Activists on both sides of SAFE Act watch Buffalo suit intently - The Buffalo News

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Activists on both sides of SAFE Act watch Buffalo suit intently

Pink Pistols, a gay gun rights group with the slogan “Pick On Someone Your Own Caliber,” is knee deep in the legal fight.

So is Moms Demand Action, a group of pro-gun-control mothers formed after the Sandy Hook shootings in Connecticut.

They are just two of the more than 12 groups who are weighing in on the federal court challenge to New York’s new gun control law.

The lawsuit has turned Buffalo, where the case was filed, into a battleground for virtually every major gun control and gun rights organization in the country.

“We’ve got them in our sights, so to speak,” said Gwen Patton, a spokeswoman for Pink Pistols, of the laws in New York and elsewhere that have popped up since Sandy Hook.

Over the past six months, groups on both sides of the gun issue have filed amicus curiae, or friend of the court, briefs detailing why they think the SAFE Act violates or adheres to the Constitution.

The briefs tend to repeat the same legal arguments, but the breadth of the groups authoring them suggests the nation is watching Buffalo with great interest.

“Any sweeping legislation is going to have all eyes on it,” said Kim Russell, national outreach director for Moms Demand Action for Gun Sense in America.

One of the other reasons for the heightened interest – amicus briefs are more common in appeals courts – might be the expectation that, win or lose, the Buffalo suit could end up before the U.S. Supreme Court.

Legal scholars have suggested the local case could be one in which the court finally decides whether the Second Amendment allows government to regulate ammunition clips and assault weapons.

Passed in January with the strong support of Gov. Andrew M. Cuomo, the law was a reaction to the Sandy Hook Elementary School shootings that killed 20 children and six adults.

The law expands New York’s assault weapons ban to include semi-automatic weapons with characteristics of assault weapons.

It also prohibits ammunition magazines that hold more than 10 rounds and generally prohibits users from loading more than seven rounds in those 10-round magazines.

“We happen to believe that military-type assault weapons and high-capacity magazines don’t belong on our streets,” said Leah Barrett, executive director of New Yorkers Against Gun Violence.

Barrett said her group filed an amicus brief because of the new law’s importance in “making sure guns don’t fall into the wrong hands.”

She also believes the law is constitutional and that even Supreme Court Justice Antonin Scalia would agree. Scalia wrote the 2008 opinion embracing the notion that individuals, not just militias, have the right to own guns.

That opinion, District of Columbia v. Heller, is at the core of the legal arguments against the SAFE Act.

“We think the law is constitutionally vague and ambiguous,” said Lawrence Keane, senior vice president of the National Shooting Sports Foundation, a firearms trade association.

Case law cited

Gun rights advocates tend to cite Heller and two other landmark cases, McDonald v. City of Chicago and U.S. v. Miller, in suggesting the SAFE Act violates the Second Amendment, which protects “the right of the people to keep and bear arms.”

In Heller, the Supreme Court ruled that a Washington, D.C., ban on handguns was unconstitutional because it restricted an individual’s Second Amendment right to self-defense, especially in the home.

Two years later, McDonald expanded that individual right to states, and not just the District of Columbia.

Miller, a much older Supreme Court case, didn’t mention individual rights but did find that guns “in common use at the time” should be protected by the Constitution.

“It is a fundamental individual right,” Keane said of the high court’s interpretation of the Second Amendment.

Gun control advocates are just as quick to point to Heller, McDonald and Miller, but obviously for different reasons.

They point to Scalia’s majority opinion and his conclusion that the Second Amendment right to own guns, like most rights, is not without restrictions.

“The court has never suggested there are no reasonable limits,” said Jonathan Lowry, director of the Legal Action Project of the Brady Center to Prevent Gun Violence.

Scalia, for example, made it clear that the Constitution does not give people the right to keep and carry any type of gun whatsoever.

“There are weapons,” Lowry said, “that are not necessary for home defense but are very effective for mass murder.”

While the court case focuses on the SAFE Act’s constitutionality, there is a larger and more public debate over the law’s effectiveness, some of which has spilled over into the amicus briefs.

Is the law effective?

It also is clear that the groups filing those briefs view New York’s law, depending on your point of view, as one of the strongest or most dangerous gun control laws in the country.

“How is the law effective in stopping anything?” asked Patton of the Pink Pistols. “It is not designed to fix anything or make anything better.”

The SAFE Act, she says, is nothing more than an emotional and political response to the killings at Sandy Hook.

She also thinks it puts her members at greater risk because it bans guns and ammunition magazines common in this day and age.

“Gay people are assaulted all the time,” Patton said, “and perceived sexual orientation is second only to race as a motivation for bias crimes.”

Kim Russell knows what it’s like to be a victim, and yet, unlike Patton, she supports the SAFE Act.

Her group, Moms Demand Action, was formed after the Sandy Hook shootings, and its court brief was the first one filed by the organization.

“I’m going to do whatever it takes to keep this law in place, because I know it’s saving lives,” she said.

Four days after the Columbine shootings in 1999, Russell and a friend were shot in Georgia. Her friend later died.

“As a mom and a victim, I’m very proud to be a New Yorker,” said the Brooklyn resident.

Ruling is anyone’s guess

No one can predict with certainty how the judge in the case, Chief U.S. District Judge William M. Skretny, will rule.

What is certain is that the legal battle will be well-financed and brimming with passion.

Even the 5-million-member National Rifle Association has weighed in on the legal challenge filed by its affiliate, the New York State Rifle and Pistol Association.

“This fundamental right,” the NRA said in its brief, “is entitled to no less respect than the other fundamental rights protected by our Constitution and may not be treated as a second-class right.”

Buffalo will be the first, but probably not the only, stop in a legal journey that will ultimately decide whether New York’s SAFE Act survives.


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