Andrew Cuomo, Jeffrey Klein, Sheldon Silver, Robert Duffy, Andrea Stewart-Cousins

A federal appeals court has upheld the majority of the NY SAFE Act, a law passed in the Empire State enacting the strictest firearms laws in the United States. The ruling also struck down one of the more obviously ridiculous provisions (full ruling here). The decision is being immediately appealed by the New York State Rifle and Pistol Association (one of the plaintiffs) as the case continues its march to the Supreme Court where it may finally settle, once and for all, whether modern firearms like the AR-15 are protected under the Second Amendment as strongly as handguns . . .

In its ruling, the federal court said that New York State’s ban on “assault weapons” such as AR-15 rifles was constitutional and doesn’t infringe on the Second Amendment because, “When used, (assault) weapons tend to result in more numerous wounds, more serious wounds, and more victims. These weapons are disproportionately used in crime, and particularly in criminal mass shootings. They are also disproportionately used to kill law enforcement officers.”

As we’ve already noted, absolutely none of that is true. Judge Jose Carbranes didn’t really seem to care, stating that “gun-control legislation need not strike at all evils at the same time to be constitutional.” In other words, he’s down with the argument that “if we can save just one life by infringing on the rights of Americans, it’s worth it.”

On the same logic, the ban on “high capacity” magazines was also ruled to be constitutional, but the notion that residents will only be permitted to load a maximum of seven rounds in their 10 round magazines was laughed right out of the court. That should give you an idea of how ridiculous that concept is, even though it sailed right through the New York legislature and governor’s office without so much as a second glance.

In this case the court seems to have applied intermediate scrutiny to the law, which requires only that a law furthers an important government interest in order to be acceptably constitutional. In my opinion this law fails that test, since the SAFE Act has had zero impact on safety in New York and even if 100% compliance were somehow reached, the impact would be negligible at best. Opponents of the law claim that strict scrutiny should be applied instead, requiring that the law be tailored to be as minimally burdensome as possible.

There’s little doubt that this case will be heading to the Supreme Court. There’s been a lot of confusion in the lower courts regarding how to apply the principles of the Heller decision and some guidance from the Supremes seems to be in order. Gun owners live in interesting times.

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78 Responses to Appeals Court Upholds Most of NY SAFE Act, Strikes Down Magazine Load Limit

    • no, it’s awesome. We got their state houses and courts to disarm them for the next civil war, and it didn’t even cost us $25 worth of sheet music or beads and trinkets.

      Play them out to a little Miami 2017…

      • Who has been disarmed? There’s been roughly 95% non-compliance by New York gun owners to this law. The only thing I can take away from your post is that you are likely not from New York State, and seem to think that gun owners here are going to be your enemy in the event of some sort of insurrection. Am I on point with that?

        • “95% non-compliance by New York gun owners to this law.”

          Wait until they announce a 1-800 number and a reward for turning in that 95%…

        • Geoff,

          There is already an anonymous tipline for that exact purpose. It doesn’t seem to be working.

  1. Given that all of the judge’s assertions regarding the “substantial relationship” between so-called assault weapons and the “important government interest” are utterly specious, the ruling does not even meet the intermediate scrutiny standard.

    Though, I’d like to see where “shall not be infringed” leaves room for any level of judicial scrutiny.

  2. Don’t expect the Supremes to take this. The Heller majority was precarious, and if the “conservative” justices don’t think they enough votes, they’d rather just not take the case.

    Which is good for us too, for now, because an adverse ruling on a semiauto ban would eviscerate the purpose of the 2A and might prove to be a hole too deep to easily get out of. We need to win the next presidential election or two and get some better justices in there.

    • I have doubts that even if the Supreme Court hears this, it will come before the next election. That being said though, I’m not too sure what the President has to do with rulings of the Supreme Court…

      • The president makes the appointments. The next President will probably be making 2 of those based on the current ages of the sitting justices.

        If a D is elected President and R’s lose a majority in congress you can pretty much say adios to the constitution as we know it since the court will be skewed so far left.

