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Mixed Trial Court Ruling on New York's "SAFE" Act Ensures Appellate Action Will Follow

Friday, January 17, 2014

On December 31, 2013, Judge William M. Skretny of the U.S. District Court for the Western District of New York issued a decision in a legal challenge to New York’s recently-enacted gun control law, commonly known as the SAFE Act.  The suit was brought by the New York State Rifle and Pistol Association, among others, with support from the NRA.  Plaintiffs asserted that three provisions of the Act violated the Second Amendment.  These included its expanded ban on so-called “assault weapons” and “large capacity ammunition feeding devices” and its requirement that magazines be loaded with no more than seven rounds, even if they have a larger capacity. Various aspects of the law were also challenged as being unconstitutionally vague.  Finally, plaintiffs asserted that provisions of the law which effectively ban direct Internet or mail order sales of ammunition violate Congress’ preeminent role under the Constitution in regulating interstate commerce.

The most important aspect of the decision from the perspective of New York’s beleaguered gun owners is that it invalidated the Act’s first-of-a-kind requirement that magazines used and intended for self-defense be loaded with no more than seven rounds of ammunition, no matter what their capacity.  Judge Skretny characterized the seven round limit as “arbitrary” and noted that because the law allowed for possession of magazines with up to 10 rounds, the limit could “disproportionately affect[] law-abiding citizens.”  He also found the state had not offered evidentiary support for its claims that the load limit would advance public safety.

With regard to the expansions of New York’s ban on “assault weapons” and “large” magazines, the court was considerably more deferential.  Judge Skretny determined these provisions of the law were subject to a three-step analysis: (1) determining whether the items were commonly-used for lawful purposes; (2) determining whether the challenged restrictions substantially burdened rights protected by the Second Amendment; and (3) determining what level of scrutiny to use by reference to how close the restriction burdened the “core” right of self-defense within the home. 

A significant positive to arise from the case was Judge Skretny’s findings that the banned firearms and magazines met the first two steps of the test.  Yet he refused to apply the highest level of constitutional scrutiny (i.e., strict scrutiny) in the third step, opting for what he called “intermediate scrutiny.”  This requires a court to determine whether the challenged restrictions are “substantially related to the achievement of an important governmental interest.”  In rendering this choice, Judge Skretny invoked First Amendment doctrine and compared the bans to content-neutral restrictions on speech that affect only the time, place, and manner of speech.  Yet the bans, outside of limited grandfather provisions that obviously contemplate diminution of stocks by attrition, do not merely state when, where, and how the items may be used.  Rather, they prohibit entirely the private, non-commercial possession of an entire class of what the court acknowledges are popular firearms owned by millions nationwide and commonly used by tens of thousands for lawful purposes.       

Nevertheless in finding that the bans satisfied intermediate scrutiny, Judge Skretny credited the state’s evidence on the public safety implications of the bans over that advanced by the plaintiffs.   His reasoning, in this regard, created a Catch-22 for law-abiding gun owners. “There … can be no serious dispute,” he wrote, “that the very features that increase a weapon’s utility for self-defense also increase its dangerousness to the public at large.”  In other words, the court seemed to indicate that the easier a firearm is to use, and the more effective it is in stopping an adversary (or multiple adversaries), the less protection it should be afforded under the Second Amendment. 

Yet the court also narrowed the scope of the bans by finding various provisions of the law so ambiguous as to violate the constitutional requirement that a criminal offense embody sufficient definiteness so that ordinary people can understand what conduct is prohibited and so that arbitrary and discriminatory enforcement is not encouraged.  These provisions included the law’s use of “muzzle breaks” as features that could qualify firearms as banned weapons, its inclusion of “semiautomatic version[s] of an automatic rifle, shotgun, or firearm” within its banned classes of pistols, and a clause expanding the magazine ban that Judge Skretny deemed “entirely indecipherable.”

Judge Skretny rejected the plaintiffs’ challenges to the new requirement that ammunition sales occur only in “face-to-face” transactions between the vendor and the seller, analogizing them to requirements that had been upheld in a prior case banning direct mail or Internet sales of cigarettes.

Parties on both sides of the case always expected that it would ultimately be resolved at the appellate level, and perhaps by the United States Supreme Court.  Both sides of the case have already filed notices of appeal, and the fight to vindicate the Second Amendment rights of New Yorkers will continue.

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