Yesterday we posted an interview with the guys behind the NY SAFE Act challenge, and as with all things judicial there are questions a-plenty. Seeing the unanswered questions popping up, James Tresmond (the lawyer in question) has offered to do a Q & A session with TTAG’s readers. Simply post a question in the comments here below, and we’ll get you an answer for Monday morning. No holds barred.
Home Crime and Punishment Ask the Lawyer Behind the NY SAFE Act Challenge
Q. HAve you reached out to the Second Amendment Foundation to coordinate the litigation given recent negative 2nd Circuit rulings and a pending SCOTUS cert filing?
Do your personal views align with being pro-2nd amendment? Are you an active gun owner-user?
This is one stupid ass question. Wheat legal bearing do his views have?
What would the effect of an injunction be? Would it bring us back to the old ’94 ban?
Q: How can I, as a citizen of (western) New York, help this cause?
Join http://www.SCOPEny.org , make phone calls to your local politicians, sherif, etc..
Q: The last thing I heard on the subject the NY SAFE Act failed to exempt law enforcement but the governor stated that they would not be held to the law. Does this invalidate it for everyone else?
Once the SAFE Act is defeated, can we expect any lawsuits challenging the AWB still in effect here since the federal AWB expired?
Do you ever forsee NY’ers able to own NFA items (even safety items, like suppressors)?
Q: I think this is an important effort with possible ramifications for other states (if only by example); how can a non-NY resident help?
Q: Will you questions the legality of Govenor Cuomo pushing
the SAFE act through using emergency measures?
He has the ability yes, but did the situation meet legal definitions
Question : What will happen when in the “Future” a tyrannical Government (Hitler, Stalin, or numerous Dictators) decide to KILL , the U.S. Constitution, destroy Liberty, and send Swat Teams to Discontents Homes (ruby ridge, Waco Tx etc)?
The 2nd Amendment is for the Protection of US Citizens.
Since SAFE as mentioned prior modified existing law, are you aiming to go back to prior law or to nullify back to some pristene US and NY constitutional 2A right set?
Will you also pursue charges against Cuomo for his drastic overreach of power, failure to uphold his oath, etc?
A lot of us would love to see some punishment of politicians for their overreach; civil and/or criminal. Is this even possible?
If possible how will this reflect on politicians in other states (such as Diane Feinstine of California).
I’ll give you the simple answer: NO. Legislators have an absolute immunity for legislative activities like proposing and passing bills.
many states have or are in the process of enacting licensing fees, fingerprinting, and mandatory safety courses to own guns. Do you have a view on the the constitutionality of these provisions (which might be different for each of the three)? Do you have plans to challenge other laws in MD, CO, IL (Chicago) etc. ?
Q: One of the items in te SAFE Act is that magazines greater than 10 rounds need to be sold out of state. I assume this is done so that NY can skirt the “Takings Clause” of the 5th admendment, is there any precedent for this? Or, have the courts ruled that governments cannot skirt the clause and thus make this invalid?
Q: I am not a lawyer and do not pretend to be one, but from my reading it seems that the “severability” clause they have put into this law can be over ruled and courts can say that “severability” does not apply thus potentially making this invalid and thus potentially making the whole SAFE ACT invalid depending on how the portions being fought are ruled upon. Would you agree? Or, will the SAFE act need to be fought one line at a time?
If you undo the SAFE Act and prior restrictions, bringing muzzle attachments and standard capacity magazines to New York does that constitute such laws unconstitutional as a matter of principle? Essentially meaning that you could challenge an Assault Weapons Ban federally (if it were to pass) OR on a state by state (California and Illinois) level and overturn such laws?
In my layman’s musings on the constitutionality of the SAFE act, I came up with the following:
1) Heller/McDonald asserted the right of self-defense with a handgun. The seven-round limit seems low enough to impact the ability to exercise that right, especially in a situation with multiple attackers, as is not uncommon during home invasions.
2) Banning AR-15 while allowing sporting-looking semi-auto rifles with detachable magazines lacks any rational basis, since cosmetics don’t matter at all for functionality, and the ergonomics, like a pistol grip, have at best a very marginal effect on a criminal’s ability to operate the gun.
3) I am not 100 percent clear on whether a currently owned and then registered “assault rifle” could be inherited by the owner’s family upon his or her death. Assuming it can’t be, it would seem to constitute a kind of “delayed confiscation”.
My question is whether any of the above three items are part of the arguments in the litigation. I recognize they may not be a good strategy, I am just curious.
I would assume that with more and more criminals owning body armor and coming in packs with higher powered weapons (and large magazines); that private citizens should have access to similar weaponry to protect themselves. This was the same argument police made to upgrade their arsenal. Couldn’t this argument be made and statistically proven. After all I believe there’s lots of military research showing whomever has the most firepower typically wins a gun battle.