        With D’s importing their base from South America and the Middle East, the real reality is that this is the last presidential election Republicans actually have a snowballs chance of winning, and the last real chance at a conservative bench.

        The horizon is dark my friend…very dark.

        • If a D is elected President and R’s lose a majority in congress you can pretty much say adios to the constitution as we know it since the court will be skewed so far left.

          How do you figure? The next two most likely to retire are hard-left. Replacing them with other hard-left justices would merely maintain the status quo. The only thing we risk is the lost opportunity to drive the court back to the right.

        • I’d love it for a solid conservative president to be elected and maintain the Senate, so we can replace Ginsburg and Kennedy with real justices. Scalia’s getting up there, but he’s already one of us, so that doesn’t alter the balance if a conservative replaces him.

          If Cruz doesn’t win the GOP presidential nomination, I hope he doesn’t accept the V.P. nomination. He’d be much more valuable as a Supreme Court Justice than as a professional funeral attender.

        • @ Chip With the exceptions of Alito, Kagan, Sotomayor, and Roberts, the rest could kick the bucket any day. There is a very real chance the judges being replaced are not Ginsburg and Kennedy.

          I also fully expect that if Hillary fully implodes you will see Ginsburg’s surprise retirement announced and an Obama appointee in the zero hour.

        • Alito is no spring chicken. I don’t see him lasting 9 more years.

          Kennedy’s not young either. He’s not particularly reliable, but he was right in Heller.

          It can always get worse.

        • “The only thing we risk is the lost opportunity to drive the court back to the right.”

          It’s when conservative justices retire that a Progressive as President kills this country.

      • The president chooses the justices, and two justices are ready to retire. Read that as “if we get another “liberal” president, we can effectively kiss the 2nd amendment goodbye.”

  3. It’s unconstitutional for them to restrict magazines down to seven rounds, but completely OK for them to limit the capacity to ten… Because reasons.

    • To strike one armament while allowing the bullet count of another, when both function the same.

      My brain just stops…do you walk to work or take your lunch?

    • “New York has failed to present evidence that the mere existence of this load limit will convince any would-be malefactors to load magazines capable of holding ten rounds with only the permissible seven.”

      Uh…yeayah!

      With the above statement in mind, the rest of the decision is inherently inconsistent with the courts own simple reasoning. If the court can arrive at the logical conclusion of this truism quoted from the decision, that “would-be malefactors” will ignore the law, then how can they NOT conclude that banning ‘standard capacity’ magazines of more than ten rounds and modern sporting rifles that are the most common and popular of all time while simultaneously being the LEAST likely to be used in the commission of criminal acts, be in practice, and in accord with Constitutionally protections of the Second Amendment, adequately compelling state infringements able to overcome ANY scrutiny?
      Oh that’s right, we have to do SOMETHING, so lets punish everybody, their Rights be damned.

      Bad actors that use guns in the commission of their crimes won’t be deterred by ‘the law’ and won’t give any consideration to breaking ‘the law’ without second thought other than to avoid getting caught.

      This mottled decision is just further evidence that the anti-gun complex’ restrictions on the law abiding citizens of America do nothing to stop bad actors who use guns in the commission of crime and are nothing more than tactics to further restrict the law abiding in the exercise of their constitutionally protected rights to keep and bear arms.

      It also exposes the extent to which biased, anti-gun Cool-aid drinking activist judges will go to help implement the antis’ worthless, confiscatory agenda.

      • Because the restriction of, say, 15 round magazines makes it more difficult to buy them and therefore break the law while breaking the ‘load law’ only requires pushing three more rounds into a magazines. The 7 round limit IS more absurd than the 10 round magazine law, though neither should exist.

  4. The 2nd Circuit also made an interesting ruling on economic favoritism in legislation. If your not already sick to your stomach enough, see their Sensational Smiles, LLC v. Mullen ruling. Reason.com, of course, covers it.

  5. It’s more than a little wrong for people with no clue to write laws, pass laws, argue laws and uphold laws regarding that on which they have no clue.

