Lawsuit Against State of New York

Jacob’s reporting a lawsuit is in the works by NYSRPA and NRA. I do hope this is a carefully considered lawsuit that asks narrow questions rather than broad questions. I’ve been wary of taking assault weapons cases forward, but a) New York’s is pretty draconian, and b) circumstances have largely forced this issue. Someone is going to take cases forward, and I’d rather it be with responsible plaintiffs, and not a defense attorney taking bad cases with bad plaintiffs because someone somewhat shady but not prohibited got busted with a gun that had more than 7 rounds in it.

Will the federal courts help the good people of New York? I’d be a liar if I told you I think the odds are better than not that they strike down the law. Much more likely it will be upheld, even in the appeals court. What will the Supreme Court do beyond that? I wouldn’t hazard a guess, because by the time any case gets there, we could be looking at a different Court.

There are several good carry cases moving forward in the courts now, which are much closer to the Supreme Court than any case against the Cuomo gun ban, and for which I feel better about achieving victory. Hopefully the Court will offer some helpful language, and possibly some hints about what issue to press next.

32 thoughts on “Lawsuit Against State of New York”

  1. If the Supremes tell us 7+1 rounds is a legitimate restriction we’ll know how much they’re good for right now: total bans bad, extreme restrictions good.

    Of course, while I have hopes for Kagan, a single retirement from the useful Heller majority would likely turn this into a futile effort—although perhaps that might be good for our cause in the long term, one less excuse for complacency—but I don’t see how they can’t try.

  2. I think the strongest 2A case against this law will be against the 7 round provisions. First off, the law states that you can own a 10 round magazine (grandfathered) but only load it to 7 unless you are at a range. I can’t see any court upholding that- because it fails logic- there just isnt a rational argument to be made for it. Also when it comes to “in the home” any court is going to take a heightened scrutiny.

    The second part of that- the provision on ownership of “post-ban” +7 mags will probably go as well. Essentially, all semi-auto handguns have been banned (with the exception of 1911s and a few pocket pistols). D.C. tried a similar thing with the “revolver only” law but quickly reversed after they realized it probably wouldn’t stand in court.

    1. The latter could fail like is has so far with D.C.; remember Emily Miller’s problems with finding a FFL with her desired SIG model who was willing to swap its stock standard capacity magazines with 10 round ones before sending the package to D.C.’s only FFL?

      Someone can manufacture or modify existing magazines so that they satisfy NY’s requirements, unless they’re worse than I remember reading.

      1. I don’t think anyone has challenged D.C. gun store laws. I’d guess the closest example would be the challenge to Chicago’s ban on firing ranges which was struck down.

        One of the key points is that no one else has a 7 round limit- this law is unique and unique laws are easier to challenge. Heller II relied partially on essentially saying “well it’s okay because other people have the same exact law”. You can’t use any other law as an example.

        I’m not saying that they will strike down the entire law, I don’t think so. I’m pretty sure the AWB, Ammo background check, Registration will all be okay. Remember, NY allows you to keep a your 10 round mags but you can only load it to 7 except at a range. A smart challenge will force NYS to asnwer “why is it in the government interest to limit you to 7 rounds in the home, but not at the range?”. Its completely arbitrary and makes absolutely no sense. Mass shootings don’t occur in your home. And when it comes to the home, courts (even the 2nd has indicated so) will take a much higher scrutiny.

        Also, this law has non-2A issues too. For example, what about my Henry 22 Magnum lever action rifle? How does that fit in. It is not an assault weapon but its magazine is more than 7. The magazine though is a fixed magazine- does that mean i have to register the gun or just register the magazine. If the magazine is fixed to the gun whats the purpose of just registering the magazine? See, these are the things that a “Constitutional vagueness” arguement can be made around.

        It comes down to the fact that NYS will be defending a law that is a national outlier, in which there is very little precedent for.

    2. Sounds like the 7/10 round thing clearly meets intermediate scrutiny.


      That’s what the appellate courts will say, I’d wager.

  3. I can’t imagine they’ve filed already – case will certainly be moot once NY passes its technical corrections bill. And, I don’t believe the law is in force until March or so. But always good to start planning.

