On January 15th, 2013 New York State passed the SAFE Act without a single legislator reading the document first. The act modified a number of existing laws, expanding some and creating new penalties in others. And it created the most hostile environment to gun owners in the entire United States. Days after the act passed, James Tresmond filed a number of lawsuits challenging the newly expanded laws. TTAG had the chance to interview Mr. Tresmond and his son Max (a legal researcher) and get some inside information about the cases . . .

As Max said, “The SAFE Act is not really one law, and that’s what’s so difficult for people to understand. It came down like an omnibus bill.” While the SAFE Act was one bill, instead of creating a new section in the penal code it simply updated existing sections of the criminal procedure law, the penal law, the mental hygiene law and others.

The biggest of those changes is in the penal law, where the requirement was added for law abiding citizens to register their firearms with the police, and the new penalty for ownership of standard capacity magazines. According to James, “what it does is ban ‘large capacity ammunition feeding devices’ which are magazines that accept more than 10 rounds, and prohibits the sale of these, prohibits the sale or transfer of ‘assault rifles,’ and prohibits the sale of guns that hold in excess of seven rounds.”

The sticky wicket here is that while it would appear that the magazine capacity only applies to semi-automatic guns, in reality the prohibition on magazines that can accept more than seven rounds applies to every kind of firearm. “The problem with this law” according to Max  “is that it is over broad, in so far as it outlaws the sale or transfer of commonly owned pump action shotguns.” That includes the bone-stock Remington 870 or Mossberg 500 pump action shotgun, which has a permanently attached tube magazine that can accept more than seven 1.75 inch mini-shells. The ability to accept more than seven rounds means that the shotgun is now illegal for sale in New York State.

“The law also bans any such magazine that could be readily converted to accept more than 10 rounds, which is virtually any shotgun with a magazine extension tube [available for sale].” In fact, the term “readily converted” could be taken to include drop-in magazine conversion kits for the Remington 700, the most popular hunting rifle in the world.

Since the magazine ban is separate from the AWB, as such the pump action exemption doesn’t apply. “They say that the law wasn’t intended to affect pump action shotguns. It does.”

That’s their first angle of attack. The law restricts citizen’s ability to purchase commonly used and owned firearms, which is exactly the same central point as the Heller and McDonald decisions settled not too long ago. As Supreme Court Justice Scalia put it, common firearms cannot be banned. And the effect of both the New York “assault weapons” ban and the magazine capacity ban is that the most common firearms available on the market are in effect being banned by the State of New York.

Thanks to Heller and McDonald, the right to bear arms outside the confines of militia membership is an established fundamental right. So the idea that guns are only for militia members has once and for all been thrown out, thanks to the Supreme Court. But it also means that any law that infringes on the right to keep and bear arms needs to meet the requirements for “strict scrutiny” — namely that the law is narrowly defined, has a compelling government interest, and is the least restrictive means of meeting that government interest. And according to Tresmond, the law meets none of those requirements.

The good news for gun owners is that Tresmond isn’t just challenging the SAFE Act extension of the AWB, but the entire premise of the law. So, if all goes well, the Empire State will soon see a flood of flash suppressors and pistol grips right along with standard AR-15 rifles as sold everywhere else in the United States.

As for the magazine restriction, it looks like the 7 round prohibition is the Achilles heel of the whole thing. There’s a shortcut in the New York legal proceedings that allows the court to issue an injunction for laws that are arbitrary, and since no one in the entire world has done any research on magazine capacity and mass shootings (much less a cost benefit analysis for magazine size) the number they chose was indeed completely arbitrary. There’s no getting around that fact, and thanks to the 7 round limit it looks like the injunction on magazine restrictions (at least) is a done deal.

Going forward, the intent is to challenge the magazine restrictions based on the fact that the constitution requires that seizure of citizen’s property must either be compensated or be for the use of the state. Since the magazines are required to be either sold (not for the use of the state) or destroyed (not compensated), their taking meets none of those criteria.

