The SAFE Act And Beyond: What Role, If Any, For State And
The SAFE Act and Beyond: What Role, If Any, for State andLocal Government in the Regulation of Firearms?”April 5, 2016SPEAKER BIOGRAPHIESLeah Gunn Barrett is Executive Director of New Yorkers Against Gun Violence. Prior tojoining NYAGV, she was a dean and adjunct lecturer at Columbia University’s School ofInternational & Public Affairs (SIPA). She has held senior management positions withThe Economist Group, Data Resources (DRI) Europe and Tetra Pak UK in London. Shewas the Executive Director of CeaseFire Maryland from 2003-2006 and in 2005received the Mayor’s Citation from Baltimore Mayor Martin O’Malley for her work. Sheholds a B.A. from Carleton College, a Master’s in International Affairs from ColumbiaUniversity, and a Master’s in Teaching from Johns Hopkins University. Ms. Barrett losther older brother, Greg, to gun violence in 1997. He was shot and killed during arobbery at his business. He was 40 years old and left a wife and two teen-aged children.Ms. Barrett has two children, a son who is 25 and a daughter who is 19. She lives inBrooklyn.Prof. Gary E. Kalbaugh is a Special Professor of Law at Hofstra Law School and aLecturer-in-Law at Columbia Law School. He is the founder of Conserving Tradition Inc.,a not-for-profit with the mission of preserving traditional and sustainable agriculturalpractices for posterity. In additional, his practice areas include derivatives and bankinglaw. He has served on the New York City Bar Association’s Committee on theRegulation of Futures and chaired the Over-the-Counter Derivatives and CLE SubCommittees. He is currently a member of the New York City Bar Association’s BankingLaw Committee and is also a member of the New York State Bar Association’sDerivatives and Structured Products Law Committee. Professor Kalbaugh is a foundingboard member of the Forum for Global Financial Regulation and board member andtreasurer of the national animal welfare charity, HeARTs Speak. He is a frequentspeaker and commentator on derivatives and environmental conservation law topics,chairing, among others, the New York City Bar Association’s 2012, 2015, and 2016Futures and Derivatives conferences. A graduate of the National University of Ireland,University College Cork (Bachelor of Civil Laws, cum laude, 1998), he received aMaster of Laws at the University of Pennsylvania in 1999.
Samuel S. Yasgur, Esq., served from 1966 to 1974 as Assistant District Attorney andDeputy Chief in the Rackets Bureau, and as Chief in the Indictments Bureau, of theManhattan District Attorney’s Office. From 1974 to 1984, he was Deputy CountyAttorney in Charge of Litigation, First Deputy County Attorney, and County Attorney forthe Westchester County Attorney’s Office. Mr. Yasgur was a Litigation Partner at HallDickler et al. from 1984 to 2003. From 2004 until his retirement in February 2016, heserved as County Attorney for Sullivan County. As the chief civil legal officer for SullivanCounty, a municipal corporation with an annual operating budget of approximately 200million, he personally handled substantially all of the County’s federal litigation matters,including, without limitation: civil rights lawsuits, prisoner lawsuits and personnellawsuits. Since then, Mr. Yasgur has represented Sullivan County in a number offederal matters, in an “of counsel” capacity. He is past president of the Sullivan CountyBar Association and former president of the County Attorney’s Association of the Stateof New York. Mr. Yasgur taught criminal law/procedure at Mercy College and haslectured extensively on trial practice, including a guest lecture before the New YorkState Court of Appeals. Mr. Yasgur graduated from Cornell University in 1963 and theUniversity of Chicago Law School in 1966.