    As for how it will fair – I’d actually suspect it might do pretty well. Enough precedent, and with New York moving so quickly and failing to hold hearings or do anything otherwise to have even the appearance of thoughtful deliberation or rational calculation – any deference a federal court might have shown the state legislature is going to be pretty shallow

  4. The law was intended to restrict only ordinary citizens and yet the law was created in such an reactionary and arbitrary way that they accidentally engulfed their own public security forces, and in a just world that type of legislative incompetence should get any law struck down.

  5. Today at the rally in Buffalo SCOPE was encouraging people to sign up for their own class action suit. Does anyone know if they are coordinating efforts with the NRA and NYSRPA?

    1. Probably not, and I’d suggest that their suit may be the kind I warned about. There are very few I really trust to do this kind of thing. SAF/Gura? Yes. Some of the folks who work with NRA? Yes, and even some NRA umbrella’d folks I’d be wary of. But random people who say they want to sue? Be very wary.

  6. Unfortunately I share Sebastian’s pessimism here. The federal courts in NY State are notoriously anti-gun, including the 2nd Circuit. SCOTUS would probably overturn the 7-round limit, but that’s only if the case gets there before Obama has a chance to replace one of the Heller 5.

    As a New Yorker, I’m glad they’re going to be challenging this. But the 2nd Circuit makes me nervous–it might have made more sense to challenge California’s 10-round limit in the 9th Circuit first.

    1. The 2nd circuit is def. more anti-gun than the other circuits but the difference here is that the law being challenged is significantly different from any other law challenged before- and different from any other law in the country. Over the past few days I have been researching 2nd amendments cases post-heller and I do think that this case against a 7 round limit stands a decent chance of succeeding. I’ll go into a few specifics

      Only 7 rounds in a 10 round magazine in the home- This pretty much fails even a rational basis test. A complete 10 round magazine ban actually is more defendable in this case than just this. What rational arguement is there for limiting how much ammunition can go into a legal magazine in the home? What government interest does it enhance? I’m sure they will argue something about suicides and Domestic violance gun murders but that can easily be counteracted by the fact is that the majority of such crime is committed with 1-2 rounds. Also the fact that they allow 10 rounds at a firing but not at the home flies against the second amendment protection which is strongest in the home. So 7 round max in the home serves to enhance a governments interest in public safety but not at a gun range? A good lawyer (or debater) could show a clear inconsistancy.

      7 round magazine capacity limit for purchases- It isn’t hard to show that magazines over 7 round are in common use for the lawful purpose of self defense. In fact, the state will have a harder time proving that it isn’t.

      Also, the fact that hundreds of thousands of citizens are being affected- and that thousands have signed petitions agasint this law will greatly help the case as well. The judicial system, as much as we don’t like to admit it, is swayed by politics. They might be quicker to dismiss the complaints of a few people wanting a CCW then they would 100,000 people saying there right to own a gun is being infringed. Plus the way in which this legislation passed doesnt help the state either. Legislative deference will be questioned.

    2. I am not so sure about SCOTUS and the 7 round limit? Would they overturn? Maybe. Maybe. We don’t really know. No one knows. Scalia is probably the best positioned person to know how far he can go with the Heller and McDonald majorities, and if you want to make this even more scary, I’ll bet you even he doesn’t really know.

      Think about political fights you might have had with coworkers in the workplace. If it was a battle with 9, you might know you have 2, 3, or maybe you were even mostly sure about 4 coworkers who’d stand with you, but you probably had a 5 you know is squirrely, if you were lucky. What I’m saying is, I’ll bet even Scalia is worried about how far his pro-2A coalition can go, and doesn’t want to chance it on something he isn’t sure of.

      1. I think there is a fair chance that even the 2nd circuit will do it. Here is the only major court decision on magazine limits (Heller II)

        “Assault Weapons and Large-Capacity Magazines

        Because the plaintiffs fail to present an argument in their briefs questioning the constitutionality of the ban on semi-automatic pistols and shotguns, see page 1249 footnote * above, we construe the plaintiffs’ challenge to the ban on assault weapons as going only to the prohibition of certain semi-automatic rifles. We are not aware of evidence that prohibitions on either semi-automatic rifles or large-capacity magazines are longstanding and thereby deserving of a presumption of validity.* For the court to determine whether these prohibitions are constitutional, therefore, we first must ask whether they impinge upon the right protected by the Second Amendment. That is, prohibiting certain arms might not meaningfully affect “individual self-defense, [which] is `the central component’ of the Second Amendment right.” McDonald, 130 S.Ct. at 3036, 130 S.Ct. 3020 (quoting Heller, 554 U.S. at 599, 128 S.Ct. 2783). Of course, the Court also said the Second Amendment protects the right to keep and bear arms for other “lawful purposes,” such as hunting, but self-defense is the “core lawful purpose” protected, Heller, 554 U.S. at 630, 128 S.Ct. 2783.

