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This diary is part of a tutorial series breaking down my lay person's approach to reading judicial opinions. We are reading the first federal court review of the New York Secure Ammunition and Firearms Enforcement Act of 2013, more commonly known the NY SAFE Act.

As readers of Firearms Law and Policy know, most of us are not lawyers. Some of us have experience with guns and some of us never held a gun in our hands. No matter whether you hate guns or love the Heller and McDonald decisions, we believe that understanding actual cases can help us to become better advocates for gun law and policy where we live. Every case has impact on real people's lives. To keep my perspective grounded in that reality it helps to construct a story outline.

Who? What? Where? When? and Why?
In Part I, we gave you a 30-second plain English summary of the decision. In Part II we looked at the decision from the perspective of the lead plaintiff, the New York State Rifle and Pistol Association, NYSRPA. I like to start answering the Who? question with a little research on the lead organizational plaintiff because they usually have a webpage devoted to the case where they explain their goals. Sometimes they also have free copies of all the legal documents they have filed. We did some preliminary research to see who they are and what they thought about the the  judge's decision.

"The Court ruled against us on guns, but dismissed 7 round limit."
NYSRPA, Lead Plaintiff

Michael J. Dillon Memorial U.S. Courthouse, Buffalo, NY - {Information |Description=Michael J. Dillon Memorial U.S. Courthouse, Buffalo, NY |Source=Flickr |Date=Oct 3, 2010 |Author=a{{Information |Description=061409 576 |Source=[ 061409 576] |Date=2009-06-14 10:4
Michael J. Dillon Memorial U.S. Courthouse, Buffalo, NY
Here is a copy of the Court's decision that we want to understand. It is the first constitutional review of the NYSAFE Act. Written by federal Judge WILLIAM M. SKRETNY in the Western District of New York, the order was filed on Tuesday, December 31, 2013, in Buffalo, New York. It can be very intimidating for those of us who are not lawyers to delve into reading actual court opinions. It does get easier. If you're already bored, the NYTimes published a reader's digest of the decision the same day it was filed.

If you're still with me, please join me below the fold, and we'll begin to answer the question in the title. What is this case really about?

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Installing a Low Resolution Map of the Case in Working Memory

In this diary, we’ll cover the Introduction of the decision, (for the big picture) and the Conclusion (for the news). We’ll leave the bones of the case for another day, and flesh out the details later in the diary series. Today our goal is simply to install a low resolution map of the decision in our working memory and notice which terms we might need to look up, in order to understand the decision.

Let's skim the Table of Contents first. We can see quickly that the case is about assault weapons, magazines, and ammunition and there was no issue regarding standing (only one page). To say the plaintiff's obviously have "standing" means the Court accepted that a legitimate case or controversy exists for each of the parties that are challenging the law. They each have a right to file their complaint, in Federal Court, in the Western District of New York. The Second Amendment and Heller are found in the middle, (four pages). The constitutional tests are found in parts D & E (twelve pages). The Court indicates that the analysis is based on constitutional tests called "Common Use", "Substantial Burden," and "Intermediate Scrutiny." Given that section F has nine  parts, and takes up nine pages, there's probably an issue with vagueness in the way New York defined assault weapons.

Sidebar for lawyers and advanced readers of Firearms Law and Policy:
Please feel free to dig into the details, and post your thoughts. Including a section heading or a page number will help the rest of us follow along as you discuss what you see in the law and in the decision.
     A. The SAFE Act 4
          1. Assault Weapons 4
          2. Magazines and Ammunition 7
     B. Procedural History 8
     A. Legal Standards 9
     B. Standing 10
     C. The Second Amendment & Heller 11
     D. Standard of Review 15
          1. Common Use & Substantial Burden 19
          2. Intermediate Scrutiny 23
     E. Application of Intermediate Scrutiny to the SAFE Act 27
          1. Assault Weapons 27
          2. Large-capacity Magazines 33
          3. Seven-round Limit 34
     F. Vagueness 37
          1. The “conspicuously protruding” pistol grip 39
          2. The threaded barrel 41
          3. Magazine-capacity restrictions 41
          4. The five-round shotgun limit 42
          5. “Can be readily restored or converted” 42
          6. The “and if” clause of Penal Law § 265.36   43
          7. Muzzle “break” 44
          8. “Version” of an automatic weapon 45
          9. Manufactured weight 46
        10. Commercial transfer   46
     G. Dormant Commerce Clause 46

Usually, the introduction will be a page or two, so I try to read the whole thing, to orient myself to the big picture, before trying to make sense of the decision.

[page 1 begins]
     On January 15, 2013, New York’s Governor, Andrew M. Cuomo, signed into law the New York Secure Ammunition and Firearms Enforcement Act of 2013. Commonly known by its acronym, the SAFE Act makes broad and varied changes to firearm regulation in New York State. The Act amends or supplements various aspects of New York law, including, among others, the criminal procedure law, the correction law, the family court law, the executive law, the general business law, the judiciary law, the mental hygiene law, and, of course, the penal law. According to its drafters, this network of new laws, which generally enhances regulation and increases penalties for the illegal possession of firearms, is designed to “protect New Yorkers by reducing the availability of assault weapons and deterring the criminal use of firearms while promoting a fair, consistent and efficient method of ensuring that sportsmen and other legal gun owners have full enjoyment of the guns to which they are entitled.” (Senate, Assembly, and Gov. Memos in Supp., Bill No. S2230-2013.)

     Plaintiffs, comprising various associations of gun owners and advocates, companies in the business of selling firearms, and individual gun-owning citizens of New York, challenge several aspects of the law. Principally, Plaintiffs maintain that certain restrictions codified in the SAFE Act, like those concerning large-capacity magazines and those regulating assault weapons, violate their right “to keep and bear arms” under the Second Amendment to the United States Constitution. They also assert that several aspects of the law are unconstitutionally vague and that certain provisions violate the Equal Protection and “dormant” Commerce Clauses of the United States Constitution.