The SAFE Act and Beyond: What Role, If Any, For State and Local Government in theRegulation of Firearms?Gun Control: The Current State of PlayIn January 2013, a month after the Sandy Hook Elementary School shooting, New York passednew legislation, the SAFE Act, that Gov. Andrew Cuomo has called the “toughest” gun law in thecountry. Three months later governors in Connecticut and Maryland signed into law similarly restrictivegun measures. In the aftermath of a number of mass shootings across the nation, state and localmunicipal governments continue to re-visit the balance between public safety concerns and the SecondAmendment’s constitutional guarantee of an American citizen’s right to “keep and bear arms.”Heller I and II: SCOTUS Outlines Framework of 2nd Amendment ProtectionsThe U.S. Supreme Court in District of Columbia v. Heller (Heller I) held that the SecondAmendment guarantees an individual’s right to keep and bear arms in common use for lawful purposes,without reference to membership in a “militia”.1 The Court struck down a D.C. statute that, in effect,banned handgun possession by prohibiting carry of an unregistered firearm and prohibiting handgunregistration.2 The Court’s opinion concluded that the Second Amendment codifies law-abiding citizens’pre-existing right to possess and carry weapons for lawful purposes such as the defense of one’s self,family, and property.3 The Court also ruled against provisions of the statute that required residents tokeep firearms either unloaded and disassembled or bound by a trigger lock in the home, stating that thisfunctionally removed an individual’s right to “keep and bear arms” for the purpose of self-protection.4The Court acknowledged that the right to keep and bear arms in common use for lawful purposesis not “a right to keep and carry any weapon whatsoever in any manner whatsoever and for whateverpurpose.” 5 The Court declined to establish the specific parameters of Second Amendment protectionsbut did say “it does not protect those weapons not typically possessed by law-abiding citizens for lawfulpurposes.”6 The Court noted that the decision did not reverse “longstanding prohibitions” on gunpossession by felons or the mentally ill, nor prohibitions on weapons not “in common use” for lawfulpurposes such as machine guns.71554 U.S. 570, 625, 627 (2006).Id. at 574–75, 628–29.3Id. at 592, 628.4Id. at 628–295Heller, 554 U.S. at 626.6Id. at 625.7Id. at 624-262
The Supreme Court in Heller I refrained from establishing the level of scrutiny for evaluatingSecond Amendment restrictions but refuted Justice Breyer’s suggestion that cases should be decidedusing an “interest-balancing inquiry.”8 On remand, the Circuit Court for the D.C. Circuit, in Heller v.District of Columbia (Heller II), endorsed a two-step test for analyzing the constitutionality of gun lawsthat is now commonly being used by other courts.9 It asks: (1) whether a statutory provision infringes onthe Second Amendment right to keep and bear arms in common use for lawful purposes; and (2) if yes,whether the provision survives the “appropriate level of constitutional scrutiny.”10 In the absence of auniform standard, courts are to apply intermediate or strict scrutiny depending on the extent to which achallenged law burdens one’s Second Amendment rights.11 In Heller II, the appellate court held that theamended D.C. statute, which required gun registration and banned assault weapons and large-capacitymagazines, survived intermediate scrutiny because the law was substantially related to the government’sinterests in controlling crime and protecting law enforcement officers.12McDonald: Second Amendment Applies to State and Municipal GovernmentsFollowing Heller I, citizens brought an action against the City of Chicago arguing that theSecond Amendment’s right to keep and bear arms is also protected as against state and local governmentintrusion.13 Analyzing the issue under the Due Process Clause of the Fourteenth Amendment, theSupreme Court held that “a provision of the Bill of Rights that protects a right that is