A national gun rights group argued in an appeal filed last week that a federal court judge erred when she upheld Connecticut’s ban on certain semi automatic rifles despite a new constitutionality test established last year by the U.S. Supreme Court.
In a 69-page brief filed Wednesday in the 2nd U.S. Circuit Court of Appeals, a lawyer for the Colorado-based National Association for Gun Rights disputed much of Judge Janet Bond Arterton’s reasoning for declining to issue a temporary halt on enforcement of an assault weapons ban adopted in the aftermath of the 2012 Sandy Hook Elementary School shooting.
In general, the plaintiffs argued that mass shooting deaths were relatively rare and therefore should not be the basis for a prohibition of commonly used weapons.
“A] law aimed at a few mad men with guns that also makes criminals out of responsible, law-abiding people who desire commonly possessed firearms and magazines to protect themselves is not consistent with the Second Amendment,” attorney Barry Arrington wrote.
However, much of the appeal focused on contesting Arterton’s application of the U.S. Supreme Court ruling in New York State Rifle & Pistol v. Bruen, which struck down a New York law giving state officials discretion in the issuance of concealed carry permits.
The court’s 6-3 decision, written by Justice Clarence Thomas, included a new requirement that in order to justify a gun control regulation, “the government must demonstrate that the regulation is consistent with the Nation’s historical tradition of firearm regulation.”
This new historical test has been at the heart of hundreds of Second Amendment cases filed in civil and criminal courts in the short time since the Bruen decision and has factored into the invalidation of firearm policies around the nation.
In her August ruling, Arterton cited a passage from the Bruen decision, which cautioned lower courts against both upholding laws that only remotely resemble historical analogues and striking down any law that did not have a historical “twin.”
The judge concluded that lawyers for Connecticut had cited historically analogous laws to support its assault weapons and large capacity magazine bans.
“[The state had demonstrated] that when a modern innovation in firearm technology results in a particular type of weapon or method of carrying being utilized for unlawful purposes to terrorize and endanger the public, the Nation has a longstanding history and tradition of regulating those aspects of the weapons or manners of carry that correlate with rising firearm violence,” the judge wrote.
The gun rights group disagreed, writing in their appeal that the district court decision relied on 20th century laws, like a ban on machine guns, to satisfy the historical analogue requirement while the Supreme Court had largely limited comparisons to policies adopted closer to the enactment of the Second Amendment.
“The 20th-century statutes come far too late in time to offer meaningful insight into the meaning of the Second Amendment,” Arrington wrote. “The truly analogous statutes (i.e., the militia laws) did not ban arms or limit ammunition capacity. They required arms and set a floor on ammunition availability.”
Lawyers with the Office of the Attorney General had yet to respond to the group’s appeal as of this week. On Monday, the Manhattan-based court gave the state until Feb. 21, 2024 to file a response brief.
In August, Attorney General William Tong hailed the lower court decision as affirmation that Connecticut’s bans on assault weapons and large capacity magazines remained “on strong legal footing after the U.S. Supreme Court decision in Bruen.”
However, the National Association for Gun Rights lawsuit is not the only post-Bruen challenge faced by the state’s gun safety policy. A separate appeal of a lawsuit filed by the Connecticut Citizens Defense League is also pending before the 2nd Circuit Court.
Last week, the court issued an order dismissing the second appeal unless the plaintiffs file an appearance by next Wednesday, Dec. 6.
