Skip to comments.Supreme Court considers challenge to state gun licensing laws in case from New York (by Alan Gura)
Posted on 04/12/2013 12:43:11 PM PDT by neverdem
A day after the Senate voted to begin debate on new gun control measures, the Supreme Court is expected to consider a new appeal aimed at loosening state restrictions on firearms.
The justices are meeting in private Friday to discuss adding new cases for the term that begins in the fall. Among them is an appeal of a federal court ruling that upheld New Yorks strict licensing scheme for carrying concealed weapons in public.
The National Rifle Association and 20 states are backing an appeal by five New York residents who claim that the state law violates their constitutional gun rights. The challenge comes nearly five years after a landmark Supreme Court decision in favor of gun rights and four months after a gunman killed 20 children and six adults in Newtown, Conn...
Alan Gura, an Alexandria, Va.-based lawyer who is representing the New Yorkers, as well as the challengers in several other states, said that by upholding such state laws, lower courts are undermining constitutional protections for gun owners...
(Excerpt) Read more at washingtonpost.com ...
Why? The Bill of Rights wasn't intended to be subject to the whims of public opinion.
Kachalsky case. It’s messed up at the district court level because they said that because Heller didn’t say whether defense outside the home was a core second amendment right, therefore they could use intermediary scrutiny to decide whether NY could deny CC unless you could prove you had an actual threat to your life ongoing, like a stalker or something.
But I read the decision and it sure sounds like rational basis. For those from rio linda, that means the court defers to the legislature as long as they come up with some plausible excuse for the law. Strict scrutiny would be the better standard, but Heller was unclear, and as my con law prof taught us, courts often confuse intermediate scrutiny with rational basis. So this mess was somewhat predictable, given how narrowly Heller was structured, í.e., could DC make a handgun in the home virtually useless for spontaneous self defense. No, they can’t. But what about every other scenario, like outside the home? No clear guidance. A good scotus decision in kachalsky would resolve that ambiguity.
Thanks for your explanation. That sounds like prior restraint. How can they reconcile that with decisions that declare the state has no duty to protect us peons in particular?
SR did a good job with that analysis.
I am convinced (after SCOTUS made it clear in Heller and McDonald that the 2nd Amendment is an individual right AND it is incorporated through the 14th Amendment to apply to the states) that the right of self defense should be subject to strict scrutiny.
I really don’t think a right can be considered fundamental by the high court and simultaneously be subjected to the rational basis test.
Rights of the individual inherently make the authorities uncomfortable. So a court simply must not defer to them when fundamental rights are at stake.
Great post! It’s instructive to get opinions from people who are actually more than casually familiar with Constitutional Law.
We are without a doubt living in a state of tyranny in NY and that is NO hyperbole.
Finally the state police (NY Stasi) admit today, after they lied for a day, that confiscation was wrong.
Here is the real meat of the story: Cuomo and his Gestapo NYS Police chief along with... wait for it.... DHS have formed a working group to find a way to violate the 4th Amendment and HIPA laws so they can confiscate guns in NY. The 4th amendment and HIPA were violated in this case and Cuomo has seen his presidential hopes go up in flames.
It is a test case to see if this can be done on a national level.
Right now the only person in NYS who can investigate Cuomo and his mafia is Shelllllldon Silver and he, being the good communist will do no such thing.
Therefore, we are living in tyranny in NYS as we have no law, no law enforcement, no legislature to protect us from government and the government has, this week turned on its own citizens. No sane person should register his/her guns in NY nor in the rest of the USA.
To my knowledge, NY has no citizens militia to keep the government in check. Those of us in upstate NY just have to go along with the communists in NYC.
Damn right we have special needs for self-protection: we’re human beings!
The 4th Circuit recently upheld Maryland’s strict “good and substantial reason” law.
Maryland “Freak State” PING!
New York has sent out subpoenas to Health Care professionals for records to indicate if any citizens need their guns confiscated.
For all of those who just love to pick on NY (upstate does not suck as much as downstate) WARNING, this is the test of how far government can go without any response from those who actually believe in the brilliance of the founders.
NYers need your support otherwise this “rights” cancer will spread to all the other “rights” and to every state in the nation.
They are testing us.
These are the EXACT same people who are quite happy to kill a baby using the cover of “privacy” (not an actual right to abortion) yet VIOLATE privacy in subpoenaing health care records to violate the 2nd Amendment.
NY State was caught last week violating the rights and privacy of an upstate gun holder by confiscating his guns and permit even though they now admit it was a “mistake” yet in the very next breath they subpoena more records to do exactly the same thing.
The NY State police are now quite divided as there are some who are NOT brown shirts yet are being ordered by the Cuomo mafia to do its bidding.
NY has also been working with DHS to test how the 4th amendment and HIPA laws can be circumvented.
You have been warned.