Second Amendment Precedence Developing Through SAFE Act Litigation

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— by William Woodworth

Recently, two courts considered the constitutionality of New York’s SAFE Act. Both courts assessed whether the regulation burdens a second amendment right, and whether the regulation survives appropriate scrutiny. Here, the courts found the second amendment’s protections applied, and both applied intermediate scrutiny. However, the courts diverged on the application.


In the midst of the public debate about the extent that citizens should have a right to keep and bear arms, courts are faced with the problem of determining the scope of the constitutional right to keep and bear arms.  In late October, a state and federal court reached opposite conclusions on the constitutionality of the New York Secure Ammunition and Firearms Enforcement (SAFE) Act’s prohibition on loading more than seven rounds in the magazine of a firearm.  The New York court upheld the provision in Schulz v. State of New York Executive,[1] and the Second Circuit Court of Appeals invalidated it in N.Y. State Rifle & Pistol Ass’n, Inc. v. Cuomo.[2]

Despite the different outcomes in the cases, both applied the same general framework for analyzing the second amendment claims.  The courts first determined whether the restrictions were protected by the second amendment, and then determined which level of scrutiny to apply.  The Schulz court merely assumed that the SAFE Act imposed burdens on the rights protected by the Second Amendmet.  The Second Circuit applied a two-prong test.  Applying an objective, statistics-based standard, the court found magazines loadable with seven rounds were in common use.  Applying a subjective standard, the court then found that there was not strong evidence that possession of such rounds were for lawful purposes.  Thus, it concluded that although the protections were within the scope of the second amendment, the right to possess seven or more rounds in a magazine were not subject to the strongest second amendment rights.

Both the state and federal appellate courts applied intermediate scrutiny to the SAFE Act.  The New York appellate court was bound by the prior Court of Appeals decision in People v. Hughes.[3]  There, the Court of Appeals argued that the U.S. Supreme Court’s decision in District of Columbia v. Heller[4] expressly rejected rational basis review, yet implicitly rejected strict scrutiny by claiming Heller would not invalidate many traditional restrictions on firearm ownership.  The Second Circuit reached the same conclusion by applying the test from United States v. Carolene Products Co.  Finding (1) the second amendment’s core right is self-defense in a person’s home, and (2) alternative magazines remained available, the Second Circuit applied intermediate scrutiny.

Applying intermediate scrutiny, both courts found public safety and crime prevention were substantial government interests.  However, the courts diverged on whether the magazine regulations were substantially related to the important governmental interest.  In Schulz, the court held Schulz did not offer evidence showing reducing access to weapons id not substantially further public safety.  However, the Second Circuit found New York had not established that only loading seven rounds in a ten round clip would reduce crime.  Thus, that provision of the SAFE Act was invalidated on constitutional grounds.

Despite the rulings, both courts left open the possibility of reversing their holdings when new facts are presented.  The Schultz court presented a relatively brief constitutional analysis because of a lack of data opposing New York’s conclusions about the relationship between access to magazines and crime.  The Second Circuit was concerned about the compromise New York had created.  Because ten-round clips are more commercially available than seven-round clips are, the state legislature reached the compromising of allowing ten-round clips while only loading seven rounds in the magazine.  It seems the court may have been more favorable upholding a requirement where the number of rounds loaded in the magazine is equal to the magazine capacity.  Perhaps limiting magazines to a five-round capacity would meet the court’s concerns.

The application of constitutional analysis to firearm regulations remains unclear.  The recent challenges to the SAFE Act have been decided on an absence of evidence basis where the courts were not required to distinguish competing facts in the record to determine whether the state had the proper level of interest or a sufficient nexus between the interests and goals of the regulation.  This will provide uncertainty to states and litigants as new legislation regulating firearm rights is considered.


[1]               Case No. 520540, slip op. 07728 (N.Y. App. Div. 3d  Oct. 22, 2015).  The court broadly considered all provisions of the SAFE Act, including the seven round maximum for loading rounds in a magazine.

[2]               Nos. 14-36-cv, 14-319-cv (2d Cir. Oct. 19, 2015).  The court did uphold many other provisions of the SAFE Act.

[3]               1 N.E.3d 298 (2013).

[4]               554 U.S. 570 (2008).