BILL NUMBER: S5360

SPONSOR: OBERACKER
 
TITLE OF BILL:

An act to repeal section 265.37 and paragraph 7-f of subdivision a of
section 265.20 of the penal law, relating to unlawful possession of
certain ammunition feeding devices and the exemption of certain ammuni-
tion feeding devices at firing ranges

 
PURPOSE:

To repeal the provision of the SAFE Act that limits the number of legal-
ly permissible cartridges in a semi-automatic firearm's magazine to
seven, so that state law conforms to a federal court ruling.

 
SUMMARY OF PROVISIONS:

Section 1 repeals a section of the SAFE Act which limits the number of
legally permissible cartridges in a ten round magazine to seven, thus
conforming state law to a federal court's decision finding this
              

provision an unwarranted burden on the exercise of one's Second Amend-
ment rights. Section 2 repeals the exemptions authorized for use of ten
round magazines at specific locations or events. Section 3 provides for
the effective date.

 
EXISTING LAW:

Current law inexplicably limits the number of legally permissible
cartridges in a ten round firearm magazine to seven, except at a shoot-
ing range or sanctioned firearm match. It imposes harsh penalties for
violations of the law, including fines and imprisonment.

 
JUSTIFICATION:

This section of Governor Cuomo's SAFE Act poses an untenable and undem-
onstrated theory that public safety is enhanced when lawful gun owners
are denied by law from loading more than seven cartridges in firearm
magazines manufactured for ten; and that criminals will observe the law
and limit the discharge of their weapons in firearm-related crimes to
the legal cap of seven in each of their magazines. Because ten rounds
may be loaded in a magazine in certain other locations, the law invites
violations due to oversight, travel between a range and home, or
miscounting; and further imposes harsh penalties when a gun owner has
more than seven cartridges in a magazine in a forbidden location. In
addition, the law is vague in that a police officer might presume that a
firearm with one cartridge in its chamber and seven in its magazine
would have impermissibly had a total of eight (8) cartridges in the
firearm in the first instance before the owner pulled the slide to place
one cartridge in the chamber and thereby cocked the gun. Government has
no special insight into how many cartridges a homeowner may need to
protect his or her dwelling or family, and the provision impermissibly
infringes on the rights of gun owners to secure their homes and persons.

In addition, the law allows more than seven cartridges in a magazine at
a shooting range, but not in the house of the gun owner, where he or she
is more likely to rely on a firearm for personal protection or defense
against a home invasion. This dichotomy defies logic and is ludicrous in
the extreme.
Last, and to the point, this provision of the governor's signature gun
control law was struck down by federal district court Judge William
Skretny on December 31, 2013 (New York State Rifle and Pistol Associ-
ation, et. al. v. Andrew M. Cuomo); when he ruled that the provision was
arbitrary and could not survive intermediate scrutiny.  Judge Skretny's
decision was upheld by the U.S. Court of Appeals for the Second Circuit
on October of 2015.

For all of these reasons, and perhaps others, a number of the state's
district attorneys and police agencies have declined to prosecute
violations of this section of the SAFE Act. The state legislature should
accept the federal courts decision and repeal the arbitrary limit.

This bill simply conforms state law to the federal decision.

 
LEGISLATIVE HISTORY:

S.2612A/A.5630 - 2015-2016
S.3966/A.6448 - 2017-2018
S.3936 - 2019-2020

 
FISCAL IMPLICATIONS:

None to the state

 
EFFECTIVE DATE:
Immediate