Another Case For The SCOTUS?


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ronwill
November 16, 2007, 10:10 AM
Brooklyn man arrested for possesion of firearms in his home. Defense being used is the 2A. Will this be another case for SCOTUS?

http://www.gothamgazette.com/article/law/20071116/13/2348

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cloudedice
November 16, 2007, 11:07 AM
No one, the judge reasoned, intended for every individual to "own firearms for their private, civilian use."

That clearly shows the Judge doesn't know his US History.

cloudedice
November 16, 2007, 11:11 AM
Going beyond the legal history, the New York judge used the decision to present statistics about the "nationwide proliferation of deaths and injuries caused by privately owned guns." Since the 2007 decision in Parker, Washington, D.C. has experienced 750 armed robberies, 520 armed assaults and 111 homicides, according to sources cited by Gerstein in his decision.

Ok... and how many happened BEFORE the decision in Parker? How many since the hand gun ban in DC?

This judge is an idiot.

zxcvbob
November 16, 2007, 11:14 AM
We find the reasoning of Parker to be deeply flawed, such that even if its holding were to be deemed applicable to our statute, which it is not, we would decline to follow it...

This seems like grounds for a mistrial (or certainly an appeal) right here.

IANAL,
Bob

Thain
November 16, 2007, 11:15 AM
The single saddest part of this article:

While the Legal Aid Society says that no decision has been made about appealing the Handsome decision, any reversal on appeal is generally viewed as extremely unlikely, and therefore unlikely to be pursued.

The caselaw in New York state is so FUBAR that a trial court judge can dismiss the opinion of the Federal Circuit over a clear constitutional question, and this poor guys lawyers don't think a reversal on appeal is likely.

Someone needs to mail this guy Levy's business card stat.

ClickClickD'oh
November 16, 2007, 11:15 AM
Wow, that judge needs to be reamed by a higher court. He even cited Miller to uphold his decision, but conveniently forgot that Miller explicitly says that the "militia" of the 2A is to be composed of every able bodied man who is able to privately poses arms. The Miller decision directly contradicts this judge.

Thain
November 16, 2007, 11:25 AM
For the record, the Decision and Order (http://www.nylawyer.com/adgifs/decisions/110507gerstein.pdf) can be found here. Trial court opinions are typically unpublished, so they can be tricky to track down.

I really don't see how this could survive an appeal, the judge is almost challenging the judges of the D.C. Circuit to a fistfight!

Jeff White
November 16, 2007, 12:19 PM
The caselaw in New York state is so FUBAR that a trial court judge can dismiss the opinion of the Federal Circuit over a clear constitutional question, and this poor guys lawyers don't think a reversal on appeal is likely.

Until the US Supreme Court incorporates the Second Amendment, it's not a constitutional question. The USSC said this in Presser v. Illinois in 1886:
http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=116&invol=252
It was so held by this court in the case of U. S. v. Cruikshank, 92 U.S. 542 , 553, in which the chief justice, in delivering the judgment of the court, said that the right of the people to keep and bear arms 'is not a right granted by the constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed, but this, as has been seen, means no more than that it shall not be infringed by congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes to what is called in City of New York v. Miln, 11 Pet. [116 U.S. 252, 102] 139, the 'powers which relate to merely municipal legislation, or what was perhaps more properly called internal police,' 'not surrendered or restrained' by the constitution of the United States.' See, also, Barron v. Baltimore, 7 Pet. 243; Fox v. State, 5 How. 410; Twitchell v. Com., 7 Wall. 321, 327; Jackson v. Wood, 2 Cow. 819;Com. v. Purchase, 2 Pick. 521; U. S. v. Cruikshank, 1 Woods, 308; North Carolina v. Newsom, 5 Ired. 250; Andrews v. State, 3 Heisk. 165; Fife v. State, 31 Ark. 455.

If the US Supreme Court hears Heller, and if they rule that there is an individual right to keep and bear arms, then there is a constitutional issue. Right now, there is no constitutional issue, because the court said the second amendment only restricted the federal government back in 1886.

So if we get a favorable ruling in Heller, this might be a case to take to the court to argue for incorporation. Right now, there is little chance an appeal would succeed.

Jeff

Bartholomew Roberts
November 16, 2007, 01:36 PM
Actually, even if SCOTUS had approved Heller, this was brought in State court. So unless SCOTUS also incorporated Heller, this guy has to rely on whatever New York's highest court has said on the matter.

