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Robert Schulz from Queensbury announcing his lawsuit in Albany. Photo: Karen DeWitt
Robert Schulz from Queensbury announcing his lawsuit in Albany. Photo: Karen DeWitt

Are court challenges to NY's tough gun law DOA?

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Conservative activists, legal experts and many Republican lawmakers are gearing up to try to roll back key provisions of the New York SAFE Act.

That's the tough gun control law pushed through in January by Governor Andrew Cuomo, following deadly shootings in Connecticut and western New York.

The NY SAFE Act phases in a total ban on assault rifles and large ammunition clips. It also establishes strict new rules for buying and selling guns in New York.

At least two court battles are brewing over the new law. But experts say overturning the measure through legal action will be a long-shot.

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Reported by

Brian Mann
Adirondack Bureau Chief

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Was the NY SAFE act pushed too fast?

NY already bans high-capacity magazines, such as these displayed on an Arizona gun shop wall. The legislature is now adding assault rifles to the list of banned assault weapons. Photo: Mike Saechang CC some rights reserved
NY already bans high-capacity magazines, such as these displayed on an Arizona gun shop wall. The legislature is now adding assault rifles to the list of banned assault weapons. Photo: Mike Saechang CC some rights reserved
Even before New York's strict new gun law passed last January, critics like North Country Assemblyman Marc Butler were blasting Governor Cuomo and top leaders in the state legislature for pushing the SAFE Act too fast.

"But in my view we've made a sham of the legislative process. Where were the public hearings? Where was the vetting process? Where is the give and take of a healthy democratic process?" Butler said on the floor of the Assembly.

Governor Cuomo, meanwhile, argued that speed was needed to avoid a last-minute fire sale on assault weapons.

"It wouldn't make sense to announce a ban three days later and just generate, you know, hundreds and hundreds of sales of assault weapons in the state, when we're trying to ban those sales of assault weapons."

The state constitution requires that bills be reviewed by the legislature for at least three days before passage. But the constitution also allows governors to issue what's called a "message of necessity."

Some weapons are so dangerous, and some ammunition devices are so lethal, that New York State must act without delay to prohibit their continued sale and possession. --Excerpt from Gov. Andrew Cuomo's "Message of Necessity"
It's a special trigger that frees lawmakers to move more quickly. Cuomo did that in this case, issuing a message of necessity that called assault rifles "dangerous" and "lethal."

This is where Queensbury resident Bob Schulz comes in. He's a long time anti-government activist, who has sued government agencies repeatedly over the years.

Schulz says the "message of necessity" was only meant to be used in rare, extraordinary cases.

"If you look at the history of that rule, this is why it's there, there's a need for speed. Either because the legislature is about to adjourn for the year and there's some budget matter or something like. Or there's an emergency – we're under attack."

Schulz says his lawsuit is aimed at making Cuomo justify an end-run around the normal legislative process.

"You know, have the governor prove that there was some sort of emergency, some sort of need for speed."

Gun rights activists and even some good government groups are skeptical of the governor's use of the message of necessity in this case.

They point out that there was also a political reason for Cuomo to move quickly, as he lobbied Republicans who control the state Senate to back a measure deeply unpopular in many conservative districts.

Critics say "message of necessity" argument a non-starter

Despite those concerns, constitutional law experts in New York and across the country say Schulz's legal challenge will be a tough sell in the courts.

Adam Winkler is a professor at UCLA and author of a book called "Gunfight", about the legal and political battles over gun control in America.

"If you go back to, say, all the way to World War II, there's only a handful of cases under state constitutional law that strike down gun control laws," Winkler said.

Peter Galie agrees. He's a professor emeritus at Canisius College in western New York and has written two books on New York's state constitution.

Galie says constitutional challenges based on the message of necessity rule have never succeeded.

"It's a long shot. The courts have almost completely washed their hands of second-guessing the governor with requirement that he set forth facts justifying the necessity for the message. That decision is essentially left to the governor to make."

 This view – that Schulz's lawsuit is dead-on-arrival in the courts – is shared even by many gun rights activists.

 Brian Stapleton is an attorney with a law firm developing another legal challenge to the SAFE Act on behalf of the New York State Rifle and Pistol Association.

"The court of appeals of New York state, which is New York's highest court, has found that gubernatorial findings of necessity of the sort that supported the SAFE Act are virtually immune from judicial review, no matter how weak those letters of necessity may be."

In an interview with the Glens Falls Post Star, the head of the state Rifle and Pistol Association said he worried that Schulz's lawsuit, if tossed out, could weaken support for other legal challenges to the SAFE Act.

Other legal challenges coming

Stapleton says he thinks the ban on assault rifles and large ammunition clips is much more vulnerable to a suit claiming infringement of 2nd Amendment rights.

The SAFE Act was pushed through following shootings in Connecticut and in Webster, New York. Photo:  Helene Biandudi, WXXI
The SAFE Act was pushed through following shootings in Connecticut and in Webster, New York. Photo: Helene Biandudi, WXXI
"There are vagueness challenges, there are equal protection challenges, there are challenges that go to the very core second amendment right as outlined by the US Supreme court," he said.

That suit is expected to be filed any day. But here again, constitutional expert Adam Winkler says victory is anything but certain.

He points out that gun rights groups have won some key court battles in recent years, in Illinois and Washington, D.C.

But generally, he says, even conservative-leaning courts have backed tough gun regulation laws.

"People keep thinking that the 2nd Amendment means that we're not going to be able to regulate guns. That's not the case now and has never been the case," Winkler said.

The SAFE Act was passed by a wide bipartisan majority, in houses of the legislature controlled by two different political parties. Polls show that its provisions enjoy strong support among New York voters.

Despite those facts, and despite the long odds he faces in court, Queensbury activist Bob Schulz says his suit sends an important message.

"We need to do everything we can to hold government accountable to the will of the people, as expressed, as guaranteed, in our state constitutions."

In a statement responding to Schulz's lawsuit, the Cuomo administration said "We believe the law is, and the process was, valid and constitutional."

The governor is expected to file its formal response to Schulz's suit on Monday.

Tomorrow, Brian Mann profiles Bob Schulz, the controversial activist from the North Country who filed one of the first lawsuits challenging the SAFE Act.

Capital correspondent Karen DeWitt and Jon Alexander at the Glens Falls Post Star contributed to this report.

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