[45crittergitter]

Anti-constitutional decision:

http://biz.yahoo.com/law/031003/a32b655405babf80a64ffa68bf3c21ba_1.html

:banghead: :cuss:

[Gray Peterson]

I'm reading the decision now, I'll post when I have time reading it. Most people didn't know about this case, but I did.

[Standing Wolf]

In view of the weight of authority, including the present state of Supreme Court and 2nd Circuit jurisprudence, the court adopts the view that the Second Amendment is not a source of individual rights

In point of fact, it's not a source of individual rights: it's a prohibition against infringing individual rights. That's a fine point completely lost on leftist extremists.

[Frohickey]

Could you post the decision. Those are always fun reads. :D

(Next stop. Second Circuit Court of Appeals.)

Since the district judge says that the 2nd Circuit Court says the 2nd Amendment is not individual rights, this case should be argued up to the 2nd Circuit Court. Then, if the 2nd Circuit Court of Appeals holds to past judgements, this case will be struck down again.

Making it eligible for a SCOTUS review, since now, we have the 2nd Circuit Court and the 5th Circuit Court (US vs Emerson) in direct contradiction.

[Brian Dale]

:fire: :fire: :fire: ... I haven't got the words ...

EDIT: no ... Frohickey's right.

[jimpeel]

"This court finds that New York's permit scheme bears a close relationship to substantial and valid reasons for the disparate treatment of nonresident travelers, beyond the mere fact that they are citizens of other states," Mordue wrote. HUH???:confused: :confused: :confused:

Bach appeared pro se.This arrogant snob decided he could take on such an important case on his own and got still one more stupid decision we will have to overcome. He went into this as one of our betters but came out of it the same as us.:fire:

Kopel is right! Some 2nd Amendment lawyers help the gun-ban side. (http://thehighroad.org/showthread.php?s=&threadid=41254)

[Gray Peterson]

Jim,

Bach did not argue this case like Quilici did. He made his arguments on sound legal and logical fact. I'm sure Silveira he took some elements of the Silveira case. I downloaded the case onto my HDD, but I need some web space to upload it to. Any volunteers?

Here's where the judge made the correct decision:

On standing:

Here, the Court concludes that plaintiff’s failure to apply for a permit under section 400.00 of the Penal Law does not deprive him of standing. By his affidavit, plaintiff has established facts demonstrating that as a matter of law he does not qualify for a permit under section 400.00 of New York’s Penal Law by its plain terms and as it has been construed by New York courts. See, e.g., Mahoney v. Lewis, 605 N.Y.S.2d 168 (3d Dep’t 1993); People v. Perez, 325 N.Y.S.2d 183, 186 (Onondaga Co. Ct. 1971). Defendants do not dispute plaintiff’s factual allegations in this regard, nor do they seek discovery on the issue, nor do they argue that there is any factual scenario in which plaintiff, a Virginia resident who has no employment or business in New York, could possibly qualify for a permit under New York law. Moreover, in the case at bar, as distinguished from Prayze FM, there is nothing to suggest that the challenged residency requirement is subject to waiver or other discretionary action. See 214 F.3d at 251. Requiring plaintiff to apply for a permit, therefore, “would serve no purpose.” Id. Accordingly, plaintiff has made a substantial showing that application for the permit would have been futile. See Jackson-Bey, 115 F.3d at 1096.

This was decided correctly. There was no point to him applying for a non-resident permit. There was ZERO discretion. He might have made more points though on recent scandals at the NYPD Licensing Division in re Aerosmith though (he being Bach, the plaintiff).

On the 2nd amendment:

The court did reference the Silveira v. Lockyer Cert petition once, in regards to calling the Miller case "somewhat cryptic", the rest of the decision entirely ignores the points raised in the Silveira petition. Especially with this:

Miller is almost invariably read as demonstrating that the Supreme Court does not view the Second Amendment as safeguarding a fundamental individual right.

This is an outright lie by Judge Mordue. The court ruled that the second amendment protected the right to keep and bear arms for individuals if the weapons could be reasonably identified as reasonable for use by a well-regulated militia (well equipped soldier). The weapon he wanted to carry was a semi-auto handgun, a standard issue weapon in the military.