    It seems like law peaked during the witch trials and ignorance, bigotry and superstition are still running the show.

  6. FWIW, it’s good that this looks like a badly-written, weakly reasoned holding. The worse it is, the better for the appeal.

  7. I will bet you a box of Krispy Kreme doughnuts that Gov Cuomo gets indicted before this case hits SCOTUS. For those outside the region, the Federal prosecutor Preet Bharara has been busy bugging and indicting the various leaders of the NYS legislature. This includes the two supposed leaders of said branch of govt. Sen leader Dean Skelos and Assembly Speaker Sheldon Silver. Everyone expects Cuomo to be in line for handcuffs at some point.

  8. If handguns are covered under the second as a militia weapon then there can be no logical way that assault rifles (which could actually be used by a militia) are not. The mere idea of it is preposterous. That’s like a ruling saying that formula 1 cars are allowed on highways but Honda Civics aren’t.

  9. On the same logic, the ban on “high capacity” magazines was also ruled to be constitutional, but the notion that residents will only be permitted to load a maximum of seven rounds in their 10 round magazines was laughed right out of the court. That should give you an idea of how ridiculous that concept is, even though it sailed right through the New York legislature and governor’s office without so much as a second glance.

    . Was there a first glance?

  10. “These weapons are disproportionately used in crime” They simply are NOT. Rifles are only responsible for 4% of gun homicides. That’s ALL rifles. The scary black rifles are only a subset of all those rifles.

  11. This decision is frightening because the court asserts intermediate scrutiny but really affords the statute rational basis review. Look at the footnote on the Remington slide action rifle. They leave open the question of whether a state can provide substantial evidence to justify a ban of that rifle. Following the Second Circuit’s reasoning, virtually any type of firearm can be banned and confiscated. The Second Circuit outlines no test to determine which firearms are constitutionally protected, rather, they provide a blueprint for how states can ban individual firearms. It’s over folks, they’re going to get every last gun, right down to the Vice President’s double barrel shotgun. Don’t believe me? Tell me how they aren’t going to justify a ban on that gun.

    • It’s over folks, they’re going to get every last gun, right down to the Vice President’s double barrel shotgun. Don’t believe me? Tell me how they aren’t going to justify a ban on that gun.

      A ban != confiscation. The latter requires implementation. The people of NY and CT are bravely refusing to comply even with unconstitutional registration. You think the legislature passing a ban would compel people to do as DiFi said: “Mr. and Mrs. American, turn them all in“? No. Agents of the State would have to try to take them by force.

      They know that they’ll never attempt that.

      • With all due respect, confiscation is underway. The NYSP has stepped up enforcement of the SAFE Act. People are being reported for minor anxiety or depression in emergency rooms. Police officers are offering citizens no leeway when they find an AR-15. District Attorneysj’ offices are only too happy to let you plead to an unclassified felony (DA’s offices, by the way, are the enforcement arm of the liberal establishment – when is the last time you paid attention to your local DA’s race?)

        • The NY State Police haven’t done anything around this part of the state in regards to the SAFE Act. It’s not something that keeps me up at night here. It does need to be repealed. I believe this case will be taken to the Supreme Court, especially with the Connecticut laws being added to the case. I think it’s becoming too big for them to simply not take on.

        • “The NY State Police haven’t done anything around this part of the state in regards to the SAFE Act. It’s not something that keeps me up at night here. It does need to be repealed. I believe this case will be taken to the Supreme Court, especially with the Connecticut laws being added to the case. I think it’s becoming too big for them to simply not take on.”

          Yeah, uh huh. Wrong. The New York State Police regularly arrest defendants for criminal possession of an assault weapon. Just sit around any city or county court in New York during an intake calendar. The police are not your friends, and if they catch you with your AR-15, they’re going to arrest you, regardless of the fact that its possession is your constitutional right. Oh by the way, if you’re visiting a friend’s house and he/she has an AR-15 on the coffee table and police show up, can they arrest you? Yes. It’s called constructive possession, and the burden is on you to show the court that you didn’t exercise custody or control over the firearm. It’s guilty until proven innocent in New York.

