New York State Rifle & Pistol Ass’n v. Cuomo, No. 14-36 (2d Cir. 2015)
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These two appeals challenge gun-control legislation prohibiting the possession of certain semiautomatic “assault weapons” and large‐capacity magazines. The district courts granted summary judgment in favor of defendants. The court held that the core provisions of the New York and Connecticut laws prohibiting possession of semiautomatic assault weapons and large‐capacity magazines do not violate the Second Amendment, and that the challenged individual provisions are not void for vagueness; the particular provision of New York’s law regulating load limits, however, does not survive the requisite scrutiny; and Connecticut’s prohibition on the non‐semiautomatic Remington 7615 unconstitutionally infringes upon the Second Amendment right. Accordingly, the court affirmed in part the judgment of the district court insofar as it upheld the prohibition of semiautomatic assault weapons and large-capacity magazines; reversed in part its holding with respect to the Remington 7615; reversed in part certain vagueness holdings; and otherwise affirmed the judgment insofar as it upheld the prohibition of semiautomatic assault weapons and large-capacity magazines and invalidated the load limit.
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14 36 cv(L); 14 319 cv New York State Rifle & Pistol Ass’n, Inc., et al. v. Cuomo, et al. Connecticut Citizens’ Defense League, et al. v. Malloy, et al. 1 In the 2 United States Court of Appeals 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 for the Second Circuit AUGUST TERM 2014 Nos. 14 36 cv (Lead); 14 37 cv (XAP) NEW YORK STATE RIFLE AND PISTOL ASSOCIATION, INC., WESTCHESTER COUNTY FIREARMS OWNERS ASSOCIATION, INC., SPORTSMEN’S ASSOCIATION FOR FIREARMS EDUCATION, INC., NEW YORK STATE AMATEUR TRAPSHOOTING ASSOCIATION, INC., BEDELL CUSTOM, BEIKIRCH AMMUNITION CORPORATION, BLUELINE TACTICAL & POLICE SUPPLY, LLC, BATAVIA MARINE & SPORTING SUPPLY, WILLIAM NOJAY, THOMAS GALVIN, ROGER HORVATH, Plaintiffs Appellants Cross Appellees, v. ANDREW M. CUOMO, in his official capacity as Governor of the State of New York, ERIC T. SCHNEIDERMAN, in his official capacity as Attorney General of the State of New York, JOSEPH A. D’AMICO, in his official capacity as Superintendent of the New York State Police, Defendants Appellees Cross Appellants, 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 GERALD J. GILL, in his official capacity as Chief of Police for the Town of Lancaster, New York, LAWRENCE FRIEDMAN, Defendants Appellees, FRANK A. SEDITA, III, in his official capacity as District Attorney for Erie County, Defendant. On Appeal from the United States District Court for the Western District of New York No. 14 319 cv THE CONNECTICUT CITIZENS’ DEFENSE LEAGUE, THE COALITION OF CONNECTICUT SPORTSMEN, JUNE SHEW, RABBI MITCHELL ROCKLIN, STEPHANIE CYPHER, PETER OWENS, BRIAN MCCLAIN, ANDREW MUELLER, HILLER SPORTS, LLC, MD SHOOTING SPORTS, LLC, Plaintiffs Appellants, v. DANNEL P. MALLOY, in his official capacity as Governor of the State of Connecticut, KEVIN T. KANE, in his official capacity as Chief State’s Attorney of the State of Connecticut, DORA B. SCHRIRO, in her official capacity as Commissioner of the Connecticut Department of Emergency Services and Public Protection, DAVID I. COHEN, in his official capacity as State’s Attorney for the Stamford/Norwalk Judicial District, Geographical Areas Nos. 1 and 20, JOHN C. SMRIGA, 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 in his official capacity as State’s Attorney for the Fairfield Judicial District, Geographical Area No. 2, MAUREEN PLATT, in her official capacity as State’s Attorney for the Waterbury Judicial District, Geographical Area No. 4, KEVIN D. LAWLOR, in his official capacity as State’s Attorney for the Ansonia/Milford Judicial District, Geographical Areas Nos. 5 and 22, MICHAEL DEARINGTON, in his official capacity as State’s Attorney for the New Haven Judicial District, Geographical Area Nos. 7 and 23, PETER A. MCSHANE, in his official capacity as State’s Attorney for the Middlesex Judicial District, Geographical Area No. 9, MICHAEL L. REGAN, in his official capacity as State’s Attorney for the New London Judicial District, Geographical Area Nos. 10 and 21, PATRICIA M. FROEHLICH, GAIL P. HARDY, in her official capacity as State’s Attorney for the Hartford Judicial District, Geographical Areas Nos. 12, 13, and 14, BRIAN PRELESKI, in his official capacity as State’s Attorney for the New Britain Judicial District, Geographical Area Nos. 15 and 17, DAVID SHEPACK, in his official capacity as State’s Attorney for the Litchfield Judicial District, Geographical Area No. 18, MATTHEW C. GEDANSKY, in his official capacity as State’s Attorney for the Tolland Judicial District, Geographical Area No. 19, STEPHEN J. SEDENSKY III, in his official capacity as State’s Attorney for the Danbury Judicial District, Geographical Area No. 3, Defendants Appellees. On Appeal from the United States District Court for the District of Connecticut ARGUED: DECEMBER 9, 2014 DECIDED: OCTOBER 19, 2015 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 Before: CABRANES, LOHIER, and DRONEY, Circuit Judges. Before the Court are two appeals challenging gun control legislation enacted by the New York and Connecticut legislatures in the wake of the 2012 mass murders at Sandy Hook Elementary School in Newtown, Connecticut. The New York and Connecticut laws at issue prohibit the possession of certain semiautomatic “assault weapons” and large capacity magazines. Following the entry of summary judgment in favor of defendants on the central claims in both the Western District of New York (William M. Skretny, Chief Judge) and the District of Connecticut (Alfred V. Covello, Judge), plaintiffs in both suits now press two arguments on appeal. First, they challenge the constitutionality of the statutes under the Second Amendment; and second, they challenge certain provisions of the statutes as unconstitutionally vague. Defendants in the New York action also cross appeal the District Court’s invalidation of New York’s seven round load limit and voiding of two statutory provisions as facially unconstitutionally vague. 20 21 22 23 24 25 26 27 28 29 30 31 32 We hold that the core provisions of the New York and Connecticut laws prohibiting possession of semiautomatic assault weapons and large capacity magazines do not violate the Second Amendment, and that the challenged individual provisions are not void for vagueness. The particular provision of New York’s law regulating load limits, however, does not survive the requisite scrutiny. One further specific provision—Connecticut’s prohibition on the non semiautomatic Remington 7615—unconstitutionally infringes upon the Second Amendment right. Accordingly, we AFFIRM in part the judgment of the District Court for the District of Connecticut insofar as it upheld the prohibition of semiautomatic assault weapons and large capacity magazines, and REVERSE in part its holding with respect to the Remington 7615. With respect to 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 the judgment of the District Court for the Western District of New York, we REVERSE in part certain vagueness holdings, and we otherwise AFFIRM that judgment insofar as it upheld the prohibition of semiautomatic assault weapons and large capacity magazines and invalidated the load limit. DAVID THOMPSON, Charles J. Cooper, Peter A. Patterson, Cooper & Kirk, PLLC, Washington DC, AND Brian T. Stapleton, Matthew S. Lerner, Goldberg Segalla LLP, White Plains, NY, Stephen P. Halbrook, Fairfax, VA, for Plaintiffs Appellants. BARBARA D. UNDERWOOD, Solicitor General of the State of New York (Anisha S. Dasgupta, Claude S. Platton, Office of the Solicitor General, on the brief), for Eric T. Schneiderman, Attorney General for the State of New York, New York, NY, for Defendants Appellees Cross Appellants Andrew M. Cuomo, et al. MAURA B. MURPHY OSBORNE, Assistant Attorney General of the State of Connecticut (Perry Zinn Rowthorn, Michael K. Skold, Gregory T. D’Auria, Office of the Attorney General, on the brief), for George Jepsen, Attorney General of the State of Connecticut, Hartford, CT, for Defendants Appellees Dannel P. Malloy, et al. 5 1 2 3 JOSÉ A. CABRANES, Circuit Judge: Before the Court are two appeals challenging gun control 4 legislation enacted by the New York and Connecticut legislatures in 5 the wake of the 2012 mass murders at Sandy Hook Elementary 6 School in Newtown, Connecticut. The New York and Connecticut 7 laws at issue prohibit the possession of certain semiautomatic 8 “assault weapons” and large capacity magazines. Following the 9 entry of summary judgment in favor of defendants on the central 10 claims in both the Western District of New York (William M. 11 Skretny, Chief Judge) and the District of Connecticut (Alfred V. 12 Covello, Judge), plaintiffs in both suits now press two arguments on 13 appeal. First, they challenge the constitutionality of the statutes 14 under the Second Amendment; and second, they challenge certain 15 provisions of the statutes as unconstitutionally vague. Defendants in 16 the New York action also cross appeal the District Court’s 17 invalidation of New York’s separate seven round load limit and 18 voiding of two statutory provisions as facially unconstitutionally 19 vague. 20 We hold that the core provisions of the New York and 21 Connecticut laws prohibiting possession of semiautomatic assault 22 weapons and large capacity magazines do not violate the Second 23 Amendment, and that the challenged individual provisions are not 24 void for vagueness. The particular provision of New York’s law 25 regulating load limits, however, does not survive the requisite 26 scrutiny. One further specific provision—Connecticut’s prohibition 27 on the non semiautomatic Remington 7615—unconstitutionally 6 1 infringes upon the Second Amendment right. Accordingly, we 2 AFFIRM in part the judgment of the District Court for the District of 3 Connecticut insofar as it upheld the prohibition of semiautomatic 4 assault weapons and large capacity magazines, and REVERSE in 5 part its holding with respect to the Remington. With respect to the 6 judgment of the District Court for the Western District of New York, 7 we REVERSE in part certain vagueness holdings, and we otherwise 8 AFFIRM that judgment insofar as it upheld the prohibition of 9 semiautomatic assault weapons and large capacity magazines and 10 invalidated the load limit. 