     Three motions are currently before this Court. Plaintiffs first filed a motion for a

[Page 2 begins]

preliminary injunction. That motion raised several — but not all — the challenges outlined above. In response to that motion, Defendants Andrew Cuomo, Eric Schneiderman, and Joseph D’Amico cross-moved to dismiss the case under Rules 12(b)(1), 12(b)(6), and 56 of the Federal Rules of Civil Procedure. Then, Plaintiffs responded with their own motion 1 for summary judgment. Because both sides have subsequently filed dispostive motions, this Court deems Plaintiffs’ motion for a preliminary injunction moot.

     In resolving the pending motions, this Court notes that whether regulating firearms is wise or warranted is not a judicial question; it is a political one. This Court’s function is thus limited to resolving whether New York’s elected representatives acted within the confines of the United States Constitution in passing the SAFE Act. Undertaking that task, and applying the governing legal standards, the majority of the challenged provisions withstand constitutional scrutiny.

     As explained in more detail below, although so-called “assault weapons” and large capacity magazines, as defined in the Safe Act, may — in some fashion — be “in common use,” New York has presented considerable evidence that its regulation of these weapons is substantially related to the achievement of an important governmental interest. Accordingly, the Act does not violate the Second Amendment in this respect.

     Further, because the SAFE Act’s requirement that ammunition sales be conducted “face-to-face” does not unduly burden interstate commerce, it does not violate the dormant Commerce Clause.

[Page 3 begins]

     The Act, however, is not constitutionally flawless. For reasons articulated below, the seven-round limit is largely an arbitrary restriction that impermissibly infringes on the rights guaranteed by the Second Amendment. This Court therefore strikes down that portion of the Act. Finally, this Court must strike three provisions of the SAFE Act as unconstitutionally vague because an ordinary person must speculate as to what those provisions of the Act command or forbid.

[my bold]

So that answers part of the basic story question, What? The case is about the New York SAFE Act's restrictions on assault weapons, large-capacity magazines, and ammunition. The  "Court notes that whether regulating firearms is wise or warranted is not a judicial question; it is a political one." The Court's role is to evaluate whether the New York legislature violated the US Constitution when they passed some restrictions into law. The seven-round limit infringes on the rights guaranteed by the Second Amendment because it is "largely an arbitrary restriction." Three portions of the assault weapons law are vague and therefore invalid because it would be to hard for an ordinary person to know where the line is between legal and illegal.

Now let’s skip to the conclusion to take a peek at the Why?

“Our Constitution is designed to maximize individual freedoms within a framework of ordered liberty.” Kolender v. Lawson, 461 U.S. 352, 357, 103 S. Ct. 1855, 1858, 75 L. Ed. 2d 903 (1983). In Heller and McDonald, the Supreme Court found that the right to “keep and bear arms,” enshrined in the Second Amendment, was among those individual freedoms. But the Court also noted that the right was not unlimited. Drawing from post-Heller rulings that have begun to settle the vast terra incognita left by the Supreme Court, this Court finds that the challenged provisions of the SAFE Act — including the Act’s definition and regulation of assault weapons and its ban on large-capacity magazines — further the state’s important interest in public safety, and do not impermissibly infringe on Plaintiffs’ Second Amendment rights. But, the seven-round limit fails the relevant test because the purported link between the ban and the State’s interest is tenuous, strained, and unsupported in the record.

     Further, three aspects of the law — the “and if” clause of N.Y. Penal Law § 265.36, the references to muzzle “breaks” in N.Y. Penal Law § 265.00(22)(a)(vi), and the regulation with respect to pistols that are “versions” of automatic weapons in N.Y. Penal Law § 265.00(22)(c)(viii) — must be stricken because they do not adequately inform an ordinary person as to what conduct is prohibited.

     Finally, because the SAFE Act’s requirement that all ammunition sales be conducted in-person does not unduly burden interstate commerce, it does not violate the Commerce Clause.

[my bold]

Most parts of the law were upheld because "they further the state’s important interest in public safety, and do not impermissibly infringe on Plaintiffs’ Second Amendment rights." The state provided sufficient evidence to support only six of the nine parts of the assault weapons restrictions. For three of the nine parts the state didn't provide sufficient evidence to convince the judge they serve an important state interest. The restriction that gun owners can only load seven rounds (aka bullets) into a magazine is the only part of the law found to be unconstitutional. That part of the law fails the relevant test because the purported link between the seven round limit and the State’s interest is "tenuous, strained, and unsupported in the record."

At this point my brain is usually already full, so I'll stop and make a short list of terms I need to be clear about. In the next segment we'll open up some dictionaries and look up a few legal terms before we attempt to wade back in again at the beginning. If you feel lost, you're not alone. I always feel lost the first time I look at a new case. If you find something confusing, you can be sure others do too. If there are terms that you would like a future diary to address please do post them in the comments.


This article reviews the first federal court review of the constitutionality of New York state's new gun law. We have read the Introduction and Conclusion of Judge Skretney's ruling. This diary is part III of a tutorial series breaking down my approach to learning about gun law by reading judicial opinions. It was hard at first, and tedious, the same way that learning a foreign language is tedious at first. It does get easier with practice and has been well worth the effort. In the next segment we'll dig into some gun terminology.

I imagine some of you are scratching your head, "Gun technology? Really? Oh joy!" ;)

Thanks for reading!

Originally posted to Firearms Law and Policy on Tue Jan 14, 2014 at 11:18 AM PST.

Also republished by Shut Down the NRA and notRKBA.


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