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Heller and open carry in NY

Discussion in 'Legal' started by mek42, Apr 29, 2008.

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  1. mek42

    mek42 Member

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    Currently open carry is illegal in NY. NYC is even worse. What sort of ruling would be required from Heller to make it possible to overturn the NY "no open carry" law?

    Other than carrying openly and being arrested, how would one gain standing to challenge said law in the event Heller makes it possible to do so?
     
  2. gbran

    gbran Member

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    In the Heller case, much is made of the DC ban that prohibits functioning firearms in the home and outright bans handguns.

    If SCOTUS rules the RKBA an individual right and also kills the DC law as infringing on that right.............. the next logical question is; If we have a RKBA, does it only apply in out homes? I doubt our forefathers wouldn't allow guns in buggies or on horses..............
     
  3. mekender

    mekender Member

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    i doubt that Heller will have any impact on open carry laws in any state... but i have been hearing that the Cato Institute is planning on filing a challenge to the Sullivan Act on the day that the Heller ruling comes out provided it is favorable...
     
  4. Gray Peterson

    Gray Peterson Member

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    The way that New York law is structured, all possession of "firearms" (which is defined as all pistols, SBS/SBR's and Assault weapons) is unlawful unless you qualify for an exemption.

    2. Types of licenses. A license for gunsmith or dealer in firearms shall be issued to engage in such business. A license for a pistol or revolver, other than an assault weapon or a disguised gun, shall be issued to (a) have and possess in his dwelling by a householder; (b) have and possess in his place of business by a merchant or storekeeper; (c) have and carry concealed while so employed by a messenger employed by a banking institution or express company; (d) have and carry concealed by a justice of the supreme court in the first or second judicial departments, or by a judge of the New York city civil court or the New York city criminal court; (e) have and carry concealed while so employed by a regular employee of an institution of the state, or of any county, city, town or village, under control of a commissioner of correction of the city or any warden, superintendent or head keeper of any state prison, penitentiary, workhouse, county jail or other institution for the detention of persons convicted or accused of crime or held as witnesses in criminal cases, provided that application is made therefor by such commissioner, warden, superintendent or head keeper; (f) have and carry concealed, without regard to employment or place of possession, by any person when proper cause exists for the issuance thereof; and (g) have, possess, collect and carry antique pistols which are defined as follows: (i) any single shot, muzzle loading pistol with a matchlock, flintlock, percussion cap, or similar type of ignition system manufactured in or before 1898, which is not designed for using rimfire or conventional centerfire fixed ammunition; and (ii) any replica of any pistol described in clause (i) hereof if such replica--

    The other exceptions are in PL265.20. Flat out, it makes all possession of pistols unlawful UNLESS you meet an exemption in the law. A Pistol License is one of those exemptions. For carry OUTSIDE of the home by general private civilians, a subsection (f) license must be issued, which has a "have and carry concealed" requirement. That particular type of license requires good cause which means trying to prove something to someone.

    An attack on via the "no lawful method of carry" route either has to attack 265 and get those laws specifically struck down due to the fact that one cannot carry for any form of self protection, even openly. Only concealed is allowed, and requires a may-issue permit.
     
  5. rdhood

    rdhood Member

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    One of the justices mentioned, in passing, that the individual right to Keep also includes BEAR. They won't really be ruling on that, but whether they form a strict interpretation vs. allowing a lot of leeway on reasonable restriction will go along way towards determining what will be done with the right to BEAR. If they kept to a strict interpretation, it is likely that total or near-total bans on bearing firearms would be unconstitutional. It may well be held that concealed carry is a reasonable restriction, but total bans on carry is NOT. I am not sure how one would go about gaining standing to argue open carry.

    With a strict interpretation, I suspect that areas with near total carry bans would quickly dump those in favor of concealed carry and try to limit that to as few areas as they could get away with, so as to be a reasonable restriction. Otherwise, their carry laws would be struck down and they would be wide open for open carry.
     