11 12 BACKGROUND I. Prior “Assault Weapon” Legislation 13 New York and Connecticut have long restricted possession of 14 certain automatic and semiautomatic firearms that came to be 15 known as “assault weapons.” In 1993, Connecticut’s General 16 Assembly adopted the state’s first assault weapon ban, which 17 criminalized the possession of firearms “capable of fully automatic, 18 semiautomatic or burst fire at the option of the user,” including 67 19 specifically enumerated semiautomatic firearms.1 20 The following year, after five years of hearings on the harms 21 thought to be caused by certain firearms, the U.S. Congress enacted 22 legislation restricting the manufacture, transfer, and possession of 1993 Conn. Pub. Acts 93 306, § 1(a) (J.A., No. 14 319 cv, at 943). 1 7 1 certain “semiautomatic assault weapons.”2 The 1994 federal statute 2 defined “semiautomatic assault weapons” in two ways. First, it 3 catalogued 18 specifically prohibited firearms, including, as relevant 4 here, the Colt AR 15. Second, it introduced a “two feature test,” 5 which prohibited any semiautomatic firearm that contained at least 6 two listed military style features, including a telescoping stock, a 7 conspicuously protruding pistol grip, a bayonet mount, a flash 8 suppressor, and a grenade launcher. The federal statute also 9 prohibited magazines with a capacity of more than ten rounds of 10 ammunition, or which could be “readily restored or converted to 11 accept” more than 10 rounds.3 The federal assault weapons ban 12 expired in 2004, pursuant to its sunset provision.4 13 Following the passage of the federal assault weapons ban, 14 both New York, in 2000, and Connecticut, in 2001, enacted 15 legislation that closely mirrored the federal statute, including the 16 two feature test for prohibited semiautomatic firearms.5 Unlike the 17 federal statute, however, these state laws contained no sunset Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103 322, tit. XI, subtit. A § 110102(b), 108 Stat. 1796, 1997. 2 Id. § 110103. 3 Id. § 110105. 4 See Act of Aug. 8, 2000, ch. 189, § 10, 2000 N.Y. Laws 2788, 2792 (J.A., No. 14 36 cv, at 923 30); 2001 Conn. Pub. Acts 01 130, § 1 (J.A., No. 14 319 cv, at 949 60). Like the federal statute, the 2000 New York statute also restricted the possession of certain large capacity magazines. 5 8 1 provisions and thus remained in force until amended by the statutes 2 at issue here. 3 On December 14, 2012, a gunman shot his way into Sandy 4 Hook Elementary School in Newtown, Connecticut and murdered 5 twenty first graders and six adults using a semiautomatic AR 15 6 type rifle with ten large capacity magazines. This appalling attack, 7 in addition to other recent mass shootings, provided the immediate 8 impetus for the legislation at issue in this appeal.6 9 II. The New York Legislation 10 New York enacted the Secure Ammunition and Firearms 11 Enforcement Act (SAFE Act) on January 15, 2013.7 The SAFE Act 12 expands the definition of prohibited “assault weapons” by replacing 13 the prior two feature test with a stricter one feature test. As the 14 name suggests, the new test defines a semiautomatic firearm as a 15 prohibited “assault weapon” if it contains any one of an enumerated 16 list of military style features, including a telescoping stock, a 17 conspicuously protruding pistol grip, a thumbhole stock, a bayonet 18 mount, a flash suppressor, a barrel shroud, and a grenade launcher.8 See Defendants’ Br., No. 14 36 cv, at 10 11; Defendants’ Br., No. 14 319 cv, at 11 & n.3. 6 Act of Jan. 15, 2013, ch. 1, 2013 N.Y. Laws 1, amended by Act of Mar. 29, 2013, ch. 57, pt. FF, 2013 N.Y. Laws 290, 389. 7 The prohibited features depend on whether the semiautomatic weapon is a rifle, pistol, or shotgun, though the lists overlap significantly: 8 “Assault weapon” means 9 1 This statutory definition encompasses, and thereby bans, the 2 semiautomatic weapon used by the mass shooter at Sandy Hook. 3 New York law makes the possession, manufacture, transport, or 4 disposal of an “assault weapon” a felony.9 Pursuant to the SAFE (a) a semiautomatic rifle that has an ability to accept a detachable magazine and has at least one of the following characteristics: (i) a folding or telescoping stock; (ii) a pistol grip that protrudes conspicuously beneath the action of the weapon; (iii) a thumbhole stock; (iv) a second handgrip or a protruding grip that can be held by the non trigger hand; (v) a bayonet mount; (vi) a flash suppressor, muzzle break, muzzle compensator, or threaded barrel designed to accommodate a flash suppressor, muzzle break, or muzzle compensator; (vii) a grenade launcher; or (b) a semiautomatic shotgun that has at least one of the following characteristics: (i) a folding or telescoping stock; (ii) a thumbhole stock; (iii) a second handgrip or a protruding grip that can be held by the non trigger hand; (iv) a fixed magazine capacity in excess of seven rounds; (v) an ability to accept a detachable magazine; or (c) a semiautomatic pistol that has an ability to accept a detachable magazine and has at least one of the following characteristics: (i) a folding or telescoping stock; (ii) a thumbhole stock; (iii) a second handgrip or a protruding grip that can be held by the non trigger hand; (iv) capacity to accept an ammunition magazine that attaches to the pistol outside of the pistol grip; (v) a threaded barrel capable of accepting a barrel extender, flash suppressor, forward handgrip, or silencer; (vi) a shroud that is attached to, or partially or completely encircles, the barrel and that permits the shooter to hold the firearm with the non trigger hand without being burned; (vii) a manufactured weight of fifty ounces or more when the pistol is unloaded; or (viii) a semiautomatic version of an automatic rifle, shotgun or firearm . . . . N.Y. Penal Law § 265.00(22) (emphasis supplied). Id. §§ 265.02(7), 265.10. 9 10 1 Act’s grandfather clause, however, pre existing lawful owners of 2 banned assault weapons may continue to possess them if they 3 register those weapons with the New York State Police.10 4 The SAFE Act also bans magazines that can hold more than 5 ten rounds of ammunition or that can be readily restored or 6 converted to accept more than ten rounds.11 Although New York 7 had restricted possession of such magazines since 2000, the SAFE 8 Act eliminated a grandfather clause for magazines manufactured 9 before September 1994. 10 The SAFE Act’s large capacity magazine ban contains an 11 additional, unique prohibition on possession of a magazine loaded 12 with more than seven rounds of ammunition.12 (For the purpose of 13 this definition, a round is a single unit of ammunition.) As originally 14 enacted, the SAFE Act would have imposed a magazine capacity 15 restriction of seven rounds. Because very few seven round 16 magazines are manufactured, however, the law was subsequently 17 amended to impose a ten round capacity restriction coupled with a 18 seven round load limit. Thus, as amended, the statute permits a New 19 York gun owner to possess a magazine capable of holding up to ten Id. § 265.00(22)(g)(v). 10 Id. § 265.00(23)(a). 11 Id. § 265.37. 12 11 1 rounds, but he may not fully load it outside of a firing range or 2 official shooting competition.13 3 III. The Connecticut Legislation 4 Several months after New York passed the SAFE Act, and 5 after extensive public hearings and legislative and executive study, 6 Connecticut adopted “An Act Concerning Gun Violence Prevention 7 and Children’s Safety” on April 4, 2013, and later amended the 8 statute on June 18, 2013.14 Like its New York analogue, the 9 Connecticut legislation replaced the state’s two feature definition of 10 prohibited “assault weapons” with a stricter one feature test,15 using 11 a list of military style features similar to New York’s, including a 12 telescoping stock, a thumbhole stock, a forward pistol grip, a flash 13 suppressor, a grenade launcher, and a threaded barrel capable of 14 accepting a flash suppressor or silencer.16 Unlike its counterpart in Id. § 265.20(a)(7 f). 13 2013 Conn. Pub. Act 13 3, as amended by 2013 Conn. Pub. Act 13 220. 14 Conn. Gen. Stat. § 53 202a(1)(E). 15 Id. §§ 53 202a(1)(E), 53 202b(a)(1), 53 202c(a). Like New York’s SAFE Act, Connecticut’s statute differentiates among semiautomatic rifles, pistols, and shotguns: 16 “Assault weapon” means . . .[a]ny semiautomatic firearm . . . that meets the following criteria: (i) A semiautomatic, centerfire rifle that has an ability to accept a detachable magazine and has at least one of the following: (I) A folding or telescoping stock; (II) Any grip of the weapon, including a pistol grip, a thumbhole stock, or any other stock, the use of which would allow an 12 1 New York, the Connecticut legislation additionally bans 183 2 particular assault weapons listed by make and model, as well as 3 “copies or duplicates” of most of those firearms.17 The Connecticut individual to grip the weapon, resulting in any finger on the trigger hand in addition to the trigger finger being directly below any portion of the action of the weapon when firing; (III) A forward pistol grip; (IV) A flash suppressor; or (V) A grenade launcher or flare launcher; or (ii) A semiautomatic, centerfire rifle that has a fixed magazine with the ability to accept more than ten rounds; or (iii) A semiautomatic, centerfire rifle that has an overall length of less than thirty inches; or (iv) A semiautomatic pistol that has an ability to accept a detachable magazine and has at least one of the following: (I) An ability to accept a detachable ammunition magazine that attaches at some location outside of the pistol grip; (II) A threaded barrel capable of accepting a flash suppressor, forward pistol grip or silencer; (III) A shroud that is attached to, or partially or completely encircles, the barrel and that permits the shooter to fire the firearm without being burned, except a slide that encloses the barrel; or (IV) A second hand grip; or (v) A semiautomatic pistol with a fixed magazine that has the ability to accept more than ten rounds; or (vi) A semiautomatic shotgun that has both of the following: (I) A folding or telescoping stock; and (II) Any grip of the weapon, including a pistol grip, a thumbhole stock, or any other stock, the use of which would allow an individual to grip the weapon, resulting in any finger on the trigger hand in addition to the trigger finger being directly below any portion of the action of the weapon when firing; or (vii) A semiautomatic shotgun that has the ability to accept a detachable magazine; or (viii) A shotgun with a revolving cylinder . . . . Id. § 53 202a(1) (emphasis supplied). Id. at § 53 202a(1); see also Plaintiffs’ Br., No. 14 319 cv, at 5; Defendants’ Br., No. 14 319 cv, at 14. Of these 183 specifically enumerated prohibited 17 13 1 law makes it a felony to transport, import, sell, or possess 2 semiautomatic “assault weapons,” and it also contains a grandfather 3 clause permitting pre existing owners of assault weapons to 4 continue to possess their firearms if properly registered with the 5 state.18 6 The June 2013 amendment to the Connecticut legislation 7 criminalizes the possession of “[l]arge capacity magazine[s]” that 8 can hold, or can be “readily restored or converted to accept,” more 9 than ten rounds of ammunition.19 Unlike its New York counterpart, 10 however, the Connecticut legislation contains no additional “load 11 limit” rule. 12 IV. Procedural History 13 Plaintiffs—a combination of advocacy groups, businesses, and 14 individual gun owners—filed suit against the governors of New 15 York and Connecticut and other state officials, first in the Western 16 District of New York on March 21, 2013 and then in the District of 17 Connecticut on May 22, 2013. In both actions, plaintiffs sought 18 declaratory and injunctive relief for alleged infringement of their weapons, all but one are semiautomatic weapons. The single non semiautomatic firearm is the Remington Tactical Rifle Model 7615, a pump action rifle. Defendants’ Br., No. 14 319 cv, at 58. Conn. Gen. Stat. § 53 202d(a)(2)(A). 