Judge Skretny gives the audience a meaningful look (courtesy nydailyrecord.com)

If you don’t want to get your dander-up, don’t. Don’t read the “legal arguments” from Buffalo Federal District Judge William M. Skretny, who ruled yesterday that New York’s SAFE Act is constitutional (except for the bit about only being able to load seven bullets). Nor do I recommend you read the New York Daily News’ editorial on the decision The gun nuts lose again. Or Moms Demand Action for Gun Sense in America’s celebratory press release. But if you can keep your cool while seeing how the light of liberty flickers in The Land of the Free click here to read the full ruling (courtesy our pals at The New York Times) or make the jump for excerpts from his 54-page trampling of the United States Constitution’s Second Amendment . . .

In a 54-page ruling, Judge Skretny struck down a well-known but troubled portion of the law, which prohibited gun owners from loading more than seven rounds into a magazine. He called the limit “an arbitrary restriction” that violated the Second Amendment.

But, saying that “whether regulating firearms is wise or warranted is not a judicial question; it is a political one,” he found that Mr. Cuomo and lawmakers had acted within their bounds when they drafted the gun laws, and specifically cited the Bushmaster rifle and 30-round magazine used in the Newtown shooting.

“Of course, this is only one incident,” Judge Skretny wrote. “But it is nonetheless illustrative. Studies and data support New York’s view that assault weapons are often used to devastating effect in mass shootings.”

He said that the gun law “applies only to a subset of firearms with characteristics New York State has determined to be particularly dangerous and unnecessary for self-defense; it does not totally disarm New York’s citizens; and it does not meaningfully jeopardize their right to self-defense.”

I don’t think “meaningfully” means what Judge Skretny thinks it means.

Let’s hope the U.S. Supreme Court weighs in on this one, perhaps citing Miller’s definition of weapons in “common use.” Then again, we should be careful what we wish for. If a Supreme pegs it before the next ruling – replaced by an Obamanaut – it might all be for naught. Meanwhile, civil disobedience? Ruby Ridge? Watch this space . . .

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68 COMMENTS

  1. “Meaningfully”= “If you can own an unloaded musket locked in a display case, you’ve exercised your 2nd Amendment rights.”

    • I found “unnecessary” to be a much more offensive word. “Need” is going to continue to pick up speed as a buzzword for the anti-Constitution crowd. We’re already headed down that slippery slope…

    • Ten? The metric system sucks. We are on the English system in this country. The limit should be either twelve (inches) or sixteen (ounces). Damn European wannabes…

    • There’s a difference. Restricting the sale and possession of magazines supposedly prevents people (including but not limited to criminals) from having them. Saying “you can only load 7 rounds into your 10 round magazine), on the other hand, is a whole step ahead in absurdity. It takes less than a minute to go from “law-abiding” to “criminal.” His logic was fine with the 7 round limit, but it wasn’t just because it was arbitrary.

  3. Ginsburg is on shaky grounds but refuses to step down – let’s get $$$ into electing the RIGHT Senate candidates in 11 months so we can limit Barry’s choices when she does kick . . . just saying.

    • Really? How is the Right spending money to stack the Court any better when the Left doing the same? Sadly, in either instance, the Court should be apolitical.

      • For 222 years it took a 60% majority to confirm a presidential nominee. Thanks to a senile old bastard from Nevada it now only takes 50%. Why did they do this? Because it’s getting too hard to impose their unpopular minority rule on the people, and they’ve lost any desire to hide their intentions to do as much irreversible damage to the country before they’re thrown out of power. There’s a big difference between stacking a court and blocking the efforts of others to stack the court.

        • You are incorrect. From the beginning it did not take 60%, it took 67%. They changed the rules for FDR to get more stuff passed. Now they are changing it for Obama. Next it will only take 25%, LOL

        • I don’t believe this is true. It has always been 2/3 vote to pass a treaty, but just a majority vote to confirm a nominee. The 60 vote, and now 51 vote, rule are simply rules of the senate; they are not found in the constitution. If I am mistaken on this, I do apologize.