  6. DKSuddeth

    DKSuddeth Member

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    I would suspect that we could try to use murdock v. pennsylvania to avoid a concealed license. It would be humorous to watch the court tapdance around that ruling to justify concealed licensing.
     
  7. Coronach

    Coronach Moderator Emeritus

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    Heller will not affect NY or NYC open carry one iota.

    Now, rulings that follow from Heller? That's a completely different story. But you're looking at years down the road.

    Mike
     
  8. romma

    romma Member

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    Agreed Conarch.

    Even still was the comment by one of the Justices asking one of the attorneys If they recognized the 2nd ammendment as one, or two ammendments, with reference to Keep,,, and Bear...

    Which Justice, and which attorney escapes me, but the hearing is public record.

    From Merriam Webster.

    bear arms
    1: to carry or possess arms
     
  9. divemedic

    divemedic Member

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    In practical terms, unless you live in DC, Heller will change almost nothing. Even in DC, there is still much work to be done. This is about ownership of arms in your home, in DC. Not carrying arms. Not in NYC. Not in Cali.

    Even with the best possible ruling under Heller, there are hundreds of cases that need to happen yet. This will be a process that takes years, perhaps decades. Even under ideal circumstances, my children and perhaps grandchildren are the only ones who have a shot at seeing the true benefits of Heller. I probably won't live to see it. Neither will most of you.

    First, a case for incorporation needs to be decided.
    Then, bearing arms. Suppressors. Import bans. Machine guns. Waiting periods. etc.
     
  10. hnk45acp

    hnk45acp Member

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    The only thing I see Heller affecting in NYC is paid licensing to own a gun.
    In NYC you pay $340 for 3 years to have a pistol permit. This is a permit that allows you to OWN not carry. This means that if you don't pay the fee, the city comes and takes your guns, which means you don't OWN your guns, you rent them from the city $340 at a time.
    If I don't have a driver's license I can still own a car and drive it on my property but I can't do that with a gun here
     
  11. esq_stu

    esq_stu Member

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    A good Heller result will be the first brick removed from a pretty big wall, no matter where you live.
     
  12. ctdonath

    ctdonath Member

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    Heller is about owning and transporting a functional firearm.
    In NY, you can own & transport a functional firearm - so Heller will most likely not affect NY CCW.

    There is viable & prolonged USA legislative history that will, when appropriate, inform a Supreme Court decision that concealed carry may be regulated into prohibition. The only hope of Heller being relevant is if SCOTUS rules a fundamental right to carry a functional firearm, and a subsequent ruling interprets that to include open carry - most likely with a nod toward the long history of prohibiting concealed carry (continued today by requiring a permit to do so).

    Incorporation would also have to be ruled on - a separate case.

    Heller would most likely be part of a NY OC ruling's pedigree, but certainly not an automatic outcome thereof.
     
  13. Gray Peterson

    Gray Peterson Member

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    http://www.conservapedia.com/index.php?title=Bach_v._Pataki&printable=yes


    In Bach v. Pataki, 408 F.3d 75 (2d Cir. 2005), the Court of Appeals for the Second Circuit rejected a challenge to a New York gun control law. The Court held that the Second Amendment does not limit state power to restrict gun possession by law-abiding citizens traveling through the state. This action was heard in a federal district court in 2003, and by the Second Circuit in 2005, which affirmed the lower court's decision.

    David Bach, a model citizen, had a permit from the commonwealth of Virginia to carry a concealed weapon. He wished to carry a pistol while visiting his parents in upstate New York to protect his family while traveling through heavily populated areas with high crime rates. The New York State Police informed Bach that, "there are no provisions for the issuance of a carry permit, temporary or otherwise, to anyone not a permanent resident of New York State nor does New York State recognize pistol permits issued by other states." They also informed Bach that, should he be found in possession of a gun, the firearm would be forfeited, and he would be prosecuted.

