From buffalonews.com: “Chief U.S. District Judge William M. Skretny said the law, a response to the Sandy Hook shootings that killed 20 children and six adults, is not a violation of the Second Amendment. The one exception Skretny found was the law’s seven-round limit, which he called “tenuous, strained and unsupported.” Gun rights organizations are expected to appeal Skretny’s decision.” Ya think? This will, in all likelihood, wind up at the Supreme Court. As always, watch this space. [h/t OneIfByLand]

[Text of the decision can be found here. (pdf warning) H/T Hannibal]

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101 COMMENTS

    • If by interesting you mean kind of like how a prostrate exam or a colonoscopy is interesting, yeah, it’s interesting. But if everyone had even just a little bit of intelligence, none of these lawsuits would be necessary.

  3. What about that guy that was already busted for having 8 rounds or whatever it was? Can he get his conviction overturned?

    • If I recall correctly, he wasn’t convicted and the charges were eventually dropped because the DA declined to prosecute.

      • Skretny is a well known liberal. Ask anyone who practices in western NY. You should recall that judges like Souter, Kennedy, O’Conner, and Roberts were also appointed by Republicans. Most Republican candidates for office in Buffalo are Democrats who lost the primary. The rest of the party follows this trend.

      • Bush; Neocon, Statist, a Republican, NOT a conservative or constitutionalist by any stretch of the imagination.

    • There’s no party system in the judiciary. Judges rule on the meaning on law where it’s unclear or conflicting, they don’t write law.

  5. Welp, time to go clear over this idiot’s empty little head, ain’t it?

    The real questions, though, are 1.) whether or not the SCOTUS will even hear this case (which I doubt) and 2.) will they strike down this law wholesale (which they all damned well know they should regardless of what happens) or just parts of it.

    • They should have struck down Obamacare in toto as well, but they found some weasely lawyer/Statist excuse not to. Since they already opined in Heller that there are in fact times when the government is allowed to infringe on that which “…shall not be infringed.” I would not bet huge sums that they will just throw this law out on 2A grounds.

  6. And if an arsonist used gasoline soaked feminine products to torch a school and kill dozens, would that be justification for the Government to regulate who, how, where, and how many feminine products people could purchase?

    • No. The Left would have a collective hissy-fit over their completely and totally imagined “right” to contraceptives.

      They’ll ban the gasoline first, being that they’re completely adverse to affordable energy to begin with.

      • Are you seriously going to imply that it wouldn’t be massive government overreach to ban things like condoms and the pill?

        • Clearly people move across state borders for commerce, therefore the federal government has the authority to control all aspects relating to reproduction, eating, and defecation.

    • What if those same feminine hygiene products were used as earrings by an unnamed MSNBC host (Hint: her initials are Melissa Harris-Perry) and thus offended people? You know, kind of like assault weapons being scarier than your average run-of-the-mill firearm . . . . because assault weapons are all tactical & stuff, with scary paint jobs & attachments & buttons & everything.

      • Come now. We should all know full well by now that it’s not remotely offensive or even the least bit silly until someone who isn’t on the Far Left does it.

        • Yep, you’re right! David Gregory brandishing a scary illegal 30-rd magazine isn’t scary or illegal when he does it! Bill Maher -David Letterman-Alec Baldwin-Ed Schultz & Al not-so-Sharpton all can say/do whatever they want & it’s fine! I stand corrected!

  7. It is absolutely amazing how much one’s rights can be infringed before the infringement is considered infringement.

  8. Folks, this year will be a defining moment for us all. Join us in fighting these Communist infringements. Join Gun Rights Across America today and help us take this country back. gunrightsacrossamerica.com

  9. I can’t think of a single self defense situation where a reduced capacity magazine is superior to a standard capacity magazine. If we force taxpayers to equip LEOs with standard mags, than citizens should have legitimate access to the same. It just boggles my extremely right wing mind.

    • Almost all magazines are standard magazines. Please do not proliferate the lies and made up words of the hate groups in America.

  10. I still don’t know how any judge upholds any AWB using the “in common use” definition. Could some of our legal eagles on here help me out?