        • Maybe the part of NY you live in friend, not here. The police here couldn’t care less about your AR15, they’ll go to the range with you and try it out.

        • “Maybe the part of NY you live in friend, not here. The police here couldn’t care less about your AR15, they’ll go to the range with you and try it out.”

          Here is a list of counties with SAFE Act prosecutions: Niagara, Monroe, Erie, Alleghany, Ontario, Genesee, Herkimer, Wayne, Livingston, Seneca, Yates, Onondaga, Chemung…

          A few state police who are anti-SAFE act is not a safe basis to tell people that they won’t be arrested for owning an AR-15. Be careful out there.

  12. So. We maybe lost ground in two smallish battles. We have not lost the war.
    Let’s leep our eye on the bigger picture. We surely gained in many areas throughout the year in other states.
    We have a SCotUS decision coming soon. Keep the faith. Stay the course.

    • No, we lost major ground over the course of several huge battles. New York is one of the most populous states in the country, and has one of the highest per capita gun ownership rates in the nation. Assault Weapons Bans have passed appellate courts in Chicago, Maryland, New York, and the District of Columbia. There is no circuit split on the issue, and the Supreme Court is unlikely to take up the issue. Watch these decisions used as the basis to take more of your guns, including pump action shotguns, bolt action rifles, and even your little Browning superposed.

      Hillary Clinton is going to be president. Bet on it.

      It’s over. We’re toast.

      • You seem like a fifth-columnist spreading this “woe is me” stuff to bring down morale. YOU give up, many more of us will continue to do what we can to oppose this mess.

        • You’re wrong, I am not giving up. I’m telling people to go out there and vote because we just suffered major losses in the federal circuit courts of appeal. I’m not going to be Baghdad Bob and take a “nothing is wrong” approach to what’s going on here. There is a lot wrong and if you, me, and everyone else who cares about our rights doesn’t get out there and show up to vote against Hillary Clinton or whatever liberal democrat is on the ballot, we are going to be in trouble. Wake up.

        • Or it may just be garden variety pessimism. That said, I’d rather people be slightly overly alarmed than complacent.

          I agree there’s a good chance that Hillary will be the next POTUS, but that in itself doesn’t mean a death knell. The Supreme Court is too fickle… but even if a ban was upheld, implementation would not sail.

          I see “status quo” for the next while unless we see a complete power shift I’m Congress, and replacement of at least one Supreme judge.

          All of which is possible, but not exactly in the cards right now – even if Ol’ Hill is elected.

  13. Look at those three scumbags in the picture who passed this law. Two of them are indicted. F the second circuit and the horse they rode in on. Liberal scum.

    • You’re right. Been to NYC lately? Not exactly a shining city on a hill. More like a rat infested dump. I thought liberals cared about the environment. Think of what these genetic defective liberals can do managing a whole environment based on how clean they can keep NYC, Detroit, Los Angeles, and Chicago.

    • I hope I am wrong, but based on the Supreme Court’s track record, it will not grant certiorari to review the Highland Park decision. The Supreme Court generally grants a petition for a writ of certiorari when the federal circuits issue conflicting decisions on the same issue, or whether there is an important federal question. Here, the federal circuit courts of appeal consistently affirm district court dismissals of challenges to assault weapons bans. There is no circuit split on which to base certiorari. If the Supreme Court believed that assault weapons bans presented important federal questions, they would have granted certiorari before. Instead, certiorari has been uniformly, consistently, and repeatedly DENIED.

