Previous Post
Next Post

New York Governor Andrew Cuomo courtesy

In their Heller decision, the Supreme Court provided a test to determine whether a firearm is protected under the Second Amendment and therefore cannot be banned. The sole criteria: whether a firearm is “in common usage.” The court didn’t define what “common usage” means, but I’m guessing that the AR-15 rifle — of which millions have been sold in the last couple years alone — meets that definition. Andrew Cuomo, however, disagrees . . .

From Human Events:

The Empire State governor seeks dismissal of complaint filed by the state’s largest firearm association which alleges that the New York Secure Ammunition Firearms Enforcement Act of 2013 is unconstitutional.

“The state filed a motion for a preliminary injunction, a dismissal, and for summary judgment,” said Stephen P. Halbrook PhD, a Second Amendment legal scholar and lead counsel for plaintiff in the matter of New York State Rifle and Pistol Association, et al. v. Andrew M. Cuomo, Governor of the State of New York, et al.


The state’s motion says that assault weapons are unusually dangerous military-style firearms and are not in common use.  It also alleges that New York’s bans on assault weapons do not even implicate plaintiffs’ Second Amendment rights, because such weapons are not within the scope of the Second Amendment.

As we know, “assault weapons” are used in somewhere around 2% of crimes. Handguns, on the other hand, are massively popular among criminals. Yet the Supreme Court ruled that handguns (the more dangerous weapon) are in sufficiently common usage as to be exempt from Washington, D.C.’s gun ban laws.

If a handgun meets the criteria for protection under the Second Amendment, there’s little doubt that “assault rifles” — used far less often with criminal intent — will get the same treatment. Eventually. Maybe not from a New York judge, but this is one of those cases that I’d be surprised if we didn’t see it on the SCOTUS’s docket for the next session.

The next hearing on the case is scheduled for August 29th. Stay tuned.

Previous Post
Next Post


  1. Good. Let coumo get spanked in court and have the AR legally defined as common usage. I don’t own or want an AR but I recognise it as the most popular rifle in America. It may even be more common than the 10-22.

    • I don’t think the AR has the 10-22 beat for popularity. Regardless, CA wants to ban both. That darn pesky Constitution continues to get in the way of the desires of statists. Well, kinda.

      • No other parts of the Bill of Rights gives the leftists any pause at all. See NSA scandals. Narry a peep (or notice) by the lowinformation public.

        What info do you think the NSA has agreggated on your inventory of firearms and ammunition from Federal, State, Local, commerical records?

      • Since when has the constitution, let alone judicial rulings, mattered to the Statists in Sacramento?

        They’re going to ban everything, confiscate everything, turn as many gun owners as possible felons, get spanked in court, and then do it again.

      • A81, I did a quick numbers check to see if the common usage bit is in our favor. Model 94 Winchester numbers 7.5 million +. Remington 870— 10 million +. Ruger 10/22—-5 million.

        On the AR the only number I could fine was good only until 2010. That was 2 million. That was a quick check and my google fu skills aren’t the best.

    • Yeah, I’d love to see this go to SCOTUS and see the AR defined specifically as ‘in common use’ AND also finally, legally, officially censure the anti-gun types for calling them assault rifles in the first place. Would be awesome if the supreme court said, “you’re completely right when you say that assault weapons are not in common use…” and then cut off Cuomo’s cheers with “but the weapons you are calling assault weapons ARE NOT assault weapons. You have lied and manipulated the truth …” blah blah etc etc 😉

    • According to Wikipedia there have been over 5 million 10/22s built since it was introduced in 1964. So I doubt any single maker of CIVILIAN ARs has topped that, but all of them put together yes.

  2. Their next session is a bit of a stretch, but it might come soon. Of course, this may not be a good thing. The Heller decision is a bit more complex than that and provides plenty of outs to allow some sort of regulation, depending on how Justice Kennedy feels that morning. Even if the “not unreasonably dangerous/in common use” test controls, if the court wants to allow a ban it can construct the math in such a way the guns look really dangerous or uncommon.

