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In The Blink of an Eye

Saturday, February 1, 2014

All the trouble began with a simple question no one could answer. 

Two men and one woman behind the counter at my local Gander Mountain in New York State were quarrelling. Not angrily, but adamantly. Finally, one of them strode off and hurried back with a dog-eared, 39-page printout held together with an alligator clip. As she began thumbing through the pages, I peeked over her shoulder and saw she had a printout of New York’s Secure Ammunition and Firearms Enforcement Act of 2013 (commonly known as the “NY SAFE Act”). 

I swallowed a sigh. You see, I’d started this debate by placing a Ruger 10/22 magazine on the counter. The magazine could hold a maximum of 25 cartridges. According to the SAFE Act, I had to permanently alter the magazine so it couldn’t be “readily restored or converted” to accept more than 10 cartridges (though I couldn’t legally load more than seven rounds in it unless I was competing in what the state considers to be an “official” competition; as explained below, the law originally banned magazines that could accept more than seven rounds). 

The thing is, the magazine is made from a polymer. I couldn’t weld something in place. So I asked what product I could buy, or what their gunsmith could do, to legally alter my magazine.

The salesperson found the page she wanted and read some legalese out loud. She then paused with this befuddled look on her face. All three looked at each other and shrugged. The legislation surely didn’t explain how someone could or couldn’t alter a magazine.

Finally, one of them pointed at the 10/22 magazine and said, “If I were you, I’d toss that thing. If you alter it somehow and get caught with it you might find yourself at the mercy of some judge’s discretion. A criminal conviction would hang in the balance.”

The three employees with their copy of the SAFE Act nodded in unison. They had just tripped over one of the many practical and constitutional problems with the SAFE Act. As two of the employees left to help other customers, the third, an older gentleman, quietly asked, “Does your 10/22 have a thumbhole stock?”

“No.”

“That’s good,” he said, looking relieved. 

I understood his concern.  Thumbhole stocks, under the SAFE Act, have the potential to turn an otherwise legal firearm into a banned “assault weapon.”
A wide range of guns lawfully acquired and possessed before the SAFE Act was passed will now become contraband unless registered by April 15, 2014.

I left the store pondering this law’s absurdities and infringements on a constitutionally protected right. Other such ill-conceived laws have been hastily passed in Connecticut, Maryland and Colorado. The point is, even if you’re not a New Yorker you need to know about such laws because similar bad legislation might be introduced soon in your state. To keep you informed, here’s what New York’s SAFE Act has wrought—and what’s being done about it.   

Rammed Through 

New York Gov. Andrew Cuomo wanted to be first. He wanted the “toughest gun-control laws in the nation.” He wanted to use the horror from Sandy Hook Elementary to massively restrict the constitutional rights of citizens who live in New York. He knew he couldn’t afford time for debate.

And he got his way. The hastily written SAFE Act passed the New York Senate on Jan. 14, 2013, and the State Assembly the very next day. Cuomo signed the bill into law just a half-hour after it passed the legislature.

The next Saturday, Jan. 19, thousands of protesters, who hadn’t been able to be heard before the passage, gathered in Albany, the state’s capital. The pushback has since been unprecedented. At least 52 of New York’s 62 counties passed official resolutions in direct opposition of the NY SAFE Act. Some law enforcement officials even publicly stated they would not enforce the SAFE Act because of its unconstitutionality. More than 325 local municipalities throughout New York voiced public opposition to the law. 

The New York State Sheriffs’ Association issued a letter criticizing the law. For example, the sheriffs said, “The new definition of ‘assault weapons’ is too broad, and prevents the possession of many weapons that are legitimately used for hunting, target shooting and self defense.” Dozens of organizations, including sportsmen’s clubs, the American Legion, the New York State Association of County Clerks, the New York State Association of Psychiatric Rehabilitation Services, the New York State Conservation Council, the U.S. Department of Veterans Affairs and others publicly criticized the law.