      Your neighbors will be voting for Hillary Clinton, who will get a permanent assault weapons ban passed during her first term, and give it a catchy name like the NATIONAL FIREARMS ACT OF 2017. Among the more draconian requirements will be mandatory insurance policies for gun owners, federal background checks for all ammunition and reloading equipment, 5 round magazine limitations (no exceptions for revolvers), a ban on leveler and pump action shotguns, mandatory yearly psychiatric evaluations, a federal gun owners database, safe storage provisions, and mandatory minimum sentencing for minor violations. It’s coming, you wait. Don’t believe me? They rubber stamped mass incarceration for marijuana violations, and the liberals believe marijuana should be legalized! What do you think they’ll do when they get a hold of you, someone they deem to be a criminal mind for even thinking of owning a firearm?

      We’re in trouble. Deep trouble. Vote for a leader in 2016. I don’t care if it’s Mitt Romney. Vote for the Republican candidate who has the most reasonable chance of winning.

      • I appreciate what you said above, as yes, we can’t relax and not worry here, but… not a rhetorical question : What makes you think that a new AWB would get through Congress? A left supermajority shift next midterm? Enough R’s defecting?

        I’m not trying to argue. I’m genuinely interested in the angle.. The 1994 political climate was rather different from now, but as I said I don’t think we should get complacent.

        Just interested in how you think a new AWB would go down.

        If it does go down though, I do feel that the days of grandfathering and sunsets would be over. It would be confiscatory but likely without an enforcement plan. (It’ll just create a new class of felons overnight, and leave the enforcement to a slow burn.)

      • “Your neighbors will be voting for Hillary Clinton, who will get a permanent assault weapons ban passed during her first term, and give it a catchy name like the NATIONAL FIREARMS ACT OF 2017.”

        There’s no way the House will swing “D” in 2016.

        She’ll have a phone and a pen that’s about it, how’s she gonna pull that off?

      • Actually there is a high consensus about such restrictions. Large majority = hardly divided. Just cause you are in a very small minority that doesn’t like it doesn’t mean that there is some huge division.

    • No, it’s everybody. Preet Bharara slapped the smug looks off two of their faces when he indicted them, and the court will get a chance to do that again at their respective sentencings.

  14. Well…

    Appeals courts aren’t empowered to make findings of fact (everything quoted from that decision.) They are empowered to assert that lower courts’ findings of fact have not been made in *procedural* error.

    Generally speaking, restrictions of enumerated rights have been subject to “strict scrutiny” by the courts. This configuration of the supremes won’t do that, of course, because it’s about fitting their preferences and agenda into the law, somehow. The alternative is to follow the plain meaning of the law, and resolve disagreements with what the law says politically. You know, what courts are empowered to be, not the other thing.

    I’m more interested in a procedural challenge, which stands … I don’t remember where this one stands.

    Declaring that several hundred years’ of firearms existence is a new and pressing emergency requiring the super-secret-cosmic extra-shenanigans fast-track legislative process to enact What We’ve Wanted for More or Less Ever, before the shock and outrage of the last hyped bad thing erodes, is … procedurally questionable. Because in New York State, more governmental shenanigans, better.

    Seriously, where’s the sudden, novel, unexpected emergency, threatening immanent, unrecoverable general destruction?

  15. Supreme Court . . . may finally settle, once and for all, whether modern firearms like the AR-15 are protected under the Second Amendment as strongly as handguns

    Be careful what you wish for.

    Without a split in the Circuits, it’s unlikely that SCOTUS will take on such a contentious issue. But if it does, I do not expect it to end well for us. Kennedy simply cannot be trusted.

      • There’s a very clear split in the right to carry outside your home, and thankfully no indication they will grant cert. on that, either…

  16. When I was old enough to realize that the only recourse for citizens wronged by government is to seek justice from that same government, I realized the concept of a “free nation” was a fantasy. I know the 2A was put in as a last resort to that laughable catch 22, but let’s face it, no modern American has the stones to do what’s necessary, let alone an entire resistance.

  17. If I lived in N.Y. I would not turn in my AR, I would not turn in my magazines, I would ignore this law. I am an American citizen, I am no less worthy than any other citizen of the United States who is not harassed for owning such weapons. The Constitution and the rights afforded those in other states to own such weapons apply to me and every other legal citizen of this country. PERIOD!

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