By Eugene Volokh
So holds People v. Nivar, 2011 WL 148743 (N.Y. Sup. Ct.) (a one-judge trial court decision):
Defendant also argues that New York City’s ban on the possession of air pistols, AC § 10–131(b), violates the Second Amendment....
This Court begins, as Heller did, with the meaning of the word “arms” and of the phrase “bear arms.” According to Heller, “[t]he 18th-century meaning [of “arms”] is no different from the meaning today. The 1773 edition of Samuel Johnson’s dictionary defined arms’ as weapons of offense, or armour of defense.’ [Citation omitted.] Timothy Cunningham’s important 1771 legal dictionary defined arms’ as any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another.’ [Citations omitted.].” for the phrase “bear arms,” the Court adopted Justice Ginsburg’s definition in Muscarello v United States, 524 US 125, 143 (1998), which it said “accurately captured the natural meaning of bear arms,’” that is, “wear, bear or carry ... upon the person or in the clothing or in a pocket, for the purpose ... of being armed and ready for offensive or defensive action in a case of conflict with another person.’”
With these meanings in mind, and based on the information provided by the parties about how air pistols operate and how air pistol manufacturers intend them to be used, and not used, this Court must conclude that air pistols are not “arms.” The manufacturer of the air pistol that defendant is charged with possessing includes a disclaimer at the bottom of its Internet web page recognizing that air pistols are not firearms: “Do Not Brandish Or Display Your Airgun In Public. It May Confuse People And It May Be A Crime. Police And Others May Think An Airgun Is A Firearm” (Peo’s Br. at 17, quoting Gamo air pistols and quality airgun products, http://www.gamousa.com/category.aspx?category=pistols & catID=2 [last visited by the Court on Jan. 10, 2011]). The manufacturer’s web page also states that it designs air pistols and airgun ammunition “for small game hunting and pest control” and that its products are “used daily by hunters and outdoor enthusiasts” (Peo’s Br. at 20, quoting Gamo Adult Precision Airguns, http://www.gamousa.com [last visited by the Court on Jan. 10, 2011 ). In stark contrast, firearms manufacturers such as Smith and Wesson and the Italian company that makes the Beretta line of handguns “make it clear that their products are intended to be effective in self-defense scenarios.”
Defendant does not dispute these facts. But while he concedes differences in both the operation and lethality of air pistols versus hand-held firearms — the former use air to propel a BB or pellet, while the latter use gunpowder to expel a bullet — he urges that air pistols fit squarely within Heller’s rationale:
There are many reasons that a citizen may prefer a handgun for home defense: It is easier to store in a location that is readily accessible in an emergency; it cannot easily be redirected or wrestled away by an attacker; it is easier to use for those without the upper body strength to lift and aim a long gun; it can be pointed at a burglar with one hand while the other hand dials the police.
554 US at 629. Defendant claims that “[n]othing in the foregoing passage suggests a limitation to hand-held weapons that employ gun powder rather than compressed air” (Wasserman Br. at 4).
Defendant’s argument, however, overlooks crucial facts. The statutes at issue in both Heller, 554 US at 574–75, and McDonald, 130 S Ct at 3026, banned possession and registration of firearms, and the Court in Heller emphasized that handguns are “an entire class of arms’ that is overwhelmingly chosen by American society for that lawful purpose [of self-defense],” 554 US at 628. Thus, “banning from the home the most preferred firearm in the nation to keep’ and use for protection of one’s home and family’ would fail constitutional muster.” 554 US at 628–29. See also 554 US at 629 (“It is no answer to say, as petitioners do, that it is permissible to ban the possession of handguns so long as the possession of other firearms [i.e., long guns] is allowed. It is enough to note, as we have observed, that the American people have considered the handgun to be the quintessential self-defense weapon.”).
Defendant cites no facts from anywhere in the United States outside New York City to establish that American citizens overwhelmingly chose air guns for “the core lawful purpose of self-defense” (554 US at 630), rather than for sports and recreation. Instead, he resorts to theory and speculation: the City’s police expert “is no authority on the psychological deterrent effect of an air gun when displayed as a defensive weapon;” “this inexpensive, easy to operate, and essentially non-lethal weapon has much to commend it as a household weapon for the average civilian;” “[t]he City should ponder whether its categorical opposition to these non-lethal weapons is creating an unnecessary conflict between the Second Amendment and the Sixth Commandment. Pacifists, too, have Second Amendment rights. The city should consider licensing airguns for the home” (Wasserman Br. at 7).
Nor do defendant’s citations to the Journals of the Lewis and Clark Expedition of 1803-06 to establish that air guns were “an integral part of the American arsenal at the time of the Framers” (Wasserman Br. at 5) carry the day. All these historical references illustrate is that Capt. Merriwether Lewis used an air rifle “for hunting and to astonish” native Americans (id. at 6). Conspicuously missing from the excerpts that defendant selected is any reference to the use of air guns in the early 19th century for self-defense.
Accordingly, this Court holds that AC § 10–131(b) does not implicate the Second Amendment right to keep and bear arms....