      • While the courts should be apolitical, and an argument is made by some here that “Republicans are just as bad as Democrats” fact is we stand a much better chance with Republicans when it comes to the 2nd amendment than Democrats who would jam a disarmament bill down our throats just like Obamacare if given the chance.

        • It is true that GOP nominees have screwed us before. Stevens and Souter dissented in Heller, appointed by Ford and H.W Bush respectively. They had to get by a Democrat Senate, but that is little excuse.

          But it is also true that every one of the Heller 5 was a GOP appointee

          Every single Dem president since Kennedy has been ardently pro-gun-control. And two of the three before him were too (Wilson, FDR).

          In the same time span, Republican presidents have been 50-50. Nixon wanted to ban all handguns. Ford was a bit more moderate, wanting to ban “Saturday night specials” but opposing registration and licensing for handguns in general. Reagan flipped, from gun control governor in California, to moderately pro-gun as president. George HW Bush enacted some gun control, opposed others. Ran as pro-gun, pissed of NRA, and then tried to make himself look principled by ripping up his NRA card (when really he was angry that they abandoned him). But he was less pro-gun control than Clinton. Bush JR was just as bad as his father (support for background checks at gun shows, trigger lock laws, extending the AWB). But he didn’t actively pursue any of this, more left the ball in Congress’s court. And he did push back gun control as governor (sort of the opposite of Reagan). Not sure how much was speaking out of both sides (he knew, e.g., that the AWB was dead so he knew he never would have to sign it)

          But all of his appointees were yeses in McDonald and Heller.

          And I do think the GOP has moved more and more in the gun rights camp. Even if, like they have been with abortion, they are mostly giving lip service, they are at least not pushing gun control on the whole.

          I would love a candidate that would roll back say the Hughes amendment. But I will take a Dubya over a Clinton on this issue.

  5. We are soooooo F’in screwed.

    The light of freedom dies and we shall see it’s last light. Our children shall live in darkness.

    • The light of freedom will never die so long as it still shines in the hearts of (at least some of) the people.
      Continuing the metaphor, that light is gonna look awfully inviting to the masses if things go belly up and it starts to get dark.

      • Historically it seems that the masses have turned to more centralized power in crises. Do they sell cosmoline and pelican cases in package deals?

  6. “applies only to a subset of firearms with characteristics New York State has determined to be particularly dangerous and unnecessary for self-defense;”

    This kind of logic completely ignores the central purpose of the Second Amendment – to allow the people a means of defense against governmental tyranny. Granted an MSR is not USUALLY necessary for self defense against criminal thugs, but it is vital for defense against an organized military. As far as being dangerous, the stats clearly show that handguns are far more dangerous than rifles, yet limiting capacity to 7 rounds (as opposed to 10?) is deemed unconstitutional. The most deadly mass shooting in US history was perpetrated with 10 round magazines. So why is the left so eager to abolish the MSR? Because it poses a serious threat (danger) to minority rule. The government interprets it’s own constitution based not on what protections the constitution bestows on the common citizen, but on what they deem necessary for the preservation of their own corrupt positions.

    • It is significant that knowledge of the AR rifle/carbine design, the layout of its controls, its manual of arms, it maintenance procedures, its skilled use, is the legacy of every man and woman who has served in the US military over the last 50 years. Though the AR is semi-auto only, the skills are undiminished by that fact.

      It cannot be accidental that the political left focuses its confiscation efforts on this firearm, though it is not the most powerful available to the citizen. As a government of supposedly “limited powers” proceeds to take over the 17% of GDP that is healthcare, as the Senate guts the 60% rule for Presidential appointments, as courts (not plebiscites) impose our duty to provide tax and social-security step-up benefits to homosexual ‘marriages,’….as these and more occur, the corporate-and-left coalition does not want the arms with which veterans trained to be in veterans’ hands.

      “Thank you for your service!”