If the breadth of this opposition from New Yorkers surprises you, it’s worth noting that New York isn’t all skyscrapers and Manhattan scenes from old “Seinfeld” episodes. By size, the state of New York is 30th among the 50 states. By population, it is third. By population density, it is seventh. In 2012, New York’s state population was estimated to be 19.5 million, of which 8.3 million live in New York City. That means 42 percent of the state’s population lives in New York City (NYC). Millions more live in the metropolitan areas around NYC, anchoring New York in deep blue political waters. But upstate New York is different. Gun ownership there is very common, and more than 581,000 New York residents hunt deer each year. 

Cuomo rushed the SAFE Act through because he didn’t want opposition from upstate, as well as from a lot of freedom-loving citizens in the downstate metropolitan areas, to galvanize. Instead of looking for real solutions by getting recommendations from police, citizens and crime experts on how the state could better stop bad guys from committing violent crime, he arrogantly shoved an ideological, anti-gun-rights package through the legislature. As a result, some of the mistakes in the law have already required amendments and postponements, while many others are clearly unconstitutional.

First, A Mouthful Of The Absurd

Cuomo passed the NY SAFE Act so fast he didn’t know his magazine-size restriction made no sense, as many popular pistols don’t even have magazines available that hold only seven rounds. In his haste, he even neglected to realize the law, as passed, barred police officers from carrying their usual sidearms. The legislature later passed an exception for law enforcement. If Cuomo had simply asked a gun owner or police officer, he could have saved himself, if not from this wrongheaded policy, at least from public embarrassment. 

Cuomo also had to allow citizens to buy magazines that can hold 10 rounds. Not doing so would be a de facto ban on the use of many commonly owned pistols. In D.C. v. Heller (2008), the U.S. Supreme Court reaffirmed that the Second Amendment protects commonly owned firearms. So Cuomo et. al. tweaked the law to allow New York residents to have 10-round magazines, but stipulated they could only load seven rounds into a magazine unless it is being used at an incorporated firing range or competition, in which case it may be loaded to its full capacity. (This flippant treatment of equal protection under the law is being challenged.)

Cuomo and the legislators who voted for the SAFE Act also didn’t realize they couldn’t legally piggyback background checks for those who want to purchase ammo onto the FBI’s National Instant Criminal Background Check System (NICS). In fact, Larry Keane, general counsel for the National Shooting Sports Foundation (NSSF), says that’s not even legal under federal law. Without any system in place to make people undergo background checks every time they need a box of shotgun shells or rifle cartridges, Cuomo has had to postpone implementation of that part of the law.

Now Some Of The Constitutional Problems 

The SAFE Act’s many constitutional infringements are outlined in a legal challenge being spearheaded by The New York State Rifle & Pistol Association (NYSRPA). At press time, the legal challenge to the SAFE Act was before U.S. District Judge William M. Skretny in the Western District of New York. The NRA has provided resources and legal assistance to the NYSRPA and filed a “friend of the court” brief (NYsrpa.org/files/SAFE/NRA-SAFE-Amicus.pdf) in support of NYSRPA’s lawsuit.

For the sake of brevity, here are just a few of the many egregious problems with the SAFE Act. (You can read a lot more by going to NYsrpa.org.)

1. the law bans commonly owned firearms

The SAFE Act expands the already erroneous use of the phrase “assault weapon” in New York law to include many commonly owned rifles, handguns and shotguns that are semi-automatic. To accomplish this, the SAFE Act broadens New York’s previous “two-features” test into a “one-feature” test. Rifles that are semi-automatic, have the ability to accept a detachable magazine and have at least one of the following characteristics are banned: a folding or telescoping stock; a pistol grip that protrudes conspicuously beneath the action of the weapon; a thumbhole stock; a second handgrip or a protruding grip that can be held by the nontrigger hand; a bayonet mount; a flash suppressor, muzzle brake, or muzzle compensator (or even a threaded barrel designed to accommodate any one of these things); or a grenade launcher. 