    • Here’s the thing: he can’t.

      He’s playing make-believe with the words and the definition of those words to suit an agenda built on an already foregone conclusion. If he really used the “common use” test, which he quite clearly did not in this case, he would have struck down the law. Wholesale.

    • It’s even worse. He actually acknowledges that these items may be in common use, but that even if that was the case, NY’s regulation of these items is substantially related to the achievement of an important governmental interest. The 1st amendment certainly can’t be regulated like that. Scalia is going to get pissed at some point and I hope he has the votes to require strict scrutiny on 2A issues.

      • Ultimately, the question is which level of scrutiny is to be applied. We want strict scrutiny, for obvious reasons, but even the Heller decision implies that a lower level may be appropriate in some instances.

        We just have no idea where the lined are drawn until SCOTUS defines the topography.

        It makes me nervous.

      • The First is not being directly attacked, but, straws in the wind and it will not be long, next 12 to 18 months

  11. Just one small step on the way to the USSC. Honestly, I find it encouraging that a judge in NY was willing to strike down any part of the law.

    • I get the feeling he felt he was forced to dump a small part to keep from losing the big parts on appeal.

  12. And another thing … whoever represents the gun rights side MUST show Boone County Sheriff Ken Campbell’s YouTube video. His video demonstrates that firearm capacity is irrelevant to a spree killer’s ability to launch lead:
    http://www.youtube.com/watch?v=MjnsBH9jGxc

    Of course the recent Washington D.C. Navy Yard spree killing also demonstrates that as well. In case anyone doesn’t know, the spree killer at that event used a pump action shotgun with buckshot. Not only does each round carry something like nine #00 pellets, but you can reload as you go and never actually run out of ammunition. This fact prohibits anyone from “rushing the shooter” when he/she runs out of ammunition.

    • Every single shooting of innocent people by criminals proves that magazine capacity is and always has been completely irrelevant.

      Hell, every mass-casualty event (not perpetrated by governments) carried out sans guns only ever proves that the tool itself is and always has been completely irrelevant. I mean, a handful of people killed over 2,900 with plastic box cutters not all that long ago.

      Take a look at all the arsons (and shootings!) in Australia after 1996, some still claiming 20 or more people, after more egregious, draconian, ineffective, and unnecessary gun control laws were passed there.

  13. the article does not indicate what level of scrutiny the judge applied. It sounds like he used rational basis for the SAFE act generally and intermediate for the round limit. If so, under Heller and MacDonald, this law would get struck down (assuming SCOTUS takes it). Even the recent rulings in Illinois that forced concealed carry were wise enough to apply intermediate scrutiny, but given that Heller determined that the right to keep and bear (not just keep) was a constitutionally protected right, anything short of strict scrutiny should fail.

    I actually think SCOTUS will take this case since the other circuits are all over the map. in fact, this is why the learned scholars thinks Lisa Madigan did not appeal the 7th circuit’s b!tch slap over the concealed carry ban. She has higher aspirations and SCOTUS would have ruled against her on both intermediate and strict scrutiny tests. Moreover, since Chief Justice Roberts stepped out and threw Obama a bone on ObamaCare (tax is ok, penalty is not) and was lied to about it (it is a penalty), I suspect they are gonna put this issue to bed. Now is the time to put ammo $$ into state elections, esp in states with vulnerable democrats and esp if you don’t live in said state.

      • Yeah it just sounds like judges trying to justify decisions they’ve already made based on the politics instead of the law and constitution, doesn’t it?

        • That’s the problem with political appointees. Always towing their party line — not even necessarily the party line of those that appointed them, either.

        • ummm, you do realize that it was a republican appointee (Earl Warren) that struck down separate but equal under a republican administration, eh?