        The Court in Heller, as mentioned above at page 1252, recognized yet another “limitation on the right to keep and carry arms,” namely that the “sorts of weapons protected” are those “`in common use at the time’ for lawful purposes like self-defense.” Id. at 624, 627, 128 S.Ct. 2783. The Court found this limitation “fairly supported by the historical tradition of prohibiting the carrying of `dangerous and unusual weapons.'” Id. at 627, 128 S.Ct. 2783. Because the prohibitions at issue, unlike the registration requirements, apply only to particular classes of weapons, we must also ask whether the prohibited weapons are “typically possessed by law-abiding citizens for lawful purposes,” id. at 625, 128 S.Ct. 2783; if not, then they are not the sorts of “Arms” protected by the Second Amendment.

        a. Do the prohibitions impinge upon the Second Amendment right?

        The plaintiffs contend semi-automatic rifles, in particular the AR variants, are commonly possessed for self-protection in the home as well as for sport. They also argue magazines holding more than ten rounds are commonly possessed for self-defense and for other lawful purposes and that the prohibition of such magazines

        [ 670 F.3d 1261 ]

        would impose a burden upon them. Specifically, they point out that without a large-capacity magazine it would be necessary, in a stressful situation, to pause in order to reload the firearm.
        The District, by contrast, argues neither assault weapons nor weapons with large-capacity magazines are among the “Arms” protected by the Second Amendment because they are both “dangerous and unusual,” Heller, 554 U.S. at 627, 128 S.Ct. 2783 (internal quotation marks omitted), and because prohibiting them minimally burdens the plaintiffs; hence the District maintains the bans are constitutional. The Committee on Public Safety received evidence that assault weapons are not useful for the purposes of sporting or self-defense, but rather are “military-style” weapons designed for offensive use. See generally Testimony of Brian J. Siebel, Brady Center to Prevent Gun Violence (Oct. 1, 2008). The Committee concluded assault weapons “have no legitimate use as self-defense weapons, and would in fact increase the danger to law-abiding users and innocent bystanders if kept in the home or used in self-defense situations.” Report on Bill 17-843, at 7 (Nov. 25, 2008).

        The District likewise contends magazines holding more than ten rounds are disproportionately involved in the murder of law enforcement officers and in mass shootings, and have little value for self-defense or sport. It cites the Siebel testimony, which relies upon a report of the federal Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) stating that semi-automatic rifles with large-capacity magazines are not suitable for sporting purposes. The District also reasons that the usefulness of large-capacity magazines for self-defense in rare circumstances does not mean the burden imposed upon the plaintiffs is more than minimal.

        We think it clear enough in the record that semi-automatic rifles and magazines holding more than ten rounds are indeed in “common use,” as the plaintiffs contend. Approximately 1.6 million AR-15s alone have been manufactured since 1986, and in 2007 this one popular model accounted for 5.5 percent of all firearms, and 14.4 percent of all rifles, produced in the U.S. for the domestic market. As for magazines, fully 18 percent of all firearms owned by civilians in 1994 were equipped with magazines holding more than ten rounds, and approximately 4.7 million more such magazines were imported into the United States between 1995 and 2000. There may well be some capacity above which magazines are not in common use but, if so, the record is devoid of evidence as to what that capacity is; in any event, that capacity surely is not ten.

