In the opening scene of what is bound to be a protracted fight between gun owners in Connecticut and that state’s government, a district court ruled on Friday in favor of the state. Plaintiffs had claimed that Connecticut’s ban on certain so-called “assault weapons” and its limit on the size of magazines were unconstitutional under Heller. The judge disagreed. Predictable all round.
What was interesting, however, was not the loss, but its manner. Per the Hartford Courant:
“The court concludes that the legislation is constitutional,” senior U.S. District Judge Alfred V. Covello wrote in a decision published late Thursday. “While the act burdens the plaintiffs’ Second Amendment rights, it is substantially related to the important governmental interest of public safety and crime control.”
This is a standard that we have come, sadly, to expect — a standard by which the Second Amendment is treated in a manner that, say, the First never would be. Nevertheless, one of the judge’s concessions was notable:
Covello, agreeing with the plaintiffs, concluded that the weapons and magazines are commonly owned and legally used in Connecticut and elsewhere. But he parted company with the plaintiffs when he wrote that the state’s ownership and sales ban is justified when the government’s goal of reducing violence is measured against the ban’s impingement on Second Amendment rights.
In other words, the judge conceded the plaintiff’s claim that, per Heller, the private ownership of firearms that are “in common use” is protected by the Constitution, and that the firearms in question are “in common use”:
The Connecticut legislation here bans firearms in common use. Millions of Americans possess the firearms banned by this act for hunting and target shooting. See Heller II, 670 F.3d 1244, 126140(finding “[a]pproximately 1.6 million AR–15s alone have been manufactured since 1986, and in 2007 this one popular model accounted for 5.5 percent of all firearms, and 14.4 percent of all rifles, produced in the U.S. for the domestic market”).
The court concludes that the firearms and magazines at issue are “in common use” within the meaning of Heller and, presumably, used for lawful purposes. The legislation here bans the purchase, sale, and possession of assault weapons and LCMs, subject to certain exceptions, which the court concludes more than minimally affect the plaintiffs’ ability to acquire and use the firearms, and therefore levies a substantial burden on the plaintiffs’ Second Amendment rights.
And yet, despite this, he ruled against them anyway, contending that the state was justified in its action because it had a legitimate interest in protecting the citizenry from violence and explaining that the plaintiffs had failed in their attempt to convince him that the restrictions should be subjected to a higher level of scrutiny than should the government’s interest in attempting to preserve public safety. Given the weakness of the state’s case, this was a peculiar thing to do: to acknowledge the right and then to ignore it, especially on such flimsy grounds. Indeed, as Kurt Hoffman observed on Examiner.com:
Covello is evidently asking us to believe that a ban on firearms used in less than two percent of “gun crimes,” according to the Congressional Research Service will do what ten years of federal “assault weapons ” banning singularly failed to do.
The judge also offered the peculiar argument that, because there are other types of firearms available, the Second Amendment hasn’t been undermined, writing that Connecticut’s new law “does not effectively disarm individuals or substantially affect their ability to defend themselves.” Indeed it does not. But it would be nice to hear the judge explain where that line of reasoning ends. Are we, for example, to presume that all firearms could be legitimately banned providing that one could still buy a single-shot duelling pistol and keep it at home? One rather suspects not.
Disappointing, but by no means the end of the challenge.