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View Full Version : Kachalski v. NYS - Updated


Al Norris
03-15-2012, 5:37 PM
OK, first an apology. I had entirely forgotten about the Kachalsky thread (http://www.calguns.net/calgunforum/showthread.php?t=498307) (it is now closed, due to what I suspect is trolling behavior). I can only say that with everything else that has been going on, I lost track of the fact that this case wasn't being updated here.

While don't know for a fact, I suspect Krucam lost track also. For my part, I apologize.

In the other thread, Librarian said this in his closing remarks:
New thread for Kachalsky when something interesting happens.
As it happens, what is new (for you folks) is actually now old.

11-09-2011 - Opening Brief (in the thread linked above)
02-03-2012 - Response by Westchester County.
02-08-2012 - Response by NYS
03-10-2012 - Reply by Kachalsky.

The response from NY State and the Kachalsky reply to NYS and Westchester County are attached. I cannot upload the Westchester County response as it exceeds the file size limits of this site (always a problem with scanned files). To read that one, you will simply have to go to the Firing Line and view post #32 of this (http://thefiringline.com/forums/showthread.php?t=468335) thread.

Window_Seat
03-15-2012, 6:32 PM
There's also this one:

Osterweil v. Bartlett (http://hoffmang.com/firearms/osterweil/Opening-Brief-of-Appellant_v1.pdf) which has travel effects, and I like 2A cases with travel effects.

Erik.

Gray Peterson
03-15-2012, 6:55 PM
Where's the Kachalsky reply, Al?

CCWFacts
03-15-2012, 10:58 PM
I read through it quickly, and it sure seems like they are basing their argument on the idea that concealable weapons (handguns) are especially dangerous (they list all kinds of reasons) and therefore the state has every reason to regulate them this way. In fact, they spend a lot of time differentiating handguns from guns in general. They don't specifically talk about long guns but they make it very clear that they think handguns are special and so the plaintiffs should not be allowed to carry them around except with "proper cause".

Fine! Sounds good to me. I'm perfectly happy to stroll around NYC with my loaded Rem. 870. They didn't give any reasons why that would not be ok, but instead gave many reasons why handguns in particular are worthy of the "proper cause" treatment.

Do they understand that they are running the risk of a situation where open carry of functional (loaded) long arms is found be be constitutionally-protected throughout the state of NY? Do they realize that, while we would prefer to win in the civilized forum of a court, if we don't win there, we'll also be willing to tote around shotguns and AR-15s until the NY legislature says "uncle"?

SilverBulletZ06
03-15-2012, 11:27 PM
Reading NY's reply:
NY basically says that NY is right in all things. OK, great we knew they would, but the methods they use to go about to reach the conclusion leads one to scratch their head. NY's laws are lawful because Arkansas (now shall-issue) made a law in the 1800's saying that concealing weapons was illegal. NY also says that

"Moreover, the Court’s opinion in Heller expressly endorses bans on concealed carrying of firearms outside the home as among a group of presumptively lawful restrictions on firearms that have deep roots in American history."

I have no recollection of that, the preemptively lawful restrictions were courthouses etc. if I am remembering correctly (and correct me if I am wrong).

NY continues to use pre-1900's laws to equate that the modern NY law will pass muster. They use Mascidinaro to a great extent to support themselves. Honestly most of the middle of the arguments could be cut and pasted for almost any state reply to these challenges: guns are bad, someone may use a gun wrongly, and the ubiquitous "think of the children", forgetting none of that would pass muster of pre-restraint.

press1280
03-16-2012, 1:54 AM
Reading NY's reply:
NY basically says that NY is right in all things. OK, great we knew they would, but the methods they use to go about to reach the conclusion leads one to scratch their head. NY's laws are lawful because Arkansas (now shall-issue) made a law in the 1800's saying that concealing weapons was illegal. NY also says that

"Moreover, the Court’s opinion in Heller expressly endorses bans on concealed carrying of firearms outside the home as among a group of presumptively lawful restrictions on firearms that have deep roots in American history."

I have no recollection of that, the preemptively lawful restrictions were courthouses etc. if I am remembering correctly (and correct me if I am wrong).

