State Supreme Court wants NYS to show good cause that gun law is constitutional


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northgull
February 27, 2013, 10:55 PM
State Supreme Court wants NYS to show good cause that gun law is constitutional
http://www.wktv.com/news/local/State...193664911.html


State Supreme Court wants NYS to show good cause that gun law is constitutional

By NEWSChannel 2 Staff

Story Created: Feb 27, 2013 at 5:18 PM EST*
Story Updated: Feb 27, 2013 at 5:18 PM EST*

BUFFALO, N.Y. (WKTV)*- The Buffalo-based attorney who is spear-heading a lawsuit against Governor Andrew Cuomo's recent gun laws said that Wednesday was "monumental," as a State Supreme Court Justice issued an order requiring New York State to show good cause that the law is constitutional.

New York State has until April 29 to respond or else an injunction will be issued.

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Old Fuff
February 27, 2013, 11:22 PM
Which is what the Old Fuff expected. It takes time to research and write a well composed motion, backed with cites and caselaw. But when it's done right it will probably stand up. The New York State Attorney General is going to have his work cut out. If it doesn't go down in flames there the next step will be Federal Court.

ilbob
February 27, 2013, 11:25 PM
dead link

USAF_Vet
February 27, 2013, 11:27 PM
Fixed link

http://www.wktv.com/news/local/State-Supreme-Court-wants-NYS-to-show-good-cause-that-gun-law-is-constitutional-193664911.html

usmarine0352_2005
February 27, 2013, 11:40 PM
Can't they just point to the recent circuit court rulings against the 2nd amendment?

Old Fuff
February 28, 2013, 12:13 AM
Can't they just point to the recent circuit court rulings against the 2nd amendment?

The can, and probably will. But if the motion was well researched and documented it will take a lot more then that to prevent an injunction. In particular they are going to have a hard time justifying an outright ban. Once in place it would be difficult to get any injunction lifted, and it's likely the case would eventually end up in the US Supreme Court. That could take years.

CapnMac
February 28, 2013, 04:00 AM
This is where McDonald and the "strict examination" rule will probably be seen in action.

Because Heller (and its sequlae) are incorporated, a legislative body has to have hard and specific reason to change existing laws regarding 2A.

At least, that is my understanding of it.

And, if that is correct, it much inflames my cynicism, as all the antis in Albany will be able to crow on about how they tried to "fix" things--it's the Court's fault for over-ruling them. Eat the cake, and still have it, too.

Solo
February 28, 2013, 11:20 AM
And they would have gotten away with it too, if it weren't for those meddling lawyers!

Ryanxia
February 28, 2013, 12:05 PM
God willing it will be overturned quickly.

Old Fuff
February 28, 2013, 12:15 PM
Not likely, because if they lose the state will likely appeal - as will our side if things go against them. But if or when an injuction is in place the state cannot enforce its new law until the appeals are over. If this goes to the U.S. Supreme Court enforcement might be held up for years.

joeschmoe
February 28, 2013, 05:29 PM
I don't think Heller/McDonald have anything to do with this. For now the "constitutional" question is the NY State Constitution they are discussing, not the federal. State courts, state laws, state Constitution. The NYS SC may choose to interpret their laws similar to Heller, but I don't think they are bound by that. They are bound by state law and state precedent.

Old Fuff
February 28, 2013, 05:47 PM
Yup. It's in the New York Supreme Court. Yes, the state constitution is the controling document. But what's interesting is that the motion wasn't dismissed out-of-hand.

That said, because a civil right is involved the case can be eventually taken to the federal courts. In McDonald The U.S. Supreme Court incorporated it and Heller so those decisions now apply to New York.

Shadow 7D
February 28, 2013, 05:48 PM
There is NO APPEAL for the state, when the state SC rules, that's it, only the citizens can appeal, based on federal civil rights, so, if they strike it down, the NY legislature can eat crow, if it's upheld, you are likely to see a federal case.

Crashola
February 28, 2013, 06:02 PM
It doesn't happen very often, but state courts have at times invoked the state constitution to strike down a law or action where the federal courts have ruled something constitutional. I can't remember the case, but it was a Fourth Amendment case on warrentless inventory searches from South Dakota. The SCOTUS ruled that the search was constitutional under the U.S. Constitution. But on remand, the South Dakota Supreme Court ruled that the search violated the state constitution.

And what's said above is true. A state supreme court has the final say on whether a law is constitutional under a state constitution.