        Nevertheless, based upon the record as it stands, we cannot be certain whether these weapons are commonly used or are useful specifically for self-defense or hunting and therefore whether the prohibitions of certain semi-automatic rifles and magazines holding more than ten rounds meaningfully affect the right to keep and bear arms. We need not resolve that question, however, because even assuming they do impinge upon the right protected by the Second Amendment, we think intermediate scrutiny is the appropriate standard of review and the prohibitions survive that standard.

        b. Intermediate scrutiny is appropriate

        As we did in evaluating the constitutionality of certain of the registration requirements, we determine the appropriate standard of review by assessing how severely the prohibitions burden the Second Amendment right. Unlike the law held unconstitutional in Heller, the laws at issue here do not prohibit the possession of “the

        [ 670 F.3d 1262 ]

        quintessential self-defense weapon,” to wit, the handgun. 554 U.S. at 629, 128 S.Ct. 2783. Nor does the ban on certain semi-automatic rifles prevent a person from keeping a suitable and commonly used weapon for protection in the home or for hunting, whether a handgun or a non-automatic long gun. See Gary Kleck & Marc Gertz, Armed Resistance to Crime: The Prevalence and Nature of Self-Defense with a Gun, 86 J. Crim. L. & Criminology 150, 185 (1995) (revolvers and semi-automatic pistols are together used almost 80% of the time in incidents of self-defense with a gun); Dep’t of Treasury, Study on the Sporting Suitability of Modified Semiautomatic Assault Rifles 38 (1998) (semi-automatic assault rifles studied are “not generally recognized as particularly suitable for or readily adaptable to sporting purposes”). Although we cannot be confident the prohibitions impinge at all upon the core right protected by the Second Amendment, we are reasonably certain the prohibitions do not impose a substantial burden upon that right. As the District points out, the plaintiffs present hardly any evidence that semi-automatic rifles and magazines holding more than ten rounds are well-suited to or preferred for the purpose of self-defense or sport. Cf. Kleck & Gertz, supra, at 177 (finding that of 340,000 to 400,000 instances of defensive gun use in which the defenders believed the use of a gun had saved a life, 240,000 to 300,000 involved handguns). Accordingly, we believe intermediate rather than strict scrutiny is the appropriate standard of review.
        In this we agree with the reasoning of the Third Circuit in Marzzarella. The court there applied intermediate scrutiny to the prohibition of unmarked firearms in part because it thought the ban was similar to a regulation “of the manner in which… speech takes place,” a type of regulation subject to intermediate scrutiny “under the time, place, and manner doctrine” of the First Amendment. 614 F.3d at 97. Notably, because the prohibition left a person “free to possess any otherwise lawful firearm,” the court reasoned it was “more accurately characterized as a regulation of the manner in which persons may lawfully exercise their Second Amendment rights.” Id. Here, too, the prohibition of semi-automatic rifles and large-capacity magazines does not effectively disarm individuals or substantially affect their ability to defend themselves. See Volokh, supra, at 1471 (“where content-neutral speech restrictions are involved, restrictions that impose severe burdens (because they don’t leave open ample alternative channels) must be judged under strict scrutiny, but restrictions that impose only modest burdens (because they do leave open ample alternative channels) are judged under a mild form of intermediate scrutiny”).

        c. The prohibitions survive intermediate scrutiny

        Recall that when subject to intermediate scrutiny the Government has the burden of showing there is a substantial relationship or reasonable “fit” between, on the one hand, the prohibition on assault weapons and magazines holding more than ten rounds and, on the other, its important interests in protecting police officers and controlling crime. The record evidence substantiates that the District’s prohibition is substantially related to those ends.

        The Committee on Public Safety relied upon a report by the ATF, which described assault weapons as creating “mass produced mayhem.” Assault Weapons Profile 19 (1994). This description is elaborated in the Siebel testimony for the Brady Center: “the military features of semiautomatic assault weapons are designed to enhance their capacity to shoot multiple human targets very rapidly” and “[p]istol

        [ 670 F.3d 1263 ]

