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

A year ago New York legislators

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
 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
by U.S. District Judge William Skretny, who
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

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
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

New York fails to explain its decision to set the maximum at
seven rounds, which appears to be a largely arbitrary

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

The seven-round limit is largely an arbitrary restriction that
impermissibly infringes on the rights guaranteed by the Second

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

from Hit & Run

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