On right to travel and equal protection question:

Judge Mordue stated that it would be a strain on the licensing authorities of the state as well as threat to the scheme of regulation of posession of handguns if the state were required to process non-resident forms. This brings up three possible points of contention in any appeal to the 2nd Circuit Court of Appeals:

1. The New York General Assembly decided to have dozens of different authorities issue pistol licenses. The reason why non-resident permits would be so difficult to do, at least according to this court, is because of the investigation required of the issuing authorities of so many places inside of the state. This is merely one of process: The state decided the path of most resistance against non-resident permits. If the permits were issued solely by one agency, say the New York State Police Pistol Permit Bureau, there would be very hard to justify the idea of a massive strain. You can also bring in evidence of other states with non-resident licensing schemes. Florida is a great example with a lot of success. Also, several states in the county have sheriff's issue non-resident permits. Washington State, Minnesota, Nevada, Pennsylvania, Oregon (contigious state residents only). This "strain on the authorities" tripe could be reversed real quick with a some research into other states.

2. This brings into the nature of the suitability and the proper cause for issuance provisions of Penal Law section 400. It can be brought up on appeal that the reason why the permit requirements are so strainful to the authorities is because of the basic unfairness of the statute itself. If New York issued Class F (full carry permit) Pistol Licenses in the same manner as Florida+serial number registration, there would be no strain because permits are issued fairly and without unfair discretion. The judge unwittingly opened up a line of attack on appeal that the reason for the strain is because of the unreasonableness and unconstitutionality of the statute (which can be brought up under Blair v. Underwood, the case which struck down a provision of the Alabama constitution made for racist reasons with racial disparity).

3. Two words: Steven Tyler. There are some permits issued to celebrities and other powerful people who are not residents of New York State. Bach didn't bring it up much, but on appeal, we need to get the 2nd Circuit Court of Appeals to seriously look at Judge Mordue's decision and say "Wait a minute, what about Steve Tyler, et al". Any permits with an out of state address on them or to people who have NY addy's on them, but not a bona fide resident, are evidence that the state's issuing authorities are not following the law of the state. Equal protection basis there.

I hope this helps some. Maybe the Silveira case can kickstart Bach back again.

[riverdog]

What's the chance this will be appealed by folks who have a bit more experience in arguing 2nd Amendment cases. Bach opened the door and received the response I would have expected regardless of who argued at this level -- and the door was slammed in his face.

The plaintiff could become a poster boy -- Naval officer, SEAL, lawyer, family man. Not your typical gun nut ;)

[Grey54956]

Some folks say that pro-gun lawyers frequently help the anti-gun crowd. This may at times appear true, but at least they are fighting and taking this to court. Besides, the US legal system works like a fencing or boxing match. You can just go in there and win on round one. There is a lot of jabs, feints, blocks, parries, etc... Eventually, you get a good stroke in, create and opportunity and get a KO punch in.

Anyway, the judge seems terribly unreasonable in this case, and I think that is pretty apparent to anybody reading this decision. Seriously, this guy has top-secret clearance. This guy should be armed at all times, if not guarded. He probably knows all sorts of crazy top-secret information which would be disasterous if he were captured or extorted. Of course, NY doesn't give a #$%& about our national security.

[Kharn]

Interesting approach (saying top secret clearance gives reason for a permit), I know more than a few people with Top Secret, I only have Secret (since I was just an intern). Too bad all the people with Top Secret I know arent into carrying (my father and about a quarter of the men in my development) and wouldnt want to fight the MDSP to see if this approach would work.

Kharn

[El Tejon]

Not an individual right? Talk about wishful thinking.:D

Talk about ignoring a long list of U.S. Supreme Court decisions. He wouldn't do that just to get the result he wanted--would he???:rolleyes:

[Brian Dale]

It's time for NATIONAL RECIPROCITY. He can drive in NY State, can't he? And that's still held to be "just a privilege."

[Kharn]

Here's a copy of the decision: Click here (http://www.chesapeake.net/~mcfadden/ccw/Bach.pdf)

Kharn

[BowStreetRunner]

i love it when the learned judge misinterrprets Miller to the advantage of the liberals

[tcsd1236]

The easy solution here would be for NYS to pass a process for non-resident CCW or honoring out-of-state permits, but given the Downstate liberal situation, thats not likely to pass.