18 Id. § 53 202w(a)(1). As with prohibited firearms, pre ban owners of prohibited magazines can retain them if registered with the state. Id. § 53 202x(a)(1). 19 14 1 constitutional rights. Specifically, plaintiffs contended that the 2 statutes’ prohibitions on semiautomatic assault weapons and large 3 capacity magazines violate their Second Amendment rights, and 4 that 5 unconstitutionally vague. In the New York action, plaintiffs also 6 challenged the seven round load limit as a violation of the Second 7 Amendment.20 numerous specific provisions of each statute are 8 Following plaintiffs’ motions for preliminary injunctions, 9 parties in both suits cross moved for summary judgment. On 10 December 31, 2013, Chief Judge Skretny of the Western District of 11 New York granted in part and denied in part the cross motions for 12 summary judgment.21 Specifically, the District Court found that 13 New York’s ban on assault weapons and large capacity magazines 14 burdened plaintiffs’ Second Amendment rights, but did not violate 15 the Second Amendment upon application of so called intermediate 16 scrutiny.22 The Court also held, however, that the seven round load 17 limit did not survive intermediate scrutiny. The Court further found 18 that three specific provisions were unconstitutionally vague, and Plaintiffs brought additional claims for violation of the Commerce Clause (in the New York action) and the Equal Protection Clause (in the Connecticut action). The District Courts dismissed these claims, which are not at issue on appeal. 20 New York State Rifle & Pistol Ass’n, Inc. v. Cuomo (“NYSRPA”), 990 F. Supp. 2d 349 (W.D.N.Y. 2013). 21 See post Section V.d V.e for further discussion of intermediate scrutiny analysis. 22 15 1 hence void,23 but denied plaintiffs’ motion regarding the remaining 2 provisions challenged for vagueness.24 In sum, Chief Judge Skretny 3 upheld as constitutional, upon intermediate scrutiny, the core 4 provisions of New York’s SAFE Act restricting semiautomatic 5 assault weapons and large capacity magazines, but struck down 6 certain marginal aspects of the law. 7 On January 30, 2014, Judge Covello of the District of 8 Connecticut granted defendants’ motion for summary judgment in 9 its entirety.25 Like his counterpart in New York, Judge Covello held The three voided provisions of New York’s SAFE Act were (1) the prohibition on pistols with a detachable magazine that are “a semiautomatic version of an automatic rifle, shotgun or firearm,” N.Y. Penal Law § 265.00(22)(c)(viii); (2) the identification of the misspelled military style feature “muzzle break,” id. § 265.00(22)(a)(vi), which defendants concede has no accepted meaning and was intended to read “muzzle brake,” see Defendants’ Br., No. 14 36 cv, at 22; and (3) an erroneous “and if” clause appearing in N.Y. Penal Law § 265.36, which the District Court found to be “incomplete and entirely indecipherable.” NYSRPA, 990 F. Supp. 2d at 376. Defendants do not challenge on appeal the District Court’s ruling on this third (“and if”) provision. 23 As relevant here, the District Court dismissed plaintiffs’ vagueness claims as to the following provisions: (1) the prohibition of magazines that “can be readily restored or converted to accept” more than ten ammunition rounds, N.Y. Penal Law § 265.00(23)(a); (2) the prohibition on semiautomatic shotguns with a “fixed magazine capacity in excess of seven rounds,” id. § 265.00 (22)(b)(iv); and (3) the exclusion from restriction of semiautomatic shotguns “that cannot hold more than five rounds of ammunition in a fixed or detachable magazine,” id. § 265.00(22)(g)(iii). The Court also rejected four additional vagueness challenges that plaintiffs do not pursue on appeal. See NYSRPA, 990 F. Supp. 2d at 374 78. 24 Shew v. Malloy, 994 F. Supp. 2d 234 (D. Conn. 2014). 25 16 1 that the Connecticut legislation burdened plaintiffs’ Second 2 Amendment rights, applied intermediate scrutiny, and concluded 3 that the prohibition on semiautomatic assault weapons and large 4 capacity magazines was fully consistent with the Second 5 Amendment. He also dismissed all of plaintiffs’ vagueness claims.26 6 Plaintiffs thereafter appealed. In the New York action only, 7 defendants cross appeal the District Court’s judgment insofar as it 8 invalidated the SAFE Act’s seven round load limit and voided as 9 unconstitutionally vague the SAFE Act’s prohibitions on the 10 misspelled “muzzle break”27 and “semiautomatic version[s]” of an 11 automatic rifle, shotgun, or firearm.28 12 DISCUSSION 13 These appeals present two questions: first, whether the Second 14 Amendment permits the regulation of the assault weapons and 15 large capacity magazines at issue here; and second, whether the 16 challenged provisions of the statutes provide constitutionally 17 sufficient notice of the conduct proscribed. Because both judges resolved the parties’ motions for summary judgment, they simultaneously denied as moot plaintiffs’ respective motions for preliminary injunctions. 26 N.Y. Penal Law § 265.00(22)(a)(vi); see ante note 23 and accompanying 27 text. Id. § 265.00(22)(c)(viii); see ante note 23 and accompanying text. 28 17 1 We review de novo a district court’s order granting summary 2 judgment, construing the evidence in the light most favorable to the 3 non moving party.29 As relevant here, we also “review de novo the 4 district court’s legal conclusions, including those interpreting and 5 determining the constitutionality of a statute.”30 Pursuant to Federal 6 Rule of Civil Procedure 56(a), summary judgment is appropriate 7 where “there is no genuine dispute as to any material fact and the 8 movant is entitled to judgment as a matter of law.” 9 V. Second Amendment Challenge 10 We conclude that the core challenged prohibitions of assault 11 weapons and large capacity magazines do not violate the Second 12 Amendment. Guided by the teachings of the Supreme Court, our 13 own jurisprudence, and the examples provided by our sister circuits, 14 we adopt a two step analytical framework, determining first 15 whether the regulated weapons fall within the protections of the 16 Second Amendment and then deciding and applying the 17 appropriate level of constitutional scrutiny. Only two specific 18 provisions—New York’s seven round load limit, and Connecticut’s 19 prohibition on the non semiautomatic Remington 7615—are 20 unconstitutional. 21 Delaney v. Bank of America Corp., 766 F.3d 163, 167 (2d Cir. 2014). 29 United States v. Stewart, 590 F.3d 93, 109 (2d Cir. 2009). 30 18 1 a. Heller and McDonald 2 The Second Amendment provides that “[a] well regulated 3 Militia, being necessary to the security of a free State, the right of the 4 people to keep and bear Arms, shall not be infringed.”31 Our 5 analysis of that amendment begins with the seminal decision in 6 District of Columbia v. Heller.32 In Heller, the Supreme Court, based on 7 an extensive textual and historical analysis, announced that the 8 Second Amendment’s operative clause codified a pre existing 9 “individual right to possess and carry weapons.”33 Recognizing, 10 however, that “the right secured by the Second Amendment is not 11 unlimited,” Heller emphasized that “the right was not a right to keep 12 and carry any weapon whatsoever in any manner whatsoever and 13 for whatever purpose.”34 Instead, the Second Amendment protects 14 only those weapons “‘in common use’” by citizens “for lawful 15 purposes like self defense.”35 16 Having established these basic precepts, Heller concluded that 17 the District of Columbia’s ban on possession of handguns was 18 unconstitutional under the Second Amendment.36 The Supreme U.S. Const. amend. II. 31 554 U.S. 570 (2008). 32 Id. at 592 (emphasis supplied). 33 Id. at 626. 34 Id. at 624 (citing United States v. Miller, 307 U.S. 174, 179 (1939)). 35 Heller, 554 U.S. at 635. 36 19 1 Court noted that “handguns are the most popular weapon chosen 2 by Americans for self defense in the home,” where, the Court 3 observed, “the need for defense of self, family, and property is most 4 acute.”37 5 Heller stopped well short of extending its rationale to other 6 firearms restrictions. Indeed, Heller explicitly identified as 7 “presumptively 8 “prohibitions on the possession of firearms by felons and the 9 mentally ill, . . . laws forbidding the carrying of firearms in sensitive 10 places such as schools and government buildings, [and] laws 11 imposing conditions and qualifications on the commercial sale of 12 arms.”38 Most importantly here, Heller also endorsed the “historical 13 tradition of prohibiting the carrying of dangerous and unusual 14 weapons.”39 lawful” such “regulatory measures” as 15 Aside from these broad guidelines, Heller offered little 16 guidance for resolving future Second Amendment challenges. The 17 Court did imply that such challenges are subject to one of “the 18 standards of scrutiny that we have applied to enumerated 19 constitutional rights,” though it declined to say which,40 accepting Id. at 628 29. 37 Id. at 626 27 & n.26. 38 Id. at 627 (internal quotation marks omitted). 39 Id. at 628. 40 20 1 that many applications of the Second Amendment would remain “in 2 doubt.”41 3 That doubt persisted after McDonald v. City of Chicago, in 4 which the Supreme Court invalidated municipal statutes banning 5 handguns in the home.42 McDonald was a landmark case in one 6 respect—the Court held for the first time that the Fourteenth 7 Amendment “incorporates” the Second Amendment against the 8 states.43 Otherwise, McDonald did not expand upon Heller’s analysis 9 and simply reiterated Heller’s assurances regarding the viability of 10 many gun control provisions.44 Neither Heller nor McDonald, then, 11 delineated the precise scope of the Second Amendment or the 12 standards by which lower courts should assess the constitutionality 13 of firearms restrictions. 14 15 Id. at 635. 41 561 U.S. 742 (2010). See, e.g., Joseph Blocher, New Approaches to Old Questions in Gun Scholarship, 50 TULSA L. REV. 477, 478 (2015) (“Heller and McDonald provoked as many questions as they answered,” creating a “resulting void [that] invites and practically demands more scholarship.”). 