That challenge is the one that has gotten all of the attention lately. The judge in their case ordered the State of New York to prove that the law is constitutional, and if unable the judge will issue an injunction to stop the police from acting on the law. Its the first step to getting the law completely thrown out.

The other major challenge they’re facing is the “assault weapon” registration requirement, and the way they’re going about challenging the law is actually pretty interesting.

“Historically, since 1968” says Max, “these registries have been unenforceable. The famous case, which was a landslide 7 to 1 decision, Haynes v. US, it declared that people who are in criminal possession of a firearm cannot be compelled to register their firearm because doing so amounts to self incrimination, which is a violation of their fifth amendment rights.

“What people have been asking on the internet is how this Haynes case relates to New York State. […] The first way is that the registry is unenforceable. People who do not register, they’re going to be breaking the law. If they break the law, then that will put them in possession of an unregistered firearm, which would be a crime under the penal law. The state cannot compel them to register the gun due to the fact that such a registration would constitute incrimination, which the Haynes decision held that a person cannot be compelled to do that because it would violate your fifth amendment rights on self incrimination.”

But what about an amnesty period? Surely if the state allows people to register their “assault weapons” without any ill effects like the NFA amnesty in 1968, and they refuse, then it should pass constitutional scrutiny, no? “The difference is in 1968 the gun control act was passed in response to the Haynes decision, and it did not compel those people who were already in possession of an NFA firearm to register their guns pursuant to the NFA. It created the registration at the point of manufacture. So, basically what happens here is New York State has no amnesty provision and we are litigating the law as it is and not as it might be.”

The argument that the registry is unenforceable is a compelling one, but there’s another facet to their case. Since the registry would create two classes of people (those who register and those who don’t) with no legal ill effects for either (as registration cannot be compulsory), those two classes of people have different levels of privacy. One class of people are on a government list that will probably be published like the Journal news in Westchester County did recently, and the other will remain private. That’s where they get into the equal protection argument, namely that the law forces an inequality of privacy on the population and therefore the lack of equality makes the law illegal. I’m not entirely sure if I understand that argument, but it sounded damn good on the phone.

James Tresmond sounds like a man who has everything under control, and everything going his way. His lawsuits are on solid legal ground, and slowly but surely working their way through the courts despite every attempt by the New York attorney general to derail the proceedings. And when he’s done, the SAFE Act will rightly be in tatters. But that’s not the end of the road for the Tresmonds. Their plan is to take their show on the road, challenging unconstitutional laws wherever they stand. And if their success so far in New York is any indication, they’re going to be a force to be reckoned with.

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54 COMMENTS

  1. Thanks. I KNEW the 7-round mag limit was an achilles heel (in a field chock full of heels); but I didn’t know about the “arbitrary law” exemption. You’d think lawmakers (a number of whom are LAWYERS) would know better.

    I believe THEY DID “know better”; they just thought they could pull a fast one and be done with it. Can’t disbarment proceedings be forced against them? They need to lose their law license, the sooner the better!

  2. OK Nick, where do I send the money? Are they affiliated with any organization or is this all on their own and no one is requesting any funding?

  3. “So, if all goes well, the Empire State will soon see a flood of flash suppressors and pistol grips right along with standard AR-15 rifles as sold everywhere else in the United States.”

    This should read, “So, if all goes well, the Empire State will soon see a flood of people waiting impatiently as flash suppressors and pistol grips right along with standard AR-15 rifles are sold out as everywhere else in the United States.”

  5. Tresmond is going to need a lot of help. A criminal lawyer with a small practice in an insignificant upstate hamlet will be overmatched against the best lawyers that the government can throw at him.

    IIRC, he’s currently representing an FFL or two in their capacity as licensed dealers. I’m not so sure that they have standing to raise the takings issue on the one hand, or to complain about registration on the other.

    Second, the level of scrutiny has not yet been decided by the Supreme Court, so to insist that the law will be subject to strict scrutiny is not necessarily correct.

