On February 28, NRA President David Keene addressed a rally gathered in Albany, N.Y. to protest the New York Secure Ammunition and Firearms (SAFE) Act, telling the crowd of more than 10,000, “We’ll help you overcome these statutes in court.” On March 21, the NRA made good on that promise, assisting the New York State Rifle and Pistol Association, the Westchester County Firearm Owner Association, the Sportsmen’s Association for Firearm Education and the New York Amateur Trap Association, along with several businesses and individuals, in filing suit. The defendants are Governor Andrew Cuomo, Attorney General Eric Schneiderman, and other state officials.
For those unfamiliar with New York’s most recent foray into gun control and bad governance, here is a rundown. After several days of closed-door meetings and deal making, on Jan. 14, Gov. Cuomo sprung the SAFE Act bill on the state Senate only twenty minutes before a scheduled vote. The Senate passed the measure, the House approved it the following day and Cuomo signed it immediately. To bypass any legislative debate, Cuomo invoked a “message of necessity,” eliminating the three-day waiting period before legislation may receive a vote, as required by the state constitution. The whole process was described in the New York Times as “classic Cuomo” where “Eggs are broken, speed rules, an open process is sacrificed, and results are achieved—sometimes triumphant, often jagged and imperfect.”
“Imperfect” was right. The Times went on to explain, “Before New York’s new gun control law was even passed, lawmakers were acknowledging that they would have to pass a second measure to clean up some of its errors.” The law’s wide-ranging attack on the rights of gun owners had many significant flaws. The complaint in the case tackles many of the most offensive parts of the new law, including the prohibitions on many popular magazines and semiautomatic firearms, the registration of previously “grandfathered” semiautomatics, and prohibitions on ammunition transfers.
First, the new law sets up a convoluted structure for dealing with magazines the state considers “large capacity.” Possession of magazines that “have a capacity of or can readily be resorted or converted to accept” more than 7 or 10 rounds is banned. This difference in capacity allows those who currently have eight- to ten-round magazines to keep them, but not to load them with more than seven rounds (unless at a range or competition). The possession or transfer of magazines holding more than 10 rounds, which had been grandfathered under the 1994 magazine ban, is outlawed entirely. All newly acquired magazines must hold seven rounds or fewer.
The SAFE Act modifies the state’s 1994 semi-auto ban by changing it from a two-feature test to a one-feature test. Any currently owned semiautomatic rifle or pistol with a detachable magazine, or any semiautomatic shotgun, must be registered as an “assault weapon” if it has just one feature such as a pistol grip, thumbhole stock, muzzle brake, vertical foregrip, or many others. The registration requirement includes semi-automatics possessed before the state’s 1994 ban that were previously exempt from any reporting requirement. Possession of “assault weapons” acquired after January 15, 2013 is prohibited.
In opposition to the magazine and semi-automatic bans, the complaint notes that the banned guns and magazines are commonly possessed and useful for militia purposes. In District of Columbia v. Heller, the U.S. Supreme Court made clear that the Second Amendment protects arms that are in common use, which would include the millions upon millions of magazines and firearms targeted by New York’s ban. The complaint points out that the magazines banned are so popular that alternatives are impossible to come by, stating, “Most pistols are not designed to operate with magazines holding only 7 rounds… For most pistols, no such magazines are manufactured, and plaintiffs have no knowledge of where to obtain such magazines.”
The complaint also contends that the statute’s seven round limit for home protection and exemption for fully loaded ten round magazines while at a range or in competition violates equal protection under the laws as guaranteed by the Fourteenth Amendment. The suit notes that this part of the law creates “discrimination against homeowners who wish to protect themselves and their families from violence, and in favor of persons involved in mere sporting activities.” (Among the homeowners who face such discrimination are the individual plaintiffs, who have physical disabilities—ranging from carpal tunnel syndrome to the loss of a hand—that make rapid reloading of smaller-capacity magazines extremely difficult.)
The complaint goes on to argue that “portions of the Act are vague, fail to give notice, and violate due process.” For example, the magazine ban applies to devices that “can be readily restored or converted to accept” more than seven or 10 rounds of ammunition. The complaint explains: “These terms fail to inform a reasonable person as to who can readily restore or convert such devices, whether lay persons or trained experts with the requisite knowledge or skill, and with what equipment.” Other vague terms plague the feature test that bans many semiautomatics, such as its references to “protruding” grips.
Complicating matters, on March 28 the New York Assembly passed the state budget, which included an indefinite suspension of the SAFE Act’s ban on magazines holding eight to 10 rounds. Finally acknowledging what gun owners already understood, Gov. Cuomo and Assembly Speaker Sheldon Silver admitted that no seven round magazines exist for many guns. Even with this fix, gun owners will still be unable to load more than seven rounds into a magazine unless shooting at a range or in a competition.
In support of the case, on May 8 the NRA filed a “friend of the court” brief in support of the plaintiffs. Drawing from a litany of scholarship and case law, the brief dispenses with the often seen legal theories subjecting gun laws to different levels of scrutiny depending on how central they are to the “core” Second Amendment right. Lawyers for the NRA, led by former U.S. Assistant Attorney General Charles Cooper, make clear that decisions by other courts conforming to this theory “are not faithful to Heller and McDonald,” as they “have effectively embraced the sort of interest-balancing approach that Justice Antonin Scalia condemned” in Heller, and that is improper for determining the scope of a fundamental right.
The brief goes on to explain that New York’s ban on popular semi-automatic firearms should be judged by a different method, laid out by Justice Scalia in Heller. Writing the opinion, Scalia made clear that the Second Amendment protected the right to arms “of the kind in common use,” which clearly applies to the guns banned by New York. The brief goes on to explain that magazines capable of holding more than seven rounds are similarly protected by the Second Amendment. The brief shows that tens of millions of the magazines New York has banned are currently in circulation nationwide, placing them easily within any definition of common use.
Additionally, on May 14 a brief was filed on behalf of the New York State Sheriffs’ Association; the Law Enforcement Legal Defense Fund; the Law Enforcement Action Network; the International Law Enforcement Educators and Trainers Association; and several county sheriffs. The brief makes clear that many of the firearms banned by Cuomo’s legislation are chosen by law enforcement officials and other private citizens to defend their homes, and that the new law does “not serve to increase the safety of New York residents.” The brief goes on to explain the unique problems the SAFE Act poses for law enforcement officers, noting that “the vagueness of the challenged provisions precludes fair enforcement,” and that “the lack of guidelines will require officers to rely on their subjective interpretations, thereby jeopardizing the freedom of law-abiding individuals attempting to comply with the laws.”