New York 7-Round Limit Struck Down on Second Amendment Grounds, Assault Weapons Ban and >10-Round Magazine Ban Upheld

The decision, by a federal trial court, is today’s N.Y. State Rifle & Pistol Ass’n v. Cuomo (W.D.N.Y. Dec. 31, 2013). The court’s conclusion:

[T]his 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.

Here’s the heart of the analysis of the 7-round limit:

The SAFE Act adds New York Penal Law § 265.00(37), which makes it “unlawful for a person to knowingly possess an ammunition feeding device where such device contains more than seven rounds of ammunition.” Unlike the restrictions on assault weapons and large- capacity magazines, the seven-round limit cannot survive intermediate scrutiny.

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.

Indeed, Heller found that the Second Amendment right is at its zenith in the home; in particular, the Court highlighted the right of a citizen to arm him or herself for self-defense. But this provision, much more so than with respect to the other provisions of the law, presents the possibility of a disturbing perverse effect, pitting the criminal with a fully- loaded magazine against the law-abiding citizen limited to seven rounds.

Although Plaintiffs make this type of argument with respect to all aspects of the SAFE Act, the distinction here is plain. This Court has ruled that New York is entitled to regulate assault weapons and large-capacity magazines under the principal presumption that the law will reduce their prevalence and accessability in New York State, and thus, inversely, increase public safety. The ban on the number of rounds a gun owner is permitted to load into his 10-round magazine, however, will obviously have no such effect because 10-round magazines remain legal. As described above, the seven-round limit thus carries a much stronger possibility of disproportionately affecting law-abiding citizens.

Defendants contend, pointing to a study conducted by the NRA, that the average citizen using his or her weapon in self-defense expends only two bullets. Thus, New York argues, citizens do not truly need more than seven rounds, and the restriction minimizes the danger without hampering self-defense capabilities. But as an initial matter, New York fails to explain its decision to set the maximum at seven rounds, which appears to be a largely arbitrary number. And even if a person using a weapon in self-defense needs only a few rounds, and even if that is a rational reason for adopting the law, under intermediate scrutiny there must a “substantial relation” between the means and the end. The State’s justification for the law need not be perfect, but it must be “exceedingly persuasive.” Windsor v. United States, 699 F.3d 169, 185 (2d Cir. 2012) (quoting United States v. Virginia, 518 U.S. 515, 533 (1996)). This peripheral rationale, which is possibly meant to protect bystanders when a firearm is being discharged lawfully, or victims of impromptu acts of violence, is largely unsupported by evidence before this Court. It thus fails the more demanding test and must be stuck down.

I don’t have the time to analyze this in more detail here, but I thought I’d pass along the decision. For my general thinking on such matters, see my Implementing the Right to Keep and Bear Arms article, though the court’s analysis is somewhat different from the one I advocated there.

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