    Third, when Heller addressed firearms “in common use,” it was addressing a class of firearms (handguns, in Heller case), not specific features. Heller held that DC could not completely ban handguns in the home; there was no implication that handguns with a capacity of greater X could not be banned. That issue remains undecided.

    In short, I’m not convinced that Attorney Tresmond is the right guy, or that the case is the right one.

    • I agree. His heart is in the right place, but he is in way over his head.

      There are many flaws in his approach. For instance, a court will likely say “readily convertible” does not mean an aftermarket part not in your possession. “Readily convertible” would likely be interpreted to prohibit things like a magazine plug that can be quickly removed.

      The whole thing with the Haynes decision and registration is off point as well. A key factor in Haynes was that the provision in question required registration when the possessor of the firearm did not make it or obtain it by transfer. This means that the particular registration requirement at issue almost exclusively applied to people who obtained the firearm illegally (the exception would be those who find a lost gun). For the SAFE act, most of the people registering their firearms possess them legally.

      Also, Haynes didn’t overturn the NFA, it just provided a defense to those who were required to register but by doing so would be incriminating themselves. For a law-abiding NYer, that doesn’t apply. You would still have to register.

      • I don’t understand your problem with Tresmond – where’s all the snarkiness coming from? I appresiate your input on legal matters but I think the more lawsuits the merrier and your defeatism doesn’t help. If you have better ideas – do them.
        The SAFE Act is full of Constitutional holes and if you can’t find them please leave it to those who can. The local Liberal courts can squirm all they want but the Big Bazooka (Scalia) is looming over them. With all due respect to you legal eagles among us who urge leaving it to the “experts”, I can only say that both the Heller and McDonald cases were brought by “amateurs” against the advice of the pros and New Yorkers have been suffering under the Sullivan Law for over a hundred years with the “white shoes” not doing much about it.

        • The problem is that if inexperienced lawyers get in over their heads, they lose. When they lose, that sets legal precedent for more losses. Sort of like antibiotic resistance- if you throw enough weak drugs at a disease, it sometimes has time to adapt to them all. Then you end up with some really tough bugs like MRSA. The legal equivalent of MRSA is the last thing we need.

        • TR basically nails it.

          Also, Heller was not brought by amateurs. The NRA may not have been involved, but the attorneys were still experts at litigating these kinds of cases.

          As for how I would approach the case, I explained in a prior comment that I would probably challenge the failure to follow the 3-day waiting period before voting on legislation. But even if I had a better approach, I still wouldn’t bring my own legal challenge. We have a great organization (2nd Amendment Foundation) that has a proven track record of challenging these types of laws and winning. They have been systematically bringing cases in various courts, building precedent one decision at a time. I wouldn’t bring my own challenge because I wouldn’t want to risk disrupting some greater plan.

        • With all due respect, It’s significant that neither of you gentlemen answer my main points. Rather than wasting time getting into a back and forth over this I’ll just leave you with a story.

          Way back when a British TV series called “Yes Prime Minister” ran an episode in which some British nurse was arrested and sentenced to 30 lashes or whatever for possession of a bottle of Scotch in a Muslim land and the PM was under pressure to get her out. The Foreign Office hemmed and hawed and in the meantime the PM authorized a private person (in over his head) to try instead. He succeeded and the Foreign Office was furious. “How could you send some amateur over our heads” to which the PM replied “But you said nothing could be done” to which the Foreign Office guy replied “and if you had left it to us, nothing would have been done”

          Anyway, you have your opinion, I have mine, lets all move ahead to secure our rights.

        • both the Heller and McDonald cases were brought by “amateurs”

          What? Those cases were brought by some of the finest and best known Constitutional Law and Civil Rights lawyers alive. Representation was provided by Robert Levy of the Cato Institute and Alan Gura for the SAF. These guys were as unknown as Babe Ruth.

    • I wonder about challenging the new registration requirements. They exist in a few States, for some or all types of guns, so either they haven’t been challenged or they have held up in courts. One can also worry that the law may soon get amended just enough to make it harder to litigate against.