Why aren’t you letting the SAF handle this? Bad precedents hurt us more than bad legislation.
Are magazine limits legal? I heard Allan Gura at a law forum discussing the Safe Act and he specifically said that he saw the 7 round magazines limits were unconstitutional. However, he never mentioned other limits like 10 rounds or limits like in Colorado being discussed of 15 round limits.
I have also heard David Kopal argue that Magazines were invented decades ago and have long been standard for many handguns and are in “common use” Police officers carry them for the same reason that civilians do: Especially if a person is attacked by multiple assailants, there is no guarantee that a 10-round magazine will end the assault thus it’s an up hill battle for government to meet the burden of proof. So he views limits below 15 – 18 rounds and below 30 rounds for rifle as unconstitutional.
What are your thoughts on the constitutionality of magazine bans?
1. What resources are needed to give your effort the highest probability of success?
2. Do you have access to those resources?
3. What are the ramifications if your efforts are unsuccessful?
Can someone who is living in New York State have someone from out of state receive their firearms as an inheritance or some other way?
We just found out my uncle who lives in the Catskills and is an avid gun collector and shooter, has inoperable throat cancer. He wants to give his firearms to his sons, and nephews who want them, before he passes away. Since we all live outside of New York State can we legally come up and get them or have them shipped to our local FFL’s??
Rifles can be picked up and driven out of state by you. Pistols need to be transferred out of state through an FFL dealer to another FFL dealer. If pistols are unregistered (not on a NYS Pistol permit) they need to be turned over to a local police department so that they can run all of the serial numbers throught a database to determine if they were stolen or used in a crime (make sure you get a property reciept from police). Following the police investigation, pistols can be put on a NYS pistol permit or transfered out of state to an FFL dealer. Be advised that it can take a substantial amount of time to get your guns back
I believe my uncle has his pistols permitted as per law. Will probably just transfer what we need to through FFL’s but thought about getting them when we go visit. Would it be legal, and easier to just buy the pistols and transfer them or get them as gifts/inheritance and transfer?
Buying or having them gifted to you does not matter and you can not transport them in NY state without a permit unless you are taking them to the nearest police station. The easiest thing to do would be to have your uncle take them to the nearest gun dealer (if he is able) and then have that dealer transfer and ship them to a dealer in your state. If your uncle is too sick to travel, I am sure you can find a respectable dealer that would go to his house and pick them up for you. Dealers typically charge approx. $20 per transfer for pistols.
Q: What’s the strategic relationship (if any) between your efforts and the suit being brought by the NYSRPA & NRA? Is the philosophy of your case complementary, in addition to, or possibly even contradictory to those efforts?
Can you please, for the love of Gaston, come to NJ? We’re dying over here.
A few questions:
1) What is your prognosis on the likelihood of the SAFE Act being enjoined by the court? Even more importantly, if the injunction is issued, do you believe it will be sustained in the appellate courts given their historic deference to the state on firearms issues?
2) Given that SCOTUS has failed to set forth any specific level of scrutiny for 2A cases, and given that the 2nd Circuit Court of Appeals recently applied a so-called intermediate level of scrutiny (though I think that the level actually applied did not fall within that spectrum), are you demanding strict scrutiny for review or are you demanding a tougher form of intermediate scrutiny? More to the point, do you believe that the courts in NY will actually apply either a more stringent version of intermediate scrutiny or strict scrutiny, or will they follow in the 2nd Circuit’s footsteps?
3) Most importantly, for armchair quarterbacking lawyers like me, will you be making all pleadings publicly accessible on a website somewhere? I, for one, would love to be able to review them as they are promulgated by the parties and the Court.
1. Can you please post the pleadings and other court filings on your website so that we can better understand the basis for your lawsuit.
2. How are you challenging the constitutionality of legislation through an Art 78. It is well established that legislative acts cannot be challenged through an Art 78. Also the State of NY is not a proper respondent to an Art. 78. (Seeing the pleadings for myself may answer this question)
3. Why didn’t you bring this in federal court. A win at the state level on federal constitutional grounds will have no precedential value in any federal court, even a NY federal court. If this case is supposed to be a major advancement in 2nd Amendment rights, it should be brought in a court that will have some influence. If your intention is to appeal to the US Supreme Court through the state system, what makes you believe they will grant cert considering the Court almost always waits until there is a conflict between the Circuits or until at least several Circuits have weighed in on the issue.
