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SHAPIRO: New York’s defiance of the Second Amendment

If one civil right is ignored, all civil rights are at risk

- - Thursday, April 4, 2013

Earlier this year in the wake of the tragic Sandy Hook Shootings, the state of New York defied the U.S. Supreme Court by passing the Secure Ammunition and Firearms Enforcement Act, a complete ban on magazines that hold more than seven rounds.

Since there is no such thing as a seven-round magazine for most guns, the law as written is essentially a total ban on semi-automatic firearms. In fact, the SAFE Act was drafted so hastily that legislators failed to exclude law enforcement agents from the ban, thus making it illegal for police officers to carry semi-automatic firearms, too.

Gov. Andrew Cuomo declared the legislation the "toughest" gun law in the nation, but that's nothing to be proud of. The SAFE Act is actually unconstitutional. The Supreme Court made it clear in 2008 in District of Columbia v. Heller that the Second Amendment protects firearms in "common use" and that citizens have a right to own such firearms for self-defense. Since semi-automatic guns are some of the most common firearms in the United States and nearly all of them carry more than seven rounds, they are constitutionally protected under the Second Amendment.

Earlier this month, I contacted the offices of New York State Assembly Speaker Sheldon Silver and Mr. Cuomo to ask them how the SAFE Act's prohibition on guns that carry more than seven rounds did not actually violate the Heller decision.

After making personal contact with aides in both offices and three additional inquiries each, I received no response.

That's probably because Mr. Cuomo knows that the law in unconstitutional.

He is setting a dangerous example by defying the Supreme Court, immortalizing himself in the company of Southern governors like George Wallace who refused to racially integrate schools in the wake of Brown v. Board of Education.

The message Mr. Cuomo is sending to other states is that when the Supreme Court speaks, its voice does not matter, and that's exactly what Wallace did in 1963.

It doesn't matter that this issue is about guns instead of race. After all, if New York can violate this civil right then other states can violate it, too. It may even open the door for them to violate other civil rights.

Imagine for a moment if Southern states took this as a cue that since New York is disregarding the Heller decision, then they can disregard the Roe v. Wade decision and illegally prosecute women for exercising their right to choose.

Obviously, if that happened, there would be an outcry of injustice across the nation.For some reason however, the Second Amendment right to keep and bear arms is not respected or treated with equal consideration as other constitutional rights. It is not taken seriously by liberal states or even the ultra-left Obama administration.Democratic officials continue to delude themselves, pretending as if the Heller decision does not exist.

Shortly after the Supreme Court struck down Washington, D.C.'s gun ban in the 2008 Heller case, gun-control advocates in the District of Columbia went into shock. It took the District about three months to make actual, legislative changes that allowed residents to keep semi-automatic firearms in their homes.

For a short time, residents who kept semi-automatic handguns in their homes were still prosecuted under the flawed theory that a semi-automatic could hypothetically be converted into a machine gun and these guns, therefore, should be treated as automatic weapons, a class of firearms not protected by Heller.This irrational, Orwellian type of logic allowed the District to continue enforcing the gun ban even though it had been deemed unconstitutional by the Supreme Court.As a result, the U.S. Congress threatened to pass a law that would make semi-automatic handguns legal in Washington. To avoid the embarrassment of being preempted by Congress, the D.C. Council passed emergency legislation allowing residents to keep semi-automatic firearms in their homes.

The District's short-lived defiance of the Supreme Court only lasted three months, but nearly five years later, the state of New York is arrogantly trying to do the same thing, sending a message to states across the union that the supreme law of the land does not need to be respected.This message has more far-reaching implications than just guns. It is a crack in our entire constitutional system and places Americans everywhere at risk. If New York does not respect the Supreme Court's ruling about firearms, then all of our civil rights are at risk in every state.The state of New York should reverse the SAFE Act immediately and comply with the Supreme Court and Constitution of the United States.

Jeffrey Scott Shapiro is a former prosecutor in Washington, D.C.