        grips on assault rifles … help stabilize the weapon during rapid fire and allow the shooter to spray-fire from the hip position.” The same source also suggests assault weapons are preferred by criminals and place law enforcement officers “at particular risk … because of their high firepower,” as does the ATF, see Dep’t of Treasury, Study on the Sporting Suitability of Modified Semi-automatic Assault Rifles 34-35, 38 (1998). See also Christopher S. Koper et al., U. Penn. Jerry Lee Ctr. of Criminology, An Updated Assessment of the Federal Assault Weapons Ban: Impacts on Gun Markets and Gun Violence, 1994-2003, at 51, 87 (2004) (assault weapons “account for a larger share of guns used in mass murders and murders of police, crimes for which weapons with greater firepower would seem particularly useful,” and “criminal use of [assault weapons] … declined after” the federal assault weapons ban enacted in 1994 “independently of trends in gun crime”); id. at 11 (“AR-15 type rifles are civilian weapons patterned after the U.S. military’s M-16 rifle and were the assault rifles most commonly used in crime before the ban” in federal law from 1994 to 2004).
        Heller suggests “M-16 rifles and the like” may be banned because they are “dangerous and unusual,” see 554 U.S. at 627, 128 S.Ct. 2783. The Court had previously described the “AR-15” as “the civilian version of the military’s M-16 rifle.” Staples v. United States, 511 U.S. 600, 603, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994). Although semi-automatic firearms, unlike automatic M-16s, fire “only one shot with each pull of the trigger,” id. at 602 n. 1, 114 S.Ct. 1793, semi-automatics still fire almost as rapidly as automatics. See Testimony of Brian J. Siebel, Brady Center to Prevent Gun Violence, at 1 (Oct. 1, 2008) (“30-round magazine” of UZI “was emptied in slightly less than two seconds on full automatic, while the same magazine was emptied in just five seconds on semiautomatic”). Indeed, it is difficult to draw meaningful distinctions between the AR-15 and the M-16. See Staples, 511 U.S. at 603, 114 S.Ct. 1793 (“Many M-16 parts are interchangeable with those in the AR-15 and can be used to convert the AR-15 into an automatic weapon”); Koper, supra, at 4 (AR-15 and other federally banned assault weapons “are civilian copies of military weapons and accept ammunition magazines made for those military weapons”). In short, the evidence demonstrates a ban on assault weapons is likely to promote the Government’s interest in crime control in the densely populated urban area that is the District of Columbia. See Comm. on Pub. Safety, Report on Bill 17-593, at 4 (Nov. 25, 2008) (“The District shares the problem of gun violence with other dense, urban jurisdictions”).

        The record also supports the limitation on magazine capacity to ten rounds. The Committee relied upon Siebel’s testimony that “[t]he threat posed by military-style assault weapons is increased significantly if they can be equipped with high-capacity ammunition magazines” because, “[b]y permitting a shooter to fire more than ten rounds without reloading, they greatly increase the firepower of mass shooters.” See also Koper, supra, at 87 (“guns used in shootings are 17% to 26% more likely to have [magazines holding more than ten rounds] than guns used in gunfire cases resulting in no wounded victims”); id. at 97 (“studies … suggest that attacks with semi-automatics—including [assault weapons] and other semi-automatics with [magazines holding more than ten rounds]— result in more shots fired, persons wounded, and wounds per victim than do other gun attacks”). The Siebel testimony moreover supports the District’s claim that high-capacity magazines are dangerous in self-defense situations because “the tendency

        [ 670 F.3d 1264 ]

        is for defenders to keep firing until all bullets have been expended, which poses grave risks to others in the household, passersby, and bystanders.” Moreover, the Chief of Police testified the “2 or 3 second pause” during which a criminal reloads his firearm “can be of critical benefit to law enforcement.” Overall the evidence demonstrates that large-capacity magazines tend to pose a danger to innocent people and particularly to police officers, which supports the District’s claim that a ban on such magazines is likely to promote its important governmental interests.
        We conclude the District has carried its burden of showing a substantial relationship between the prohibition of both semi-automatic rifles and magazines holding more than ten rounds and the objectives of protecting police officers and controlling crime. Accordingly, the bans do not violate the plaintiffs’ constitutional right to keep and bear arms.”

        A ban on 10+ is not the same as a ban on 7+. its impossible to argue that americans don’t commonly use handguns with 7+ handguns for self defense and that there are ample alternatives to 7+ handguns. The fact that this limits you to essentially a revolver, 1911, or pocket pistol is a key factor

        1. Are you so sure?

          7 rounds lets you use appropriate defensive options. I’m sure ATF or Brady Campaign will be happy to testify that 10 round magazines are the devil incarnate. I’d vote for the law surviving intermediate scrutiny as applied by the 2nd circuit.

          1. Intermediate scrutiny is a way to apply rational basis without calling it that. It’s a cop out from courts who have been told they can’t use rational basis, but still want to. Easy solution, call it something else. It’s disgraceful.