NY continues to use pre-1900's laws to equate that the modern NY law will pass muster. They use Mascidinaro to a great extent to support themselves. Honestly most of the middle of the arguments could be cut and pasted for almost any state reply to these challenges: guns are bad, someone may use a gun wrongly, and the ubiquitous "think of the children", forgetting none of that would pass muster of pre-restraint.

Seems what they're trying to do is similiar(somewhat) to what CO/Denver is doing in Gray's case. Keep pushing the CCW restrictions as valid, even though it'll get the state's open carry ban implicated at the same time.

NorCal Mtn Flyer
03-16-2012, 3:03 AM
No mention of all the dead kittens and the amount of blood which will pour through the streets? Color me shocked! /sarcasm

scarville
03-16-2012, 3:51 AM
"Moreover, the Court’s opinion in Heller expressly endorses bans on concealed carrying of firearms outside the home as among a group of presumptively lawful restrictions on firearms that have deep roots in American history."

I have no recollection of that, the preemptively lawful restrictions were courthouses etc. if I am remembering correctly (and correct me if I am wrong).

From the decision (http://www.law.cornell.edu/supct/html/07-290.ZS.html)

Like most rights, 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: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. [Emphasis added]

It may be that the above does not mean the same thing to a lawyer as it does to a regular person.

Al Norris
03-16-2012, 4:38 AM
It appears I have gotten mixed up. Can I blame it on old age?

The reply brief is due 04-03-2012.

Paladin
03-16-2012, 6:08 AM
brief description from the CGF Wiki for those trying to keep all these cases straight....

Challenge to New York State "proper cause" requirement for a carry license.

speedrrracer
03-16-2012, 7:50 AM
Ignorant n00b here...NY is reaching for CCW ban, could the court say, OK, you can make up your own mind about CCW (provided you get your GC in order), but then you must allow LOC?

randian
03-16-2012, 11:30 AM
OK, you can make up your own mind about CCW (provided you get your GC in order)
Even if they did that, are they required to pull existing licenses granted under the old, "bad" GC rules?

SilverBulletZ06
03-16-2012, 10:46 PM
Ignorant n00b here...NY is reaching for CCW ban, could the court say, OK, you can make up your own mind about CCW (provided you get your GC in order), but then you must allow LOC?

The courts haven't said any such thing. The states argue that the RKBA is fulfilled by the ability to get a CCW permit within the state, the fact that it is not available to 99% of the population is of no matter to them. Whether this could/couldn't be challenged in a post-Heller court system is another matter entirely. Personally, it is still under ordinance of "collective rights" and would stand a good chance of being struck down but I don't foresee the CA2 doing anything better then Seibel's NYSC decision which included such wonders as "pistols aren't used for hunting" and "military intent".


For the record: NY will NEVER go for LOC or CCW without a court order. Even then there will be hoops. Right now if you want a target pistol the state says that the "issuing authority" has 90 days to accept or deny your application. However, downstate (and most other PDs from what I read) skirt the law by requiring you to provide the info to the pistol licensing bureau, then they forward it to the actual "issuing authority". My application took 192 days, and there are others who have taken longer.

Crom
03-16-2012, 10:58 PM
Brick by brick, Mordor will soon fall to pieces. The appeals in all the carry cases are going to get very interesting. Love the Gura cases. :)

Mulay El Raisuli
03-17-2012, 5:02 AM
The courts haven't said any such thing. The states argue that the RKBA is fulfilled by the ability to get a CCW permit within the state, the fact that it is not available to 99% of the population is of no matter to them. Whether this could/couldn't be challenged in a post-Heller court system is another matter entirely. Personally, it is still under ordinance of "collective rights" and would stand a good chance of being struck down but I don't foresee the CA2 doing anything better then Seibel's NYSC decision which included such wonders as "pistols aren't used for hunting" and "military intent".


For the record: NY will NEVER go for LOC or CCW without a court order. Even then there will be hoops. Right now if you want a target pistol the state says that the "issuing authority" has 90 days to accept or deny your application. However, downstate (and most other PDs from what I read) skirt the law by requiring you to provide the info to the pistol licensing bureau, then they forward it to the actual "issuing authority". My application took 192 days, and there are others who have taken longer.


Just like the PRK.


The Raisuli

Paladin
04-03-2012, 3:42 PM
It appears I have gotten mixed up. Can I blame it on old age?