42 See generally LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 1317 (3d ed. 2000) (describing the process by which Amendments initially designed to limit the powers of the federal government came to be applied to actions of the states). 43 561 U.S. at 786 (opinion of Alito, J.). 44 21 1 b. Analytical Rubric 2 Lacking more detailed guidance from the Supreme Court, this 3 Circuit has begun to develop a framework for determining the 4 constitutionality of firearm restrictions.45 It requires a two step 5 inquiry. 6 First, we consider whether the restriction burdens conduct 7 protected by the Second Amendment.46 If the challenged restriction 8 does not implicate conduct within the scope of the Second 9 Amendment, our analysis ends and the legislation stands. 10 Otherwise, we move to the second step of our inquiry, in which we 11 must determine and apply the appropriate level of scrutiny.47 12 This two step rubric flows from the dictates of Heller and 13 McDonald and our own precedents in Kachalsky and Decastro.48 It also 14 broadly comports with the prevailing two step approach of other 15 courts, including the Third, Fourth, Fifth, Sixth, Seventh, Ninth, 16 Tenth, Eleventh, and D.C. Circuits,49 and with the approach used in 17 “other areas of constitutional law.”50 See Kachalsky v. Cty. of Westchester, 701 F.3d 81 (2d Cir. 2012); United States v. Decastro, 682 F.3d 160 (2d Cir. 2012). 45 Kachalsky, 701 F.3d at 93. 46 See id. 47 See ante note 45. 48 See GeorgiaCarry.Org, Inc. v. U.S. Army Corps of Eng’rs, 788 F.3d 1318, 1322 (11th Cir. 2015); United States v. Chovan, 735 F.3d 1127, 1136 (9th Cir. 2013); 49 22 1 c. First Step: Whether the Second Amendment Applies 2 As an initial matter, then, we must determine whether the 3 challenged legislation impinges upon conduct protected by the 4 Second Amendment. The Second Amendment protects only “the 5 sorts of weapons” that are (1) “in common use”51 and (2) “typically 6 possessed by law abiding citizens for lawful purposes.”52 We 7 consider each requirement in turn. 8 i. Common Use 9 The parties contest whether the assault weapons at issue here 10 are commonly owned. Plaintiffs argue that the weapons at issue are 11 owned in large numbers by law abiding Americans. They present 12 statistics showing that nearly four million units of a single assault 13 weapon, the popular AR 15, have been manufactured between 1986 Nat’l Rifle Ass’n of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 700 F.3d 185, 194 (5th Cir. 2012); United States v. Greeno, 679 F.3d 510, 518 (6th Cir. 2012); Heller v. District of Columbia (Heller II), 670 F.3d 1244, 1252 (D.C. Cir. 2011); Ezell v. City of Chicago, 651 F.3d 684, 702 03 (7th Cir. 2011); United States v. Chester, 628 F.3d 673, 680 (4th Cir. 2010); United States v. Reese, 627 F.3d 792, 800 01 (10th Cir. 2010); United States v. Marzzarella, 614 F.3d 85, 89 (3d Cir. 2010). Decastro, 682 F.3d at 167; see Heller, 554 U.S. at 595; Kachalsky, 701 F.3d at 50 94. Heller, 554 U.S. at 627. 51 Id. at 625. In addition, the weapons must actually be used lawfully. Id. Because the laws at issue restrict the mere possession of assault weapons, and not how or why they are used, we need not consider that additional limitation. 52 23 1 and March 2013.53 Plaintiffs further assert that only 7.5 percent of 2 assault weapon owners are active law enforcement officers,54 and 3 that most owners of assault weapons own only one or two such 4 weapons, such that the banned firearms are not concentrated in a 5 small number of homes, but rather spread widely among the gun 6 owning public.55 Defendants counter that assault weapons only 7 represent about two percent of the nation’s firearms (admittedly 8 amounting to approximately seven million guns).56 Moreover, 9 defendants argue that the statistics inflate the number of individual 10 civilian owners because many of these weapons are purchased by 11 law enforcement or smuggled to criminals, and many civilian gun 12 owners own multiple assault weapons. 13 14 This much is clear: Americans own millions of the firearms that the challenged legislation prohibits. 15 The same is true of large capacity magazines, as defined by 16 the New York and Connecticut statutes. Though fewer statistics are 17 available for magazines, those statistics suggest that about 25 million 18 large capacity magazines were available in 1995, shortly after the 19 federal assault weapons ban was enacted, and nearly 50 million such J.A., No. 14 319 cv, at 146. 53 J.A., No. 14 36 cv, at 162. 54 Plaintiffs’ Reply Br., No. 14 36 cv, at 6 7. 55 See J.A., No. 14 36 cv, at 1091; J.A., No. 14 319 cv, at 2251. 56 24 1 magazines—or nearly two large capacity magazines for each gun 2 capable of accepting one—were approved for import by 2000.57 3 Even accepting the most conservative estimates cited by the 4 parties and by amici, the assault weapons and large capacity 5 magazines at issue are “in common use” as that term was used in 6 Heller. The D.C. Circuit reached the same conclusion in its well 7 reasoned decision in Heller II, which upheld the constitutionality of a 8 District of Columbia gun control act substantially similar to those at 9 issue here.58 10 To be sure, as defendants note, these assault weapons and 11 large capacity magazines are not as commonly owned as the 12 handguns at issue in Heller, which were “the most popular weapon 13 chosen by Americans for self defense in the home.”59 But nothing in 14 Heller limited its holding to handguns; indeed, the Court 15 emphasized that ”the Second Amendment extends, prima facie, to 16 all instruments that constitute bearable arms,” not just to a small 17 subset.60 18 J.A., No. 14 319 cv, at 578. 57 Heller II, 670 F.3d at 1261 (finding that the AR 15 and magazines with capacities exceeding ten rounds were in “common use” as defined by Heller). 58 Heller, 554 U.S. at 629. 59 Id. at 582 (emphasis supplied). 60 25 1 ii. Typical Possession 2 We must next determine whether assault weapons and large 3 capacity magazines are “typically possessed by law abiding citizens 4 for lawful purposes.”61 While “common use” is an objective and 5 largely statistical inquiry, “typical[] possess[ion]” requires us to look 6 into both broad patterns of use and the subjective motives of gun 7 owners. 8 The parties offer competing evidence about these weapons’ 9 “typical use.” Plaintiffs suggest that assault weapons are among the 10 safest and most effective firearms for civilian self defense.62 11 Defendants disagree, arguing that these weapons are used 12 disproportionately in gun crimes, rather than for lawful pursuits like 13 self defense and hunting.63 14 Even if defendants are correct,64 however, the same could be 15 said for the handguns in Heller. Though handguns comprise only 16 about one third of the nation’s firearms, by some estimates they Id. at 625. 61 J.A., No. 14 319 cv, at 753 66 (declaration of ballistics researcher). 62 See Defendants’ Br., No. 14 319 cv, at 38 46; see also J.A., No. 14 319 cv at 1365 74, 1699 1715 (affidavits of chiefs of police opining that assault weapons may not be well suited for self defense, especially in an urban environment); J.A., No. 14 319 cv, at 1395 1413. 63 Plaintiffs take issue with the research methodology, and point to studies undermining the conclusion of disproportionate use. See Plaintiffs’ Reply Br., No. 14 36 cv, at 15 17; see also J.A., No. 14 36 cv, at 464 65, 489 90. 64 26 1 account for 71 percent to 83 percent of the firearms used in murders 2 and 84 percent to 90 percent of the firearms used in other violent 3 crimes.65 That evidence of disproportionate criminal use did not 4 prevent the Supreme Court from holding that handguns merited 5 constitutional protection. 6 Looking solely at a weapon’s association with crime, then, is 7 insufficient. We must also consider more broadly whether the 8 weapon is “dangerous and unusual” in the hands of law abiding 9 civilians. Heller expressly highlighted “weapons that are most useful 10 in military service,” such as the fully automatic M 16 rifle, as 11 weapons that could be banned without implicating the Second 12 Amendment.66 But this analysis is difficult to manage in practice. 13 Because the AR 15 is “the civilian version of the military’s M 16 14 rifle,”67 defendants urge that it should be treated identically for 15 Second Amendment purposes. But the Supreme Court’s very choice 16 of descriptor for the AR 15—the “civilian version”—could instead 17 imply that such guns are “traditionally have been widely accepted 18 as lawful.”68 Plaintiffs’ Reply Br., No. 14 36 cv, at 15 18; see also Heller, 554 U.S. at 698 (Breyer, J., dissenting) (discussing similar statistics suggesting that handguns “appear to be a very popular weapon among criminals”). 65 554 U.S. at 627 (internal quotation marks omitted). 66 Staples v. United States, 511 U.S. 600, 603 (1994). 67 Id. at 612. 68 27 1 Ultimately, then, neither the Supreme Court’s categories nor 2 the evidence in the record cleanly resolves the question of whether 3 semiautomatic assault weapons and large capacity magazines are 4 “typically possessed by law abiding citizens for lawful purposes.”69 5 Confronting this record, Chief Judge Skretny reasonably found that 6 reliable empirical evidence of lawful possession for lawful purposes 7 was “elusive,”70 beyond ownership statistics.71 We agree. 8 In the absence of clearer guidance from the Supreme Court or 9 stronger evidence in the record, we follow the approach taken by the 10 District Courts and by the D.C. Circuit in Heller II and assume for 11 the sake of argument that these “commonly used” weapons and 12 magazines are also “typically possessed by law abiding citizens for 13 lawful purposes.”72 In short, we proceed on the assumption that 14 these laws ban weapons protected by the Second Amendment. This 15 assumption is warranted at this stage, because, as explained post 16 Section V.e, the statutes at issue nonetheless largely pass 17 constitutional muster.73 Heller, 554 U.S. at 625. 69 NYSRPA, 990 F. Supp. 2d at 365. 70 On a substantially similar record, Judge Covello of the District of Connecticut came to the same conclusion, finding only that the relevant weapons were “presumably[] used for lawful purposes.” Shew, 994 F. Supp. 2d at 246 (emphasis supplied). 71 See Heller II, 670 F. 3d at 1260 61 (quoting Heller, 554 U.S. at 625). 