fundamental froman American perspective applies equally to the Federal Government and the States.14 The Courtconcluded that self-defense is a fundamental right and that hand guns are “the most preferred firearm inthe nation . . . for protection of one’s home and family.”15 As a result, The Court held that the SecondAmendment right to keep and bear arms is also protected from intrusion by state and municipalgovernments.16The Second Circuit: New York and the SAFE ActIn the wake of these Supreme Court and lower court decisions, the Second Circuit has held that“heightened scrutiny is triggered only by those restrictions that operate as a substantial burden on the8554 U.S. at 634–35.670 F.3d 1244, 1252. (D.C. Cir. 2011).10Id.11Heller, 670 F.3d at 1257.12Id. at 1258, 1264.13McDonald v. City of Chicago, 561 U.S. 742, 758, 130 S. Ct. 3020, 3030-3031, 177 L. Ed. 2d 894, 908 (2010).14McDonald, at 791, 130 S. Ct. at 3050, 177 L. Ed. 2d at 92915Id. at 767, 130 S. Ct. at 3036, 177 L. Ed. 2d at 914.16McDonald, at 791, 130 S. Ct. at 3050, 177 L. Ed. 2d at 929.9
ability of law-abiding citizens to possess and use a firearm for self-defense (or other lawful purposes).”17In New York Rifle & Pistol Ass’n v. Cuomo, the court upheld the New York State SAFE Act and appliedintermediate scrutiny and “inquired only whether the challenged laws are ‘substantially related’ to theachievement of a governmental interest.”18 The court made it clear that while Second Amendment rightsstand at their zenith in the home, firearm legislation that regulates gun possession outside of the home isevaluated using an intermediate level of scrutiny. As an example, in a previous case, Kachalsky v.County of Westchester, the 2nd Circuit found that states have the ability to determine the criteria forgranting concealed-carry licenses and may require “proper cause” for the license request, and need notaccept any and all general requests.19Recently, the 4th Circuit has ruled that strict scrutiny is the correct level of scrutiny for any guncontrol legislation and remanded the Kolbe v. Hogan case back to the District Court.20 Following appealfrom the Maryland Attorney General the 4th Circuit has granted an “en banc review to be conductedMay 11, 2016.21 If the Circuit upholds the original ruling, the stage is set for a future return of theSecond Amendment in front of the Supreme Court.Federal and New York State Preemption: What Remains In Play for Local Governments?The question of the propriety of local regulation of firearms does not start and stop with the 2ndAmendment however. Federal law can preempt state or local law in three ways: the federal statute cancontain express preemption language; the federal legislation can be so pervasive as to “completelyoccupy the field”, or irreconcilable conflict with the federal statutory scheme.22 The Supreme Court inHeller I, clearly indicated that the right to keep and bear arms codified in the Second Amendment didnot “completely occupy the field” to the extent that it purveys “a right to keep and carry any weaponwhatsoever in any manner whatsoever and for whatever purpose.”23In New York, local municipal governments enjoy a high degree of home rule powers under theState Constitution to adopt and amend local laws to protect the public interest.24 The New York Court17United States v. DeCastro, 682 F.3d 160, 166 (2d Circ.2012).New York Rifle & Pistol Ass’n Inc. v. Cuomo, 804 F.3d 242, 261. (2d Circ. 2015).19Kachalsky v. County of Westchester, 701 F.3d 81, 98.20Kolbe v. Hogan, 813 F.3d 160 (4th Circ. Feb 4, 2016)21Kolbe v. Hogan, 2016 WL 85167022 Mayor of City of New York v. Council of City of New York, 780 N.Y.S.2d 266, 271 citing Rice v. Norman Williams Co.458 U.S.654, 658, 102 S.Ct.3294, 73 .Ed.2d 1042 and Jones v. Rath Packing Co., 430 U.S.519, 530-31, 97 S.Ct. 1305, 51L.Ed.2d 604.23 Heller v. District of Columbia, 554 U.S. at 626.24 See N.Y. Const. art. lX §2(c).18