      I laugh each time I read another progressive’s emphatic assertion that skill with a simple semi-auto small arm cannot possibly enable effective defense against civil disorder or tyranny. Think. Since AR’s are almost never used in crime, why then confiscate them? If, as they say, such items are useless in resisting obvious abuse of power, there is no reason to confiscate them. The truth, however, is that such confiscation does not have crime-reduction in mind, but rather has the goal of eliminating the means of constitutional defense that they argue, out of the other side of their mouths “could only work in fantasy.”

      • There’s only two lines of reasoning that I can see at work here. Either they are targeting ARs because they believe them to be the low hanging fruit (albeit just out of their reach), or they seriously fear an armed uprising.

  7. New York State armed society is calling for a day out shooting off everything you’ve got on January 11th.

    There are already people planning on dragging out Howitzers and bazookas to the tops of local hills to shoot.

    NY2A Grassroots Coalition
    Like This Page · 47 minutes ago

    “The Shot Heard Around New York”
    Patriots in New York will fire a symbolic shot at noon,
    Saturday, January 11, 2014, to protest the first anniversary of the NYS unS.A.F.E. Act passed in the dark of night.

    All gun owners, hunters and shooters throughout New York state are urged to fire their symbolic shot at noon.
    All will fire in a legal, safe manner.

    The Shot Heard Round New York State:
    https://www.facebook.com/photo.php?fbid=688918494486316&set=a.518077638237070.119566.517688154942685&type=1&theater

    • “There are already people planning on dragging out Howitzers and bazookas to the tops of local hills to shoot.”
      Oh, this is going to just thrill Payday Shannon, Napoleon Mike, and all their demented BFFs.

    • Honestly, I think they should fire wherever they are, screw the “legal” manner. Civil disobedience necessarily involves DISobedience. Like disobeying ordinances outlawing the discharge of a firearm within X distance of another structure. I think this Shot Heard ‘Round New York” will be that much more effective if we have people doing this in their back yards.

  8. Particularly dangerous and unnecessary for self-defense? Ok, I figure if they want to play that game then all of Rifles use by NYPD are particularly dangerous and unnecessary for self-defense. What a freaking dope this guy is!

    • Turn them all in, Mr. and Ms. NYPD. There’s no reason the police should have such dangerous weapons that apparently have no purpose other than attack.

  9. I wonder if the judge knows that the SAFE Act didn’t actually ban any rifles. It merely banned features. You can, right now, today, build a perfectly legal AR-15 in New York. It will look funny, be limited to a 10 round magazine (the law since year 2000), but it will function exactly like those weapons that are “used to devastating effect.” Having a pistol grip on your rifle or not it doesn’t really change much, effectiveness-wise.

    What a sham this law is. The definition of what Robert likes to call “security theater.”

    • If you read the decision, he (or his law clerk) knows that perfectly well. In fact he found two of the ‘features’ to be unconstitutionally vague. Muzzle brakes are now okay (since the legislature doesn’t know the difference between a muzzle “break” and “brake”) as are semi-automatic versions of automatic weapons.

    • And incidentally, that line of thought makes it EASIER to ban features. After all, if you’re not altering the basic function of the gun, your 2nd Amendment rights don’t need those features!

      But strangely this judge determined that the features increase lethality without addressing the point that… yeah… that’s sorta the point of a defensive firearm.

  10. That has to be the most bipolar legal ruling I have ever read. So AR-15’s are in common use but ban them anyway? Talk about spineless.

  11. I use an AK for my current HD rifle and when I finish building it, will be using an AR-15. This judge has no clue what he is talking about which is no shock. A minority of evil jackasses have used the AR so all other owners should be punished?

    I want an EBR over all other weapons for home defense for many reasons:
    1. They are more powerful than a pistol.
    2. They are easier to use and aim. (Unlike what Uncle Joe thinks)
    3. I have a one point slings so if someone grabs the weapon they will have to break my body or the sling to take it and it makes it difficult to use against me. (Good luck with that)
    4. I can use the rifle as a weapon itself if I am unable to shoot for any reason, being buttstroked probably doesn’t feel good.
    5. I can carry 30 rounds as opposed to a much lower amount in a pistol.
    6. 5.56 doesn’t have as high of a chance of over penetration and heading into the neighbors living room like a full powered rifle cartridge or buckshot and slugs.
    7. It is flexible enough to respond to any HD situation I can think of.

