonstrate a likelihood of success on their claim that the challenged statutes unconstitutionally burden their Second Amendment right to keep and bear arms. Plaintiffs’ proposed ownership of assault weapons and LCMs is not protected by the Second Amendment because they have not demonstrated that the specific assault weapons and LCMs in the Challenged Statutes are commonly sought out, purchased, and used for self-defense. Although this failure alone would have been fatal to Plaintiffs’ claim, Defendants have submitted persuasive evidence that assault weapons and LCMs are more often sought out for their militaristic characteristics than for self-defense, that these characteristics make the weapons disproportionately dangerous to the public based on their increased capacity for lethality, and that assault weapons and LCMs are more often used in crimes and mass shootings than in self-defense.

Judge Arterton uses this claim to place the burden of proof on those in opposition to the firearms ban.  Her argument rests on two interpretations of Heller, McDonald and Bruen, and a dismissal of Caetano as irrelevant. Heller sets up the standard: Protected arms are those which are in common use for lawful purposes.  From Judge Arterton, page 18:

Heller characterized Miller as standing for the proposition that the Second Amendment “extends only to certain types of weapons,” id. at 622-23; weapons “used in defense of person and home” are constitutionally protected, but “weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barred shotguns,” are not. Id. at 624-25. The historical tradition of “prohibiting the carrying of ‘dangerous and unusual weapons’” as discussed in 18th and 19th century treatises, Heller held, supported Miller’s restriction on the scope of the Second Amendment, which Heller described as an “important limitation on the right.” Id. at 627.5

Heller did not put more limitations on the right to keep and bear arms than in Miller. Instead, Heller showed the arms protected were all arms in common use for lawful purposes, not just those arms which were useful in the military.

Judge Arterton lays out the Connecticut government's explanation of what "common use for lawful purposes" means. They claim the test was changed by the Bruen decision to mean commonly used and documented as used for self defense, not for other lawful purposes.  They claim the documented uses for self defense must be more common than criminal uses. From page 27:

 Broadly, Defendants view the three different phrases as ultimately getting at whether the firearms at issue are suitable and used for self-defense, or for some other purpose—lawful or unlawful—unprotected by the Second Amendment. Defendants maintain that after Bruen, Plaintiffs must show not only that the weapons and accoutrements are commonly owned, but that they are commonly possessed and used for self-defense based on Bruen’s repeated use of the phrase “‘common use’ for self-defense.”

Judge Arterton agrees with the Connecticut government interpretation of "common use". From page 35:

Thus, the Court finds that the purpose of the “dangerous and unusual” exception to the Second Amendment is to determine whether the firearm’s character is such that it is commonly used and typically possessed for self-defense, or instead for the purpose of causing unlawful or excessive harm or fatalities. This interpretation of the test is also consistent with the interplay between common use, typical possession, and dangerous and unusual; a weapon must be both possessed for the purpose of and actually used for self-defense in order to fall within the Second Amendment’s protection, meaning that if it is either unusual for it to be possessed for self-defense or if it is used in a way that makes it particularly dangerous, the weapon does not fall within the Second Amendment’s purview.

(snip)

To prevail on this question, Plaintiffs must show that carrying both a firearm defined as an “assault weapon” and that possessing and using an LCM in conjunction with an assault weapon are part of keeping and bearing arms. If Plaintiffs establish each of those elements, the burden shifts to Defendants to justify their regulation based on Bruen’s requirements for establishing relevant similarity to history and tradition.

On page 40, the judge concludes "LCMs" are arms as defined in Bruen and Heller, but then claims they are not protected because they are not "commonly used in self defense"!

The Court concludes that LCMs are “arms” for purposes of the Second Amendment as defined in Bruen and Heller. Plaintiffs have met their burden in this part of the analysis

P 44:

In the absence of persuasive evidence that the assault weapons or LCMs listed in the statutes are commonly used or are particularly suitable for self-defense, Plaintiffs have failed to carry their burden.

The plaintiffs provided surveys which showed a large number of owners of "assault weapons" and "LCM"s purchased them specifically for self defense. She rejected those surveys as "subjective".

