Gun Control

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

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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.  

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  1. Isn’t 10 equally arbitrary?

    1. Yes, but it’s an established arbitrary number. That seems to matter in law.

    2. Yes, but it’s an established arbitrary number. That seems to matter in law.

    3. 10 is a common magazine capacity for semi-automatic handguns. So common that it would effectively ban them. I am sure that was not the intent.

      1. Given that this is the NY legislature, I would assume that banning 10+ bullet magazines was precisely the intent. They would likely ban civilian magazines holding one or more bullets if they thought that would not get tossed by a judge.

      2. 10 is a common magazine capacity for semi-automatic handguns.

        Is there a practical reason for this, other than bans on 10 magazines (like in Canada and a few States IIRC)?

        I know my handgun has enough room to hold 14 (or 15?) rounds in a magazine, but it’s artificially limited to 10 due to legislation.

        1. I don’t know, but I suppose the practical reason(s) might include the size of the round and the size of the pistol. Guessing you can fit a lot more 9mm rounds in the same size pistol than you can .45 ACP.

          1. 10rd limits are an inadvertent incentive for people to all start carrying Desert Eagle .44magnums with one in the pipe. ‘Its legal officer!’

            Hell, if the main concern is mag-capacity, I might as well just start rolling with an m79 with some of those old Vietnam Flechette rounds. I’d call it my Little Joe Biden.

        2. I know my handgun has enough room to hold 14 (or 15?) rounds in a magazine, but it’s artificially limited to 10 due to legislation.

          State legislation?

          I thought the 10+ round CLIP prohibition went away when the assault weapons ban expired?

          1. Many states retained such a prohibition.

          2. Canadian legislation.

      3. 10 is a common magazine capacity for semi-automatic handguns.

        Mostly because of an earlier ban on hi-cap mags that set the limit at 10. So there’s a bunch of them out there.

        My Para-Ordnance came with one. Never been used, since I have a fistful of proper 14 round mags for it.

        1. How do you like that Para, RC?

          1. I like it just fine. Needed a trifle bit of tuning to feed perfectly, but that’s not unusual in a 1911. Fully loaded (14 + 1 rounds of .45) it weighs a ton, but I like the thicker double-stack handle on it, which reduces perceived recoil, IMO.

      4. 10 is a common magazine capacity for semi-automatic handguns.

        Well, sort of. But so is seven with all the Colt .45s out there. Unless you have eight-round magazines. Of course there are also standard magazines holding everything from five to twenty rounds. I doubt any one number represents a majority.

    4. This one goes to 11

      1. I see what you did there.

    5. Well, at least in theory, a ban on a magazine of a certain capacity could reduce the availability of magazines in that capacity, and thus limit the options for a criminal. (I’m not saying that this makes any actual, practical difference, but it’s not an actively illogical line of thought.)

      On the other hand, a limit on the number of allowed rounds in an otherwise legal magazine cannot in any way stop a criminal from loading a magazine to its physical limit.

      So, while “ten” is just as arbitrary as “seven” or “fourteen” in the context of size-of-magazine-allowed, the government there just has to (on the theory adopted by the judge) say, “We thought about it and thought ten was a good compromise on convenience and capacity.” But in the context of how many rounds you can put in that magazine with capacity for ten, where ten is the actual physical limit of the magazine, a law limiting to seven in that magazine is purely arbitrary while allowing the full ten is not.

  2. 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….

    This is the general case will every provision of every single gun law ever, not just with magazine capacities. Criminals, by definition, don’t obey laws. Therefore, criminals will have greater firepower than lawful citizens.

    1. Exactly. The judge is correct about this logic, but not applying it broadly enough.

  3. 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….

    How is this logic not used to stop all attempts at gun control cold?

    Rephrased for a ban:

    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 will not carry the prohibited weapon(s). 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 magazineprohibited weapon against the law-abiding citizen limited to seven rounds inferior weapons….

  4. The ban on additional ‘features’ like a muzzle break is meant to eliminate anything that looks like a military rifle from being in the hands of the public. I wonder why? It’s not like those features actually improve/enhance the rate of fire from a semi-automatic rifle

    Next it will be anything with a Picatinny rail.

    1. I wonder why?

      To set a precedent. Once it’s set, we’ll be treated to a rash of totally unbiased, breathless news reports about guns just as dangerous as the ones “we’ve all agreed are too dangerous for civilians by banning them” still being in civilian hands due to the lack of muzzle breaks and the like. Those, since it’s “consensus” that they are just as dangerous as banned guns, have to go too.

      1. Or its just a “if you like your gun you can keep your gun” lie – they claim the law will have limited impact but wrote it in such a way to give themselves room to interpret it into a total ban.

    2. It’s also a form of symbolic coercion, verging on magical thinking. It’s like trying to combat street racing by banning racing stripes or hood scoops.

      1. Or fighting the war on drugs by banning window tinting. My Pa, who is 73 years old and drives a Buick Lesabre failed his inspection in NC because of tinting (which he did not install).

      2. verging on magical thinking.

        Verging?

        1. It’s not quite the same thing. If you ban superficial characteristics of things, you might suppress (somewhat) the behaviors you want to suppress, if only because the people who exhibit those behaviors and own things with those characteristics will go elsewhere.

          1. Let’s ban basketball to keep teenage boys from growing so tall!
            IOW, causation reversal. Coconut headphones to bring the planes.

            1. I see planes all the time, they never bring me my coconut headphones. Did the cargo cultists steal them?

    3. Preview of an NPR “All Things Considered” segment to air in 2016:

      “After the New York legislature enacted totally reasonable, common-sense gun control regulations banning dangerous, homicidal, military-style features like muzzle breaks, gun manufacturers discovered a loophole in the law allowing them to continue selling guns that are just as dangerous as those that were banned, simply by not adding a muzzle break…”

      1. Yep. Of course, once they figure out that banning muzzle brakes and other features doesn’t actually do jack shit there will be only on thing left to ban.