          Judges are humans. Humans make mistakes or interpret things differently. Some judges punt on purpose b/c they lack balls to make a decision and want a higher court to make the ruling. Some judges take their cases seriously and have a true disagreement over the law (if it was so clear cut, we wouldn’t need various levels of appellate review). Here, we don’t know what the judge’s complete ruling is yet and have to wait for it to be released. Judge Posner in the 7th circuit is a republican appointee. he was against concealed carry but he said Heller was clear to him, even if he disagreed. Hence, IL gets ccw applications in a few days. Who knows what this judge thought or how he applied. There are aspects of the SAFE act that probably are constitutional (such as the registration scheme), but the judge struck down the part that was most troubling. I suspect on appeal , the 2nd circuit will overrule him. all depends on who gets the blind draw. let’s wait to see why the judge ruled before we react.

        • If I remember correctly a NYS Supreme Court struck down Bloomclown’s “Big Gulp Law” because it was also arbitrary and capricious also. If so, I think I see a trend.

        • The Warren Court is responsible for our current interpretation of the 4th and 5th Amendments. Prior to Miranda you could brow beat a suspect into giving up his rights. You didn’t need probable cause to get a warrant. Heck, you didn’t need a warrant for a lot of things.

          I also agree that registration is probably constitutional. In fact, you could argue that “A well regulated Militia” requires that the government know what the people have at home so they can do the logistics right. Not that I want to give anybody any ideas but if the President or a Governor wanted to issue an executive order requiring the registration of all firearms he could don his hat as the Commander in Chief and order a census of weapons held by members of the unorganized Militia.

      • At least one judge agrees with you

        Scalia: I am not a fan of different levels of scrutiny. Strict scrutiny, intermediate scrutiny, blah blah blah blah. That’s just a thumb on the scales.

        He wrote Heller, did he not?

        • tdiinva:

          The meaning of “well-regulated”, at the time of the framing of the Bill of Rights, had a specific, and not open meaning. To wit:

          “WELL-REGULATED”:

          The following are taken from the Oxford English Dictionary, and bracket in time the writing of the 2nd amendment:

          1709: “If a liberal Education has formed in us well-regulated Appetites and worthy Inclinations.”

          1714: “The practice of all well-regulated courts of justice in the world.”

          1812: “The equation of time … is the adjustment of the difference of time as shown by a well-regulated clock and a true sun dial.”

          1848: “A remissness for which I am sure every well-regulated person will blame the Mayor.”

          1862: “It appeared to her well-regulated mind, like a clandestine proceeding.”

          1894: “The newspaper, a never wanting adjunct to every well-regulated American embryo city.”
          The phrase “well-regulated” was in common use long before 1789, and remained so for a century thereafter. It referred to the property of something being in proper working order. Something that was well-regulated was calibrated correctly, functioning as expected.

    • Dirk (and Ralph), I think if you guys have the time to make a more detailed analysis of these sort of decisions WRT to Heller and MacDonald decisions, it would be well worth TTAG’ers time to read such.

      I’d certainly read them.

      I miss the days when I could get a sit-down with guys like Don Kates on a monthly basis and we could get the perspective of a lawyer versed in the matters of self-defense and RKBA on local, state and federal decisions as the issue percolated up the chain.

      • DG, that would be a massive project (if done correctly), and the reason that I retired from law practice is that I just did not have the energy for such things anymore.

  14. This is a glass one third filled kind of decision. The magazine limits are gone. As this moves up the chain more may die with it.

    • He only struck down the part of the law that prohibits loading more than 7 rounds in a magazine that can otherwise hold more. The part that prohibits manufacture and possession of such magazines still holds.

      • Heller and McDonald weren’t anywhere near as big as this would be. This would be telling every liberal bastion that they cannot restrict what types of firearms the peasants are allowed to have. SCOTUS will never do that.

  18. The USSC has been denying cert to every case like this that comes its way.

    The seven round limit was the weakest link of the law (and the stupidest) but the lower courts (esp. in NY area) cannot be trusted to do anything that might give the 2nd Amendment the same respect as the rest.

    See Kwong et al v. Bloomberg for how this will probably play out. The courts will look past whatever they need to in order to allow gun control, and the Supreme Court is afraid to take things further. The only thing in the NY law that might still be vulnerable is the fact that “assault weapons” cannot be passed down to heirs in NY.

    • How about the chances of the USSC taking this after the democrats lose the Senate in 2014…elections are a little more than 10 months away.