            1. I partially agree. I think a better way to describe it would be a “stricter rational basis” test. If it was just rational basis you wouldn’t get decisions that question the constitutionality of long gun registrations and such. The government must make some logical arguement for the law under “intermediate scrutiny” as it is held for the second amendment. Usually they will have to show studies, research, history etc that prove that there law is helping the problem. Thats why many challenges to most AWBs and CCW bans fail. There is just too much information out there supporting AWBs and too much historical references when it comes to banning CCW. IF you read many of the opinions that come out, the judges pretty much say “Yeah, the law is questionable, but there are similar laws on the books in other states and bla bla bla”.

              And to answer chris from AK- I wouldn’t put it past the Bradys to put in a bried but the facts remain that most of the evidence and research when it comes to magazine limits is on 10+. There just really isn’t anything on 7+. Also, we are dealing with “in the home” here. the law specifically forbids you from putting more than 7 rounds in a 10 round magazine in the home but allows it at a range. And then comes the common use test. Though AR-15’s are “in common use” the courts generally get around this by qualifying the common use test with the “for self defense in the home”. While we know that an AR-15 is good home defense weapon there have been many arguements made (and well publicized) that such weapons are not good for home defense. How many well publicized articles are out there that say semi-auto handguns are not good weapons for home defense? I really don’t know of any. Many of the anti-AR15 articles specifically will endorse a handgun for home defense over an AR-15.

        2. I appreciate your optimism, Arnold, but Heller II actually cuts against your argument. “Here, too, the prohibition of semi-automatic rifles and large-capacity magazines does not effectively disarm individuals or substantially affect their ability to defend themselves.” The Second Circuit will quote that directly, cite the ATF and the Brady Bunch, and uphold the SAFE Act under intermediate scrutiny. New Yorkers can still use revolvers, 1911s, sub-compacts, shotguns, and many rifles for self-defense, and that’s enough to satisfy the 2A for liberals. The D.C. Cir. even agreed that the weapons were in common use, and that didn’t matter.

          Unfortunately, being a federal judge is all about politics. The President appoints judges based on their ideology and faithfulness to his party. There’s no way the liberals at the district level will go against Cuomo, since he might be President some day and they’d want him to promote them. At the 2nd Circuit, the anti-gun liberal judges will just be looking for a way to support their dear governor and their own prohibitionist agenda. The D.C. Circuit gives them all the tools they need.

          On the bright side, federal judges in NY are so overworked they just want to get rid of cases quickly. Kachalsky (CCW) was filed in July 2010, and we’ll find out if SCOTUS will hear it over the next few months. That suit was also delayed at one point (I think one of the original defendant judges died or something). Kwong (NYC $340 license fee) was filed in April 2011; oral arguments before the 2nd Cir. are Jan. 30. Based on standard 2d Cir. timelines, I expect a decision in Kwong before the end of May.

          So it might be a good thing to sue NY so quickly, given the ages of Scalia and Kennedy.

          I strongly suspect that the Heller 5 will strike down the 7 round limit, for many of the reasons you say (heightened protection in the home, common use, de facto ban on many pistols). I also think they’d strike down an AWB, as banning barrel shrouds and the like doesn’t even seem to satisfy rational basis.

          The big questions are: (1) will the suit reach SCOTUS before Obama has a chance to stack the Court with anti-gun liberals (who may even overturn Heller if given the chance); and (2) what capacity limit will the Court find acceptable. That’s my big question: how low can they go? 7 rounds? 10 rounds? 20 rounds? 5 rounds? 1 round? There has to be a line drawn somewhere.

          1. You have to read deaper into the Heller II decision. one of the key points is how they define “high capacity”. being limited to 10 rounds doesn’t really change what handguns you can buy, limiting you to 7 does. That is where the arguement should be made.

            NY is just not going to have much evidence to support their position. They will just rely on vague statements. It just won’t work. In Heller II D.C. thought they could get away with that when it came to their long gun registration- the court didn’t buy it. NYS will have to explain how keeping you limited to 7 rounds in a 10 round magazine in the home is related to an important governmental interest. They will face heightened scrutiny because it is in the home. If you read the entire court decision in the NY 2nd circuit carry case, they admit to strong protections in the home but essentially just say there isn’t any precedent to support a 2nd amendment right outside the home.