Solo
February 28, 2013, 09:24 PM
Yup. It's in the New York Supreme Court. Yes, the state constitution is the controling document. But what's interesting is that the motion wasn't dismissed out-of-hand.
Gives me a small measure of hope for the people of NY.

bushmaster1313
February 28, 2013, 11:08 PM
New York "Supreme" Court is really the lowest court in New York State.

The "Court of Appeals" is was every other state calls its "Supreme Court".

Frank Ettin
March 1, 2013, 01:12 AM
Yup. It's in the New York Supreme Court. Yes, the state constitution is the controling document. But what's interesting is that the motion wasn't dismissed out-of-hand....Wrong.

There is NO APPEAL for the state, when the state SC rules, that's it, only the citizens can appeal, based on federal civil rights,...Wrong.

New York "Supreme" Court is really the lowest court in New York State.

The "Court of Appeals" is was every other state calls its "Supreme Court".Correct.

In New Your State, the Supreme Court is really the trial-level court where things start. An appeal from a New York Supreme Court ruling goes to the Appellate Division. The final level of state court appeal in New York is the New York State Court of Appeals in Albany, New York.

theblakester
March 1, 2013, 03:48 AM
What can out of staters like myself, from Texas, do to help the citizens of states like New York, California, Illinois etc when it comes to these new state laws that have been passed and are currently "trying to be passed"

Solo
March 1, 2013, 03:50 AM
Perhaps a donation of money to the legal team?

Tirod
March 1, 2013, 11:56 AM
The issue of Constitutionality is not just about the 2A, it involves the 4th, too.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. - See more at: http://constitution.findlaw.com/amendment4/amendment.html#sthash.v4ie4hGL.dpuf

There are specific things that must be done to deprive citizens of their property, and simply outlawing possession when no significant reason exists falls into legal question. To prove AR15's merit this consideration, it has certain hurdles to jump - and immediately raises the question why they are singled out, and not other firearms.

When certain restrictions are placed on personal property, the State cannot contrive to deny a citizen from using it, or fence it in so it's useless. I see restricting or banning ammo or it's components the same. It would be no different than shutting off the sales of gasoline for some reason. It would deprive the citizen of the use of their cars, which would essentially rob them of their property.

The point is that when you attack one amendment, you find others attacked also, and then their overlapping provisions have to be addressed. The Court does that, not the Legislature, and it's the Court's job to keep the Legislature and Administration honest. Otherwise, we'd be no different than a monarchy - which we rebelled against.

There's another aspect - if the law is patently illegal, then citizens and those sworn to uphold the Constitution have not only the right, but the duty, to refuse to honor it. It's no different than a soldier being given an illegal order - and those who go along are prosecuted for doing so.

In the case of NY, it's going thru that process, and yet to be determined the law is Constitutional. Legislators tend to forget they don't have the final say on law. They just use the media to look like they do. Citizens who take their pronouncements at face value aren't protecting their interests - like all the "confiscation" posts all over the internet.

The 4th Amendment is something we also need to brush up on.

ilbob
March 2, 2013, 11:11 AM
this will go up the ladder in the state courts and likely be upheld all the way.

SleazyRider
March 2, 2013, 12:23 PM
this will go up the ladder in the state courts and likely be upheld all the way.
Just to be clear, do you mean the NYS SAFE Act will be upheld?

Carl N. Brown
March 2, 2013, 12:25 PM
In New York State, the Supreme Court is really the trial-level court where things start.
Years ago that threw me off when I was first watching "Law'n'Order" on TV ("Hunh? Supreme Court? They haven't had the trial yet and its already appealed?") Yep, New York calls its trial level court the "Supreme Court".

And yes, NY gun law is not just about 2A. The New York system for getting a pistol permit is not just a violation of the Second Amendment to the American Constitution; according to this law journal article, it is a violation of New York state constitution guarantees of equal justice and due process:
Suzanne Novak, "Why the New York State System for Obtaining a License To Carry a Concealed Weapon Is Unconstitutional", Fordham Urban Law Journal (Nov 1998).
www.saf.org/LawReviews/Novak1.html

ilbob
March 9, 2013, 12:16 PM
Just to be clear, do you mean the NYS SAFE Act will be upheld?
Yes. the court system in NYS is not going to go against the precedent the 2CA has already set in place.

brickeyee
March 9, 2013, 02:53 PM
I don't think Heller/McDonald have anything to do with this.

State courts usually take pains to obey federal law (and cases).

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