    4. Brake brake brake brake brake

      muzzle *brake*

      1. They don’t work. I bought a muzzle brake and it didn’t slow my dog down a bit!

        /DiFi clones

  5. The International Brotherhood of Muzzle Workers negotiated hard to get those 15-minute breaks added to the law.

  6. In the future we will pass simple, incoherent laws that can mean anything, forget Newspeak, this is brilliant.

    “Possession of more than four ounces of prohibited handgun in excess of 55 miles per hour or having been emitted with a CO2 silencer shall be illegal.”

    1. The direction we’re going is total discretion for regulators, without having to justify their powers or decisions in any way. Obama’s illegal executive orders (and he didn’t invent the practice) are one case in point, but it’s true all the way down.

      1. As it should be. If your #1 political belief is that the proles need to be protected from their own stupidity, greed, and racism, then you can’t very well let those same proles stop you from protecting them.

      2. Not only did the fucks drafting the law not bother to proof read it, the State of New York defended that gibberish in Court.

        1. Proofreading only helps if one has some knowledge of what they are pontificating. I think the idea that the NYS legislature was capable of proofreading the bill presumes much.

          1. the idea that the NYS legislature was capable of proofreading the bill presumes much

            FTFY

  7. I’m okay with muzzle breaks being banned. Broken firearms are generally dangerous.

    1. Break Muzzle = Cracker Barrel?

  8. 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….

    Given that most gun control advocates would like to see law abiding citizens disarmed altogether, I doubt that they are going to be overly concerned about law abiding citizens being disadvantaged by having fewer rounds.

    1. More dead citizens at the hands of gun-wielding criminals just means more gun grabbing, so yeah.

  9. I wonder how many people already turned their guns over the police before these rules were overturned. This is why the government, the state in this case was wrong to send out confiscation notices with a time frame the would expire before the legal rulings were finaled. One more reason when the next laws are made that infringe on my rights they will be ignored no matter how many letters of intent they send

    1. I wonder how many people already turned their guns over the police before these rules were overturned.

      Anyone who did is too stupid to own a gun anyway, so no big loss.

  10. There is no dispute that there is no accepted meaning to the term “muzzle break.”

    Isn’t that a shoulder thing that goes up?

    1. It’s a small set of time where you stop working and go outside of the building to pat your muzzle.

      1. pat your muzzle.

        Is that what the kinds are calling it these days?

        1. You’re thinking of polishing it.

    2. Wrong end of the gun. You don’t want the muzzle to be in your shoulder.

      1. It’s a joke based on this:

        http://www.youtube.com/watch?v=WhNkIsP59pM

        1. Oh yeah. Thanks for the reminder.

  11. At the rate the US is going, Canada is going to be libertopia in comparison in no time. At least we got rid of the long gun registration. Even though we still have the most arcane fucking rules for firearms. And most here have absolutely zero reservation about the firearm rules and whole-heartedly agree that us Proles do not need firearms, and if we must get them should be forced to take a lengthly safety course costing a few hundred dollars.

    Gun safety should be taught to kids in school. If we are going to have socialized education, everyone should be taught how to safely handle a firearm and be shown that they are, in fact, inanimate objects and not monster creatures waiting to murder babies.

  12. those intent on doing harm (whom, of course, the Act is aimed to stop)

    Who is the judge kidding here? This act has nothing to do with stopping those intent on doing harm. It’s aims were much, much baser.

  13. New York really put the petal to the medal when they wrote that law.

    1. I see what you did there.

  14. 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.”

    That’s just stupid. It’s an obvious typo.

    I think the entire SAFE Act is embarrassingly stupid, and I want to be able to buy a suppressed machine-pistol at 7-11, for God’s sake.

    But this sort of cutesy “we have no idea what ‘muzzle break’ might mean lolz” crap is as stupid as “this law isn’t valid because this isn’t an admiralty court! and there’s gold fringe on that flag!!!” stuff.

    Not doing anyone any favors, guys.

    1. (To be clear, the “guys” above refers to the group making that particular challenge, and only to the fact of that particular challenge.)

    2. Um? Didn’t you notice? That quote was from the judge ruling in favor of the argument you just declared “stupid”. The guys you said are “[n]ot doing anyone any favors” won in court on the basis that you’re comparing to the gold fringe arguments.

    3. I think they won on that point because there was nothing in the law or the history of the bill that indicated that is what they meant.

      1. Granted, there was no history of the law since it randomly appeared in the middle of the night with a full half hour before the binding vote was called.

  15. Cuomo’s “Safe Act”, (probably, at least in part,a gift at our expense to his gun hating, former governor father, Mario) is full of technical difficulties, traps and inadequately detailed requirements that can and probably will make inadvertant criminals out of tax paying, law abiding citizens. It’s sought of equivalent to Obamacare in its deceptions and assault on freedom and liberty. New Yorkers and every American concerned about this abuse of New Yorker’s rights should speak up in words and in action… action meaning,as much as possible, DO YOUR SHOPPING, BUSNESS AND RECREATIONAL SPENDING ELSEWHERE, and tell King Andrew what you’re doing and why.

  16. Vague, Schmague. It’s just plain unconstitutional because it is an infringement on the Right of the People to Keep and Bear Arms.

    But, since all of Washington DC seems to be in the pockets of the antigun nuts, it might fall to the states to nullify this insanity:
    http://tenthamendmentcenter.co…..ne-lesson/

  17. Piecemeal judicial review at best.

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