NY SAFE Act upheld at District Court

[Tom Servo]

Chief U.S. District Judge William M. Skretny has ruled on the constitutionality of New York's SAFE Act [pdf]. Here's the summary:

• Yet again, the RKBA is subject to intermediate, not strict, scrutiny. Therefore, vague ramblings about "public safety" are enough to justify a regulation.
• Regarding the "features" restrictions on guns, most were upheld.

  Plaintiffs later argue that the banned features increase the utility for self-defense— which is just another way of saying that the features increase their lethality. (...) There thus can be no serious dispute that the very features that increase aweapon’s utility for self-defense also increase its dangerousness to the public at large." [p. 31]

• The ban on muzzle brakes is voided, however, because legislators worded them as "breaks."
• The provision banning pistols which are "versions" of fully-automatic weapons is also unconstitutionally vague.
• The face-to-face ammunition sale requirement was upheld.
• He found that that standard-capacity magazines are "commonly owned for lawful purposes" and that a requirement limiting the amount of rounds loaded is "more than a “marginal, incremental or even appreciable restraint” on the right to keep and bear arms." As such, that was thrown out.

Oh, and this one was odd:

Plaintiffs later argue that the banned features increase the utility for self-defense— which is just another way of saying that the features increase their lethality. (...) There thus can be no serious dispute that the very features that increase aweapon’s utility for self-defense also increase its dangerousness to the public at large. [p. 31]

So, yeah. We're off to the 2nd Circuit after this.

[SamNavy]

Tom, understand I do my absolute best to speak lawyer, and I actually just read the whole PDF, but can you spell out what exactly this means in the broadest overall picture with regards to "the way ahead"?

Does the last bullet mean that guys with magazines greater than 7rds can now/immediately start fully loading them since that part was , or is there another legal hurdle?

But as an initial matter, New York fails to explain its decision to set the maximum at seven rounds, which appears to be a largely arbitrary number. And even if a person using a weapon in self-defense needs only a few rounds, and even if that is a rational reason for adopting the law, under intermediate scrutiny there must a “substantial relation” between the means and the end. The State’s justification for the law need not be perfect, but it must be “exceedingly persuasive.

This peripheral rationale, which is possibly meant to protect bystanders when a firearm is being discharged lawfully, or victims of impromptu acts of violence, is largely unsupported by evidence before this Court. It thus fails the more demanding test and must stuck down.

Again, sorry for not having the background.

[Tom Servo]

Essentially, you can put a muzzle brake on a rifle because the legislature misspelled it in their haste to write the law. I'm not kidding.

Also, if New Yorkers have 10-round magazines, they can load all ten. Everything else was upheld.

[SamNavy]

Roger that... sorry, was just editing my post to clarify, but you just did... so when you mentioned "off to the 2nd circuit after this", what does it mean? Does this mean we're going to file another lawsuit somewhere and run it through a higher court?

[Ruthless4christ]

this is NOT a victory. This is a Trojan horse that will simply lead to more encroachment on the rights of new yorkers. By repealing only the magazine limit portion of the law, NYS has effectively divided the camp of pro 2A folk as now many people that WERE largely inconvenienced will find the new law bearable. others will be delighted at what they view as a victory and decide we should cut our losses and give up with what we have. either way the freedom movement in NY will be greatly compromised unless this is seen for what it is. Tyranny. Giving me back a percentage of my freedom back, when you never should have taken it away in the first place is not a victory. it is an insult.

[Tom Servo]

Does this mean we're going to file another lawsuit somewhere and run it through a higher court?

It means this decision will be appealed to the 2nd Circuit Court of Appeals. If we don't get a favorable ruling there, it could possibly be appealed to the Supreme Court.

others will be delighted at what they view as a victory and decide we should cut our losses and give up with what we have.

I'm not sure what you mean. Nobody on our side plans on leaving it at this and saying "oh well, at least we got a few things." They're certainly not calling it a victory.

[Ruthless4christ]

I'm not sure what you mean. Nobody on our side plans on leaving it at this and saying "oh well, at least we got a few things." They're certainly not calling it a victory.

perhaps you and I are not, but as soon as the ruling happened people were calling me and acting like this was something awesome.

[Ruthless4christ]

I do have one question that I could not figure out from the ruling. Are pre 94 mags that hold more than 10 rounds now legal again?

[Tom Servo]

perhaps you and I are not, but as soon as the ruling happened people were calling me and acting like this was something awesome.

Yowch. No, that's not the case at all.

That said, there wasn't an expectation of victory. This was just a step in the process that had to be taken.

[Aguila Blanca]

I wonder if this ruling will have any effect on any of the three (four?) lawsuits that should be getting into the court in January against the new Connecticut laws.

[Glenn E. Meyer]

Interesting but what do I know? But this is the Internet.

1. It points out some stupid thing but buys into wily old bird Scalia's rotten egg of reasonable restrictions.

2. The point about dangerousness once again (my favorite rant) points the fallacy of the modern sporting rifle blather. The 2nd Amend. exists because of the efficacious nature of the firearm. Modern sporting rifle apologists try to make the gun look less dangerous. That of course makes it logical to ban mag sizes, various mechanisms, etc. You have to buy that gun is dangerous as part of the raison d'etre of the 2nd Amend. You have only to look at Zumbo or Metcalf for folks who don't get it.

