Shew v. Malloy Archives -

Shew V. Malloy Will Be Appealed

On Thursday, Senior US District Court Judge Albert V. Covello ruled that despite being “in common use” the State of Connecticut could impose an assault weapons (sic) and magazine ban. This ban had been challenged by the Connecticut Citizens Defense League in the case of Shew et al v. Malloy et al. Today the CCDL announced that a formal notice of an intention to appeal had been filed.

From their release:

HARTFORD – Just one day after receiving an adverse ruling from the lower federal court on their
Second Amendment challenge to Connecticut’s new firearms law,
the plaintiff-firearms owners and organizations filed a formal notice of their intention to appeal the ruling. In addition to following the U.S. Supreme Court precedents in the renowned cases of
Heller
and
MacDonald,
the lower federal court deciding the case was bound to follow recent precedents of the U.S. Second Circuit Court of Appeals in New York. To date, the Second Circuit has upheld laws that place greater restrictions on the right to bear arms than have courts in federal circuits in other parts of the country. It is these diverging views of the Second Amendment on issues that were not resolved by the U.S. Supreme Court in
Heller
and
MacDonald
that make it likely that the Supreme Court will decide to hear one or more Second Amendment cases in the next few years.

Although the legal conclusions did not go their way at this initial stage of the litigation, the lower court did make factual findings that gun owners view as favorable. For example, the court found that certain of the newly banned firearms, such as the popular AR-15, are in
“
common use
”
for lawful purposes throughout the nation. The AR-15 type modern sporting rifle, which is newly classified as an
“
assault weapon
”
under the legislation, is the leading type of firearm used in national shooting matches and in other competitions sponsored by the congressionally established Civilian Marksmanship Program. The court also
found that banning such commonly used firearms places a “substantial burden” on fundamental Second
Amendment rights.

The photo below was posted on their blog announcing that they planned to appeal the decision. I think they have it right.

A Loss In Connecticut

Senior District Court Judge Alfred V. Covello ruled in favor of the State of Connecticut in upholding their assault weapons ban and other restrictions. The case, Shew et al v. Malloy et al, was brought by the Connecticut Citizens Defense League and others challenging the law enacted after the Newtown shootings.

Gun control advocates were buoyed Thursday by a federal court decision in Hartford that upholds Connecticut’s toughest-in-the-nation assault weapons ban, calling it a constitutionally valid means of balancing gun rights and the government’s interest in reducing gun violence.

“The court concludes that the legislation is constitutional,” senior U.S. District Judge Alfred V. Covello wrote in a decision published late Thursday. “While the act burdens the plaintiffs’ Second Amendment rights, it is substantially related to the important governmental interest of public safety and crime control.”

Just quickly glancing over the opinion that can be found here, it appears that Judge Covello used intermediate scrutiny to decide in favor of Connecticut and relied upon the 2nd Circuit’s ruling in Kachalsky v. Cacace.

From the article in the Hartford Courant, it appears that Judge Covello bought into much of the anti-gun nonsense that Connecticut used to defend the law.

Covello, agreeing with the plaintiffs, concluded that the weapons and magazines are commonly owned and legally used in Connecticut and elsewhere. But he parted company with the plaintiffs when he wrote that the state’s ownership and sales ban is justified when the government’s goal of reducing violence is measured against the ban’s impingement on Second Amendment rights.

The Second Amendment rights of gun owners are adequately protected by the large number of alternate weapons that can be used for protection, hunting and sports events, he wrote.

On several occasions, Covello adopted the state’s arguments that assault weapons are designed, not for cosmetic purposes, but for “lethality.” And he referred to an affidavit by a state expert who asserted that “Connecticut’s bans on assault weapons and large capacity magazines, and particularly its ban on (large capacity magazines), have the potential to prevent and limit shootings in the state over the long run.”

Covello was appointed to the bench for the District of Connecticut by Pres. George H. W. Bush in 1992.