The reply brief is due 04-03-2012.Any news???

krucam
04-03-2012, 4:09 PM
Any news???

My upload limit is at the limit here! Gura's reply is posted at MDShooters.

http://www.mdshooters.com/showthread.php?t=40003&page=15

curtisfong
04-03-2012, 4:26 PM
My upload limit is at the limit here! Gura's reply is posted at MDShooters.

http://www.mdshooters.com/showthread.php?t=40003&page=15

ARGH. this is why i hate forums as a file repository, specifically, ones that require accounts.

So annoying.

I remember when http was designed to retrieve files from a server.

2009_gunner
04-03-2012, 4:54 PM
I love it when this point gets hammered by Gura:

This Court does not referee academic debates. “[T]he enshrinement
of constitutional rights necessarily takes certain policy choices off the
table.” Heller, 554 U.S. at 636. Professors Cook and Zimring are
certainly entitled to believe that the Second Amendment right to bear
arms is disastrously dangerous. They are also entitled to that same
belief regarding the exclusionary rule or the right to counsel. Doubtless,
virtually every aspect of the Constitution finds strong disagreement
among some segment of society... The question of what
the Second Amendment secures is a matter of text and history, not an
academic debate as to who has the best statistics.

Sobriquet
04-03-2012, 5:51 PM
I love it when this point gets hammered by Gura:

http://files.sharenator.com/whos_awesome_your_awesome_27_reports_by_mrcbccadet x0-s599x479-155511.jpg

"When lawyers talk smack, civil rights edition."

wildhawker
04-03-2012, 6:09 PM
I remember when http was designed to retrieve files from a server.

:rofl2:

Gray Peterson
04-03-2012, 7:35 PM
Defendants offer that openly carrying handguns is socially
unacceptable today, but that is hardly a basis for prohibiting
constitutionally-protected conduct. Licensing Officers’ Br., at 38 & n.13.
Nonetheless Defendants suggest Plaintiffs should have challenged New
York’s general prohibition on carrying loaded handguns in public,
which reaches the open carrying of firearms. Id. Defendants should
consider carefully whether this is the outcome they want. If the licenses
issued under Penal Law § 400.00(2) relate only to concealed carry, and
if this Court holds that the right to bear arms extends only to open
carrying, the police would enjoy no qualified immunity for enforcing an
open carry prohibition. The decision would instantly place New York
among the states that generally allow the unlicensed open carrying of
handguns—and many individuals could be counted upon to
immediately exercise that right here, as is already done elsewhere.

Hilarious.

Baja Daze
04-03-2012, 8:51 PM
That is hilarious....can you imagine a bunch of RKBA advocates walking around Times Square OC'ing Desert Eagles! NYPD would FREAK OUT!! :p

randomBytes
04-03-2012, 9:37 PM
Would a win here hold against NYC ?

SoCal Bob
04-03-2012, 10:07 PM
I love the way he writes:

But the Second Amendment is not among the Bill of Needs. It is
among the Bill of Rights. Defendants’ arguments amount to: the
government’s “experts” have determined that the People do not really
“need” one of their “rights.” That is not constitutional law. Social
science may have a role to play in illuminating the relationship
between a right and its regulation, but it cannot have the role of
defining the content of a right.

Gray Peterson
04-03-2012, 10:44 PM
Would a win here hold against NYC ?

Yes, the 2nd Circuit's ruling would affect NYC. The fee case (Kwong v. Bloomberg) is also being appealed to the 2nd circuit as well. 1-2 punch.

Maestro Pistolero
04-04-2012, 12:33 AM
I would give a months pay to be a fly on the wall when Bloomberg gets the news that this case is finally won, and I believe it will be.

It will be fascinating to watch the twisting and turning to obfuscate the result once it's done. I expect to see creative machinations to avoid the result, the likes of which we can't even imagine. I'll bet some NYC official ends up in a federal hoosegow before they will have to finally acquiesce. Hopefully Bloomey himself.

wildhawker
04-04-2012, 1:06 AM
When Kachalski resolves in favor of plaintiffs/appellants, Mayor Bloomberg will put every laywer on his and the City's payroll on figuring out how to spend another 2-4 years in court.