72 Though we assume without deciding that the bulk of the challenged legislation is entitled to Second Amendment protection, we decide as much with 73 28 1 d. Second Step: Level of Scrutiny 2 Having concluded that the statutes impinge upon Second 3 Amendment rights, we must next determine and apply the 4 appropriate level of scrutiny.74 We employ the familiar “levels of respect to Connecticut’s prohibition of the Remington Tactical 7615, a non semiautomatic pump action rifle. See Defendants’ Br., No. 14 319 cv, at 58. Heller emphasizes that the “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms.” Heller, 554 U.S. at 582. In other words, it identifies a presumption in favor of Second Amendment protection, which the State bears the initial burden of rebutting. See Ezell, 651 F.3d at 702 03 (“[I]f the government can establish that a challenged firearms law regulates activity falling outside the scope of the Second Amendment . . . then the analysis can stop there . . . .” (emphasis supplied)); cf. Virginia v. Black, 538 U.S. 343, 369 (2003) (Scalia, J., concurring in part, concurring in the judgment in part, and dissenting in part) (defining “prima facie evidence” as that which, “if unexplained or uncontradicted, is sufficient to sustain a judgment in favor of the issue which it supports” (quoting Black’s Law Dictionary 1190 (6th ed.1990)). Because the State, focused on semiautomatic weapons, see post note 112, has failed to make any argument that this pump action rifle is dangerous, unusual, or otherwise not within the ambit of Second Amendment protection, the presumption that the Amendment applies remains unrebutted. To be sure, Heller also noted that certain “presumptively lawful regulatory measures” ostensibly fall outside of the Second Amendment’s prima facie protections. Id. at 627 n.26. Nonetheless, like the D.C. Circuit in Heller II, we conclude that these particular restrictions are not entitled to “a presumption of validity.” Heller II, 670 F.3d at 1260 (emphasis supplied). We emphasize that our holding with respect to the Remington 7615—at both steps of our analysis—reflects the State’s failure to present any argument at all regarding this weapon or others like it. We do not foreclose the possibility that states could in the future present evidence to support such a prohibition. Plaintiffs’ effort to avoid the two step framework laid out here is unavailing. They argue that the application of means ends scrutiny in this case 74 29 1 scrutiny” analysis introduced in the famous Footnote Four of United 2 States v. Carolene Products Co.,75 and begin by asking which level of 3 judicial “scrutiny” applies. 4 Though Heller did not specify the precise level of scrutiny 5 applicable to firearms regulations, it rejected mere rational basis 6 review as insufficient for the type of regulation challenged there.76 would be an “exercise in futility.” Plaintiff’s Br., No. 14 36 cv, at 13 (quoting Kachalsky, 701 F.3d at 89 n.9); Plaintiff’s Br., No. 14 319 cv, at 12 (same). We reject that argument. As plaintiffs themselves concede, this Court made very clear in Kachalsky that “Heller’s reluctance to announce a standard of review” should not be interpreted as a “signal that courts must look solely to the text, history, and tradition of the Second Amendment to determine whether a state can limit the right without applying any sort of means end scrutiny.” 701 F.3d at 89 n.9. On the contrary, Heller indicated that the typical “standards of scrutiny” analysis should apply to regulations impinging upon Second Amendment rights, but that D.C.’s handgun ban would fail “[u]nder any of the standards of scrutiny.” 554 U.S. at 628. 304 U.S. 144, 152 n.4 (1938); see Heller, 554 U.S. at 628 n.27. 75 554 U.S. at 628 n.27. At the same time, Heller’s approval of certain “presumptively lawful regulatory measures,” id. at 627 n. 26, has been construed by some to rule out strict scrutiny as well. Indeed, Justice Breyer’s dissent states, without opposition from the Court’s opinion, that “the majority implicitly, and appropriately, reject[ed] th[e] suggestion [to apply strict scrutiny to gun regulations] by broadly approving a set of laws . . . whose constitutionality under a strict scrutiny standard would be far from clear.” Id. at 688 (Breyer, J., dissenting). Chief Judge Skretny cited this interpretation with approbation. NYSRPA, 990 F. Supp. 2d at 366. Upon closer inspection, however, we think it likely that the Heller majority identified these “presumptively lawful” measures in an attempt to clarify the scope of the Second Amendment’s reach in the first place—the first step of our framework—but not to intimate a view as to whether strict scrutiny applies in the second step. 76 30 1 At the same time, this Court and our sister Circuits have suggested 2 that heightened scrutiny is not always appropriate. In determining 3 whether heightened scrutiny applies, we consider two factors: (1) 4 “how close the law comes to the core of the Second Amendment 5 right” and (2) “the severity of the law’s burden on the right.”77 Laws 6 that neither implicate the core protections of the Second 7 Amendment nor substantially burden their exercise do not receive 8 heightened scrutiny. 9 i. The Core of the Right 10 By their terms, the statutes at issue implicate the core of the 11 Second Amendment’s protections by extending into the home, 12 “where the need for defense of self, family and property is most 13 acute.”78 Semiautomatic assault weapons and large capacity 14 magazines are commonly owned by many law abiding Americans, 15 and their complete prohibition, including within the home, requires 16 us to consider the scope of Second Amendment guarantees “at their 17 zenith.”79 At the same time, the regulated weapons are not nearly as 18 popularly owned and used for self defense as the handgun, that See Ezell, 651 F.3d at 703. 77 Heller, 554 U.S. at 628. This conclusion is predicated on our earlier assumption that the commonly used firearms at issue are also typically used for self defense or other lawful purposes, and thus the prohibitions implicate the Second Amendment right. See ante V.c.ii. 78 Kachalsky, 701 F.3d at 89. 79 31 1 “quintessential self defense weapon.”80 Thus these statutes implicate 2 Second Amendment rights, but not to the same extent as the laws at 3 issue in Heller and McDonald. 4 ii. The Severity of the Burden 5 In Decastro, we explained that heightened scrutiny need not 6 apply to “any marginal, incremental or even appreciable restraint on 7 the right to keep and bear arms.”81 Rather, “heightened scrutiny is 8 triggered only by those restrictions that (like the complete 9 prohibition on handguns struck down in Heller) operate as a 10 substantial burden on the ability of law abiding citizens to possess 11 and use a firearm for . . . lawful purposes.”82 Our later decision in 12 Kachalsky confirmed this approach, concluding that “some form of 13 heightened scrutiny would be appropriate” for regulations that 14 impose a “substantial burden” on Second Amendment rights.83 15 The practice of applying heightened scrutiny only to laws that 16 “burden the Second Amendment right substantially” is, as we noted 17 in Decastro, broadly consistent with our approach to other 18 fundamental constitutional rights, including those protected by the 19 First and Fourteenth Amendments.84 We typically require a Heller, 554 U.S. at 629. 80 Decastro, 682 F.3d at 166. 81 Id. (emphasis supplied). 82 701 F.3d at 93. 83 Decastro, 682 F.3d at 166 67 (emphasis supplied). 84 32 1 threshold showing to trigger heightened scrutiny of laws alleged to 2 implicate such constitutional contexts as takings, voting rights, and 3 free speech.85 Though we have historically expressed “hesitan[ce] to 4 import substantive First Amendment principles wholesale into 5 Second Amendment jurisprudence,”86 we readily “consult principles 6 from other areas of constitutional law, including the First 7 Amendment” in determining whether a law “substantially burdens 8 Second Amendment rights.”87 9 The scope of the legislative restriction and the availability of 10 alternatives factor into our analysis of the “degree to which the 11 challenged law burdens the right.”88 No “substantial burden” 12 exists—and hence heightened scrutiny is not triggered—“if 13 adequate alternatives remain for law abiding citizens to acquire a 14 firearm for self defense.”89 15 The laws at issue are both broad and burdensome. Unlike 16 statutes that “merely regulate the manner in which persons may Id. 85 Kachalsky, 701 F.3d at 91 (emphasis in original). 86 Decastro, 682 F.3d at 167. 87 United States v. Chester, 628 F.3d 673, 682 (4th Cir. 2010). 88 Decastro, 682 F.3d at 168; see also Heller II, 670 F.3d at 1262 (drawing the comparison to First Amendment speech restrictions, whereby “severe burdens” that “don’t leave open ample alternative channels” trigger strict scrutiny, while restrictions that “leave open ample alternative channels” are merely “modest burdens” and require only “a mild form of intermediate scrutiny”). 89 33 1 exercise their Second Amendment rights,” these laws impose an 2 outright ban statewide.90 The “absolute prohibition” instituted in both 3 states thus creates a “serious encroachment” on the Second 4 Amendment right.91 These statutes are not mere “marginal, 5 incremental or even appreciable restraint[s] on the right to keep and 6 bear arms.”92 They impose a substantial burden on Second 7 Amendment rights and therefore trigger the application of some 8 form of heightened scrutiny. 9 Heightened scrutiny need not, however, “be akin to strict 10 scrutiny when a law burdens the Second Amendment”— 11 particularly when that burden does not constrain the Amendment’s 12 “core” area of protection.93 The instant bans are dissimilar from 13 D.C.’s unconstitutional prohibition of “an entire class of ‘arms’ that 14 is overwhelmingly chosen by American society for [the] lawful 15 purpose” of self defense.94 New York and Connecticut have not 16 banned an entire class of arms. Indeed, plaintiffs themselves Chovan, 735 F.3d at 1138. 90 Ezell, 651 F.3d at 705, 708. 91 Decastro, 682 F.3d at 166. The legislation at issue is thus easily distinguished from a New York statute imposing a gun licensing fee of $100 per year, which we found to be no more than a “marginal, incremental or even appreciable restraint” on Second Amendment rights. Kwong v. Bloomberg, 723 F.3d 160, 167 (2d Cir. 2013). The regulation in Kwong involved neither the outright prohibition of weapons in common use nor any direct limitation on the exercise of Second Amendment rights within the home. 92 Kachalsky, 701 F.3d at 93. 93 Heller, 554 U.S. at 628. 94 34 1 acknowledge that there is no class of firearms known as 2 “semiautomatic assault weapons”—a descriptor they call purely 3 political in nature.95 Plaintiffs nonetheless argue that the legislation 4 does prohibit “firearms of a universally recognized type— 5 semiautomatic.”96 Not so. Rather, both New York and Connecticut 6 ban only a limited subset of semiautomatic firearms, which contain 7 one or more enumerated military style features. As Heller makes 8 plain, the fact that the statutes at issue do not ban “an entire class of 9 ‘arms’” makes the restrictions substantially less burdensome.97 In 10 both states, citizens may continue to arm themselves with non 11 semiautomatic weapons or with any semiautomatic gun that does 12 not contain any of the enumerated military style features. Similarly, 13 while citizens may not acquire high capacity magazines, they can 14 purchase any number of magazines with a capacity of ten or fewer 15 rounds. In sum, numerous “alternatives remain for law abiding 16 citizens to acquire a firearm for self defense.”98 We agree with the Plaintiffs’ Br., No. 14 36 cv, at 17; Plaintiffs’ Br., No. 14 319 cv, at 16. 