“Since Heller there has been an onslaught of litigation,” says Laura Cutilletta, a senior staff attorney at the Law Center to Prevent Gun Violence in San Francisco. “The Supreme Court made clear the Second Amendment protects the right to defend yourself at home ... but the ruling pertained only to handguns, not any other weapon.”
Exactly where that leaves New York’s law is likely to be hotly debated.
A much earlier Supreme Court ruling, US v. Miller, protected the right to carry arms that are “part of ordinary military equipment” or in common use, says Nicholas Johnson, a professor at Fordham University School of Law in New York.
There are now millions of AR-15s, an assault rifle, in use in the United States, he points out. “It is now impossible to argue that the AR-15 is not a gun in common use,” he argues.
Professor Johnson extends the argument to the magazines that hold the ammunition. There are probably hundreds of millions of high-capacity magazines in the world, he says. “Can you separate a gun from the magazine?” he asks.
In fact, he questions whether New York’s law that mandates magazines of no more than seven rounds is a “backdoor” way to ban guns, since the standard for the AR-15 is a 10-round magazine.
“That could be part of the challenge,” he says.
However, the Court of Appeals for the District of Columbia Circuit – one rung below the US Supreme Court – rejected a Second Amendment challenge to the District’s assault-weapons ban on the basis of “common use,” says Amanda Roth, a staff attorney at Ms. Cutilletta’s organization.