    • Plenty of people like being buttstroked. You just have to find a girl who’s into that sort of thing.

  12. There are a few good parts of the decision

    Firstly, the court holds that so called “assault weapons” are indeed in common use, and that under a strict scrutiny interpretation, a ban would be unconstitutional. However, the court attempts to apply a lower standard of scrutiny to the law, drawing some sketchy parallels with first amendment scrutiny standards.

    Of more immediate importance, the hilariously mispelled “muzzle break” portion of the law has been struck down. My M1A Scout is no longer an assault weapon! While the legislature may have intended to ban muzzle brakes, they instead banned the homophone “muzzle breaks”. While NY state wanted to judge to simply read legislative intent into the statute, the judge refused to expand the statute to cover intent, and struck “muzzle break” section.

    From page 48 of the decision.

    “When properly attached to a firearm, a muzzle brake reduces recoil. The SAFE Act, however, regulates muzzle “breaks.” See N.Y. Penal Law § 265.00(22)(a)(vi)”

    “the word “break” has its own meaning, distinct from its homophone “brake.” And 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.” See Cunney, 660F.3d at 620. All references to muzzle “break” must therefore be stricken.

  14. I keep seeing over and over in rulings from the courts how a “legitimate government interest” overrides individual liberties. That is WRONG and morally repugnant. I cannot ever see an instance where a “government interest” overrides a liberty since government’s only legitimate interest is to defend liberty! You don’t take away a liberty to “defend” another.

    What if a citizen’s brain holds the key to cure Alzheimer’s disease? Since government has a legitimate interest to “promote the general welfare”, and curing millions of people from Alzheimer’s disease definitely falls under “promoting the general welfare”, does that empower government to execute the citizen so we can get the cure from their brain?

    Our government now claims to be the arbiter of liberties — deciding which liberties to trade in a bogus effort to secure others. God help us all.

    • Essentially the British Colonial government could be said to have had a “legitimate government interest” in seizing the contents of the armories in 1776.

      Good men fought and died to give us a form of government with individual rights. Yet now we see that legitimate government interest abrogated the Second Amendment in this decision, just like the DHS can violate the Fourth Amendment by warrantless searches of laptops and smartphones for any reason within 100 miles of the border.

      Disgusting.

    • The whole point of the Bill of Rights was to enumerate those specific natural, civil and Constitutionally protected rights that could not be legislated out of existence by “Compelling government interest.”

      It boggles my mind that all these highly educated legal minds that make it to these lofty positions as Judges cannot understand, or refuse to acknowledge, that “Congress shall make no law…” and “…shall not be infringed.” are not ambiguous statements subject to legal parsing in their judgments.

      The only compelling government interest in these cases is for the government to protect itself from the citizens, which is the exact opposite from the purpose of the Second Amendment, which is to give the people the means to protect themselves from the government.

  15. My reading of decision is that the good judge ruled that requiring someone to load less than the full number of rounds in a magazine was not reasonable. That is way different than ruling a 7 round mag violates constitution. He fully supported the underlying 10 round mag law. If cuomo simply has THAT law amended to 7 rounds then all is ok with the good judge. Am I wrong is this reading?

    • It probably would have been fine with this judge, who was loathe to make waves. In fact, that was exactly how the original law was written! But it was amended because someone warned Cholmo that gun manufacturers don’t make “7 round magazines” for most common handguns (as opposed to 10) and that it would probably be thrown out. So they went for an even more nonsensical approach that was seen as such by the judge. Even this guy who defers to the state on pretty much everything realized that they’re full of crap when it comes to that and muzzle “breaks”, so, there’s SOME good news.

    • No, I think you read it right. All Cuomo has to do is limit “legal” mags to a 7 round capacity. This judge is a con artist.

    • If cuomo simply has THAT law amended to 7 rounds then all is ok with the good judge. Am I wrong is this reading?