of Appeals has held that although the home rule provision grants broad police powers to localgovernments to guard the welfare of citizens, municipalities may not adopt laws that are inconsistentwith either the constitution or any general law of the State.25 A local government may not exercise itsHome Rule powers by adopting local law that is inconsistent with constitutional or general law and maynot exercise its police power when the Legislature has preempted an area of regulation. 26 New York’sgrounds for preemption roughly parallel the three categories set out by federal law: express presumption;field preemption; and conflict preemption.27 A local law will be ruled invalid not only where it expresslycontradicts an existing state law but also were state regulation has clearly expressed the state’s intentionto completely preempt a field.28 A local law regulating a field preempted by the State goes against Stateinterest by either prohibiting conduct which the State law allows or by imposing additional restrictionson rights granted by the State.29It appears the Legislature intended for the SAFE ACT of 2013 to preempt local governmentaction. The sponsors of the enacting legislation described the Safe Act as “a thoughtful network of lawsproviding the toughest, most comprehensive answer to gun violence in the nation.”30The question for local governments in New York State, which has not been answered yet in thecourts, is whether the SAFE Act preempts local governments from taking legislative action to regulatefirearms that exceeds the state law, but does not violate the limits set by the 2nd Amendment in Heller Iand its progeny.Research and Writing Contributed By:Patrick Duprey, ’18Maria Morrissey, ‘18Daniel Speranza, ‘18J.D. CandidateJ.D. CandidateJ.D. Candidate25Jancyn Mfg.Corp. v, Suffolk County, 71 N.Y.2d 91, 96-97 (Court of Appeals, 1987)New York State Club Assn v, City of New York, 69 N.Y.2d 211, 217 (Court of Appeals, 1987)27 Id. at 27328 Jancyn Mfg. Corp v. Suffolk County, 71 N.Y2d at 9729 Id.30 Sponsor’s Memo: New York State Senate Introducer’s Memorandum in Support. S2230 Klein last accessed 3/31/2016 VDTO:26
Pace Environmental Law ReviewVolume 32Issue 3 Summer 2015Article 6October 2015A Sitting Duck: Local Government Regulation ofHunting and Weapons Discharge in the State ofNew YorkGary E. KalbaughHofstra University, Maurice A. Deane School of LawFollow this and additional works at: http://digitalcommons.pace.edu/pelrPart of the Animal Law Commons, Environmental Law Commons, Natural Resources LawCommons, and the State and Local Government Law CommonsRecommended CitationGary E. Kalbaugh, A Sitting Duck: Local Government Regulation of Hunting and Weapons Discharge inthe State of New York, 32 Pace Envtl. L. Rev. 928 (2015)Available at: is Article is brought to you for free and open access by the School of Law at DigitalCommons@Pace. It has been accepted for inclusion in PaceEnvironmental Law Review by an authorized administrator of DigitalCommons@Pace. For more information, please contact cpittson@law.pace.edu.
6 Kalbaugh10/2/2015 2:20 PMFINALARTICLEA Sitting Duck: Local Government Regulationof Hunting and Weapons Discharge in theState of New YorkGARY E. KALBAUGH*I.INTRODUCTIONOn March 31, 2014, the New York State Legislaturesignificantly modified New York’s Environmental ConservationLaw.1 The Environmental Conservation Law imposes limitationson the discharge of longbows.2 A longbow is defined by NewYork’s Department of Environmental Conservation as “a longbow,* Gary E. Kalbaugh is a Special Professor of Law at the Maurice A. DeaneSchool of Law at Hofstra University. He is the founder of Conserving TraditionInc., a not-for-profit with the mission of preserving traditional and sustainableagricultural practices for posterity. The author thanks Thomas D. Glascock,Deputy Town Attorney, Town of Huntington, and Ryan Bessey for theirthoughtful contributions.1. N.Y. ENVTL. CONSERV. LAW § 11-0931(2), (4) (McKinney 2014).Environmental Conservation Law, § 8, 2014 N.Y. Laws 94-96. The changesbecame effective on April 1, 2014. Id. at 105.2. It also imposes limitations on the discharge of a firearm and crossbow.N.Y. ENVTL. CONSERV. LAW § 11-0931(4)(a)(1)-(2). Firearm is defined