            This is the first case of its kind and the first law of its kind.

            Also your political argument is true to some extent, but not to the extent you take it. Yes, judges are political, but they also understand their oath. Judges do shoot down popular laws, they do find laws championed by sitting presidents unconstituional.

            The AWB will stay but the 7 round limit will go- atleast in the home as it relates to possessing mags over 7 but only loading them to 7

            1. 10 rounds doesn’t really change what handguns you can buy, limiting you to 7 does.

              How so? Could you reply to my reply to you above refuting that with D.C. as a specific example?

              Note: the response by the Supremes to *Heller II” will tell us a lot about how far we might get in the short to medium term get from the Federal courts. If they uphold the appellate court in one way or another it’s game over for now and *Heller* and its progeny will be akin to Missouri ex rel. Gaines v. Canada in 1938 instead of Brown v. Board of Education in 1954, a mostly symbolic gain that barely changes the facts on the ground.

              1. How many semi-auto handguns come with the option of a 10 round mag- The overwhelming majority

                How many come with a 7 round mag- Not many.

                So, atleast temporarily, you have a defacto ban on semi-automatic handguns.

                Also, the law states that you can have a grandfathered 10 rounder as long as you don’t load it to more than 7 unless you are at a range. If you attack this by limiting your attack to “in the home” there is a very good chance at success. There just isn’t any logical reasoning that could support this. It’s just plain silly. Again, its how you phrase the arguement. You have to get the state to justify this law. They won’t be able to. How could anyone justify it. When I was in HS and undergrad I was on debate teams and clubs, and one of the keys to success was being able to play devil’s advocate. I can make logical arguements for AWB registration, for ammo background checks, for the “Feature test”. I can’t make a logical arguement for saying “its okay to own a 10 rounder as long as you don’t load it to more than 7 in the home”. The only arguement that could be made would be it would limit domestic violance but the data for that just isn’t there. Unlike mass shootings, the capacity of the weapon in murder-suicides, suicides, and other gun violence in the home isn’t even a factor. then you can point to events such as the one with the mother who shot the robber 5 times earlier this month. You point to the fact that other state or municipality has such a low limit on magazines in a handgun. you point to the fact that many target pistols have 10 round magazines. You prove to the court that 10 rounds is the general standard. there is just no evidence there to support the counter arguement. Every study, every debate, has focused on 10+.

                This case can win at the lower level if it is constructed to attack the law narrowly. Don’t through shit at a wall and hope it sticks.

                1. “How many semi-auto handguns come with the option of a 10 round mag- The overwhelming majority”

                  Sorry, this is just not true, as a matter of simple fact. 15 and 17 round magazines are standard on most modern semiautomatic pistols – they are the size the guns ship with and were built for, that barely fit the pistol grip. Even the compact models for carry run 13 to 15 rounds standard. And no, 10 round and under magazines for the same pistols generally do not exist.

                  Practically every duty weapon in every police department in the country would go over the limit.

                  This may have been less apparent in the past AWB, but that is because the past AWB did not even try to apply to pistols. Also, both tech and common use standards have moved considerably since the early 1990s. Then only a few models (HP e.g.) were over 10 rounds, now practically all are.

  7. I posted this over at NYfirearms. com, and would appreciate any feedback you guys might have:

    Ok, I’ve been brainstorming about ways to challenge the SAFE Act in the federal courts. I think the biggest problem we face is that both the NY district courts and the Second Circuit are notoriously anti-gun. But I think I may have found a way out of it.

    Prior to January 15, New Yorkers could legally purchase, say, a Colt Match Target, in a neighboring state, such as PA, VT, or even NJ (as long as you have a FPID, which IS available to non-NJ residents).

    However, it seems to me that, since the passage of the SAFE Act, New Yorkers are no longer allowed to purchase rifles that are now banned in NY, even in neighboring states.

    Federal statute 18 USC § 922 (b)(2) makes it “unlawful for any licensed importer, licensed manufacturer, licensed dealer, or licensed collector to sell or deliver–any firearm to any person in any State where the purchase or possession by such person of such firearm would be in violation of any State law or any published ordinance applicable at the place of sale, delivery or other disposition.”

    18 USC § 922 (b)(3) allows sale of a rifle or shotgun to a non-resident only if “the sale, delivery, and receipt fully comply with the legal conditions of sale in both such States.”