      On the flip side, Nick’s account doesn’t mention challenging seven rounds as potentially limiting the right to self-defense established by Heller and McDonald. I am also unclear about the eventual fate of registered “assault weapons”. If they can’t be passed on to the owner’s heirs upon his or her death, that seems like another potential area for questioning the law.

      • If they can’t be passed on to the owner’s heirs upon his or her death, that seems like another potential area for questioning the law.

        That’s the 5th Amendment “takings” issue raised in Nick’s article above. I previously reported on the takings aspect of Feinstein’s proposed gun grab.

        • Nick’s article mentions “taking” in the context of magazines, not the guns themselves, if I am reading it right. I don’t mean to nit-pick your remark, I just have a special distaste for not being able to bequeath these types of guns, if that’s indeed the case with the new law.

        • The NY Constitution or other NY laws may provide more protection against takings than the 5th does.

        • Dave, a taking is a taking. I can’t think of a good reason why a taking of a gun would be treated any differently from the taking of a magazine. They’re both property.

        • Ralph, I see your point. My remark was perhaps more political than legal. They keep saying, “no one is taking your guns”. And indeed, you have to get rid of the magazines over 10 rounds, but you can keep the gun itself by registering it.

          However, if you can’t bequeath the gun, it’s disingenuous to say they are not “taking” it, they are merely delaying the taking. Whether one can make a legal issue out of it, I do not know. Nor am I sure one really can’t bequeath it under the new law, although that’s the impression I got from some articles I’ve seen.

          I am not sure litigating “taking” would be a great strategy anyway. Even if you win, they’ll just pass a buy-back law next time. It seems safer to have the items declared to be constitutionally protected, if one can ever get there, than argue the finer points of compensation or lack thereof. Again, I am no lawyer – these are just my speculations.

    • “Insignificant Hamlet” , “In over his head” what do you call that?

      Of coarse, but Heller and McDonald were argued by experts – and good for them both. SAF is fine and I wish them well as well as contribute $ but the fact is that these cases, or any direct 2nd Amendment challenge was resisted for many years for fear of a bad decision by the “experts” and personally pushed by Mr Heller and a group of neighbors in Chicago. Although the NRA did participate it did so kicking and screaming and I think we would still be arguing the “individual right” of the 2nd Amendment if it wasn’t for the “amateurs”.

      In the meantime, let’s cease the pickings of nit and get back to the main business at hand – battling the grabbers by all means at hand.

    • Ralph,

      FLAME DELETED

      “IIRC, he’s currently representing an FFL or two in their capacity as licensed dealers. I’m not so sure that they have standing to raise the takings issue on the one hand, or to complain about registration on the other. ”

      As Moritz said (and both of us read the papers, which are after all public record), the Holtz case is straight forward. It attacks the assault weapons ban on 2nd Amendment Grounds and Right to Work Grounds. Mr. Holtz strictly deals in guns banned by the NY SAFE Act. He has standing and an entire history of right to work and 2nd Amendment case law on his side. Most lawyers in Buffalo right now are predicting a victory for Tresmond in Chautauqua. That’s insight that you can’t get from most people out of the area who don’t know the judges and facts like you and Armchair.

      Read the actual lawsuit FLAME DELETED

      • If you have the pleadings, I would love to read them. I’m sure that if you sent the documents to TAGG, they would post them.

      • Joseph, I fervently hope that you are right. I got “into guns” in Upstate New York some 25 years ago and have very fond memories of the place. I really wish the folks there will be able to keep their rights.

        And yet, given that SCOTUS has so far only explicitly protected handguns son the 2nd Amendment grounds, how can one be so sure of the outcome with “assault rifles”? Nor have they provided clear criteria to judge the allowed restrictions – some courts have found a way around the “common use” criterion afaik.

        Is it really time to count our chickens already?