      • If that’s what happens I’ll put my party hat on. Until then I’ll just be loading ten rounds in my magazine instead of 7. Hmm… I suddenly feel un”safe”.

    • Having settled a very contentious issue in Heller, SCOTUS is likely, many believe, to wait until it can accept several cases together, and to rule on what it believes is the appropriate next level of clarification only when there is a clear conflict. It is prudent to see which way various state legislators go before ruling on the allowable level of commercial regulation and state registration. They are typically prudent.

    • He upheld a magazine limit, rather than the NY law which, as amended, allowed for the owning and carrying of a 10 round magazine but with only 7 rounds contained therein.

      I’d have to agree with him that one is (even) more capricious and arbitrary than the other…

  20. The 1911 Lobby was foiled! Their master plan to make everyone buy a 1911 and only a 1911 with their 7 round mags was just overturned!

  22. 1. The court applied intermediate scrutiny.

    2. The court found that ARs and 30 round magazines are in common use.

    3. The court found that pistol grips and thumb hole stocks make the rifles more deadly.

    4. The court found that high capacity round magazines also make the rifles more lethal.

    5. The court found that these features were not necessary for lawful use such as self defense.

    6. The court found that a 7 round restriction was arbitrary and unsubstantiated.

    That’s it in a nutshell.

    We can argue about the inappropriate application of intermediate rather than strict scrutiny to the issues of the case but it’s likely that when the case gets appealed to the Second Circuit that the Second Circuit will also apply an intermediate standard of review and the matter will ultimately need to go to the Supreme Court for a final determination.

    I found it interesting that he found ARS and 20/30 Rd mags to be in common use.

    • “3. The court found that pistol grips and thumb hole stocks make the rifles more deadly.

      4. The court found that high capacity round magazines also make the rifles more lethal.”

      The fact that they used movies and video games to come to these “conclusions” should have this ruling thrown out.

      • If you read the ruling, he actually arrived to this conclusion based on some claims from the plaintiff (i.e. NRA) – they have noted that pistol grips etc make rifles “more efficient for self-defense”, which, as the judge has noted, has clear implications that they are more deadly – as that is what self-defense with the rifle involves. Bet someone in NRA legal team is having his ass handed to him right now.

        • It also makes it easier for someone with an arthritis in the hand\wrist to use them… guess that’s a bad thing?

    • “3. The court found that pistol grips and thumb hole stocks make the rifles more deadly.”

      Yes. I would much rather be shot with a Ruger Mini-14 without a pistol grip because the chances of the bullet just bouncing off me is much higher.

      #Sarcasm

      • Honestly, for the life of me I cannot envision a thumbhole stock or pistol grip facilitating firing from the hip.

        Maybe I am just too ‘inside of the box’, but…how the hell does that work?

        • Let me just quote that part of the decision, as the argument it makes is fairly simple:

          “Plaintiffs contend that many of the outlawed features do not make firearms more lethal; instead, according to Plaintiffs, several of the outlawed features simply make the firearm easier to use. For instance, they argue that a telescoping stock, which allows the user to adjust the length of the stock, does not make a weapon more dangerous, but instead, like finding the right size shoe, simply allows the shooter to rest the weapon on his or her shoulder properly and comfortably. Another outlawed feature, the pistol grip, also increases comfort and stability. The same goes for the “thumbhole stock,” which, as the name suggests, is a hole in the stock of the rifle for the user’s thumb. It too increases
          comfort, stability, and accuracy according to Plaintiffs.

          But Plaintiffs later argue that the banned features increase the utility for self-defense — which is just another way of saying that the features increase their lethality. Plaintiffs make this explicit: “Where it is necessary for a crime victim to shoot the aggressor, and lethal or incapacitating injury will stop him, the lethality of the defender’s firearm is a precondition to her ability end the criminal attack.” (Pls.’ Br. at 22; Docket No. 23-1.) The National Rifle Association of America, as amicus curiae, make a similar argument, describing how the banned features improve a firearm’s usability. (NRA Br. at 10; Docket
          No. 46.) There thus can be no serious dispute that the very features that increase a weapon’s utility for self-defense also increase its dangerousness to the public at large.”