95 Plaintiff’s Br., No. 14 319 cv, at 31. 96 See 554 U.S. at 628. 97 Decastro, 682 F.3d at 168. Plaintiffs’ related argument—that the availability of unbanned firearms “is irrelevant under Heller,” see Plaintiffs’ Br., No. 14 36 cv, at 32—rests on a misapprehension of the Supreme Court’s logic. To be sure, Heller did indicate that “[i]t is no answer to say . . . that it is permissible to ban the possession of handguns so long as the possession of other firearms (i.e., long guns) is allowed.” 554 U.S. at 629. But Heller went on to explain that handguns are protected as “the most popular weapon chosen by Americans for self defense in the home.” Id. Of course, the same cannot be said of the weapons at issue here. Heller explicitly endorsed prohibitions against any “weapons not 98 35 1 D.C. Circuit that “the prohibition of semi automatic rifles and large 2 capacity magazines does not effectively disarm individuals or 3 substantially affect their ability to defend themselves.”99 The burden 4 imposed by the challenged legislation is real, but it is not “severe.”100 5 Accordingly, we conclude that intermediate, rather than strict, 6 scrutiny is appropriate. This conclusion coheres not only with that 7 reached by the D.C. Circuit when considering substantially similar 8 gun control laws, but also with the analyses undertaken by other 9 courts, many of which have applied intermediate scrutiny to laws 10 implicating the Second Amendment.101 11 e. Application of Intermediate Scrutiny 12 Though “intermediate scrutiny” may have different 13 connotations in different contexts,102 here the key question is 14 whether the statutes at issue are “substantially related to the typically possessed by law abiding citizens for lawful purposes,” including, for example, short barreled shotguns. Id. at 625. Our consideration of available alternatives for self defense thus squares with Heller’s focus on protecting that “core lawful purpose” of the Second Amendment right. Id. at 630. Heller II, 670 F.3d at 1262. 99 See id. 100 See, e.g., Chovan, 735 F.3d at 1138; Nat’l Rifle Ass’n of Am., 700 F.3d at 207; Chester, 628 F.3d at 683; Reese, 627 F.3d at 802; Marzzarella, 614 F.3d at 97. 101 Ernst J. v. Stone, 452 F.3d 186, 200 n.10 (2d Cir. 2006) (noting that intermediate scrutiny carries different meanings depending on the area of law in which it arises, and then applying the same definition of intermediate scrutiny used here). 102 36 1 achievement of an important governmental interest.”103 It is beyond 2 cavil that both states have “substantial, indeed compelling, 3 governmental interests in public safety and crime prevention.”104 We 4 need only inquire, then, whether the challenged laws are 5 “substantially related” to the achievement of that governmental 6 interest. We conclude that the prohibitions on semiautomatic assault 7 weapons and large capacity magazines meet this standard. 8 i. Prohibition on “Assault Weapons” 9 To survive intermediate scrutiny, the “fit between the 10 challenged regulation [and the government interest] need only be 11 substantial, not perfect.”105 Unlike strict scrutiny analysis, we need 12 not ensure that the statute is “narrowly tailored” or the “least 13 restrictive available means to serve the stated governmental 14 interest.”106 Moreover, we have observed that state regulation of the 15 right to bear arms “has always been more robust” than analogous 16 regulation of other constitutional rights.107 So long as the defendants Kachalsky, 701 F.3d at 96. 103 Id. at 97; see also Schall v. Martin, 467 U.S. 253, 264 (1984) (“The legitimate and compelling state interest in protecting the community from crime cannot be doubted.” (internal quotation marks omitted)). 104 Kachalsky, 701 F.3d at 97 (internal quotation marks omitted). 105 Id. 106 Id. at 100. States are permitted to restrict the right to bear arms by felons and the mentally ill, while equivalent restrictions on the right to speech or religious freedoms among those populations would unquestionably be unconstitutional. Id. 107 37 1 produce evidence that “fairly support[s]” their rationale, the laws 2 will pass constitutional muster.108 3 In making this determination, we afford “substantial 4 deference to the predictive judgments of the legislature.”109 We 5 remain mindful that, “[i]n the context of firearm regulation, the 6 legislature is ‘far better equipped than the judiciary’ to make 7 sensitive public policy judgments (within constitutional limits) 8 concerning the dangers in carrying firearms and the manner to 9 combat those risks.”110 Our role, therefore, is only to assure 10 ourselves that, in formulating their respective laws, New York and 11 Connecticut have “drawn reasonable inferences based on substantial 12 evidence.”111 13 Both states have done so with respect to their prohibitions on 14 certain semiautomatic firearms.112 At least since the enactment of the City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 438 (2002) (plurality). 108 Kachalsky, 701 F.3d at 97 (quoting Turner Broad. Sys., Inc. v. Fed. Commc’ns Comm’n, 520 U.S. 180, 195 (1997) (brackets omitted)). 109 Kachalsky, 701 F.3d at 97 (quoting Turner Broad. Sys., Inc. v. Fed. Commc’ns Comm’n, 512 U.S. 622, 665 (1994)) (opinion of Kennedy, J.)). 110 Turner Broad. Sys., 520 U.S. at 195. 111 Though Connecticut’s ban on semiautomatic firearms passes intermediate scrutiny, its prohibition of a single non semiautomatic weapon, the Remington 7615, does not. Focused as it was on the rationale for banning semiautomatic weapons, Connecticut fails to set forth the requisite “substantial evidence” with respect to the pump action Remington 7615. Id. at 195; see also 112 38 1 federal assault weapons ban, semiautomatic assault weapons have 2 been understood to pose unusual risks. When used, these weapons 3 tend to result in more numerous wounds, more serious wounds, and 4 more victims.113 These weapons are disproportionately used in 5 crime, and particularly in criminal mass shootings like the attack in 6 Newtown.114 They are also disproportionately used to kill law 7 enforcement officers: one study shows that between 1998 and 2001, 8 assault weapons were used to gun down at least twenty percent of 9 officers killed in the line of duty.115 10 The record reveals that defendants have tailored the 11 legislation at issue to address these particularly hazardous weapons. 12 The dangers posed by some of the military style features prohibited 13 by the statutes—such as grenade launchers and silencers—are 14 manifest and incontrovertible.116 As for the other enumerated ante note 73. Accordingly, we hold that this singular provision of Connecticut’s legislation is unconstitutional. See Defendant’s Br., No. 14 36 cv, at 48 (quoting J.A., No. 14 36 cv, at 113 733 34). See id. at 49 (citing J.A., No. 14 36 cv 565, 727, 729). 114 See J.A., No. 14 36 cv, at 1261 (citing Violence Policy Center study). 115 Indeed, plaintiffs have not seriously attempted to argue—either here or before the District Court—that such features are protected by the Second Amendment at all, much less that their prohibition should fail intermediate scrutiny. See NYSRPA, 990 F. Supp. 2d at 369 70 (“Plaintiffs do not explicitly argue that the Act’s regulation of firearms with [grenade launchers, bayonet mounts, or silencers] violates the Second Amendment.”); cf. Norton v. Sam’s Club, 145 F.3d 114, 119 (2d Cir. 1998) (“Issues not sufficiently argued in the briefs are considered waived and normally will not be addressed on appeal.”); United 116 39 1 military style features—such as the flash suppressor, protruding 2 grip, and barrel shrouds—New York and Connecticut have 3 determined, as did the U.S. Congress, that the “net effect of these 4 military combat features is a capability for lethality—more wounds, 5 more serious, in more victims—far beyond that of other firearms in 6 general, including other semiautomatic guns.”117 Indeed, plaintiffs 7 explicitly contend that these features improve a firearm’s 8 “accuracy,” “comfort,” and “utility.”118 This circumlocution is, as 9 Chief Judge Skretny observed, a milder way of saying that these 10 features make the weapons more deadly.119 11 The legislation is also specifically targeted to prevent mass 12 shootings like that in Newtown, in which the shooter used a 13 semiautomatic assault weapon. Plaintiffs complain that mass 14 shootings are “particularly rare events” and thus, even if successful, 15 the legislation will have a “minimal impact” on most violent States v. Amer, 110 F.3d 873, 879 (2d Cir. 1997) (finding that defendant forfeited one of his constitutional arguments by failing to raise it before the District Court). J.A., No. 14 36 cv, at 733 34. 117 Plaintiffs’ Br., No. 14 36 cv, at 20; Plaintiffs’ Br., No. 14 319 cv, at 19 20. 118 NYSRPA, 990 F. Supp. 2d at 368. 119 40 1 crime.120 That may be so. But gun control legislation “need not strike 2 at all evils at the same time” to be constitutional.121 3 Defendants also have adduced evidence that the regulations 4 will achieve their intended end of reducing circulation of assault 5 weapons among criminals.122 Plaintiffs counter—without record 6 evidence—that the statutes will primarily disarm law abiding 7 citizens and will thus impair the very public safety objectives they 8 were designed to achieve.123 Given the dearth of evidence that law 9 abiding citizens typically use these weapons for self defense, see ante 10 Section V.c.ii, plaintiffs’ concerns are speculative at best, and 11 certainly not strong enough to overcome the “substantial deference” 12 we owe to “predictive judgments of the legislature” on matters of 13 public safety.124 The mere possibility that some subset of people 14 intent on breaking the law will indeed ignore these statutes does not 15 make them unconstitutional. Plaintiffs’ Br., No. 14 36 cv, at 48 49; Plaintiffs’ Br., No. 14 319 cv, at 48 120 49. Nat’l Rifle Ass’n of Am., 700 F.3d at 211 (quoting Buckley v. Valeo, 424 U.S. 1, 105 (1976)). 121 See Defendants’ Br., No. 14 319 cv, at 71 75 (citing, inter alia, research by Prof. Christopher S. Koper, evaluating the impact of the federal assault weapons ban, J.A., No. 14 319 cv, at 1404). 122 Plaintiffs’ Br., No. 14 36 cv, at 45 46; Plaintiffs’ Br., No. 14 319 cv, at 45 123 46. Kachalsky, 701 F.3d at 97 (quoting Turner Broad. Sys., 520 U.S. at 195 (brackets omitted)). 