    • Heller was a mess. just enough to generate lawsuits, not enough to give judges courage. If i had to guess, today, id guess that they would punt it like they did affirmative action and tell the lower court to apply some standard of scrutiny. watching SCOTUS is like watching a redwood grow and trying to guess its final height: you might be right, but you might not live long enough to pop the champagne

      • The level of scrutiny they order will be key, and even if they ordered strict scrutiny I could see the 2nd Circuit conniving a way to let an AWB stand, forcing the court to take a position.

      • Heller was a mess, but ehhh…some things of it were pretty clear. It said that the gov can’t flat out ban things that are in common use.

        So, machine guns the gov can heavily regulate (which I think the court is wrong on, but that was their ruling).

        But an AR-15 and an AK variant…those are some of the most commonly used firearms out there. They aren’t “unusually dangerous” in comparison to a handgun (less so, they can’t be easily concealed, the rounds usually penetrate walls less, etc). Also, you are less likely to hit something other than your intended target.

        They aren’t unusually dangerous compared to a shotgun (the rounds penetrate walls less than a slug, and are less likely to hit something other than what you are aiming for).

        They aren’t unusually dangerous compared to a powerful hunting rifle (el oh el at the kinetic energy difference, the .223 round is pretty darn weak in the grand scheme of things)–an evil doer with an extremely powerful hunting rifle and a scope is a helluva lot more dangerous, imho, than a bad guy with a .223 semi auto and some “tactical” red dot sight.

        I could see the state winning a challenge on trying to overturn a ban on allowing some NFA items in the state or something.

        Or, sadly, winning a ban on something like a .50bmg (useless for a criminal, but you could argue for sure that isn’t in “common use”).

        But banning an extremely common .22 caliber rifle is just…yeah…full retard.

    • Bit if a stretch? Clearly–more like a couple, three years, minimum. Cases can pend for up to five years in a trial court, three to five in a court of appeals before the time to petition for cert even arises. I think there is a case in the DC trial courts right now that has been pending since 2009 (and is on to its second judge who has done exactly the same thing as his predecessor–absolutely nothing.) I think it is unlikely that the NY court here will allow summary judgment to be heard without allowing any discovery, so add six months to a year to the current calendar before we run the risk of a dispositive ruling.

      • I can see this case moving rather quickly actually since it’s completely unsettled law. We have no idea what the scope of the 2A is other than “in common use” which is subjective as hell. McDonald got to the SCOTUS 2 years after Heller so i see no reason why this couldn’t move along quickly. Plus, the SCOTUS has expressed interest in finally defining the the scope of the 2A. As for Kennedy and Roberts, i think both are on our side. Kennedy was very harsh to the anti’s in Heller and McDonalds oral arguments and Roberts has a legacy which i doubt he’ll want to be turning the 2A into some wishy washy “might as well not be there” amendment that protects nothing.

  3. Hmmm. ARs aren’t in “common usage” huh? I remember a headline from Drudgereport a while back. It had a pic of an AR with a substitle of “Wal mart sells out”. I have a picture of the headline, in fact.
    But you know an item has gone mainstream when:
    1. One of the worlds biggest news sources
    2. Is talking about one of the worlds biggest retailers
    3. Selling out.

    • hahahaha, your evidence may not be admissable in court, but it’s good enough for me.

      • It makes sense. Wal-Mart dosnt sell music with explicit lyrics because they are a “family store,” by their logic shooting is a family thing.

        Logic out the window for a moment, they sell Maxim and Cosmo magazine as well as tobacco products and alcohol and violent movies… but not explicit music. Because fv@k logic. I kind of wonder what “Stupid Hoe” by Nikki Minaj sounds like censored but I wont subject myself to that cruel and unusual punishment.

        • While we’re on the subject, that’s why I don’t buy music at Walmart. Not because they censor their music, mind you, because they’re free to do what they want. But because they don’t tell you. I remember when they started doing it, it was probably 15 years ago. Any other music store, you could buy either the explicit or the censored version, and you could tell because one had the parental warning sticker, and one had the notation [Censored] or [Edited] on the label. When Walmart started doing it, they didn’t do anything whatsoever to denote the difference. Back then, you only found out if you listened to it side by side with (or had heard before) the uncensored album. That, to me, is unforgivable. You want to be all family values, that’s fine, but don’t be sneaky about it.

