October 22, 2015

DAVE KOPEL: 2nd Circuit upholds N.Y. and Conn. arms bans; contradicts Heller and McDonald.

On Monday the U.S. Court of Appeals for the 2nd Circuit upheld most of the 2013 arms prohibition laws enacted in New York and Connecticut. The circuit issued a joint opinion in two related cases, New York State Rifle & Pistol Assoc. v. Cuomo, and Connecticut Citizens’ Defense League v. Malloy. The decision was written by Judge José Cabranes, who was appointed a federal district judge by President Carter and elevated to the 2nd Circuit by President Clinton. The opinion was joined by Judges Raymond Lohier (a President Obama appointee) and Christopher Droney (appointed to the district bench by Clinton and to the 2nd Circuit by Obama). . . .

The 2nd Circuit decision exemplifies the pattern in many lower federal courts of defying the Supreme Court’s admonition in McDonald v. Chicago 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.” The approach of some lower courts seems to be that Heller stands for little beyond its holding that handgun bans are unconstitutional. In Heller, the court chastised lower courts for having “overread” the court’s 1939 decision in United States v. Miller; the Miller court had upheld the federal tax and registration system for sawed-off shotguns, but many lower courts asserted that Miller had ruled that the Second Amendment is a “collective right” that no individual can assert. Among the lower courts which, according to Heller, placed “erroneous reliance” on an incorrect interpretation of Miller, was the 2nd Circuit, in United States v. Scanio, No. 97–1584, 1998 WL 802060 (2d Cir., 1998).

Today, the trend is opposite, with some courts, including the 2nd Circuit, straining to under-read Heller. It seems that Heller is not a well-liked opinion among some federal judges, and, for some of them, barely a controlling opinion.

This is an unfortunate area for judicial lawlessness; it will not go unnoted, and it will undermine the position of the courts.

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