124 41 1 Ultimately, “[i]t is the legislature’s job, not ours, to weigh 2 conflicting evidence and make policy judgments.”125 We must 3 merely ensure that the challenged laws are substantially—even if 4 not perfectly—related to the articulated governmental interest. The 5 prohibition of semiautomatic assault weapons passes this test.126 6 ii. Prohibition on Large Capacity Magazines 7 The same logic applies a fortiori to the restrictions on large 8 capacity magazines.127 The record evidence suggests that large 9 capacity magazines may “present even greater dangers to crime and 10 violence than assault weapons alone, in part because they are more 11 prevalent and can be and are used . . . in both assault weapons and 12 non assault 13 disproportionately used in mass shootings, like the one in weapons.”128 Large capacity magazines are Id. at 99. 125 Cf. Heller II, 670 F.3d at 1263 (“[T]he evidence demonstrates a ban on assault weapons is likely to promote the Government’s interest in crime control . . . .”). Again, our holding is limited insofar as it does not apply to Connecticut’s prohibition of the non semiautomatic Remington 7615. 126 Amici argue that large capacity magazines are entirely outside of Second Amendment protection for the independent reason that such magazines constitute firearm “accessories” rather than protected “arms.” See Br. of Amici Curiae Law Center To Prevent Gun Violence and New Yorkers Against Gun Violence, No. 14 36 cv, at 8 13; Br. of Amici Curiae Law Center To Prevent Gun Violence, Connecticut Against Gun Violence, and Cleveland School Remembers, No. 14 319 cv, at 10 14. Because we conclude that the prohibition of large capacity magazines would survive the requisite scrutiny, we need not reach the merits of this additional argument. 127 J.A., No. 14 319 cv, at 1400. 128 42 1 Newtown, in which the shooter used multiple large capacity 2 magazines to fire 154 rounds in less than five minutes.129 Like assault 3 weapons, large capacity magazines result in “more shots fired, 4 persons wounded, and wounds per victim than do other gun 5 attacks.”130 Professor Christopher Koper, a firearms expert relied 6 upon by all parties in both states, stated that it is “particularly” the 7 ban on large capacity magazines that has the greatest “potential to 8 prevent and limit shootings in the state over the long run.”131 9 We therefore conclude that New York and Connecticut have 10 adequately established a substantial relationship between the 11 prohibition of both semiautomatic assault weapons and large 12 capacity magazines and the important—indeed, compelling—state 13 interest in controlling crime. These prohibitions survive 14 intermediate scrutiny. 15 iii. Seven Round Load Limit 16 Though the key provisions of both statutes pass constitutional 17 muster on this record, another aspect of New York’s SAFE Act does 18 not: the seven round load limit, which makes it “unlawful for a Defendants’ Br., No. 14 319 cv, at 11, 38 39. 129 Heller II, 670 F.3d at 1263 (internal quotation marks omitted); see also Defendants’ Br., No. 14 36 cv, at 59 60. 130 J.A., No. 14 319 cv, at 1410. 131 43 1 person to knowingly possess an ammunition feeding device where 2 such device contains more than seven rounds of ammunition.”132 3 As noted above, the seven round load limit was a second best 4 solution. New York determined that only magazines containing 5 seven rounds or fewer can be safely possessed, but it also recognized 6 that seven round magazines are difficult to obtain commercially. Its 7 compromise was to permit gun owners to use ten round magazines 8 if they were loaded with seven or fewer rounds.133 9 On the record before us, we cannot conclude that New York 10 has presented sufficient evidence that a seven round load limit 11 would best protect public safety. Here we are considering not a 12 capacity restriction, but rather a load limit. Nothing in the SAFE Act 13 will outlaw or reduce the number of ten round magazines in 14 circulation. It will not decrease their availability or in any way 15 frustrate the access of those who intend to use ten round magazines 16 for mass shootings or other crimes. It is thus entirely untethered 17 from the stated rationale of reducing the number of assault weapons 18 and large capacity magazines in circulation.134 New York has failed 19 to present evidence that the mere existence of this load limit will 20 convince any would be malefactors to load magazines capable of 21 holding ten rounds with only the permissible seven. N.Y. Penal Law § 265.37; see ante notes 12 13 and accompanying text. 132 See Defendants’ Br., No. 14 36 cv, at 15 16. 133 See id. at 55. 134 44 1 To be sure, the mere possibility of criminal disregard of the 2 laws does not foreclose an attempt by the state to enact firearm 3 regulations. But on intermediate scrutiny review, the state cannot 4 “get away with shoddy data or reasoning.”135 To survive 5 intermediate scrutiny, the defendants must show “reasonable 6 inferences based on substantial evidence” that the statutes are 7 substantially related to the governmental interest.136 With respect to 8 the load limit provision alone, New York has failed to do so. 9 VI. Vagueness Challenge 10 We turn now to plaintiffs’ second challenge to the New York 11 and Connecticut laws—their claim that provisions of both statutes 12 are unconstitutionally vague. The New York defendants cross 13 appeal Chief Judge Skretny’s ruling that two provisions of the SAFE 14 Act are void because of vagueness. 15 a. Legal Standards 16 Grounded in due process principles, the void for vagueness 17 doctrine provides that “[n]o one may be required at peril of life, 18 liberty or property to speculate as to the meaning of penal 19 statutes.”137 The doctrine requires that “a penal statute define the Alameda Books, 535 U.S. at 438. 135 Turner Broad. Sys., 520 U.S. at 195 (emphasis supplied). 136 Cramp v. Bd. of Pub. Instruction, 368 U.S. 278, 287 (1961); see also Cunney v. Bd. of Trustees of Vill. of Grand View, N.Y., 660 F.3d 612, 620 (2d Cir. 2011). 137 45 1 criminal offense with sufficient definiteness that ordinary people can 2 understand what conduct is prohibited and in a manner that does 3 not encourage arbitrary and discriminatory enforcement.”138 Statutes 4 carrying criminal penalties or implicating the exercise of 5 constitutional rights, like the ones at issue here, are subject to a 6 “more stringent” vagueness standard than are civil or economic 7 regulations.139 However, the doctrine does not require “‘meticulous 8 specificity’” of statutes, recognizing that “language is necessarily 9 marked by a degree of imprecision.”140 10 Because plaintiffs pursue this “pre enforcement” appeal 11 before they have been charged with any violation of law, it 12 constitutes a “facial,” rather than “as applied,” challenge.141 Under 13 the standard set forth by the Supreme Court in United States v. 14 Salerno, to succeed on a facial challenge, “the challenger must 15 establish that no set of circumstances exists under which the Act Kolender v. Lawson, 461 U.S. 352, 357 (1983). 138 Vill. of Hoffman Estates v. The Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498 99 (1982). 139 Thibodeau v. Portuondo, 486 F.3d 61, 66 (2d Cir. 2007) (quoting Grayned v. City of Rockford, 408 U.S. 104, 110 (1972)). 140 See Richmond Boro Gun Club, Inc. v. City of New York, 97 F.3d 681, 685 86 (2d Cir. 1996). 141 46 1 would be valid.”142 As a result, a facial challenge to a legislative 2 enactment is “the most difficult challenge to mount successfully.”143 3 Seeking to avoid this prohibitively high bar, plaintiffs urge us 4 to follow the different approach that a plurality of the Supreme 5 Court took in City of Chicago v. Morales.144 In that case, three Justices 6 held that a criminal law lacking a mens rea requirement and 7 burdening a constitutional right “is subject to facial attack” “[w]hen 8 vagueness permeates the text of such a law.”145 This Court, however, 9 has determined that, because the test set forth by the Morales 10 plurality has not been adopted by the Supreme Court as a whole, we 11 are not required to apply it.146 We have previously declined to 12 specify a preference for either test,147 and we need not do so here, 13 because the challenged provisions are sufficiently clear to survive a 14 facial challenge under either approach. 15 16 481 U.S. 739, 745 (1987) (emphasis supplied). 142 Id. 143 527 U.S. 41 (1999); see also Plaintiffs’ Br., No. 14 319 cv, at 52 54; Plaintiffs’ Br., No. 14 36 cv, at 52 56. 144 527 U.S. at 55. 145 United States v. Rybicki, 354 F.3d 124, 131 32 (2d Cir. 2003) (en banc). 146 Id. at 132 n.3. 147 47 1 b. Application 2 i. “Can be readily restored or converted to accept” 3 Both the New York and Connecticut statutes criminalize the 4 possession of magazines that “can be readily restored or converted 5 to accept” more than ten rounds of ammunition.148 In both suits, 6 plaintiffs allege that the phrase is unconstitutionally vague because 7 whether a magazine “can be readily restored or converted” depends 8 upon the knowledge, skill, and tools available to the particular 9 restorer, and the statutes are silent on these details.149 10 This statutory language dates at least to the 1994 federal 11 assault weapons ban and later appeared in New York’s 2000 law. As 12 Chief Judge Skretny noted, there is no record evidence that it has 13 given rise to confusion at any time in the past two decades.150 This 14 Court found a similar phrase in another gun law—“may readily be 15 converted”—to be “sufficiently definite” as to provide “clear[] 16 warn[ing]” of its meaning.151 Plaintiffs’ reliance on a Sixth Circuit N.Y. Penal Law §§ 265.00(23), 265.02(8), 265.36; Conn. Gen. Stat. § 53 202w(a)(1). 148 Plaintiffs’ Br., No. 14 36 cv, at 58 59; Plaintiffs’ Br., No. 14 319 cv, at 58 149 60. NYSRPA, 990 F. Supp. 2d at 376. 150 U.S. v. 16,179 Molso Italian .22 Caliber Winlee Derringer Convertible Starter Guns, 443 F.2d 463, 464 65 (2d Cir. 1971) (rejecting a vagueness challenge in a civil forfeiture context, and finding that the phrase clearly meant a gun “which can be converted by a relatively simple operation taking only a few minutes”). 151 48 1 case that interpreted a different phrase—”may be restored” without 2 the modifier “readily”—is inapposite.152 3 Plaintiffs’ purported concern—that this provision might be 4 unfairly used to prosecute an ordinary citizen for owning a 5 magazine that only a gunsmith equipped with technical knowledge 6 and specialized tools could “readily convert”153—is implausible. 7 Should such a prosecution ever occur, the defendant could bring an 8 “as applied” vagueness challenge, grounded in the facts and context 9 of a particular set of charges. That improbable scenario cannot, 10 however, adequately support the facial challenge plaintiffs attempt 11 to bring here. In sum, we affirm the judgments of both District Courts 12 13 finding that this phrase is not unconstitutionally vague. 