SAFE Act Decision Highlights Embarrassing Mistakes by Gun Controllers in a Hurry


Office of the Governor

A year ago New York legislators approved gun controls championed by Gov. Andrew Cuomo so quickly that they did not have time to read the bill, let alone debate it. Cuomo nevertheless insisted that the Secure Ammunition and Firearms Enforcement (SAFE) Act "was not hastily put together." The embarrassing mistakes and omissions that prompted multiple amendments during the year that followed Cuomo's victory suggested otherwise. So does this week's decision by U.S. District Judge William Skretny, who overturned several provisions of the SAFE Act that reflect the unseemly haste with which the law was enacted.

Responding to a challenge by various gun rights group, Skretny agreed that three parts of the SAFE Act are unconstitutionally vague. One of them bans semiautomatic rifles with "muzzle breaks," a heretofore undiscovered firearm feature:

When properly attached to a firearm, a muzzle brake reduces recoil. The SAFE Act, however, regulates muzzle "breaks." Although New York contends that this is a simple oversight in drafting, and that it intended to refer to muzzle "brakes," it has provided no evidence suggesting that this was the legislature's intent….There is no dispute that there is no accepted meaning to the term "muzzle break." Both sides agree that it is, quite simply, meaningless. Consequently, an ordinary person cannot be "informed as to what the State commands or forbids." All references to muzzle "break" must therefore be stricken.

Here is an even more puzzling provision of the law, with the challenged language in italics:

It shall be unlawful for a person to knowingly possess a large capacity ammunition feeding device manufactured before September thirteenth, nineteen hundred ninety-four, and if such person lawfully possessed such large capacity feeding device before the effective date of the chapter of the laws of two thousand thirteen which added this section, that has a capacity of, or that can be readily restored or converted to accept, more than ten rounds of ammunition.

Something seems to be missing, no? Skretny's analysis:

Plaintiffs correctly note that the clause beginning with "and if" is unintelligible. Although Defendants contend that this is simply a "grammatical error" and the meaning of the provision, when read as a whole, remains apparent despite the error, this Court cannot agree. The error is more substantial than a mere mistake in grammar. Rather, the "and if" clause is incomplete and entirely indecipherable; in short, it requires an ordinary person to "speculate as to" its meaning. This clause must therefore be stricken as unconstitutionally vague.

Skretny also struck down a ban on semiautomatic pistols that are "semiautomatic version[s] of an automatic rifle, shotgun or firearm." What does that mean? As Skretny points out, no one seems to know:

An ordinary person cannot know whether any single semiautomatic pistol is a "version" of an automatic one….The statute provides no criteria to inform this determination, and, aside from the largely irrelevant citations to case law, New York fails to point to any evidence whatsoever that would lend meaning to this term. Thus, it not only fails to provide fair warning, but also "encourag[es] arbitrary and discriminatory enforcement." Section265.00(22)(c)(viii) must therefore be stricken as unconstitutionally vague.

Even more embarrassing than these drafting errors is the most substantive provision overturned by Skretny, which makes it a crime to load more than seven rounds in a magazine. That ridiculous rule grew out of yet another misbegotten part of the SAFE Act, which originally banned magazines capable of holding more than seven rounds. After Cuomo discovered that the seven-round magazines mandated by his law do not exist, he proposed letting people have 10-round magazines as long as they don't put more than seven rounds in them. The legislature thought that was an eminently sensible idea. Skretny disagrees:

New York fails to explain its decision to set the maximum at seven rounds, which appears to be a largely arbitrary number….

It stretches the bounds of this Court's deference to the predictive judgments of the legislature to suppose that those intent on doing harm (whom, of course, the Act is aimed to stop) will load their weapon with only the permitted seven rounds. In this sense, the provision is not "substantially related" to the important government interest in public safety and crime prevention….This provision…presents the possibility of a disturbing perverse effect, pitting the criminal with a fully loaded magazine against the law-abiding citizen limited to seven rounds….

The seven-round limit is largely an arbitrary restriction that impermissibly infringes on the rights guaranteed by the Second Amendment.

But if Skretny believes the seven-round rule violates the Second Amendment, why did he uphold the SAFE Act's equally arbitrary ban on "assault weapons"? I will consider that question in a post later today.