          But then, who am I kidding, I haven’t bought music in almost 15 years anyway.

  4. This might be make or break time for gun control if it goes to the high court. Or it might break us.

    • Well, nothing is ever final. Remember pre-Heller the thing that protected the right was political power manifested in the elected branches. If the court says it is ok to ban ARs that doesn’t mean they are automatically banned (except in places like NY that have laws on the books), rather we will just need to win politically to keep laws from being passed.

      Likewise, even if we win at SCOTUS once the makeup of judges change they will try again, seeking to get that ruling overturned or distinguished in such a way as to be meaningless.

  5. By the statistics cited in this post, 2% of crimes are committed by assault rifles while the majority of crimes are committed by handguns, there is evidence that rifles are not in common use compared to handguns.

    Do we have statistics on legal usage of handguns versus rifles?

  6. Hey, Cuomo isn’t wearing his DBA pin. Isn’t that one of the Douche Bags Anonymous bylaws?

    • there is nothing remotely “anonymous” about the fact he is a total douche bag

  7. I’m perplexed. According to Cuomo, when the unSAFE was signed, there were about 1 million AWs in New York.

    In their filing to dismiss they state that there’s only 7 million in the entire country.

    So, am I to believe that 1/7th of the nation’s AWs were in NY? Despite the old AWB we had?

    • do not believe anything this man says. especially if it has to do with “assault weapons”. assault weapons do not exist. there are assault rifles and the civilian modern sporting rifles.

      • This. I guess he’s going with the “compared to other weapons” theory, but to be sensical, it would have to compare rifles to rifles and eliminate handguns.

    • We have somewhere between 300-500 million legally owned civilian firearms. These libtards are such lying sacks of shit its rediculous. The reason we havent been invaded all these years is due to the fact of so many legal weapons and firearms in the hands of the people.
      Remember in school when they taught you about checks and balances in govt to prevent tyranny. they claimed there were 3. there is actually 4. The schools apparently forgot that an armed society is needed to prevent tyranny.
      We have the 2nd Amendment to repel foreign invaders and take back the country from Tyrannical govt.
      Lets start this revolution now and kick out everyone in the White House, congress, and the Supreme Court. While your at it bring back public hangings as death sentences for Politicians who violated their oath of office.

  8. I laugh when I see political commentators say he, and others of his kind, are doing these things to place themselves in the running for 2016.

    No politician stands a chance at being elected POTUS running off of strong gun control. None. So please, continue trying to run that route, just makes it easier for conservatives to win. I like repeats of 2010.

    • This isn’t about the general election, this is about the Democratic primary. The thought is that gun control energizes the progressive wing of the Democratic base, which you need to win to get the nomination. Once you get to the general people may not vote for you because of it, but with the GOP in such disarray and saddled with some real loser issues of their own, you can still win (since folks really angry about guns weren’t going to vote for you anyway).

  9. I hope this goes to the SCOTUS and they get to finally admit that common usage is any ARM. Automatics would be in common usage if not for the NFA…

  10. Read:
    Page 1-2, subheading 1, (b) &

    Page 8 paragraph 2.

    Page 55, paragrph 2.

    In that order.

    ‘Nuff said.

      • Just pick a document. What really matters is that you read them. Those sections are all important.

        • They KNEW what was in it before they passed it (Obamacare), at least some did… and others OUTSIDE of congress seen the cans of vipers buried within… Of course some of our legislators can’t be bothered to read a bill before voting on in.

    • So if Cuomo is Darth Vader then that would make Bloomberg the emperor. He did a great job in the original Star Trek movies, trying to suppress free people’s rights and being all evil and such. It was like he was almost meant to do that. And the great thing is he didn’t have to use any makeup for that roll ,100% Bloomberg.

  11. This guy must be having cranial rectal inversion if he really thinks that AR15’s are not the most commonly owned and used hunting, defensive, and sporting rifles in the United States by a large margin.

  12. Remember that the judiciary is not bound by the laws of logic or common sense.They could just as easily rule that AR15s and other “military style” sporting rifles are uncommon enough to not be included with the RKBA- physical facts be damned.

  13. “If a handgun meets the criteria for protection under the Second Amendment, there’s little doubt that “assault rifles” …..”