14 ii. Capacity of Tubular Magazines 15 The New York plaintiffs contend the SAFE Act’s ten round 16 magazine restriction154 is vague insofar as it extends to tubular 17 magazines, the capacity of which varies according to the size of the 18 particular shells that are loaded. This challenge fails as a threshold 19 matter for the reasons stated by the District Court: the provision is Plaintiffs’ Br., No. 14 36 cv, at 58; Plaintiffs’ Br., No. 14 319 cv, at 58 59; see Peoples Rights Org., Inc. v. City of Columbus, 152 F.3d 522, 537 (6th Cir. 1998). 152 See Plaintiffs’ Br., No. 14 36 cv, at 58 59; Plaintiffs’ Br., No. 14 319 cv, at 153 58 59. N.Y. Penal Law § 265.00(23). 154 49 1 only potentially vague when applied to a specific (non standard) 2 use, and hence is neither vague in all circumstances (as required 3 under Salerno) nor permeated with vagueness (as required by the 4 Morales plurality). Moreover, like the “readily converted” language, 5 this capacity restriction was also included in the 1994 federal 6 assault weapons ban, without any record evidence of confusion 7 during the ensuing decades. 8 iii. “Copies or Duplicates” 9 Plaintiffs challenge the Connecticut statute’s definition of 10 assault weapon to include certain specified firearms and any “copies 11 or duplicates thereof with the capability of” the listed models.155 12 They argue that the provision provides inadequate notice of which 13 firearms in particular are prohibited. 14 We review the statutory language within its context, relying if 15 necessary on the canons of statutory construction and legislative 16 history.156 In the context of the legislation as a whole, this “copies or 17 duplicates” language is not unconstitutionally vague. All firearms 18 that the statute prohibits by model name also exhibit at least one of 19 the prohibited military style features.157 Hence, the statute provides Conn. Gen. Stat. § 53 202a(1)(B) (D). 155 Commack Self Service Kosher Meats, Inc. v. Hooker, 680 F.3d 194, 213 (2d Cir. 2012). 156 The Connecticut legislation prohibited only a single firearm, the Remington 7615, which lacked military style features. Because we have already held that Connecticut’s ban on the Remington 7615 is unconstitutional, see ante 157 50 1 two independent means by which an individual may determine if 2 his firearm is prohibited: he may consult the list of illegal models 3 and, if still concerned that the firearm may be an unlawful “copy or 4 duplicate,” he may cross reference the list of prohibited military 5 style features. 6 In this manner, the Connecticut legislation avoids the 7 deficiency of an assault weapons ban struck down by a sister Circuit 8 as unconstitutionally vague in Springfield Armory, Inc. v. City of 9 Columbus.158 In Springfield, the municipal ordinance at issue defined 10 assault weapons simply by naming 46 individual models and 11 extending the prohibition to weapons with “slight modifications or 12 enhancements” to the listed firearms. The Sixth Circuit explained 13 that the ordinance was invalid because it “outlaw[ed] certain brand 14 names without including within the prohibition similar assault 15 weapons of the same type, function or capability [and] . . . without 16 providing any explanation for its selections [of prohibited 17 firearms].”159 The Sixth Circuit found it significant that the ordinance 18 offered no “explanation for drafting the ordinance in terms of brand 19 name rather than generic type or category of weapon.”160 In the 20 instant case, by contrast, Connecticut has provided not only an notes 73 and 112, plaintiffs’ challenge to the “copies or duplicates” provision is moot regarding copies or duplicates of the Remington 7615 itself. 29 F.3d 250, 252 (6th Cir. 1994). 158 Id. 159 Id. 160 51 1 itemized list of prohibited models but also the military style features 2 test, which functions as an explanation of the “generic type or 3 category of weapon” outlawed. 4 We therefore agree with Judge Covello that the “copies or 5 duplicate” provision of the Connecticut statute at issue here is 6 sufficiently definite to survive a void for vagueness challenge. 7 iv. “Version” 8 We apply similar logic to our analysis of New York’s 9 prohibition of semiautomatic pistols that are “semiautomatic 10 version[s] of an automatic rifle, shotgun or firearm.”161 In this case, 11 Chief Judge Skretny held that the provision was unconstitutionally 12 vague, reasoning that “an ordinary person cannot know whether 13 any single semiautomatic pistol is a ‘version’ of an automatic one.”162 14 The District Court also expressed concern that the lack of criteria 15 might encourage arbitrary and discriminatory enforcement.163 16 We disagree. The SAFE Act’s terminology has been used in 17 multiple state and federal firearms statutes, including the 1994 18 federal assault weapons ban, as well as in government reports, 19 judicial decisions, and published books.164 Plaintiffs have shown no N.Y. Penal Law § 265.00(22)(c)(viii). 161 NYSRPA, 990 F. Supp. 2d at 377. 162 Id. 163 Defendants’ Br., No. 14 36 cv, at 81 83. 164 52 1 evidence of confusion arising from this long standing formulation. 2 Though plaintiffs are correct that, as a general proposition, 3 repetition does not save a vague term, in the particular 4 circumstances presented here—repeated use for decades, without 5 evidence of mischief or misunderstanding—suggests that the 6 language is comprehensible. Further, the SAFE Act provides 7 additional notice of prohibited conduct by requiring the creation of a 8 website listing unlawful weapons and containing additional 9 information.165 If, in fact, as the District Court fears, this language 10 results in arbitrary and discriminatory enforcement, those charged 11 under the statute can and should seek recourse in an “as applied” 12 challenge. We cannot conclude, however, that the provision is vague 13 in all circumstances or permeated with vagueness on its face. We 14 therefore reverse so much of the District Court’s judgment as holds 15 New York Penal Law § 265.00(22)(c)(viii) void because of vagueness. 16 v. “Muzzle Break” 17 Finally, Chief Judge Skretny also struck down as 18 impermissibly vague a provision of New York’s SAFE Act that listed 19 among prohibited military style features such muzzle attachments 20 as “a flash suppressor, muzzle break, muzzle compensator, or 21 threaded barrel designed to accommodate a flash suppressor, muzzle N.Y. Penal Law § 400.00(16 a)(b). The New York State Police also maintains a telephone line to answer the questions of gun owners. See Defendants’ Reply Br., No. 14 36 cv, at 26. 165 53 1 break, or muzzle compensator.”166 All parties agree that a “muzzle 2 brake” is a firearm attachment that reduces recoil. However, the 3 SAFE Act misspelled the term as “muzzle break.” On the basis of this 4 misspelling, the District Court held the references to muzzle 5 “breaks” to be unconstitutionally vague, reasoning that “an ordinary 6 person cannot be ‘informed as to what the State commands or 7 forbids.’”167 8 This is, in our view, an overstatement. Because the misspelled 9 homophone “muzzle break” has no accepted meaning, there is no 10 meaningful risk that a party might confuse the legislature’s intent. 11 Further, its placement within a list of muzzle attachments makes the 12 misspelled term’s meaning even clearer. What is more, because the 13 adjacent statutory term “muzzle compensator” is synonymous with 14 muzzle brake, and thus independently covers the prohibited 15 conduct, this issue is of little moment. Nonetheless, vagueness 16 doctrine requires only that the statute provide “sufficiently definite 17 warning as to the proscribed conduct when measured by common 18 understanding and practices.”168 This provision has done so. 19 Accordingly, we reverse so much of the District Court’s judgment as 20 holds New York Penal Law § 265.00(22)(a)(vi) unconstitutionally 21 vague. N.Y. Penal Law § 265.00(22)(a)(vi) (emphasis supplied). 166 NYSRPA, 990 F. Supp. 2d at 377 (quoting Cunney, 660 F.3d at 620). 167 United States v. Farhane, 634 F.3d 127, 139 (2d Cir. 2011) (internal quotation marks omitted). 168 54 1 2 3 CONCLUSION To summarize, we hold as follows: (1) The core prohibitions by New York and Connecticut of 4 assault weapons and large capacity magazines do not 5 violate the Second Amendment. 6 (a) We assume that the majority of the prohibited 7 conduct falls within the scope of Second 8 Amendment protections. The statutes are 9 appropriately evaluated under the constitutional 10 standard of “intermediate scrutiny”—that is, 11 whether they are “substantially related to the 12 achievement of an important governmental 13 interest.” 14 (b) Because the prohibitions are substantially related 15 to the important governmental interests of public 16 safety 17 constitutional muster. and crime reduction, they pass 18 We therefore AFFIRM the relevant portions of the 19 judgments of the Western District of New York and the 20 District of Connecticut insofar as they upheld the 21 constitutionality of state prohibitions on semiautomatic 22 assault weapons and large capacity magazines. 23 24 (2) We hold that the specific prohibition on the non semiautomatic Remington 7615 falls within the scope of 55 1 Second Amendment protection and subsequently fails 2 intermediate scrutiny. Accordingly, we REVERSE that 3 limited portion of the judgment of the District of 4 Connecticut. In doing so, we emphasize the limited 5 nature of our holding with respect to the Remington 6 7615, in that it merely reflects the presumption required 7 by the Supreme Court in District of Columbia v. Heller 8 that the Second Amendment extends to all bearable 9 arms, and that the State, by failing to present any 10 argument at all regarding this weapon or others like it, 11 has failed to rebut that presumption. We do not 12 foreclose the possibility that States could in the future 13 present evidence to support such a prohibition. 14 (3) New York’s seven round load limit does not survive 15 intermediate scrutiny in the absence of requisite record 16 evidence and a substantial relationship between the 17 statutory provision and important state safety interests. 18 We therefore AFFIRM the judgment of the Western 19 District of New York insofar as it held this provision 20 unconstitutional. 21 (4) No challenged provision in either statute is 22 unconstitutionally vague. Accordingly, we AFFIRM the 23 judgments of the District of Connecticut and the 24 Western District of New York insofar as they denied 25 vagueness challenges to provisions involving the 26 capacity of tubular magazines, “copies or duplicates,” 56 1 or a firearm’s ability to “be readily restored or 2 converted.” We REVERSE the judgment of the Western 3 District of New York insofar as it found language 4 pertaining to “versions” and “muzzle breaks” to be 5 unconstitutionally vague. 57
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