      Originally, the SAFE Act banned the sale of ALL magazines with a capacity greater than 7 rounds. (10-round magazines are grandfathered but pre-ban mags >10 rounds (pre 1994 AWB) are prohibited. They must be modified to <10 or disposed by 4/15/2014.)

      But so many, otherwise compliant, rifles and pistols do not have magazines available for them with a capacity of 7 rounds or less. The legislature, at the begrudging behest of Cuomo, changed the law to allow the continued sale of 10-round magazines but left the prohibition against loading them beyond 7 rounds except when at a sports shooting venue.

      They painted themselves into an arbitrary corner. The whole thing was so incongruent, it could not possibly stand. I mean, as opposed to the other bulls hit in the law. (/sarc)

  16. Sounds like he knows that we’re in the right, but is trying every way he can think to not admit it.

    Also, he looks like Willem Dafoe.

  17. The 7 round limit wasn’t removed because it was arbitrary. The official ruling says that the law is constitutional under intermediate scrutiny as it furthers a government interest (whatever that is…). The 7 round limit however, does not do that as criminals could just fully load their otherwise legal 10 round mags. The court probably would have upheld any mag size limit, as long as you were permitted to fully load those mag, and those mags were available, which is why the original law was changed that flat out banned greater than 7 round mags.

    Its still a stupid limit though…

  18. “Of course, this is only one incident,” [Sandy Hook] Judge Skretny wrote. “But it is nonetheless illustrative. Studies and data support New York’s view that assault weapons are often used to devastating effect in mass shootings.”

    Yes, very illustrative of the insanity of the Gun Free School Zone Act, better described as the Maniac Child Killer Protection Act.
    Studies and data support the view that “hands and feet” are the tools that murder ~9 times as many people as so-called “assault weapons” like the Bushmaster.

    • “…assault weapons are often used to devastating effect in mass shootings.”

      Very true. Like in Waco and Ruby Ridge. And the Donner manhunt. Oh, wait a minute…

  19. Taking three rounds out of the magazine is arbitrary and violates the Second Amendment but keeping pistol grips off of the rifle is so much more reasonable? I would dearly love to hear him explain that one in detail.

  21. I can’t draw any major conclusions about the case except this, that the judge knows his ruling will be appealed. SCOTUS needs, at this point, a variety of case to consolidate, so that it can clear the air. The AR simply is the contemporary musket, Winchester ’73, or M1 carbine. I will be astounded to read SCOTUS holding otherwise. I expect magazine limitations to be the most likely approved state restriction, at 30 rounds.

    As for writing “studies and data show that assault weapons are often used to devastating effect in mass shootings,” he simple erred. They are are very rarely used in mass shootings, but to devastating effect when they are, just as pistols are very rarely used in mass shootings, but to devastating effect when they are so used. The same can be said for ammonium nitrate bombs. Obviously.

  22. Soap box: Nope.
    Ballot Box: Nope
    Jury Box: One denied Writ of Certiorari away from Nope.
    Cartridge Box:

    • Go Galt. Vote them out by walking out. If you are no longer in a position to have an effect through the democratic process you should stop supporting them with your productivity and your taxes. Walk away. Let them drown in their own shit. Socialism only survives so long as it has access to other people’s money (and productivity).

      They do not have barriers to keep you from leaving the state (yet), so vote with your feet.

  24. One could probably still stretch the AWB as not violating one’s RKBA even in the sense of protecting against tyranny, because they could say something to the effect of, “So long as semiautomatic rifles with detachable box magazines are not outlawed, the citizens can possess the arms needed for fighting a tyrannical government.”

    I think that’s nonsense, banning guns based on their cosmetics as the AWB does and clearly un-Constitutional, but I could see the SCOTUS doing something like that in an attempt to appear “reasonable,” like in how they upheld the Obamacare mandate as a tax but unconstitutional as a mandate via the Commerce Clause.

    Why do many think the SCOTUS (i.e. Justice Roberts) would be afraid to completely strike down the AWB concept though? What is it afraid of? The screaming of the left-wing press?

  25. The intellectual contortions judges go through to avoid considering the actual factors that speak to constitutionality.

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