byDepartment of Environmental Conservation regulations asany rifle, pistol, shotgun or muzzleloading firearm which by force ofgunpowder, or an airgun [using ammunition no smaller than .17caliber and producing projectile velocities of 600 feet per second ormore] . . . that expels a missile or projectile capable of killing,wounding or otherwise inflicting physical damage upon fish, wildlifeor other animals.N.Y. COMP. CODES R. & REGS. tit. 6, § 180.3(a) (2014). A crossbow is defined byDepartment of Environmental Conservation regulations as “a bow and string,either compound or recurve, that launches a bolt or arrow, mounted upon astock with a trigger that holds the string and limbs under tension untilreleased.” Id. § 2.3(a)(1).9281
6 Kalbaugh2015]10/2/2015 2:20 PMFINALA SITTING DUCK929recurve bow or compound bow which is designed to be used byholding the bow at arm’s length, with arrow on the string, andwhich is drawn, pulled and released by hand or with the aid of ahand-held trigger device attached to the bowstring.”3Before the 2014 amendment, longbows could not bedischarged in such a way that an arrow passes over a road orwithin 500 feet of a dwelling, except with the consent of theowner of such dwelling.4 The 2014 amendment reduced this 500foot setback to 150 feet, making New York’s rule generallyconsistent with that of neighboring states.5 This is a radicaldifference: a circle with a 500 foot radius has an area of slightlyover 18 acres while a circle with a 150 foot radius has an area ofslightly over 1.6 acres.63. Id. § 2.4(a)(3).4. See N.Y. ENVTL. CONSERV. LAW §§ 11-0931(4)(a)(1)-(2), (4)(b)(1)(McKinney 2014). There are a variety of exceptions, such as programssponsored by public schools, target ranges, and over water while huntingmigratory birds. Id. § 11-0931(4)(b)(2)-(4). Since these are outside of the scopehereof, they are not further discussed.5. See Environmental Conservation Law, § 8, 2014 N.Y. LAWS 95. See alsoN.Y. ENVTL. CONSERV. LAW § 11-0931(4)(a)(2). New Jersey and Pennsylvaniahave state laws imposing 150-foot rules. See, e.g., N.J. STAT. ANN. § 23:4-16(d)(2)(West 2014); 34 PA. CONS. STAT. § 2505(c)(2) (2008). Connecticut has no state lawdistance specified. In the case of Connecticut, though the Commissioner of theDepartment of Energy and Environmental Protection has the statutoryauthority to impose a specified setback requirement by rule, the Commissionerhas only done so with respect to firearms, and there is no state-level dischargedistance requirement with respect to longbows. See CONN. AGENCIES REGS. § 2666-1(d) (2013); CONN. GEN. STAT. § 26-66(13) (1988).It is prohibited to hunt with, shoot, or carry a loaded firearm within500 feet of any building occupied by people or domestic animals, orused for storage of flammable material . . . unless written permissionfor lesser distances is obtained from the owner and carried.Landowners, their spouse, and lineal descendants are exempt fromthis restriction, providing any building involved is their own. The500 foot zone does not apply to bowhunting.Hunting Laws and Regulations, CONN. DEP’T OF ENERGY & ENVTL. PROT.,http://www.ct.gov/deep/cwp/view.asp?a 2700&q 556896&deepNav GID 1633(last visited Feb. 11, 2015) [hereinafter Connecticut Hunting Laws erma.cc/4YLYCGMH?type source.6. The area of a circle is equal to pi multiplied by the square of the radius orπr2. This equation is derived from the proof of Archimedes. See ARCHIMEDES,THE WORKS OF ARCHIMEDES 91-98 (T.L. Heath trans., Cambridge UniversityPress s3/62
6 Kalbaugh930PACE ENVIRONMENTAL LAW REVIEWII.A.FINAL10/2/2015 2:20 PM[Vol. 32NEW YORK’S GENERAL LAW PROVISIONSREGULATING DISCHARGE OF A LONG BOWNew York’s Regulation of WildlifeNew York’s Environmental Conservation Law proclaims th
the Westchester County Attorney’s Office. Mr. Yasgur was a Litigation Partner at Hall Dickler et al. from 1984 to 2003. From 2004 until his retirement in February 2016, he served as County Attorney for Sullivan County. As the chief civil legal officer for Sullivan County, a mun
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