    Maybe. But keep in mind that ‘assault rifles’ are owned in far less quantity than handguns are. Depends how you want to define ‘common use’. If the handgun is the yardstick, that’s actually a pretty high level of ownership…..

  14. Unfortunately, since it is NY, I fear he may just win. Does anyone doubt that Gov Cuomo is running for president in 2016??

    • He couldn’t even finish the primary’s. All one of his opponents will have to do is mention his rather substantial role is the housing market crash and his rampant corruption while he was with HUD and he is finished. The dems are just smart enough to realize that the GOP could flog him with his past.

      • and yet Mr zillionaire offshorist banker Romney got nominated. Primaries are not where sense regarding electability rules. Sometimes the less horrible person wins because primaries are more about getting the activists to the polls, without doing too much damage to ones ability to pivot to the center. If Hillary runs, he’s toast. If not, he has a decent chance. However, he has no chance in the general election.

  15. Can you honestly expect the same people who believed that “…the right of the people to keep and bear arms shall not be infringed.” conferred no individual right to bear arms to believe that “the weapons protected by the 2nd amendment are those that are typically possessed by citizens for lawful purposes.” doesn’t protect the most popular long guns in the entire country? It’s not hard to make that logical leap. Hell! Even in Heller 2, which upheld DC’s AWB, the majority admitted whole heartedly that there is NO DOUBT that these weapons AND magazines are in common use for lawful purpose, but that they thought the common use test wasn’t good enough on its own so decided to use the test that Heller strictly prohibited, good ol fashioned intermediate scruntiny (Aka the judge’s personal opinion).

  16. Is New York even part of the United States anymore? Shouldn’t we just let someone annex it, or cut the bridges and leave them to their own devices. Damn these people live in another dimension…

  17. pick and choose by a politician, is NOT in my Constitution….how about yours….these people that call themselves Americans , are …NOT….at the very least an American believes in FREEDOM…and LIBERTY…….and to be left alone….without politicians self proclaimed authority…..also…….I did not sign any contract with any politician giving away any of my Rights…did you…as we near the birthday of our Republic ,which by the way is not a democracy, as you hear many politicians deem it,including all of our presidents for the past 30 years or so…….we may well be celebrating its LAST….as the forces of evil start their mop up agenda….my stand will be short as a lone individual, but it will not be wasted…for I will leave standing upright as a FREE manand taking some evil doers with me……..long live this Republic………imho

  18. Do you ever notice how ALL politicians frame the debate with their words so that everyone starts to discuss and debate the merits of the politicians words…when all anyone should be concerned with is…where in the CONSTITUTION did you get the AUTHORITY to enter the words and reasons for your ‘laws’….that is what MUST be questioned by each and every person…..and if it ain’t there in the CONSTITUTION….it ain’t gonna fly…bozo…..imho

  19. I’m no longer surprised at the amount of cognitive dissonance employed by Liberals to try and articulate their views.

    On the one hand, Cuolo (sic) wants to ban AR platform rifles because they are not “in common usage”, even though millions of short- and long-action AR receivers have been made and sold all over the world over the last 50+ years. The AR platform rifle is the main battle rifle for dozens of countries around the world, especially the United States.

    Which brings us to the Cognitive Dissonance, where Cuolo (sic) claims that “military pattern” rifles aren’t covered under the Second Amendment, yet in Miller (1939); the case that all of the anti-gunners used for years to justify a collective view of the Right to Keep and Bear Arms before Heller and McDonald defined it as an individual right; SCotUS declared that the short-barrel shotgun possessed by Miller had “no militia purpose”, which anti-gunners also used to deny the manufacture and importation of certain firearms.

  20. Long before Heller, in US v Miller (1939) the US Attorney General argued that ONLY military style weapons are protected by the 2nd. The decision came down that the firearms must be reasonably related to the militia. In dicta, they say that militia weapons are those in common usage of the time. (“Of the time” sticks a fork in the old ‘2A is for muskets’ argument)
    It seems to me, and any judge that’s not politically appointed/motivated, that the standard issue rifle for the US military would be the MOST commonly used rifle. And if that’s not the one, then it’s the widely used AK. Either way assault rifles are protected.

Comments are closed.