The SAFE Act uses similar criteria to ban shotguns as “assault weapons.” It bans any semi-automatic shotgun that has at least one of the following characteristics: a folding or telescoping stock; a thumbhole stock; a second handgrip or a protruding grip that can be held by the nontrigger hand; a fixed magazine capacity in excess of seven rounds; or an ability to accept a detachable magazine. This, for example, bans the popular Remington 11-87 semi-automatic shotgun when it has a ShurShot pistol-grip stock, along with many other shotguns designed for turkey hunting and home defense applications.

The act also uses a list of features to ban pistols the state now considers to be “assault weapons.” Overall, these rules ban some of today’s most commonly owned firearms. Under the SAFE Act’s “single feature” test, an ordinary rifle becomes an “assault weapon” merely by reason of having a feature related to how it is held by the user. 

As the Supreme Court made clear in Heller, however, the arms protected by the Second Amendment are those weapons “of the kind in common use ... for lawful purposes like self-defense.” Applying this “common use” test, Heller struck down the District of Columbia’s handgun ban.

Just by stepping into any gun store, Cuomo could have seen that semi-automatic technology is not unusual or uncommon. In fact, surveys including a 1997 Harvard School of Public Health study have found that about 60 percent of gun owners own some type of semi-automatic firearm. Semi-automatic designs have actually been in civilian hands for more than a century.

2. Vague Language That Can Lead to Felonies 

The SAFE Act fails to explain whether manufacturers can continue to make lower receivers for otherwise banned rifles so residents who legally own such firearms under the act’s grandfathering and registration provisions can obtain parts. As federal law defines a receiver as a firearm, gun dealers are obviously reluctant to engage in any activity that might later be deemed illegal.

Also, the law orders gun owners to discard or permanently modify “high-capacity” magazines, but it never explains how such magazines can be legally modified. This leaves gun owners in jeopardy of being found guilty of a crime at the discretion of any given judge. These and many other undefined areas of this law leave gun owners and dealers guessing what is legal and what is illegal, which itself offends constitutional due process.  

3. Unequal Treatment Under The Law 

Gov. Cuomo’s website states, “Starting on April 15, 2013, you are limited to putting in seven rounds [in a magazine], unless you are at an incorporated firing range or competition recognized by the National Rifle Association or International Handgun Metallic Silhouette Association, in which case the limit is ten.”

Obviously this is discriminatory against homeowners who wish to protect themselves and their families. It gives people involved in sporting activities more capability than someone protecting themselves and their loved ones. This is not only legally irrational, it turns the core purpose of the Second Amendment, as articulated by the Supreme Court in Heller, on its head.

Invoking the language of Heller, the NRA argues in its friend of the court brief that “The Second Amendment’s ‘core protection’—the right to armed self-defense, including, most acutely, in the home—is no less absolute than the First Amendment’s protection of the expression of unpopular opinions: ‘The First Amendment contains the freedom-of-speech guarantee that the people ratified, which included exceptions for obscenity, libel and disclosure of state secrets, but not for the expression of extremely unpopular and wrongheaded views. The Second Amendment is no different. ... And whatever else it leaves to future evaluation, it surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.’” 

One can only hope that the federal court hearing this case takes these words to heart and treats the Second Amendment the respect and seriousness it is due. Clearly, Gov. Cuomo has not, and law-abiding New Yorkers throughout the state are suffering the consequences.  

For those of you living outside New York, its example should serve as a warning and a call to action.  Stay involved, stay informed and, most of all, exercise your rights at the ballot box in national, state and local elections. If you fail to exercise those rights, you may lose others as a result.  

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Established in 1975, the Institute for Legislative Action (ILA) is the "lobbying" arm of the National Rifle Association of America. ILA is responsible for preserving the right of all law-abiding individuals in the legislative, political, and legal arenas, to purchase, possess and use firearms for legitimate purposes as guaranteed by the Second Amendment to the U.S. Constitution.