N.Y. State Rifle & Pistol Ass'n, Inc. v. Cuomo, No. 13–CV–291S.

CourtUnited States District Courts. 2nd Circuit. United States District Court of Western District of New York
Writing for the CourtWILLIAM M. SKRETNY
Citation990 F.Supp.2d 349
PartiesNEW YORK STATE RIFLE AND PISTOL ASSOCIATION, INC.; Westchester County Firearms Owners Association, Inc.; Sportsmen's Association For Firearms Education, Inc.; New York State Amateur Trapshooting Association, Inc.; Bedell Custom; Beikirch Ammunition Corporation; Blueline Tactical & Police Supply, LLC; Batavia Marine & Sporting Supply; William Nojay, Thomas Galvin, and Roger Horvath, Plaintiffs, v. Andrew M. CUOMO, Governor of the State of New York; Eric T. Schneiderman, Attorney General of the State of New York; Joseph A. D'Amico, Superintendent of the New York State Police; Lawrence Friedman, District Attorney for Genesee County; and Gerald J. Gill, Chief of Police for the Town of Lancaster, New York, Defendants.
Docket NumberNo. 13–CV–291S.
Decision Date31 December 2013

990 F.Supp.2d 349

NEW YORK STATE RIFLE AND PISTOL ASSOCIATION, INC.; Westchester County Firearms Owners Association, Inc.; Sportsmen's Association For Firearms Education, Inc.; New York State Amateur Trapshooting Association, Inc.; Bedell Custom; Beikirch Ammunition Corporation; Blueline Tactical & Police Supply, LLC; Batavia Marine & Sporting Supply; William Nojay, Thomas Galvin, and Roger Horvath, Plaintiffs,
v.
Andrew M. CUOMO, Governor of the State of New York; Eric T. Schneiderman, Attorney General of the State of New York; Joseph A. D'Amico, Superintendent of the New York State Police; Lawrence Friedman, District Attorney for Genesee County; and Gerald J. Gill, Chief of Police for the Town of Lancaster, New York, Defendants.

No. 13–CV–291S.

United States District Court,
W.D. New York.

Dec. 31, 2013.






Held Unconstitutional


N.Y.McKinney's Penal Law §§ 265.00(22)(a)(vi), (c)(viii), 265.36, 265.37.

[990 F.Supp.2d 353]

Brian Thomas Stapleton, Goldberg Segalla, LLP, White Plains, NY, Matthew S. Lerner, Goldberg Segalla LLP, Albany, NY, Carl D. Michel, Michel & Associates, P.C., Long Beach, CA, Stephen P. Halbrook, Fairfax, VA, for Plaintiffs.


Benjamin K. Ahlstrom, New York State Attorney General's Office, Kevin M. Kearney, Robert J. Fluskey, Jr., Hodgson Russ, LLP, Buffalo, NY, Monica Anne Connell, William James Taylor, Jr., New York State Attorney General's Office, New York, NY, for Defendants.

DECISION AND ORDER

WILLIAM M. SKRETNY, Chief Judge.
TABLE OF CONTENTS

I.

INTRODUCTION

354


II.

BACKGROUND

355
A.

The SAFE Act

355
1.

Assault Weapons

355
2.

Magazines and Ammunition

356
B.

Procedural History

357


III.

DISCUSSION

357
A.

Legal Standards

357
B.

Standing

358
C.

The Second Amendment & Heller

359
D.

Standard of Review

361
1.

Common Use & Substantial Burden

363
2.

Intermediate Scrutiny

363
E.

Application of Intermediate Scrutiny to the SAFE Act

367
1.

Assault Weapons

368
2.

Large-capacity Magazines

371
3.

Seven-round Limit

371
F.

Vagueness

373
1.

The “conspicuously protruding” pistol grip

374
2.

The threaded barrel

375
3.

Magazine-capacity restrictions

375
4.

The five-round shotgun limit

375
5.

“Can be readily restored or converted”

375
6.

The “and if” clause of Penal Law § 265.36

376
7.

Muzzle “break”

377
8.

“Version” of an automatic weapon

377
9.

Manufactured weight

377
10.

Commercial transfer

378
G.

Dormant Commerce Clause

378


IV.

CONCLUSION

381


V.

ORDERS

381

[990 F.Supp.2d 354]


I. INTRODUCTION

On January 15, 2013, New York's Governor, Andrew M. Cuomo, signed into law the New York Secure Ammunition and Firearms Enforcement Act of 2013. Commonly known by its acronym, the SAFE Act makes broad and varied changes to firearm regulation in New York State. The Act amends or supplements various aspects of New York law, including, among others, the criminal procedure law, the correction law, the family court law, the executive law, the general business law, the judiciary law, the mental hygiene law, and, of course, the penal law. According to its drafters, this network of new laws, which generally enhances regulation and increases penalties for the illegal possession of firearms, is designed to “protect New Yorkers by reducing the availability of assault weapons and deterring the criminal use of firearms while promoting a fair, consistent and efficient method of ensuring that sportsmen and other legal gun owners have full enjoyment of the guns to which they are entitled.” (Senate, Assembly, and Gov. Memos in Supp., Bill No. S2230–2013.)

