Interview with James Tresmond, Lawyer Behind NY SAFE Act Challenge

On January 15th, 2013 New York State passed the SAFE Act without a single legislator reading the document first. The act modified a number of existing laws, expanding some and creating new penalties in others. And it created the most hostile environment to gun owners in the entire United States. Days after the act passed, James Tresmond filed a number of lawsuits challenging the newly expanded laws. TTAG had the chance to interview Mr. Tresmond and his son Max (a legal researcher) and get some inside information about the cases . . .

As Max said, “The SAFE Act is not really one law, and that’s what’s so difficult for people to understand. It came down like an omnibus bill.” While the SAFE Act was one bill, instead of creating a new section in the penal code it simply updated existing sections of the criminal procedure law, the penal law, the mental hygiene law and others.

The biggest of those changes is in the penal law, where the requirement was added for law abiding citizens to register their firearms with the police, and the new penalty for ownership of standard capacity magazines. According to James, “what it does is ban ‘large capacity ammunition feeding devices’ which are magazines that accept more than 10 rounds, and prohibits the sale of these, prohibits the sale or transfer of ‘assault rifles,’ and prohibits the sale of guns that hold in excess of seven rounds.”

The sticky wicket here is that while it would appear that the magazine capacity only applies to semi-automatic guns, in reality the prohibition on magazines that can accept more than seven rounds applies to every kind of firearm. “The problem with this law” according to Max  “is that it is over broad, in so far as it outlaws the sale or transfer of commonly owned pump action shotguns.” That includes the bone-stock Remington 870 or Mossberg 500 pump action shotgun, which has a permanently attached tube magazine that can accept more than seven 1.75 inch mini-shells. The ability to accept more than seven rounds means that the shotgun is now illegal for sale in New York State.

“The law also bans any such magazine that could be readily converted to accept more than 10 rounds, which is virtually any shotgun with a magazine extension tube [available for sale].” In fact, the term “readily converted” could be taken to include drop-in magazine conversion kits for the Remington 700, the most popular hunting rifle in the world.

Since the magazine ban is separate from the AWB, as such the pump action exemption doesn’t apply. “They say that the law wasn’t intended to affect pump action shotguns. It does.”

That’s their first angle of attack. The law restricts citizen’s ability to purchase commonly used and owned firearms, which is exactly the same central point as the Heller and McDonald decisions settled not too long ago. As Supreme Court Justice Scalia put it, common firearms cannot be banned. And the effect of both the New York “assault weapons” ban and the magazine capacity ban is that the most common firearms available on the market are in effect being banned by the State of New York.

Thanks to Heller and McDonald, the right to bear arms outside the confines of militia membership is an established fundamental right. So the idea that guns are only for militia members has once and for all been thrown out, thanks to the Supreme Court. But it also means that any law that infringes on the right to keep and bear arms needs to meet the requirements for “strict scrutiny” — namely that the law is narrowly defined, has a compelling government interest, and is the least restrictive means of meeting that government interest. And according to Tresmond, the law meets none of those requirements.

The good news for gun owners is that Tresmond isn’t just challenging the SAFE Act extension of the AWB, but the entire premise of the law. So, if all goes well, the Empire State will soon see a flood of flash suppressors and pistol grips right along with standard AR-15 rifles as sold everywhere else in the United States.

As for the magazine restriction, it looks like the 7 round prohibition is the Achilles heel of the whole thing. There’s a shortcut in the New York legal proceedings that allows the court to issue an injunction for laws that are arbitrary, and since no one in the entire world has done any research on magazine capacity and mass shootings (much less a cost benefit analysis for magazine size) the number they chose was indeed completely arbitrary. There’s no getting around that fact, and thanks to the 7 round limit it looks like the injunction on magazine restrictions (at least) is a done deal.

Going forward, the intent is to challenge the magazine restrictions based on the fact that the constitution requires that seizure of citizen’s property must either be compensated or be for the use of the state. Since the magazines are required to be either sold (not for the use of the state) or destroyed (not compensated), their taking meets none of those criteria.

That challenge is the one that has gotten all of the attention lately. The judge in their case ordered the State of New York to prove that the law is constitutional, and if unable the judge will issue an injunction to stop the police from acting on the law. Its the first step to getting the law completely thrown out.

The other major challenge they’re facing is the “assault weapon” registration requirement, and the way they’re going about challenging the law is actually pretty interesting.

“Historically, since 1968” says Max, “these registries have been unenforceable. The famous case, which was a landslide 7 to 1 decision, Haynes v. US, it declared that people who are in criminal possession of a firearm cannot be compelled to register their firearm because doing so amounts to self incrimination, which is a violation of their fifth amendment rights.

“What people have been asking on the internet is how this Haynes case relates to New York State. […] The first way is that the registry is unenforceable. People who do not register, they’re going to be breaking the law. If they break the law, then that will put them in possession of an unregistered firearm, which would be a crime under the penal law. The state cannot compel them to register the gun due to the fact that such a registration would constitute incrimination, which the Haynes decision held that a person cannot be compelled to do that because it would violate your fifth amendment rights on self incrimination.”

But what about an amnesty period? Surely if the state allows people to register their “assault weapons” without any ill effects like the NFA amnesty in 1968, and they refuse, then it should pass constitutional scrutiny, no? “The difference is in 1968 the gun control act was passed in response to the Haynes decision, and it did not compel those people who were already in possession of an NFA firearm to register their guns pursuant to the NFA. It created the registration at the point of manufacture. So, basically what happens here is New York State has no amnesty provision and we are litigating the law as it is and not as it might be.”

The argument that the registry is unenforceable is a compelling one, but there’s another facet to their case. Since the registry would create two classes of people (those who register and those who don’t) with no legal ill effects for either (as registration cannot be compulsory), those two classes of people have different levels of privacy. One class of people are on a government list that will probably be published like the Journal news in Westchester County did recently, and the other will remain private. That’s where they get into the equal protection argument, namely that the law forces an inequality of privacy on the population and therefore the lack of equality makes the law illegal. I’m not entirely sure if I understand that argument, but it sounded damn good on the phone.

James Tresmond sounds like a man who has everything under control, and everything going his way. His lawsuits are on solid legal ground, and slowly but surely working their way through the courts despite every attempt by the New York attorney general to derail the proceedings. And when he’s done, the SAFE Act will rightly be in tatters. But that’s not the end of the road for the Tresmonds. Their plan is to take their show on the road, challenging unconstitutional laws wherever they stand. And if their success so far in New York is any indication, they’re going to be a force to be reckoned with.