Quantcast
  1. This site uses cookies. By continuing to use this site, you are agreeing to our use of cookies. Learn More.

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

Discussion in 'Legal' started by northgull, Feb 27, 2013.

Thread Status:
Not open for further replies.
  1. northgull

    northgull Member

    Joined:
    Feb 27, 2013
    Messages:
    1
    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.
     
  2. Old Fuff

    Old Fuff Member

    Joined:
    Dec 24, 2002
    Messages:
    23,908
    Location:
    Arizona
    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.
     
  3. ilbob

    ilbob Member

    Joined:
    Jun 14, 2006
    Messages:
    11,399
    Location:
    Illinois
    dead link
     
  4. USAF_Vet

    USAF_Vet Member

    Joined:
    Jan 6, 2011
    Messages:
    5,773
    Location:
    Hastings, Michigan
  5. usmarine0352_2005

    usmarine0352_2005 Member

    Joined:
    Oct 21, 2005
    Messages:
    2,797
    Can't they just point to the recent circuit court rulings against the 2nd amendment?
     
  6. Old Fuff

    Old Fuff Member

    Joined:
    Dec 24, 2002
    Messages:
    23,908
    Location:
    Arizona
    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.
     
  7. CapnMac

    CapnMac Member

    Joined:
    Feb 27, 2009
    Messages:
    1,371
    Location:
    DFW (formerly Brazos County), Texas
    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.
     
  8. Solo

    Solo Member

    Joined:
    Sep 15, 2004
    Messages:
    838
    And they would have gotten away with it too, if it weren't for those meddling lawyers!
     
  9. Ryanxia

    Ryanxia Member

    Joined:
    Jun 18, 2010
    Messages:
    4,377
    Location:
    'MURICA!
    God willing it will be overturned quickly.
     
  10. Old Fuff

    Old Fuff Member

    Joined:
    Dec 24, 2002
    Messages:
    23,908
    Location:
    Arizona
    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.
     
  11. joeschmoe

    joeschmoe Member

    Joined:
    Dec 27, 2012
    Messages:
    1,291
    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.
     
  12. Old Fuff

    Old Fuff Member

    Joined:
    Dec 24, 2002
    Messages:
    23,908
    Location:
    Arizona
    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.
     
    Last edited: Feb 28, 2013
  13. Shadow 7D

    Shadow 7D Member

    Joined:
    Nov 30, 2008
    Messages:
    7,005
    Location:
    Frozen North
    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.
     
  14. Crashola

    Crashola Member

    Joined:
    Mar 28, 2006
    Messages:
    134
    Location:
    Idaho
    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.
     
  15. Solo

    Solo Member

    Joined:
    Sep 15, 2004
    Messages:
    838
    Gives me a small measure of hope for the people of NY.
     
  16. bushmaster1313

    bushmaster1313 Member

    Joined:
    Oct 26, 2008
    Messages:
    3,590
    Location:
    Peoples Republik of New Jersey
    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".
     
  17. Frank Ettin

    Frank Ettin Moderator

    Joined:
    Apr 29, 2006
    Messages:
    10,435
    Location:
    California - San Francisco Bay Area
    Wrong.

    Wrong.

    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.
     
  18. theblakester

    theblakester Member

    Joined:
    May 12, 2011
    Messages:
    112
    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"
     
  19. Solo

    Solo Member

    Joined:
    Sep 15, 2004
    Messages:
    838
    Perhaps a donation of money to the legal team?
     
  20. Tirod

    Tirod Member

    Joined:
    May 24, 2008
    Messages:
    4,450
    Location:
    SW MO
    The issue of Constitutionality is not just about the 2A, it involves the 4th, too.

    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.
     
  21. ilbob

    ilbob Member

    Joined:
    Jun 14, 2006
    Messages:
    11,399
    Location:
    Illinois
    this will go up the ladder in the state courts and likely be upheld all the way.
     
  22. SleazyRider

    SleazyRider Member

    Joined:
    Feb 25, 2008
    Messages:
    1,822
    Location:
    New York
    Just to be clear, do you mean the NYS SAFE Act will be upheld?
     
  23. Carl N. Brown

    Carl N. Brown Member

    Joined:
    May 10, 2005
    Messages:
    7,916
    Location:
    Kingsport Tennessee
    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
     
  24. ilbob

    ilbob Member

    Joined:
    Jun 14, 2006
    Messages:
    11,399
    Location:
    Illinois
    Yes. the court system in NYS is not going to go against the precedent the 2CA has already set in place.
     
  25. brickeyee

    brickeyee Member

    Joined:
    Feb 25, 2005
    Messages:
    3,135
    State courts usually take pains to obey federal law (and cases).
     
Thread Status:
Not open for further replies.

Share This Page