  6. Need to bear in mind that with little Andy it is all about the political optics…in this case the need to get something on the books faster than anyone else and to establish his liberal bona fides for the 2016 election. That’s how he has rolled since day one. Whether the law really holds up or not is not his concern. Same thing happened with his “tax cap” law. He crows about controlling taxes when in fact he changed none of the laws that drive municipality and school district expenses–but merely pushed the distasteful process of voting overrides to the cap down to the local level. These will be his national talking points come 2016 and the poodle press will do little to investigate the reality. Saving grace is that he has the temperment of one of those overly inbred Cocker Spaniels that barks insanely and pees on the floor every time the doorbell rings. That will be his undoing.

  7. He will need help from many Pro-Rights lawyers in order to be sucessful, that is a fact. The real question now is who will become involved on “our” side? Ralph, perhaps you may be able to advise him of a name or two that are willing to fight along side this guy. There must be some high profile legal types that are just looking for a fight like this? Can’t just bring a knife to a gunfight, ya know….

    • If he’s a capable attorney, he knows to reach out to SAF, NRA and the state organizations. I understand that one of the major state organizations wanted to join in his case but wound up bringing its own.

      • One attorney has already been grieved for deliberately mis-stating Tresmond’s words or actions. No organization asked him if they could join any legal challenges.

  9. Me thinks that young Mr. Leghorn is not the right person to conduct this interview given his lack of legal expertise. Jumping to overly optimistic conclusions based solely on information from this interview is misleading and a disservice to readers of this blog. We would all like to think that Counselor Tresmond’s lawsuit has merit but as Ralph points out, some of the assertions here don’t reflect current legal realities.

    I am especially perplexed that the basis for this lawsuit is 5th & 14th Amendment concerns rather than more strait forward 2nd Amendment issues. It seems to me that using very creative or novel legal arguments regarding privacy and equal protection is not the right approach to take with judges who regard their legal reputations as important. Personally, I don’t expect any of these arguments to prevail in a state like New York, but I would like to be proven wrong.

    • “I am especially perplexed that the basis for this lawsuit is 5th & 14th Amendment concerns rather than more strait forward 2nd Amendment issues.”

      Who said that they aren’t bringing a 2nd Amendment challenge here? It’s right in the lawsuits. Read them.

    • Dyspeptic – are you implying that only lawyers and legal experts are qualified to interview other lawyers? That is a ridiculous claim. For someone who claims to be a Constitutional expert in mentioning the various Amendments, I sure wouldn’t want you defending anyone’s 1st Amendment rights. Logic fail.

  10. If anyone knows, do citizens in NY have the ability to have a recall election on elected officials?If so, make them spend and spend to defend their oath breaking conduct then kick them to the curb.

  11. What troubles me is that the knuckleheads don’t consider the other end of the equation – enforcement. They’re gonna wave their magic wands and create enough capacity in our judicial and prison systems. Chicago is already a glaring example of gun control.

  13. Hey Armchair Guy,

    I’ve personally reviewed the pleadings in the Holtz case and it’s about as straight forward as can be. You are attempting to twist this into something it is simply not. I’m assuming you represent the likes of the NRA or NYSRPA, who have their panties in a bind over a small firm on the doorstep of a major injunction which will have far-reaching effects beyond the majority’s comprehension. I suggest you take your borderline libelous comments elsewhere.

  14. Though I am sure the SAF is aware of the situation, I sent them an email expressing my concerns over the level of experience Mr. Tresmond, as well as the fact that to the best of my knowledge there is another lawsuit under way where, even worse, the plaintiffs are representing themselves. I concluded by stating that I hope the SAF can help them out in some way, and hopefully avoid the situation where they lose and bad legal precedent is set.

  15. The Truth About Guns, “Dyspeptic”, is doing what they should, posting the truth. The truth here is simple:

    The Tresmond firm is a small, family-run legal firm.
    The Holtz case is extremely strong.
    An injunction will be granted on April 29th unless NY State can prove the assault weapons ban in the SAFE Act to be Constitutional (yeah, good luck with that).
    The case is striking quickly as its an Article 78 proceeding.
    Gun owners across the entire US will benefit tremendously.

