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John Lott's Blog about Judge's Ruling on NYSRPA Lawsuit

01-Jan-2014

John Lott Jan 1, 2014 Blog Click here to read 1/1/14 Blog post

 

Judge upholds most of New York's new gun control regulations, meanwhile state refuses to release information on the number of guns registered under its new law 
 
Registration of guns has long been a goal of gun control advocates, though it has been a dismal failure where it has been previously tried. The law is back in the news with a Federal judge upholding most of it as constitutional. The main part of the reasoning is as follows: (click here)
 
In what could be the first of many court decisions regarding the law, Skretny acknowledged that “so-called ‘assault weapons’ and large-capacity magazines” may be in common use – a legal benchmark for constitutionality.

But he also suggested the state’s regulation of those weapons and magazines is related to an important governmental interest: public safety.

“Accordingly, the act does not violate the Second Amendment,” he said. . . .

“It does not totally disarm New York’s citizens,” he said, “and it does not meaningfully jeopardize their right to self-defense.” . . .

Skretny upheld those aspects of the law but rejected the law’s prohibition on loading more than seven rounds in those 10-round magazines.

He also found other aspects of the law, including the regulation of pistols that are automatic weapons, to be unconstitutional. . . .

A copy of the judge's opinion is available here. 
 
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 commonuse,” New York has presented considerable evidence that its regulation of these weaponsis substantially related to the achievement of an important governmental interest.Accordingly, the Act does not violate the Second Amendment in this respect. . . .
As noted from previous experience, it is hard to believe that gun registration of any types of guns will benefit public safety. In DC, you had this revelation:
During deposition, D.C. Police Chief Cathy L. Lanier even conceded: “It is not clear how firearms’ registration records could be used to ‘prevent’ a crime.” Other than possession offenses, Lanier could not “recall any specific instance where registration records were used to determine who committed a crime.” . . .

From 2007 to 2013, the police seized 12,000 unregistered firearms. Meanwhile, only 36 registered guns were seized during this same period. Of those 36 guns, only 17 were involved in charges against a registered firearm owner. Of those 17 cases, only two resulted in convictions for a violent crime. Clearly, the good guys with the guns—the ones burdened by gun-control regulations—are not the problem. . . .

Assault weapon and magazine regulations also aren't going to help public safety. (Click here to read more)


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. . . .

But there is no discussion of the cost that this provision adds to ammunition purchases. It is my understanding that on average the cost of going through an FFL to get a background check on ammunition purchases adds $85 to the average purchase, and there are also the time costs involved. If there is a public safety benefit, it would seem that everyone benefits and then economists would argue that it would make more sense that everyone pay for that benefit.

But under intermediate scrutiny, this Court must give “substantial deference to the predictive judgments of the legislature.” . . .
At least on my reading of this decision, it appears as if the plaintiffs did a relatively poor job of marshaling their evidence. Chris Koper, the state's expert, has worked on these issues, but it appears that it wasn't made clear that he didn't find a statistically significant benefit from the assault weapons ban or the limit on magazines. Koper claims that New York's law will have a greater benefit than the federal law simply because it is more restrictive, but Koper never examined state level laws and the only evidence that I know of on this is mine and it contradicts his claim (see here and here).

The judge seems willing to accept the legislature and the governor's claim that this law advances public safety without requiring any actual evidence that is the actual case. It seems doubtful that Skretny would have accepted a tax on newspapers based on the legislature's word that they were doing it to ensure that the public was receiving accurate information. Contrast that with Judge Posner's decision in striking down the Illinois ban on concealed handguns and where he looked through the academic literature very carefully to show that there was no evidence of bad effects of the law. Obviously, one can't depend on having a Judge Posner who feels comfortable looking through the academic literature. This is something that the plaintiffs should have done for the judge and it doesn't appear that they did their job here.
So how successful has New York's new gun control law been in getting people to register their so-called "assault weapons"? One need look no further than New York City or California (in 2013 and 1999) to see how these registration rules are used to confiscate guns. We might never know because according to the Albany Times Union: "Gov. Andrew Cuomo's NY SAFE Act gun control law is a state secret."


. . . The Times Union recently asked how many assault-weapon owners have registered their weapons to date.

The answer came in the form of a little-known clause tucked into the law that says the information is confidential: "State Police cannot release information related to the registration of assault weapons including the number of assault weapons registered." . . .

Officials pointed to a section in the SAFE Act that says, "Records assembled or collected for purposes of inclusion in such (a) database shall not be subject to disclosure."

Advocacy groups — including those that supported the gun control measure and those that took no stance — said they disagree keeping SAFE Act data secret. . . .

The secrecy has also upset SAFE Act opponents, some of whom had earlier sought a registration total and had been denied.

"We don't care about names or addresses (of registrants). We just want totals," said George Rogero, who heads the Orange County NY Shooters group and runs a blog on Second Amendment issues. . . .

Gun rights advocates say they are interested in tallying registrations, in part, because with many local sheriffs opposed to the SAFE Act, they believe that only a handful of those with the grandfathered weapons will bother to register.

No one knows how many assault-style weapons are in New York state. Shortly after the law was passed, State Police Superintendent Joseph D'Amico estimated that there could be hundreds of thousands. Others have said 1 million isn't an unrealistic number. . . .

Letters from the New York State Police refusing requests cite a section of the SAFE Act that reads: "RECORDS ASSEMBLED OR COLLECTED FOR PURPOSES OF INCLUSION IN THE DATABASE CREATED PURSUANT TO SECTION 400.02 OF THIS CHAPTER SHALL NOT BE SUBJECT TO DISCLOSURE PURSUANT TO ARTICLE SIX OF THE PUBLIC OFFICERS LAW."
But that section bas the disclosure of personal information about registrants and license holders, such as names, addresses and specifics about guns owned, not on the number of registrations conducted. The Rochester Democrat & Chronicle has this quote on Cuomo's interpretation of the law.

Robert Freeman, executive director of the state Committee on Open Government, said the position by State Police is inconsistent with the law.

"If we're talking about statistics only, not the actual records that were assembled or collected, in my opinion they're public," Freeman said. "I don't know why they would be reluctant."
It looks like the real reason for this unwillingness to supply information is for the simple reason that people aren't complying with the law. New York gun owners vowed to defy Governor Andrew Cuomo's pet law. Many county sheriffs in the state say they won't enforce it. Some county governments not only call for the law's repeal, but refuse to even let their official seals be associated with its implementation. A similar problem arose in Canada when it had its gun registration program.

According to WHAM-TV Channel 13 News, the law has resulted in 1,146 people being charged with felonies.

Nearly a year after passage of the state's new gun law, dealer sales of AR-15 semi-automatic rifles have ended in New York and arrest data show more than 1,000 gun possession charges in New York City were boosted from misdemeanors to felonies. Meanwhile, 59 people have been charged statewide with misdemeanors for possessing large-capacity magazines or having more than seven bullets loaded in a magazine. Both were outlawed by the law passed last January following the school massacre in Newtown, Conn. A report from the Division of Criminal Justice Services shows only one person charged with the illegal sale or transfer of a gun defined as an assault weapon as of mid-December. The new law tightened that definition to include AR-15s. Owners may keep their older weapons but must register them by April 15.