New York’s New Armor and Rifle Bans are Unconstitutional
New York recently imposed a law prohibiting the sale of vests capable of stopping pistol bullets, other than to individuals in the military, law enforcement, or other professions to be determined by New York’s Secretary of State. Because government frequently exempts itself from burdens it imposes on everyone else, it will be interesting to see if those professions end up including “member of the legislature.”
It will also be interesting to see whether New York provides an exemption for, say, cashiers in businesses within high-crime neighborhoods, or if it ends up treating body armor like it does handgun-carrying licenses. New York denies such licenses to any applicant who cannot, to the issuing authority’s arbitrary satisfaction, demonstrate an extraordinary reason to fear for his or her safety. However, within the next few days the Supreme Court will rule in New York State Rifle & Pistol Association vs. Bruen, challenging New York’s carry license law.
Also, New York recently imposed another law, to require a license for a semi-automatic rifle. Because New York, one of the few states to require a license to buy a gun (previously applicable to only handguns), denies licenses to persons under age 21, the new law prohibits persons under age 21 from buying semi-automatic rifles.
First, there’s the wickedness of prohibiting people from buying armor, an entirely defensive item, with which to protect themselves against offensive actions by criminals. Compounding the law’s wickedness, New York, as noted above, refuses to issue concealed handgun carrying licenses to most qualified applicants. It is therefore clear that the legislature and governor want most people left largely defenseless.
Second, the armor ban is unconstitutional, because the Second Amendment protects the individual right to keep and bear “arms,” and arms include body armor. As the Supreme Court said in District of Columbia v. Heller (2008), “The 18th-century meaning is no different from the meaning today. The 1773 edition of Samuel Johnson’s dictionary defined ‘arms’ as ‘weapons of offence, or armour of defence.’”
The armor ban is unconstitutional for another reason. Until New York’s law, only Connecticut had prohibited the sale of body armor, so there is no history and tradition of armor bans on which New York’s and Connecticut’s bans can stand. That’s potentially important, because Supreme Court Justice Brett Kavanaugh emphasized history and tradition when he was a judge on the Court of Appeals for the District of Columbia Circuit, in his dissent in Heller v. District of Columbia, beginning on page 46 of the linked pdf file. (In a moment of judicial fame, I’m cited by then-Judge Kavanaugh on page 80.)
There another reason New York’s and Connecticut’s armor bans are unconstitutional. However, first some background is in order. Archeologists have discovered body armor from Greece, dating back 3,400 years and we know from written history that body armor has been privately owned for at least 2,512 years. In 490 B.C., in the Battle of Marathon, Greek citizen-soldiers defeated the first invasion of Greece by the Persian Empire. Being citizen-soldiers, the Greeks were required to provide their own arms. In those days, there were four varieties of combatants: heavy (armored) and light (unarmored) infantry and heavy and light cavalry. The Greeks were almost entirely heavy infantrymen called “hoplites.” All hoplites wore a helmet and carried a shield, and wealthier hoplites also wore armor over their torsos.
Fast forwarding a bit, America traces its political history to England, of course, where armor was privately-owned for centuries. American constitutional scholar Stephen P. Halbrook, in The Right to Bear Arms, explains the English Statute of Northampton (1328) prohibited going armed in a manner apt to terrorize people, but that carrying weapons for protection and wearing inconspicuous armor did not run afoul of the law. Halbrook relates, “William Hawkins, in his influential Treatise of the Pleas of the Crown (first published in 1716), cited Sir John Knight’s Case for the following: ‘. . . that persons armed with privy coats of mail, to the intent to defend themselves against their adversaries, are not within the meaning of the statute, because they do nothing in terrorem populi.’”
Fast forwarding again, firearms became the dominant battlefield weapon with the Battle of Cerignola in 1503, and thereafter armor fell into disuse as firearms evolved to the point that bullets could defeat it. But in the 20th century, new materials capable of defeating handgun bullets were developed. Vests made with such materials are now worn by law enforcement officers everywhere in America, obviously for defensive purposes, and for the same reason body armor is fairly popular among private individuals nationally. As noted, until New York, only Connecticut (one percent of the nation’s population) had banned body armor sales.
Also unconstitutional is New York’s “under 21” semi-automatic rifle ban and the much worse “under 21” ban relative to all rifles and shotguns, signed into law by Rick Scott when he was governor of Florida, to help him get elected to the Senate. Like Nikki Haley, as ambitious as Lucifer, Scott’s more recent self-promoting, show-boating stunts have been his “Rescue America” plan, which has zero chance of being passed by the Democrat-majority House of Representatives, and his demand that nominal president Joe Biden resign, as if Biden would do that to please Scott, and as if we would be better off with Kamala Harris in the White House.
“Under 21” rifle bans are unconstitutional on Second Amendment and equal protection grounds. The equal protection argument is plain enough. Persons ages 18-20 are adults for other purposes, so it is unequal to treat them more restrictively than other adults for rifle-buying purposes. The same could be said for federal and state laws prohibiting persons ages 18-20 from buying handguns.
The Second Amendment argument is first that historically, persons ages 18-20 could acquire arms when the Second Amendment was adopted. Second, as the Supreme Court observed in U.S. v. Miller (1939), members of the militia, if called into service, are expected “to appear bearing arms supplied by themselves,” just like the hoplites in ancient Greece. That’s important because persons ages 18-20 have been part of the militia throughout American history. For example, the Militia Act of 1792 defined the militia as all able-bodied males ages 18-44, and federal law today defines the Militia of the United States to also include 17-year-olds.
Third, the right to arms includes all weapons and armor the people would need to defeat tyranny, and excludes only such arms as would give an individual a degree of combat capability the Framers envisioned would be distributed among the people. (See James Madison and Alexander Hamilton in The Federalist numbers 46 and 29, explaining that in the event of tyranny, the militia could defeat the Army by virtue of its massive manpower advantage.) Thus, one person with, say, a nuclear weapon, no. But millions of Americans with semi-automatic rifles and armor, absolutely.
Again, some background may be in order. The history of the Second Amendment is clear, that it was adopted to guarantee the right of the people to keep and bear arms generally, so that we would always have a militia capable of ensuring “the security of a free state” against tyranny. When the amendment was adopted, the people could freely keep and bear arms identical to those possessed by soldiers.
The standard rifle in the military today is that of the M16 series, and newer rifles are in the pipeline. The AR-15, a semi-automatic rifle, is essentially the M16 except that the latter can also be fired fully-automatically. The Supreme Court was wrong in Heller, opining that the 1986 ban on M16s does not violate the constitution. As then-Solicitor General Paul Clement said during oral arguments in that case, “I think it is more than a little difficult to say that the one arm that’s not protected by the Second Amendment is that which is the standard issue armament for the National Guard.” The Guard is, of course, the organized component of the Militia of the United States.
Furthermore, in U.S. v. Miller, cited but misinterpreted by Heller, the Court indicated that the right to arms includes all arms that “have a reasonable relationship to the preservation or efficiency of a well regulated militia,” such as those that are “part of the ordinary military equipment” and any others the use of which “could contribute to the common defense.” Clearly, that would include M16s, semi-automatic rifles, and most other guns, and also armor, because armor has been common for most of the last 2,500 or more years, and it’s “ordinary military equipment” worn by all U.S. military personnel on the ground during operations.
It remains to be seen whether anyone will challenge New York’s new armor and “under 21” semi-automatic rifle bans. However, as noted, in the next few days, the Supreme Court will rule on New York’s handgun carry license law. You can keep checking for the opinion here.
© 2022 Mark Overstreet