New York's new gun law: How might the NRA challenge it in court?

The National Rifle Association says it will take to court New York’s tough new gun bill, signed into law by Gov. Andrew Cuomo (D) on Tuesday.

The new law, called New York Secure Ammunition and Firearms Enforcement Act or NY SAFE Act, is particularly tough on the high-capacity ammunition magazines used in semiautomatic assault rifles. Residents of the state will not be allowed to use magazines that carry more than seven rounds and will be required to sell, within a year, any magazines that hold eight or more rounds.

Outside experts expect the NRA will challenge the law as a violation of the Second Amendment, which protects the rights of citizens to own and bear arms.

Ever since the US Supreme Court’s 2008 decision in District of Columbia v. Heller, in which the justices struck down a ban on owning handguns in Washington, D.C., challenges to gun laws have flooded the courts.

In its 5-to-4 decision, the high court said the District’s handgun prohibition, which started in 1976, violated the Second Amendment. But the court also left room for the District to put prohibitions on gun ownership by felons and the mentally ill.

“Since Heller there has been an onslaught of litigation,” says Laura Cutilletta, a senior staff attorney at the Law Center to Prevent Gun Violence in San Francisco. “The Supreme Court made clear the Second Amendment protects the right to defend yourself at home ... but the ruling pertained only to handguns, not any other weapon.”

Exactly where that leaves New York’s law is likely to be hotly debated.

A much earlier Supreme Court ruling, US v. Miller, protected the right to carry arms that are “part of ordinary military equipment” or in common use, says Nicholas Johnson, a professor at Fordham University School of Law in New York.

There are now millions of AR-15s, an assault rifle, in use in the United States, he points out. “It is now impossible to argue that the AR-15 is not a gun in common use,” he argues.

Professor Johnson extends the argument to the magazines that hold the ammunition. There are probably hundreds of millions of high-capacity magazines in the world, he says. “Can you separate a gun from the magazine?” he asks.

In fact, he questions whether New York’s law that mandates magazines of no more than seven rounds is a “backdoor” way to ban guns, since the standard for the AR-15 is a 10-round magazine.

“That could be part of the challenge,” he says.

However, the Court of Appeals for the District of Columbia Circuit – one rung below the US Supreme Court – rejected a Second Amendment challenge to the District’s assault-weapons ban on the basis of “common use,” says Amanda Roth, a staff attorney at Ms. Cutilletta’s organization.

That court, she says, found that although semiautomatic weapons and large-capacity magazines are in common use, it is not clear that they are commonly used for lawful purposes protected by the Second Amendment – or whether the Second Amendment even applies to such items.

Even if the Second Amendment does apply, the Court of Appeals ruled that the ban is still constitutional. “[W]e are reasonably certain the prohibitions do not impose a substantial burden upon that [Second Amendment] right,” the court wrote in October 2011.

The appeals court further ruled that banning assault weapons was in the District’s interest to protect police officers and control crime. And the court, citing the Heller case, said it appeared “M-16 rifles and the like” may be banned because they are “dangerous and unusual.”

The NRA was not officially involved in the appeals-court case, but the Second Amendment Foundation had joined, arguing in favor of striking down the weapons ban. It later dropped out of the case.

The group decided to direct its efforts elsewhere, says Phil Watson, director of special projects for the foundation, which is based in Bellevue, Wash. “It was probably not a good case at the time,” he says. “But we have dozens and dozens of cases going on.”

The D.C. appeals court is the highest judicial body to rule on that issue so far.

Johnson of Fordham Law doubts the appeals-court ruling will stop the NRA or Second Amendment Foundation from going to court over New York’s new law.

“There is a foundation for a serious fight,” he says.