Supreme Court won’t hear challenge to NYS gun law
The US Supreme Court. Photo: dbking CC some rights reserved
Correction, 4/17/13: Thanks to an alert reader for pointing out a couple areas where this post needed clarification or correction. The changes are clearly noted below.
A couple of the more controversial provisions of New York state’s new gun law, the NY SAFE Act, go into effect Monday: Owners of guns that have been reclassified as assault weapons now have to register them; and there are new limits to the number of bullets now allowed in magazines.
The law, as we know, has been controversial since its inception. Many applaud the law or are at least OK with it; others say it was passed too quickly, that it won’t help stop gun violence, that it violates the Second Amendment (and interestingly, the Constitution’s Commerce Clause), or that they simply won’t follow it. Several (correction made here) More than 50 New York state counties have also passed resolutions protesting the law, and more are pending. That’s 82 percent of the state’s counties. (here’s a story on Essex County’s resolution.)
Opponents of the law have brought several legal challenges (on various bases — here’s a report from NCPR on one such challenge based on the speed with which the law was passed.), and one of these, Kachalsky v. Cacace, made it almost to the Supreme Court.
(Correction made here) In a related story, a 2011 Case, Kachalsky v. Cacace, has come into the spotlight this week (to be clear, this case was not brought in reaction to the NY SAFE act but to a different New York state gun law.) I’m having trouble finding a non-slanted description of this case, but here’s a link to the 2nd Circuit Court of Appeals’ decision on the case (they found the law was not unconstitutional), which has some pretty good information.
In essence, Kachalsky v. Cacace made challenged the law thusly: The NY SAFE act law has a provision that requires people seeking permits to carry handguns in public to demonstrate that they need to do so, for self-protection. Five New Yorkers who had been denied permits to carry handguns in public brought the case.The plaintiffs (this from a New York state criminal lawyer’s blog)
argu[ed] that a state can not place any restriction on owning and carrying a gun when the gun is sought for self-protection. Plaintiffs argued that since the Second Amendment protects the right to bear arms for purposes of self-defense and since many violent crimes occur without warning, a license must be issued when a person “desires [a gun] for self-defense.”
The Supreme Court announced today that it won’t hear the case. The New York Times reports that the court, as is its custom, didn’t say why it wasn’t taking up the case. The fact that they’re not taking it now doesn’t mean they won’t be looking at this issue in the future, when a case they consider more appropriate comes along.
As I understand it there are several cases pending in the lower courts that will be more appropriate for the supreme court to hear and they will cover the same issue as Kachalsky case. I think one is an Illinois case where they have struck down a state law based on the Heller decision that ruled that DC “ban” on guns was unconstitutional. I don’t carry a gun for protection but it seems to me that if you have a constitutional right to have a gun for protection (Heller) how can you “protect” yourself if you can’t have the gun with you?
The Heller decision dealt specifically with guns within the home.
It was not a broad decision about self defense or “protection”.
It included the following statement “the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose”
Sorry, Dave but I accidentally clicked the thumbs down button.
We really don’t want everyone and anyone waltzing around with a concealed weapon.
At least in the old days, they wore their guns at the hip. What’s with this concealed stuff except for detectives?
The paranoia and fear in this country is becoming a bit absurd.
Like the old song says, “Don’t take your guns to town, son. Leave your guns at home.”
Dave,
“It included the following statement “the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose””
True, I agree. But here are we talking here about carrying a hand gun. I can think of many examples of what you could limit, and in many places (like here in NYS) we have very strict regulations who can obtain one legally. But can you limit the right to carry the most basic gun used for protection and not run into second amendment issues? You are correct that this decision focused on inside home and only in DC (a federal “enclave”) that was extended to states in a later decision.
I guess the remaining question is does the second amendment apply for protection using a gun outside the home. You can easily make the argument for inside a car since traditionally handguns are even allowed to remain loaded in a vehicle specifically for self-protection reasons. Why not a biker, and if they have the right why not a guy walking down the street that can’t afford a bike or a car? If the second amendment protects this type of use than you can limit the type allowed to some degree but some type of gun would be legal for protection outside the home.
Pete, I gave Dave’s comment a thumbs up for you. I never click them myself either way but for you anything!
Dave, it was worthy of a thumbs up as well!
It will be interesting to see what happens when the court weighs in on this again. My take is that the second amendment clearly applies to defense, that is a no-brainer. It has nothing to do with hunting that is for sure. I think you could easily make an argument that we allow guns for hunting just based on tradition and as something we want to allow. I do not necessarily think that I have a right from the second amendment to own the hunting rifles and shotguns that I have locked up in my house. I love hunting but I can’t see why it would have been anyway enshrined in the constitution.
If the argument is that the second amendment applies to militias or the like. You could argue there that the weapons then should be the most sophisticated ones you can get and in-line with what any military would need. (maybe like Switzerland now). I work here with a guy from Switzerland and he had an “assault” weapon in his closet before he moved here. He didn’t even want it but he had to have it once he left compulsory service. He has two brothers so they had three military rifles and ammo in the closet.
No wonder mass shootings occur on an almost-daily basis in Switzerland.
I am not saying that an assault weapon in every closet is the way to go. But if there is a right to bear arms for some kind of militia purpose (and not for other types of self defense as the court has now acknowledged) than it would look something more like Switzerland don’t you think?
I guess the question to ponder is why should the right not extend beyond the home (if it does not)? Seems to reek of the old idea that property owners had rights beyond non-property owners, a concept that I thought that we did not like here in America anymore? (only property owners have the right to vote etc.)
Its the supreme court that gets to decide what the 2nd amendment means, not any of us.
True, but it is interesting to think about what we think it means as well. Sure they have the final call. Many don’t like the idea that the second amendment “means” that you have a right to protect yourself with a gun. But it does. Just like many other people don’t like the idea that the 19th amendment give a woman a right to choose to have an abortion during a portion of her pregnancy. But she does. The constitution is an interesting thing.
Also, it is important to think about what we think the constitution means when we draft legislation. If it doesn’t adhere to that law we spend a lot of time, effort, money, and political capital on things that are going nowhere. A good example are these foolish new laws in the Dakota’s restricting abortion that are clearly unconstitutional and will turn out to be a waste of tax payer money but will line the pockets of many lawyers.