          So basically, lawyers on the pro-gun side screwed up their own argument here. Shame.

  23. I read the opinion. I carefully followed the judge’s logic and then was dumbfounded when most of the legal conclusions he reached were in conflict with his own analytic process. It’s as if Skretny walked right up to the Second Amendment door and, finding the knob a little too hard to handle, refused to turn it.

    The Second Amendment remains the Rodney Dangerfield of the Bill of Rights. At least in Buffalo.

    • Do you honestly think for a moment that the judge wasn’t under duress? A gun grabber with billions of dollars at his/her disposal can afford to send the very best and brightest (and discrete) goons. I am confident said goons found the proper “motivation” to apply to the judge to make the “correct” decision.

      I have to wonder if the goons gave the judge two options: door number 1 (strike down the law and die of cancer in the next 6 months) or door number 2 (affirm the law and live happily ever after). And seeing his options, the judge chose door number 3: he affirmed most of the law with tortured logic for some future purpose that might actually help the gun rights side in some round-about way? Did he essentially placate the gun-grabber billionaire while simultaneously setting the wheels in motion to deny the gun-grabber billionaire?

      • Intimidating a federal judge is very unlikely, what with tenure and all. As for setting the stage for the Circuit Court to do . . . something — I don’t think so. No matter how the judge ruled in this case, an appeal was and remains inevitable.

        No, this was just a case where a judge applied the law and then decided the case the way he wanted to decide it.

    • I agree, he admits the SCOTUS decision protects guns “in common use”, then admits AR-15s are in common use, then uphold the ban on them. Did this guy pass law school?

  25. Whomever decided that the Federal government gets to decide if the Federal government violates the Constitution is a dumb#&*!

    • That is why the Framers put in Article V in the Constitution. We can amend it without the Feds involvement.

    • SCOTUS has basically appointed itself to such a duty. But they didn’t do it willy nilly – they had a case on their hand where someone had to decide whether something is constitutional or not, with no clear wording or precedent on the subject. And doing it this way is in line with the whole separation of powers thing – judiciary is independent of legislative and executive, and so they can, in theory, impartially rule on whether either of those latter two remain within the boundaries.

      What would be your proposal on dealing with constitutional issues? Constitution is, ultimately, law (the supreme law of the land) – and we have judges ruling on how law applies in particular circumstances.

  27. I am terrified that if this goes to SCOTUS, we’re doomed, as I am afraid they’ll find some weasel way to uphold it. The only solace I have regarding the comparison to Obamacare is that was a major federal piece of legislation, whereas this is a state level piece of legislation.

  28. Sadly, I think that even if it was argued by the NRA that the Second Amendment is not just for individual self-defense but also for defense against tyranny, that a judge could still find a way to uphold the AWB ban, saying that as long as the people can continue to own semiautomatic rifles without the “military-style features” that (supposedly) make the weapon more lethal, they would still be capable of fighting the government.

    The argument that if the features increase the weapon’s utility for self-defense, that they also increase it’s lethality, I find to be weasel logic. Making the weapon easier to hold/use for a person engaging in self-defense does not mean that the gun itself is specially-engineered to kill large numbers of people or anything. Being able to adjust the stock length, having a flash suppressor, etc…do not give the weapon special capabilities that without which would stop a mass shooter.

    Although I can see the weasel logic and the NRA lawyers should have been more careful and foreseen that if you argue the features make the weapon better for self-defense that a weasel judge could then claim, “AHA! That means it’s more lethal too!”

  29. So, if loading to 7 rounds only in a 10-round magazine has been struck down, does it mean that the New York City limit of 5-round magazines is no longer valid as well?

  31. So he uses the suitability for defense argument to reason that these features do make a rifle more deadly, then abandons the premise of suitability for defense and keeps the more deadly conclusion. Did I get that right?

  32. Since the 7-round limit was not upheld, does that mean people may now carry 10-rounds in NY? Or do we have to wait for this to play out in supreme court and still carry 7 rounds until it is finally decided in a few years?

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