Plaintiffs, comprising various associations of gun owners and advocates, companies in the business of selling firearms, and individual gun-owning citizens of New York, challenge several aspects of the law. Principally, Plaintiffs maintain that certain restrictions codified in the SAFE Act, like those concerning large-capacity magazines and those regulating assault weapons, violate their right “to keep and bear arms” under the Second Amendment to the United States Constitution. They also assert that several aspects of the law are unconstitutionally vague and that certain provisions violate the Equal Protection and “dormant” Commerce Clauses of the United States Constitution.

Three motions are currently before this Court. Plaintiffs first filed a motion for a preliminary injunction. That motion raised several—but not all—the challenges outlined above. In response to that motion, Defendants Andrew Cuomo, Eric Schneiderman, and Joseph D'Amico cross-moved to dismiss the case under Rules 12(b)(1), 12(b)(6), and 56 of the Federal Rules of Civil Procedure.1 Then, Plaintiffs responded with their own motion for summary judgment. Because both sides have subsequently filed dispositive motions, this Court deems Plaintiffs' motion for a preliminary injunction moot.

In resolving the pending motions, this Court notes that whether regulating firearms is wise or warranted is not a judicial question; it is a political one. This Court's function is thus limited to resolving whether New York's elected representatives acted within the confines of the United States Constitution in passing the SAFE Act. Undertaking that task, and applying the governing legal standards, the majority of the challenged provisions withstand constitutional scrutiny.

As explained in more detail below, although so-called “assault weapons” and large-capacity magazines, as defined in the Safe Act, may—in some fashion—be “in common use,” New York has presented considerable evidence that its regulation of

[990 F.Supp.2d 355]

these weapons is substantially related to the achievement of an important governmental interest. Accordingly, the Act does not violate the Second Amendment in this respect.

Further, because the SAFE Act's requirement that ammunition sales be conducted “face-to-face” does not unduly burden interstate commerce, it does not violate the dormant Commerce Clause.

The Act, however, is not constitutionally flawless. For reasons articulated below, the seven-round limit is largely an arbitrary restriction that impermissibly infringes on the rights guaranteed by the Second Amendment. This Court therefore strikes down that portion of the Act. Finally, this Court must strike three provisions of the SAFE Act as unconstitutionally vague because an ordinary person must speculate as to what those provisions of the Act command or forbid.

II. BACKGROUND
A. The SAFE Act

In response to the tragic and incomprehensible shooting at Sandy Hook Elementary in Sandy Hook, Connecticut on December 14, 2012, the New York State Legislature and Governor Andrew Cuomo quickly enacted the New York Secure Ammunition and Firearms Enforcement Act of 2013. The 39–page Act makes broad changes to existing firearm regulation in New York State.

Section 17 of the Act, for instance, expands an existing requirement by adding a new article to the general business law that requires background checks for all gun sales—including private sales (except those made to immediate family members).

Section 48 of the Act amends the penal law to require counties within the state to re-certify gun licenses every five years. Previously, gun licenses never expired.

Section 49 establishes a statewide gun-license and record database.

Other provisions relate to firearm storage; others still amend the mental hygiene law, strengthening provisions meant to curtail access to weapons.

But those provisions are not the subject of Plaintiffs' challenge here; their concerns principally involve the Act's two main provisions, which directly regulate firearms and ammunition.

1. Assault Weapons

Before the SAFE Act was enacted, New York already regulated those weapons it considered to be “assault weapons.” 2000 N.Y. Laws, ch. 189, § 10. In 2000, New York enacted a law regulating assault weapons in a manner modeled after the now-expired federal assault weapons ban.2 That law, enacted in 1994 as the Public Safety and Recreational Firearms Use Protection Act, established a prohibition on semiautomatic weapons—that is, weapons designed to fire once each time the trigger is pulled—with two “military-style” features. Pub.L. No. 103–322, tit. XI, subtit. A, 108 Stat. 1796, 1996–2010 (1994) (repealed by Pub.L. 103–322, § 110105(2), effective Sept. 13, 2004). Those features were defined in the statute, and weapons meeting the listed criteria were deemed “semiautomatic assault weapons” subject to stringent regulation. Id. This model thus became known as the “two-feature” test, because, as the name suggests, the law outlawed semiautomatic weapons that

[990 F.Supp.2d 356]

had two military-style features, and, in the case of rifles and pistols, had the capacity to accept a detachable magazine. Before the SAFE Act, New York State regulated weapons under this rubric.

But the SAFE Act expands the reach of New York's regulation to include semiautomatic weapons that have only one feature “commonly associated with military weapons” and, in the case of rifles and pistols, have the ability to accept a detachable magazine. Put simply, the SAFE Act institutes a “one-feature” test.