    Bach filed this action against State and local officials to contest his exclusion from New York's licensing scheme. His complaint requests that the district court declare New York's licensing laws unconstitutional, facially and as applied, in violation of both the "right to keep and bear arms" set out in the Second Amendment and the Privileges and Immunities Clause of Article IV of the United States Constitution.

    The Court held that Bach could claim no constitutional right to bear arms, on the ground that the Second Amendment is not a source of individual rights. The court also concluded that the New York gun licensing system did not violate the Privileges and Immunities Clause because, "the factor of residence has a substantial and legitimate connection with the purposes of the permit scheme such that the disparate treatment of nonresidents is justifiable." The court also held that Bach did not show New York could "protect its interests through less restrictive means." Bach had no right to carry a gun in New York, and his claims were rejected.

    The Court concluded:

    Theories regarding constitutional protections for the "right to keep and bear arms" have moved from the pages of law reviews to those of the Federal Reporters. Perhaps soon they will make their way into the United States Reports. Bach presents two theories of protected rights to arms - protection under the Second Amendment and the Privileges and Immunities Clause of Article IV - but this is not the case in which to decide the propriety of either. The Second Amendment cannot apply to the States in light of Presser, and the Privileges and Immunities Clause cannot preclude New York's residency requirement in light of the State's substantial interest in monitoring handgun licensees.

    http://keepandbeararms.com/Bach/Mordue.pdf

    That's the district court decision.
     
  14. yokel

    yokel Member

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    I'm not terribly sanguine about the prospect that our ultimate salvation will lay in the courts and legislative bodies.
     
  15. GRIZ22

    GRIZ22 Member

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    in the event Heller makes it possible to do so?

    The SCOTUS rules on very specific circumstances.

    Heller will have nothing to do with any other gun law than the DC total handgun ban and inability to comply with their current law without leaving yourself defenseless.

    Reasonable restrictions can mean registration, mandatory classes, etc.

    Other gun laws can be challenged on the basis of Heller but don't think that Heller will make all guns laws unconstitutional.
     
  16. Gray Peterson

    Gray Peterson Member

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    No one said it would make all gun laws unconstitutional.
     
  17. GRIZ22

    GRIZ22 Member

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    No one said it would make all gun laws unconstitutional.


    I know that, you know that, and many others on this forum know it but search Heller on this forum. There people who think a favorable (to us) Heller decision will automatically enable them to own a howitzer or open carry 2 homemade Sten guns in Chicago.
     
  18. mek42

    mek42 Member

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    I know that the decision in Heller will apply only to the circumstance given in the Heller case. However, my limited understanding is that, depending on the decision in Heller, the Heller case could then be used as case law when bringing other odious laws up to the courts to be overturned. Likely, each odious law would then need to be overturned individually unless another SCOTUS case was heard and they decided, "And all other states must do it this way too," to use horribly non-legal language.

    Am I on the right track here?
     
  19. romma

    romma Member

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    My argument would be if SCOTUS rules that a having functional firearm at the ready is a "right" for life and self-defense, why should it only apply to your home?

    People in NY or other placesthat can not carry forfeit their right to life and liberty when they walk out the door...

    That is what happens.
     
  20. shookwell

    shookwell Member

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    State law makes no distinction between a license to own and a license to carry, the only difference is administrative, i.e. the rules that NYC made up. People with premise permits who were arrested for concealed carry have been acquitted of criminal charges on these grounds, but I wouldn't try it personally.
     
  21. Hypnogator

    Hypnogator Member

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    Yes, but it's the wall of a pretty big dam. One brick won't let much water out, but there's a lot of pressure behind that leak!

    I look for a lot of laws to be voided or rescinded by state/local legislatures based on an IR determination in Heller. You didn't see every individual school district maintaining "separate but equal" after Brown V. Board of Education.
     
