Simeon D. Mokhiber, 42, of upstate New York had a close call in court last week. Mokhiber is an Iraq combat veteran who served in the Army’s 82nd Airborne Division as well as the National Guard. Following his active duty service he worked private security details protecting U.S. officials in both Iraq and Afghanistan. But last year he was pulled over in Niagra County and charged with driving under the influence. (A charge which was dismissed.) The police found three 17-round Glock magazines in a container in his vehicle. There was no firearm in the car… just the magazines.
Thanks to the horrendous gun control law known as the New York SAFE Act, Mokhiber was charged with three felonies, one for each of the magazines. His defense was that the SAFE Act is unconstitutional and violates his Second Amendment rights. The judge in the case had the option of giving him 21 years in prison, but Simeon left with an order to do 15 hours of community service and pay a $375 fine. He was also tagged another $90 for speeding.
What’s interesting and yet daunting about this case (which his attorney is appealing) is the defense that Mokhiber mounted. (Buffalo News)
“I think that the SAFE Act is clearly unconstitutional,” Mokhiber said after his court hearing. “The Second Amendment is only one sentence long. It’s written in plain English, that one sentence, and the SAFE Act clearly violates it. It’s not a complicated matter.”
Mokhiber testified in his own defense at the trial. He said he hoped the jury would ignore the SAFE Act, even though the judge in the case instructed jurors to follow the law whether they agreed with it or not.
“The facts that I tried to get across to the jury are that our rights that are enshrined in the Constitution and the Bill of Rights are not for New York State or Gov. (Andrew M.) Cuomo to infringe upon,” Mokhiber said. “We have rights that are supposed to be protected. I think it’s important that a jury judge the law and the facts.”
Mokhiber hopes his appeal invalidates the law.
Unfortunately for this veteran, simply believing the law to be unconstitutional (though I completely agree with him) doesn’t mean you can win that case in court. The SAFE Act has been challenged multiple times over its egregious overreach, but most of the provisions have held up. Most recently, in October of 2015, a challenge to the provisions against so-called “assault weapons” and higher capacity magazines such as the ones Mokhiber was transporting was turned away by the U.S. Court of Appeals for the Second Circuit.
New York Congressman Chris Collins attempted a different tactic this summer, introducing legislation which would curtail the limits individual states can place on “assault weapons” and magazines. That hasn’t progressed very far, though.
But for now, the detestable SAFE Act still stands and Mokhiber was found in violation of it. The judge in the case clearly did what he could for the veteran while refusing to comment on his own opinions regarding the legislation. Perhaps this appeal will fare better if it goes all the way up the line, but to be honest I’m not holding my breath.