Schulz v. State

Supreme Court denied Schulz’s motion for a preliminary injunction preventing enforcement of the SAFE Act and, upon appeal, we affirmed ( 108 AD3d 856 [2013], lv dismissed 21 NY3d 1051 [2013]). Following joinder of issue, defendants moved for summary judgment dismissing the complaint. Supreme Court granted the motion, and sundry plaintiffs appeal.^[1]

We affirm. Schulz argues that the Governor’s message of necessity did not comport with NY Constitution, article III, § 14, which requires that a bill be printed and placed upon the desks of legislators “at least three calendar legislative days prior to its final passage, unless the governor, or the acting governor, shall have certified, under his or her hand and the seal of the state, the facts which in his or her opinion necessitate an immediate vote thereon.” The constitutional language accordingly requires that the Governor set forth some facts in a message of necessity, but “the sufficiency of [those] facts . . . is not subject to judicial review” (Maybee v State of New York, 4 NY3d 415 , 418 [2005]; see 108 AD3d at 857 ). Contrary to the contention of Schulz, heightened review of the facts justifying the message of necessity is not required, even though the SAFE Act impacts upon fundamental rights (see 108 AD3d at 858 n 2). Inasmuch as the message of necessity here provided a factual justification, Supreme Court was correct in holding that no further judicial review was warranted (see Maybee v State of New York, 4 NY3d at 417 ).

As for the substance of the legislation, the SAFE Act expanded the definition of assault weapon and, in so doing, effectively “criminaliz[ed] the possession of a greater number of guns or otherwise restrict [ed] them, . . . [although] a grandfather provision was also included that permitted certain individuals who possessed ‘assault weapons’ . . . before the January 15, 2013 effective date to lawfully continue to possess” them subject to registration (Kampfer v Cuomo, 993 F Supp 2d 188 , 190-191 [ND NY 2014]; see Penal Law § 265.00 [22], as

US 742 , 791 [2010]).^[2] The Second Amendment does not confer “a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose,” and reasonable governmental restrictions may be placed on the right to keep and bear arms (District of Columbia v Heller, 554 US at 626 ; see United States v Bryant, 711 F3d 364 , 368-369 [2d Cir 2013], cert denied 571 US _, 134 S Ct 804 [2013]; People v Perkins, 62 AD3d at 1161 ). The Supreme Court of the United States has explained that such reasonable restrictions include “longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms” (District of Columbia v Heller, 554 US at 626-627 ; see McDonald v Chicago, 561 US at 786 ).

We will accept, for purposes of discussion, that the SAFE Act substantially burdens the right to keep and bear arms so as to subject it to Second Amendment scrutiny (see New York State Rifle & Pistol Assn., Inc. v Cuomo, 804 F3d 242 , 259-260 [2d Cir 2015]; United States v Decastro, 682 F3d 160 , 166 [2d Cir 2012], cert denied 568 US _, 133 S Ct 838 [2013]). We will also assume, although it is debatable, that the weapons and feeding devices addressed by the SAFE Act are not the type of dangerous and exotic weaponry that merit no Second Amendment protection (see District of Columbia v Heller, 554 US at 627 ; New York State Rifle & Pistol Assn., Inc. v Cuomo, 804 F3d at 256 ; but see Friedman v City of Highland Park, Ill., 784 F3d 406 , 407-411 [7th Cir 2015]). The question accordingly becomes whether the challenged provisions survive intermediate scrutiny, namely, whether they “heart ] a substantial relationship to the achievement of an important governmental objective” (People v Hughes, 22 NY3d 44 , 51 [2013]; see Clark v Jeter, 486 US 456 , 461 [1988]).

With regard to the objective pursued, “New York has substantial, indeed compelling, governmental interests in public safety and crime prevention” (Kachalsky v County of

Westchester, 701 F3d 81 , 97 [2d Cir 2012], cert denied 569 US _, 133 S Ct 1806 [2013]; see New York State Rifle & Pistol Assn., Inc. v Cuomo, 804 F3d at 261-262 ; People v Hughes, 22 NY3d at 52 ). Schulz and Gaul provided no proof to call the well-established premise behind the challenged provisions into question, namely, that the governmental interest in public safety is substantially furthered by reducing access to weapons designed to quickly fire significant amounts of ammunition and the ammunition feeding devices required to hold that ammunition (see New York State Rifle & Pistol Assn., Inc. v Cuomo, 804 F3d at 261-264 ; Friedman v City of Highland Park, Ill., 784 F3d at 410-411 ; Fyock v Sunnyvale, 779 F3d 991 , 1000-1001 [9th Cir 2015]; Heller v District of Columbia, 670 F3d 1244 , 1262-1264 [DC Cir 2011]).^[3] Thus, we agree with Supreme Court that “[t]he core prohibitions ... of assault weapons and large-capacity magazines [contained in the SAFE Act] do not violate the Second Amendment” (New York State Rifle & Pistol Assn. v Cuomo, 2015 WL 6118288 , *16, 2015 US App LEXIS 18121 , *58).

The further arguments of Schulz, to the extent that they are properly before us, have been examined and found to lack merit.

Egan Jr., J.P., Rose and Lynch, JJ., concur.

Ordered that the judgment is affirmed, without costs.