Judge Arterton shows her aversion to the Second Amendment on page 50. She claims if a weapon is dangerous, and comes into common use, then it still would not be protected by the Second Amendment. From page 50:

“if the legislatures of the American people decided to deregulate a particular weapon and over the centuries that weapon became owned by tens of millions of people, it would not be dangerous and unusual[.]” (Id. at 21.) The Court rejects this logic;

Judge Arterton is on shaky ground when she she quotes the Heller decision on the relevance of the Miller decision. She writes, on page 52:

In sum, the fact that a modern American citizen might want to possess a military-grade weapon that would be effective in warfare is irrelevant given Heller’s acknowledgment that “modern developments have limited the degree of fit between the prefatory clause and the protected right” in the Second Amendment; whether a weapon would be useful or necessary for an effective militia is a concern now “completely detached” from the actual right itself. Heller, 554 U.S. at 627.

Consider the actual passage in Heller. The meaning is significantly different than Judge Arterton's description: From Heller:

It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment ’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.

Here is what Judge Benitez wrote. From Judge Benitez decision in the Ninth Circuit:

Like the Swiss Army Knife, the popular AR-15 rifle is a perfect combination of home defense weapon and homeland defense equipment. Good for both home and battle, the AR-15 is the kind of versatile gun that lies at the intersection of the kinds of firearms protected under District of Columbia v. Heller, 554 U.S. 570 (2008) and United States v Miller, 307 U.S. 174 (1939). Yet, the State of California makes it a crime to have an AR-15 type rifle. Therefore, this Court declares the California statutes to be unconstitutional.

Here is a quote from a recent decision in the Ninth Circuit.  From article on Ninth Circuit decision on "butterfly knives"":

In opposition, Hawaii cites some conclusory statements in the legislative history claiming that butterfly knives are associated with criminals. We give little weight to these statements. Common sense tells us that all portable arms are associated with criminals to some extent, and the cited conclusory statements simply provide no basis for concluding that these instruments are not commonly owned for lawful purposes. Aside from these conclusory legislative statements, Hawaii has submitted no evidence that butterfly knives are not typically possessed by law-abiding citizens for self-defense.

Judge Arterton reverses the burden of proof. She asserts the plaintiffs must prove arms are commonly actively used (not just possessed!) for self defense.  She finds semi-automatic firearms and "LCM"s can be banned because of the rise in "mass shootings". From page 64:

Plaintiffs contend that concealed weapon regulations are not analogous because they prohibit a method of carry, not a type of weapon, and that Heller found them non-analogous to D.C.’s ban on “commonly held arms.” (Pls.’ Reply at 13.) However, Heller and Bruen were not considering a modern and unprecedented societal problem, which warrants a more nuanced analysis;

Near the end of the opinion, Judge Arterton sums up her view of what the Second Amendment restricts. From page 66:

As for the level of burden imposed, Heller did not foreclose any kind of restriction on the types of firearms that can be possessed and carried, or even restrictions on firearms that are commonly owned by lawful citizens—only a ban on firearms that are so pervasively used for self-defense that to ban them would “infringe,” or destroy, the right to self-defense.54

Analysis:

Judge Arterton concludes "assault weapons" are used disproportionately in "mass shootings".  "Mass shootings" are a tiny, almost insignificant subset of criminal use. Criminals disproportionately prefer handguns for crime. Handguns are used more in "mass shootings" than rifles are. By this logic, you can keep putting crime into smaller and smaller boxes, until you find a box where certain arms are used, in preference, by criminals, then ban those arms.

The judge does not seem to understand the difference between "infringe" and "destroy". She treats them as synonyms .  They are not synonyms. From the Cambridge dictionary, "infringe":

to act in a way that is against a law or that limits someone’s rights or freedom:

Infringing on a right is as simple as limiting it at the edges, not destroying it.

Judge Arterton seems to be channeling the desires of those who wish to render the Second Amendment a dead letter. Her court is in the Second Circuit Court of Appeals. The Second Circuit has been hostile to a meaningful Second Amendment. This means the Connecticut case may be processed in the Second Circuit for months or years before it is decided. It seems likely other decisions from the Supreme Court, on bans of common magazines, rifles, pistols, and shotguns will be decided before the Connecticut case.

©2023 by Dean Weingarten: Permission to share is granted when this notice and link are included.

Gun Watch