  22. sailortoo

    sailortoo Member

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    Redundant, I know, but I hate to see court decisions that contradict court decisions! In Post #13, in the last sentence of the quote, "The Second Amendment cannot apply to the states in light of Presser (v. Illinois) ...". Huh? Presser v. Illinois states just the opposite of what the Second Circuit Court descision says above. The relevant part of Presser says, paraphrasing, since the US Government and the states need an armed citizen militia to draw upon in time of need, "..., the states cannot, even laying this constitutional provision in question out of view (the Second Amendment), prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaing the public security, and disable the people from performing their duty to the general government." Just how the Second Circuit Court (Bach case, as presented) can blatantly overturn case law by misrepresentation, I do not understand. Why was this not challenged? Or, since IANAL, am I reading Chinese by mistake? Sorry, I just do not trust lawyers or judges, however unfair such a statement may sound. Each and every pronouncement by the SCOTUS, and any other court, needs "scrutiny" even more than the laws themselves. (end of rant) :)
    sailortoo
     
  23. nicki

    nicki Member

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    Heller case

    When the SCOTUS rules on Heller, they will potentially be opening the doors for many 2nd amendment lawsuits.

    The SCOTUS probably will write a ruling that will perserve laws restricting gun ownership and gun laws that deal with real criminals.

    They probably don't want every criminal defense attorney filing briefs claiming the 2nd amendment rights of a defendent were violated.

    The SCOTUS also probably wants some consistency throughout the United States rather than division in the courts.

    The SCOTUS probably will apply a balance of individual right versus legitimate public safety concerns where the state will have to justify it's regulations.

    States with excessive regulations may find that they have to justify their laws and if that is the standard which I could see the SCOTUS doing.

    Assuming the SCOTUS upholds Heller, we will see alot more federal lawsuits being filed.

    Certainly incorporation via the 14th amendment will be an issue if it isn't already addressed by the court in "Heller'.

    CCW permits will probably stand. Background checks and reasonable training standards and fees probably would survive. Discretionary issue, excess fees, restrictions on where can carry would be subject to review and the courts could throw out restrictions if states could not show a compelling public saftey issue.

    Chicago's handgun ban, NYC's Sullivan law, California's AW bans and recent handgun laws will be challenged.

    There will be challenges on Federal law because there will be conflicts between the commerce clause and the 2nd amendment.

    There was a 9th circuit appeals court ruling that overturned a conviction for possession of machineguns since the guns were homemade and not involved in interstate commerce.

    The government didn't appeal the case, but you can bet we will see the issue come up again.

    I know that there are some who are itching to get the 1986 machinegun freeze overturned so that they can get some full autos.

    The machinegun issue opens up many cans of worms because if the NFA is a tax, why is the government making it impossible for people to pay the tax.

    When people are charged for NFA violations, they are charged with willfully not paying a machinegun tax.

    Doesn't make sense to me unless collecting the tax is really a sham and the government is using the tax system to make a end run around the bill of rights.

    Nicki
     
  24. Joe Cool

    Joe Cool Member

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    I agree with Nicki

    Having spent way many hours on the SCOTUS March 18th hearing, I believe her interpretation is correct. I only hope that several NJ laws and statutes will also be challenged on a constitutional basis along with the Sullivan law in NY.

    All indications are that SCOTUS will rule the Second Amendment as a fundamental, individual right with strict scrutiny applying. While they did not discuss incorporation at length in the proceedings, it will be considered in their deliberations. If they follow the same line of reasonings as they did that day in March, they will set down some guidelines for what circumstances can lead to considerations of restrictions, and also what types of restrictions may be considered. This was outlined in the KJ work we did at NJCSD.org, also published here at THR, albeit to mixed reviews.
    http://www.njcsd.org/forum/showthread.php?t=1750
    http://www.thehighroad.org/showthread.php?t=362962&highlight=NJCSD
     
  25. Kharn

    Kharn Member

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    That was before 1986, in '86 the law was changed to make all machine guns illegal for civilians to possess, unless the weapon was registered before 1986. All other unregistered NFA weapons still result in tax-related charges.

    Kharn
     
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