    It’s rather sickening that big bottom-dollar corporations and law firms are running underground smear campaigns to try and harm their efforts by discrediting a small firm through media sites and forums. It’s only going to hurt the pro-gun cause in the long run.

    • A couple of comments on TAGG expressing my concern is hardly an “underground smear campaign.”

      • Let’s face it, you’ve been attempting to smear that law firm without having read the paperwork. He actually read the lawsuit, so did I, and so did many other people in Buffalo. Anyone who actually reads the papers looks at your comments and laughs. I’m thinking to myself, “Armchair is actually an attorney?” This has got to be a joke. If you were any kind of New York lawyer at all, you wouldn’t be worried about “bad precedent” which can’t happen here.

        Man up and post your Attorney Registration Number and then we’ll have some basis to judge your comments by.

  16. Armchair guy – I’ve read dozens of posts in other locations from others who appear to have the same affinity for armchairs as yourself, the posts are all eerily similar. I wasn’t referring exclusively to you as running a “smear campaign” by the way.

    I agree with Josef. If you’re going to hold yourself out to be an attorney let’s see your registration number because you’re giving out bad legal information.

    • I’ve only posted comments on TAGG. If you’ve seen similar comments elsewhere, perhaps that’s because others have the same concern that I do.

      As for my attorney ID number, you and Josef seem just a little too riled up for me to divulge any personally identifying information. I think I’ll pass.

  17. As for my attorney ID number, you and Josef seem just a little too riled up for me to divulge any personally identifying information. I think I’ll pass.

    Why? Attorney registration numbers are matters of public record. They aren’t social security numbers. The New York State Office of Court Administration has a website on which citizens can publicly verify whether a person is or isn’t a licensed attorney. You are holding yourself out on this blog to be an attorney licensed to practice law in the State of New York, but you’ve made several glaring legal errors about N.Y. law on a number of posts regarding this case, which no real practicing attorney would have made. That raises a lot of people’s suspicion about your claim to be an attorney. In my opnion, there’s nothing unfair or wrong with asking for a lawyer to verify their license. People ask attorneys to do that every day.

    • But not on an anonymous blog. Nor have I seen you or Moritz claim to be lawyers, only persons who have read the complaint. So if you really are attorneys who actually can state a legal opinion –or that the opinion of someone else is wrong– why don’t you two pissants post your bar numbers to show that you are doing more than talking through your hats. All I’ve seen so far are ad hominem attacks by talking heads on two licensed attorneys who have neither “smeared” or libeled Mr. Tresmond, but rather sought to elucidate the issues and the difficulties faced. Simply because Mr. Tresmond has made a series of allegations in a complaint does not lead to the necessary conclusion that the local judge–or more importantly the appellate courts–will agree with his legal conclusions. There are always two sides to every litigation, and not every case is a “winner takes all” affair–in fact, most are not. So if all you can do is scream and rant, take it elsewhere and leave us to our tea leaf reading.

  18. I love how some of these guys feel the need to try and discredit Tresmond and his approach. “I think if i were going to approach this I would blah,blah,blah”. You didn’t approach it, you did nothing. All you know it all attorneys sat on your collective a$$e$ and did nothing. IMHO there was probably not enough $$$$$$$$$$$ in it for you or maybe you lack the confidence or balls to try. Tresmond took the first step and he gives all of us in NY the hope of having some of our freedoms returned. Instead of sitting at your desk listening to the scanner for the next ambulance to chase, why don’t some of you “legal experts” actually join the fight.

  22. This legal dialog is interesting but the real meat and potatoes is how the people respond to the attack on their Constitutional right. Obviously a great number of Americans are not going to go along with whatever infringes on their rights no matter how many laws are conjured up. Hamilton said it best responding to the Farmer ” In short, when human laws contradict or discountenance the means, which are necessary to preserve the essential rights of any society, they defeat the proper end of all laws, and so become null and void.” In essence if the courts fail to preserve the essential right enshrined in the second amendment the people will have no other recourse but to retain the right by exercising it. The only thing the courts can do is not pretend to be exercising jurisprudence.

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