Those features are set out in Penal Law § 265.00, and, as they apply to rifles with detachable magazines, are as follows:

• a folding or telescoping stock;

• a pistol grip that protrudes conspicuously beneath the action of the weapon;

• a thumbhole stock;

• a second handgrip or a protruding grip that can be held by the non-trigger hand;

• a bayonet mount;

• a flash suppressor, muzzle break, muzzle compensator, or threaded barrel designed to accommodate a flash suppressor, muzzle break, or muzzle compensator;

• a grenade launcher.3,4

Weapons meeting this criteria are defined as “assault weapons”, and, subject to certain exemptions, the possession of such a weapon constitutes a “Class D” felony. N.Y. Penal Law §§ 265.02(7); 265.00(22)(g) (identifying exempt weapons).

Although colloquially referred to as a “ban,” the SAFE Act does not prohibit all possession of these firearms. Current owners of these weapons can keep them, but they must register them. And while current owners are permitted to transfer...

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23 practice notes
  • Kolbe v. Hogan, No. 14–1945.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • 4 Febrero 2016
    ...is not ten." Heller II, 670 F.3d at 1261 ; see also Shew, 994 F.Supp.2d at 245–46 ; New York State Rifle & Pistol Ass'n, Inc. v. Cuomo, 990 F.Supp.2d 349, 365 (W.D.N.Y.2013). In addition, we reject the State's argument that the Second Amendment does not apply to detachable magazines because......
  • Doe v. Putnam Cnty., No. 16-CV-8191 (KMK)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • 28 Septiembre 2018
    ...scrutiny to New York licensing scheme for carrying concealed handguns in public); New York State Rifle & Pistol Ass'n, Inc. v. Cuomo , 990 F.Supp.2d 349, 367 (W.D.N.Y. 2013) (applying "a mild form of intermediate scrutiny" to restrictions posing "only modest burdens" on the right to possess......
  • State v. Deciccio, SC 19104
    • United States
    • Supreme Court of Connecticut
    • 23 Diciembre 2014
    ...applied some form of intermediate scrutiny in the [s]econd [a]mendment context."44 New York State Rifle & Pistol Assn., Inc. v. Cuomo, 990 F. Supp. 2d 349, 366 (W.D.N.Y. 2013). Accordingly, we turn to the question of whether § 29-38, as applied to the facts of the present case, survives int......
  • Zaitzeff v. City of Seattle, No. 80436-7-I
    • United States
    • Court of Appeals of Washington
    • 5 Abril 2021
    ...strict scrutiny.10 Given the foregoing, we apply intermediate scrutiny. See New York State Rifle & Pistol Ass'n, Inc. v. Cuomo, 990 F. Supp. 2d 349, 366 (W.D.N.Y. 2013), aff'd in part, rev'd in part, 804 F.3d 242 (2d Cir. 2015). ("although addressing varied and divergent laws, courts throug......
  • Request a trial to view additional results
23 cases
  • Kolbe v. Hogan, No. 14–1945.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • 4 Febrero 2016
    ...is not ten." Heller II, 670 F.3d at 1261 ; see also Shew, 994 F.Supp.2d at 245–46 ; New York State Rifle & Pistol Ass'n, Inc. v. Cuomo, 990 F.Supp.2d 349, 365 (W.D.N.Y.2013). In addition, we reject the State's argument that the Second Amendment does not apply to detachable magazines because......
  • Doe v. Putnam Cnty., No. 16-CV-8191 (KMK)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • 28 Septiembre 2018
    ...scrutiny to New York licensing scheme for carrying concealed handguns in public); New York State Rifle & Pistol Ass'n, Inc. v. Cuomo , 990 F.Supp.2d 349, 367 (W.D.N.Y. 2013) (applying "a mild form of intermediate scrutiny" to restrictions posing "only modest burdens" on the right to possess......
  • State v. Deciccio, SC 19104
    • United States
    • Supreme Court of Connecticut
    • 23 Diciembre 2014
    ...applied some form of intermediate scrutiny in the [s]econd [a]mendment context."44 New York State Rifle & Pistol Assn., Inc. v. Cuomo, 990 F. Supp. 2d 349, 366 (W.D.N.Y. 2013). Accordingly, we turn to the question of whether § 29-38, as applied to the facts of the present case, survives int......
  • Zaitzeff v. City of Seattle, No. 80436-7-I
    • United States
    • Court of Appeals of Washington
    • 5 Abril 2021
    ...strict scrutiny.10 Given the foregoing, we apply intermediate scrutiny. See New York State Rifle & Pistol Ass'n, Inc. v. Cuomo, 990 F. Supp. 2d 349, 366 (W.D.N.Y. 2013), aff'd in part, rev'd in part, 804 F.3d 242 (2d Cir. 2015). ("although addressing varied and divergent laws, courts throug......
  • Request a trial to view additional results

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