Off the top of my head, if the plaintiff is being represented by Legal Aid, he probably is not ideal representative. At least he isn't a criminal (beyond possessing the firearms) though (or at least the story didn't mention it if he is).

v35
November 16, 2007, 03:12 PM
Judge Michael Gerstein... found that "the right to bear arms" did not mean that individuals had such a right.

To Gerstein, this means state militias (or in modern times the National Guard) have the right to possess weapons. No one, the judge reasoned, intended for every individual to "own firearms for their private, civilian use."
What kind of judge reads "the right of the people" and interprets it to mean "the right of the State" ??

A judge who travels with armed guards, perhaps?

All it takes is for a society to rename its troublesome citizens "dissidents" or "terrorists". Worked fine with "jews" and "negroes". Makes them so much easier to massacre when they're disarmed.

Thain
November 16, 2007, 06:08 PM
I've never been fond of incorporation, but I suppose you are all correct that it might not be a valid Second Ammendment issue... of course, incorporation has to begin somewhere.

However, Section 4 of the New York Civil Rights Law states:

A well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms cannot be infringed.

Wording which looks pretty familar.

Mainsail
November 16, 2007, 06:45 PM
That guy is totally whacked! I love this:
Going beyond the legal history, the New York judge used the decision to present statistics about the "nationwide proliferation of deaths and injuries caused by privately owned guns." Since the 2007 decision in Parker, Washington, D.C. has experienced 750 armed robberies, 520 armed assaults and 111 homicides, according to sources cited by Gerstein in his decision.

Wasn’t the order stayed? Isn’t it just as illegal to own a handgun today as it was before the decision?

Thain
November 16, 2007, 07:53 PM
Lets see... Parker was decided on March 9, 2007. This case was decided on October 27, 2007. That 231 days latter.

That means that there has been a homicide every other day, two armed assaults every day, and three armed robberies every day.

The Parker ruling has been stayed pending Washington D.C.'s appeal with the United States Supreme Court... which means that this gun-crime-a-day thing has been happening with the Firearms Control Regulations Act of 1975 in FULL EFFECT!

Anyone else wonder if this Judge might be on the Brady Bunch Board of Directors? He has the same unique relationship with the facts that they seem to...

Crunker1337
November 16, 2007, 09:49 PM
The statistics don't matter if the guy who possessed the gun didn't commit any murders or other violent crimes.

Robert Hairless
November 16, 2007, 09:56 PM
The Parker ruling has been stayed pending Washington D.C.'s appeal with the United States Supreme Court... which means that this gun-crime-a-day thing has been happening with the Firearms Control Regulations Act of 1975 in FULL EFFECT!

It should be obvious that the mere words of the Parker ruling were sufficient to have triggered those terrible consequences. Had those word never been uttered Washington, D.C., would have been Eden before the fall.

romma
November 17, 2007, 05:44 PM
That means that there has been a homicide every other day, two armed assaults every day, and three armed robberies every day.

And a partridge in a pear tree!!

scout26
November 19, 2007, 05:06 PM
Gerstein, isn't he the lapdog of Bloomberg that heard the NAACP case against gun manufacturer's and ruled that the Lawful Protection of Firearms Act didn't apply ???

ilbob
November 19, 2007, 05:59 PM
I agree with the poster who said since it was never incorporated, the 2A does not apply to NY.

Laws are a funny thing. They can be very clear, like:

However, Section 4 of the New York Civil Rights Law states: A well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms cannot be infringed.

Yet very clearly the RTKBA of anyone who wants to exercise it in NY is infringed very seriously.

kludge
November 19, 2007, 06:34 PM
Parker is "founded on a revisionist view of the Constitutional Convention, which view is far from generally accepted," said Gerstein.


In other words, even after more than 200 years, tyrants still can't accept that they have no right to control people.

"Revisionist?" :barf:

AndyC
November 19, 2007, 06:42 PM
To Gerstein, this means state militias (or in modern times the National Guard) have the right to possess weapons. No one, the judge reasoned, intended for every individual to "own firearms for their private, civilian use."

Gerstein is an ass - only a dimwit would think that a state militia or National Guard would need to have their right to bear arms protected by the Constitution.

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