4. Your argument with respect to registration seems to rely heavily on Haynes v. US. As I’m sure you’re aware, a major factor in the court’s decision was that the particular registration requirement at issue applied almost exclusively to people who had obtained the firearm illegally. The NY SAFE Act, however applies to everyone, the majority of whom are law-abiding citizens. How are you going to address this?
5. Even if Haynes applies, the Supreme Court in Haynes didn’t strike down the law. It permitted a defense for those defendants who would have incriminated themselves had they registered the firearm. Since a law-abiding citizen would not be incriminating himself by registering under the NY SAFE Act, how does Haynes help?
It was shocking to see that Cuomo used an extraordinary emergency / dictatorial procedure to bypass the democratic process of lengthy congressional hearings.
Since none of these measures will save our children from another Sandy Hook anyway and since there was no real emergency (like an Earthquake or another natural disaster), isn’t it possible to focus this “emergency” procedure used by Cuomo and make it void?
Finally, as Robert Farago himself asked the question:”if Adam Lanza had been an Al Qaeda terrorist, would we be talking about the SAFE Act, the way we are today?” From a legal perspective, besides the lack of political motive, isn’t Lanza a terrorist? How can the SAFE Act protect us from more terrorism against our children?
Cannot this argument used in court to defeat the SAFE Act?
Q. Does your premise differ from “Heller II?”
What will prevent never ending playing around by cumo even if more “good” decisions are rendered? Contempt? Bench warrants? Thanks, Randy
For those with conceal carry permits in other states that travel through New York, how will this law (as it stands) affect their ability to bring a standard capacity magazine (15 or so rounds) with them through the state of New York to their eventual out-of-state destination?
If they are prohibited under the law from doing so, could the equal protection clause of the 14th amendment be invoked as a defense if caught and charged?
If you are successful with this case, how will it affect similar bans in states such as California, New Jersey, Connecticut, Colorado (maybe?), etc?
How is it possible that the SAFE ACT was written, blatantly unconstitutional? Aren’t legislators mostly lawyers?!
That is the case Ed, many legislators are lawyers. So who are the BEST at playing legalese and forcing others to go through hoops………? EXACTLY
I have no questions but do want to express my appreciation for what he is trying to do.
Q – I know this is a dumb question, but I just have to know, doesn’t the old US v Miller case say that only military weapons are protected by the 2nd ammendment? So governments can only ban any weapon that is NOT in use by the military? So we can own all the “assault weapons” we want?
Q – How can I help you?
Q – Should we look here for the answers?
BTW – This could be a great ongoing feature where a few legal questions are answered periodically. Gun laws are dizzingly complex, if not ridiculous. Ever investigate what is involved in driving from NY to PA through NYC and NJ with a legal handgun and an AR? Even with everything unloaded and locked and ammo stowed separately, hollow points in original unopened boxes, you basically risk years in prison.
Is modification of an AR-15 to remove all banned features a viable way to escape registration, or does the “list” of banned weapons published by the state trump the law’s definition of what is and what is not an assault weapon?
I’ve also wondered whether a fixed magazine would do the trick.
Q: If you prove the SAFE act unconstitutional, will that strike down the CA assault weapons and magazine ban?
Q- How can I help? I’m in Georgia and don’t have an immediate threat to my freedoms. What can I do for my Northern neighbors?
Q- Can a state force a person to engage in interstate commerce? For example, sell your 30 round magazines out of state or they will be confiscated?
In the Safe ACT it forces sale or destuction of one’s personal property when they die. This is about not allowing the owner to will away or give his AR style rifle to a family member. What authority is this under and how can it be constitutional.
Will you agree that this entire law was nothing more than Cuomo’s approach at furthering his own political agenda. This law was not designed to keep anyone safe. It was designed to give the allusion that somehow banning this or that would deter an unstable person from committing a crime…..What a sham. Did restricting magazines to ten rounds do a thing to prevent crime….I think not. I just want you to know that you have my respect. Regards, Phil
For those concerned about NY 2 A rights, http://www.SCOPEny.org is a good organization to join or send a donation to. They plan on filing a lawsuit.
Why not consider another approach to legal review? Specifically, how enhancements to modern firearms (pistol grips, lights, sound suppression, standard capacity mags, etc) support improved accessibility for physically disabled Americans?
In other words, recent legislation is a form of discrimination. Reducing the availability of modern firearm designs limits options available to physically disabled Americans who have a right to defend themselves. Aren’t we supposed to be removing barriers to the acquisition and use of products and services for all Americans, not creating them?
Shall not infringe applies equally, doesn’t it?
This Q&A, in retrospect, was a total waste of time and bandwidth. Good questions people. Too bad the attorney didn’t feel it important enough to answer you. Typical Lawyers. No money, no time! There is something to outlaw. Lawyers.