WASHINGTON – In the marble-columned courthouse where five Supreme Court justices ruled that American citizens have the right to keep and bear arms, the gun-control law that Gov. Andrew M. Cuomo calls the SAFE Act could one day find itself in grave danger.
The federal lawsuit filed in Buffalo earlier this month raises serious constitutional questions about several of the new law's provisions, according to legal scholars who specialize in studying the Second Amendment – which guarantees gun rights – and who are familiar with the New York measure.
Most notably, legal scholars said, the Buffalo case might be the one in which the court determines whether the Second Amendment gives people the right to own the kind of assault weapons and high-capacity ammunition clips that the SAFE Act seeks to ban.
“This is a very significant case,” said James B. Jacobs, a constitutional law professor and director of the Center for Research in Crime and Justice at the New York University School of Law. “It may go all the way to the Supreme Court.”
And even those who were unfamiliar with the New York law's details said that, in wake of two landmark Supreme Court decisions on gun rights, any major state gun law is likely to endure a rigorous review by the federal courts.
“I think there will be lots of constitutional challenges” to state gun laws in the coming years, said Carl T. Bogus, a gun-control expert at the Roger Williams University School of Law in New Jersey. “Eventually they will be decided by federal courts of appeal, and at some point the Supreme Court will take one or a collection of them and further define whether this right (to bear arms) extends further.”
Any Supreme Court action is years away, but many scholars think it's inevitable in wake of two previous cases.
In the 2008 case of District of Columbia v. Heller, the high court for the first time established that the Second Amendment protects the individual right to bear arms.
And in McDonald v. Chicago of 2010, the justices ruled that the Second Amendment also applies to state and local gun laws.
For its part, the Cuomo administration says the SAFE Act will withstand its coming review in the federal courts.
“We believe that our law is sound and is immune from constitutional challenge,” said Richard Azzopardi, a spokesman for the governor. “Heller is the broadest reading of the Second Amendment that has ever come down, and the SAFE Act is consistent with that decision.”
But Stephen P. Halbrook, the constitutional law specialist who is representing the New York State Rifle and Pistol Association in the federal court case filed in Buffalo, disagreed.
“What's happening here is the state criminalizing ordinary gun possession by law-abiding citizens,” said Halbrook, and he does not believe the federal courts will abide by that.
Halbrook was one of the top attorneys for the National Rifle Association in the Chicago case.
Guns 'in common use'
The SAFE Act includes stronger penalties for crimes committed with guns and a section that requires mental health professionals to tell authorities about people who may be a danger to themselves or others.
The New York gun group's lawsuit doesn't challenge those provisions, and because the law includes a “severability” clause, those provisions would stand even if federal courts invalidate other parts of the SAFE Act.
Provisions under challenge in the lawsuit include the bill's expansion of the list of weapons covered by the state's assault weapons ban, as well as a section restricting the size of ammunition clips to seven rounds – a provision that Cuomo has expressed willingness to move back to 10.
Halbrook said those provisions conflict with the high court's reading of the Second Amendment in the Heller case, which said that individuals have the right to own guns for self-defense so long as those weapons are “in common use” for such purposes.
Cuomo's lawyers disagree.
Under the SAFE Act, they say, New Yorkers still have a choice of a vast array of weapons for self-protection and the guns restricted under the law are not commonly used for such purposes.
That will be up to the federal courts to decide.
It's “very hard to define” which guns are in common use, said NYU professor Jacobs, the author of a book called “Can Gun Control Work?”
And in its decisions to date, the Supreme Court has not yet come up with a full definition.
“The Supreme Court ruled that individuals have the right to keep and bear arms,” Jacobs noted, “but people have left for another day the questions of which arms.”
Some scholars believe, though, that the high court's recent Second Amendment decisions show that is viewing the right to bear arms very broadly – which could point to a very dire fate for the provisions in the New York law that limit the type of guns and the size of magazines people can possess.
Federal court decisions in the case will be “grounded on principles established by the Supreme Court over the last several years that seem to produce a robust set of problems for lots of aspects of the New York law,” said Nicholas A. Johnson, a Fordham University law professor and co-author of the book, “Firearms Law and the Second Amendment.”
Those problems go beyond the Second Amendment, Johnson noted.
The lawsuit filed in Buffalo challenges several provisions of the SAFE Act as being unconstitutionally vague, contending they conflict with the 14th Amendment's guarantee of due process under the law.
For example, the law's definition of assault weapons includes some guns that include a pistol grip “that protrudes conspicuously beneath the action of the weapon.”
Which raises the question: how big is a conspicuously protruding pistol grip?
It may be up to the courts to decide, which is nothing unusual. Johnson said gun-rights activists have been routinely challenging gun-control laws for 20 years on the grounds that their wording is too vague.
Such issues arise because of the “technically inept descriptions” of weapons in many gun control laws, Johnson added.
The gun-rights activists also challenge the SAFE Act's restriction of ammunition sales to New York dealers approved by the State Police, saying it violates the Constitution's Commerce Clause, which gives Congress – not any one state – the power to regulate commerce among the states.
But scholars who study gun laws said the Second Amendment arguments in the Buffalo case – and in cases springing from other state and local laws – will be the central focus of federal court action on the gun issue.
Thanks to the Heller case and the Chicago case that followed it, it's now for the first time certain under the law that the Second Amendment protects the individual's right to own guns, said Roger Williams professor Bogus, the author of several law review articles on the gun issue.
“We are now deciding whether the Second Amendment permits more, and how much more,” he said.
Richard Briffault, the Joseph P. Chamberlain professor of legislation at the Columbia University Law School, agreed.
“We are only just now beginning to develop the case law that will determine the scope of Second Amendment rights and the extent of constitutionally permissible state regulation,” Briffault said.