    If I’m reading this correctly, it means that New Yorkers can’t purchase a newly banned rifle (such as a Match Target) in a state where such rifles are available for sale to residents. (Am I right?)

    If that’s correct, then SAF/NRA could sue in PA or VT, using a NY resident and a PA/VT gun dealer as plaintiffs, since both buyer and seller are harmed by the SAFE Act and 18 USC § 922.

    A federal court in PA or VT declaring NY’s law unconstitutional would have no effect on the enforcement of the law in NY. However, it would mean that we can at least purchase currently banned rifles in other states, so long as we don’t bring them into NY. (This would benefit those of us who are NY residents but have vacation homes in other states.) Maybe we could even get the court to declare 18 USC § 922 unconstitutional.

    More importantly, this could lead to a circuit split regarding the constitutionality of the SAFE Act. The 2d Circuit will almost assuredly uphold it, while the 1st and 3rd Circuits may very well declare it unconstitutional, thereby increasing the likelihood that SCOTUS will take it up.

    Would this work at all?

    1. I’m not an expert on this, but I think that suit would be dismissed for improper venue. If you’re going to sue the state of New York in federal court, you have to sue the State of New York in the district in which it “resides,” which is the Northern District of New York, part of the 2nd Circuit. If you’re a resident of New York, you can also sue in the district in which you reside. Though, I think there’s also a provision for suing in the district where the actual harm happened, but in this case that would be somewhere in New York, which doesn’t get you away from the 2nd Circuit.

      1. Thanks for your input, Sebastian. What I’m wondering is: wouldn’t the harm happen in PA or VT, since that’s where the sale would be prohibited? And the local dealer would be one of the plaintiffs? I’m not sure if that would be enough to give a PA or VT court jurisdiction, though.

    2. It would be pretty easy to torpedo this gambit by a non-2nd Circuit court saying “it’s OK as long as the NY resident makes it clear that the disposition of the rifle will be outside of NY state.”

      The law doesn’t sound entirely clear on that, and I don’t the case law … but, wouldn’t it also fall under the Commerce Clause if it was insisted that a state can constrain the behavior of a resident in this sort of way when they aren’t in the state?

      1. Yes, and the harm is that you can’t bring it back to New York. If you can’t buy a gun outside of New York, it’s because federal law requires an FFL to comply with state law, and now if you want to challenge that the federal government is your defendant, and you can sue where you reside or where the federal government resides (Washington DC). New York law can’t reach outside its borders, and doesn’t. If you move to Pennsylvania you’re free to buy a banned firearm, and if you move back to New York, you’re free to continue storing it in Pennsylvania. So the harm is still happening in New York.

        1. Yes, I think the federal government would have to be a party, since you’d essentially be challenging the constitutionality of a federal statute, as it works in conjunction with a state law that you are arguing is unconstitutional.

          Again, I’m just brainstorming here. Thanks for your replies.

          1. So I guess your lawsuit would be something like “PA Gun Shop, .357MagNYC, and SAF v. Obama and Cuomo,” filed in the Middle District of PA.

            1. No… it wouldn’t work like that. Absent federal law, a PA gun shop can sell a gun to a resident of New York. His suit is properly directed at the federal government in whatever district in PA his shop resides in, or DC, I believe, because the federal government resides there. If you joined the suit as someone who was harmed as well, your suit is still with the federal government and not the State of New York.

              If you prevailed on the federal suit, which I’d say would be very unlikely, you’d have to separately sue the State of New York, because they won’t allow you to bring it home, which gets you back to the 2nd Circuit, because the harm still happens in New York.

  8. Hi, I’m not a legal eagle, but could an argument be made that magazines that hold between 11 and 19 rounds would be considered as normal capacity (pistol) magazines while many (semi auto rifles) come with 20rd and 30rd magazines also would be considered normal capacity? Because manufactures ship these firearms with these normal count magazines with the firearm (Not in NY,Ca,Ct) State government and federal government law enforcement firearms fall with in these limits, so why are these not good enough for the people? I’m just making the argument that what NY and other states to include the current ban proposal doesn’t constitute a high capacity label because they have been standard equipment for many many years?

    1. Of course the argument can and will be made, the To Be Determined question is will any Federal court respect it.

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