[heyjoe]

if you lived in NY you would have no trouble believing the judicial branch both state and federal are riddled with corruption. decisions like this are torturously crafted to fit political and ideological goals.

[Bartholomew Roberts]

Another case of a judge claiming to apply intermediate scrutiny to the Second Amendment and then actually applying rational basis.

To meet intermediate scrutiny, it must be shown that the law or policy being challenged furthers an important government interest in a way that is substantially related to that interest. Yet the only part of the NY SAFE Act that failed was an arbitrary number that they didn't even offer evidence to support?

The sad thing is that particular trick is a fairly common one among lower court judges trying to avoid any upsetting of the apple cart. Not to mention that in this case, it gives Cuomo a face-saving out for a stupid, unenforceable law that was bad policy.

[Al Norris]

Originally Posted by Bart

The sad thing is that particular trick is a fairly common one among lower court judges trying to avoid any upsetting of the apple cart.

Another in a long line of an unsupported claim of "Public Safety," wherein the mantra of Intermediate Scrutiny is used to bolster a Rational Basis Scrutiny decision.

So much so, that the Appellate Courts are using it.

This rebellion of the lower courts, in the face of Heller/McDonald, will not stop until the SCOTUS puts an end to it. And at the present time, it appears that the Supreme Court will not take any cases to correct this situation.

I hate to say it, but with the defection of C.J. Roberts, in the Sebelius case, the so-called Heller 5 may in reality be the Heller 4.

[vranasaurus]

It seems to me the courts are deciding these cases on the basis that the claimed activity isn't protected. While they are are nominally giving them protected status and then using rational basis and calling it intermediate scrutiny.

I wrote a law review comment on what constitutes protected arms and activities. It didn't get selected for publication. If any academic or legal types would like to edit it I would be happy to have it posted here.

One specific thing I take issue with is this notion that making a weapon more dangerous somehow allows the government to regulate them out of existence.

If anyone is interested in it let me know. It is rather rough.

[Glenn E. Meyer]

I'm not so sure I trust Scalia, given his prose. I regarded him as Fudd-lite. He shoots birdies and supports some plain, vanilla SD guns.

[raimius]

I'm not so sure I trust Scalia, given his prose. I regarded him as Fudd-lite. He shoots birdies and supports some plain, vanilla SD guns.

Which makes eating the elephant one bite at a time all the more important (as much as it pains me to say that!)

We really need to have carry recognized as a right. We need to do it in a narrow way, so that squishy feelings about people running around with MP5Ks and mowing down people over parking disputes (or whatever ridiculous arguments are made) don't get serious consideration.
Then, once SCOTUS would need to overturn its own precedence, do you go for the details. Show that a college campus isn't the same as the secure area of an airport or a prison. etc. etc.
Only after they say carry is actually a right do you pick out the arbitrary policies that annoy us so much.

Unfortunately, the "Hail Mary" play is likely to fail or have a poison pill inserted into the ruling. The incremental approach probably won't get as much as a successful "Hail Mary," but it is less likely to fail completely and set us back for a hundred years.

[rebs]

I wonder what promises or how much of Bloomburg's money was used to get this ruling ?
What part of shall not be infringed doesn't this judge understand ?
A previous post was correct this is no victory. Was allowing 10 rounds in a magazine meant to be throwing us a bone and hoping we will be satisfied and go away ?

[Bartholomew Roberts]

Apparently the NY DA in the adjacent district has said he'll ignore the ruling anyway and continue to prosecute for violations of the 7rd limit. So even less of a victory then it looks like at this point.

[JimPage]

The DA in Onondaga county says that the ruling only applies to the western district of the state of NY, so he will still prosecute loading more than 7 rounds. So much for legal integrity

[Oldwoodsloafer]

it's even worse!
According to New York state law, the state does not recognize lower federal court decisions when they conflict with New York laws. I believe New York is the only state with this provision.
Back to seven.

[bob.a]

For my part, I trust Scalia. I've seen and heard him in public, and he first of all is deeply supportive of the Constitution as written, and has taken pains to interpret it in the light of the Founders' intentions. He has published the methods of his reading of the law, and seems to stand behind it.

Further, he has supported the concept of citizens' possession of present-day military weaponry. Drawing lines over such things as rocket launchers does not seem to me to be overly restrictive. Leaving doors open (in Heller) for further discussion of weapon carry is a concession, in my mind, to the necessity of attaining a majority in a court that teeters on a knife-edge.

He has been known to take fellow Justices to the range, for the purpose of introducing them to the realities of the shooting sports. This is far from a bad thing.

Beyond all that, he seems to be the most vocal, outspoken and articulate supporter of our 2A rights on the SCOTUS.

At least, so I see him.

[steve4102]

Any updates on this?

I found this article today claiming the NY State Police will not enforce the 7 round limit until further court rulings.

http://www.mytwintiers.com/story/d/s...jEOBSt4KxOeSaA

[Al Norris]

Updates? I haven't looked beyond knowing that there will be an appeal. Usually, the first appellate brief won't be seen for anywhere between 3 months to a year.

There have also been reports that some Sheriffs have said they will enforce the law, that what the court struck down, only applies to that particular federal district.... Sound familiar?

[Musketeer]

I live on Long Island and know the only 2A victory this state can ever expect will come from a court outside of NY and forced upon the state. Everything before such a decision is just going through the motions.