-Brandon

SilverBulletZ06
04-04-2012, 1:25 AM
State appeals to the SCOTUS is how we are going to get it nationally recognized.

NYS can string this out for a while, but eventually the questions will need to be answered: do the states need to recognize the RKBA outside the home.


However, I do not think that the CA2 is going to rule in our favor.

wildhawker
04-04-2012, 2:11 AM
State appeals to the SCOTUS is how we are going to get it nationally recognized.

NYS can string this out for a while, but eventually the questions will need to be answered: do the states need to recognize the RKBA outside the home.

However, I do not think that the CA2 is going to rule in our favor.

That doesn't make sense. If NYS wins at CA2 they have no grounds upon which to petition for cert.

-Brandon

dantodd
04-04-2012, 5:59 AM
This is one OC event which I would attend.

2013 New Year's Week Time Square Open Carry Rally

Gray Peterson
04-04-2012, 6:05 AM
When Kachalski resolves in favor of plaintiffs/appellants, Mayor Bloomberg will put every laywer on his and the City's payroll on figuring out how to spend another 2-4 years in court.

-Brandon

Sure. The irreparable harm standard is a nice thing, though (preliminary injunctions) plus limitations in New York State law....

RKV
04-04-2012, 6:16 AM
Legal pr0n. Wow. Take the time to read the whole brief folks. Chess, not checkers.

Connor P Price
04-04-2012, 6:57 AM
When Kachalski resolves in favor of plaintiffs/appellants, Mayor Bloomberg will put every laywer on his and the City's payroll on figuring out how to spend another 2-4 years in court.

-Brandon

He'll probably pay them more than that 20 dollar an hour figure he was recently offering to.

:facepalm:

SilverBulletZ06
04-04-2012, 8:47 AM
That doesn't make sense. If NYS wins at CA2 they have no grounds upon which to petition for cert.

-Brandon

Sorry, it was late:

If we win and NYS loses they will definitely bump it up to SCOTUS, apply for a stay in lieu of that SCOTUS ruling and stretch this case out for another 1-2 years.

If we lose and NYS wins, well I expect that and we get a good case in front of the judges.

hoffmang
04-04-2012, 1:48 PM
Sorry, it was late:

If we win and NYS loses they will definitely bump it up to SCOTUS, apply for a stay in lieu of that SCOTUS ruling and stretch this case out for another 1-2 years.

If we lose and NYS wins, well I expect that and we get a good case in front of the judges.

Based on the states of the various carry cases around the nation, the most likely timing is that one carry case gets a cert grant and is decided by June of 2014 with a small chance that we get it by June 2013.

-Gene

BigDogatPlay
04-04-2012, 2:09 PM
What amazes me, in reading through some of it, is that the government (in this case the State of New York) continues to rely on Cook and Zimring, whose work is deeply flawed.

It's also very comforting to see Mr. Gura dispense with their pallaver so quickly, concisely and decisively.

pbreed
04-04-2012, 3:37 PM
That was a fun read.
I'm sure glad Gura is on our side!

SilverBulletZ06
04-05-2012, 12:11 AM
Based on the states of the various carry cases around the nation, the most likely timing is that one carry case gets a cert grant and is decided by June of 2014 with a small chance that we get it by June 2013.

-Gene

It was my understanding that Kachalsky was at the top of the civil carry cases as far as court progression. I preferred Miller, but NJ mooted most of the best parts by finally granting permits. Ill. carry ban would probably be better then Kachalsky in front of review, but Kachalsky is a strong case. It is made even stronger because NY is so adamant that they defend the "may issue" permitting that they have sunk themselves deep into erroneous facts and outdated decisions.

Mulay El Raisuli
04-05-2012, 5:36 AM
Defendants offer that openly carrying handguns is socially
unacceptable today, but that is hardly a basis for prohibiting
constitutionally-protected conduct. Licensing Officers’ Br., at 38 & n.13.
Nonetheless Defendants suggest Plaintiffs should have challenged New
York’s general prohibition on carrying loaded handguns in public,
which reaches the open carrying of firearms. Id. Defendants should
consider carefully whether this is the outcome they want. If the licenses
issued under Penal Law § 400.00(2) relate only to concealed carry, and
if this Court holds that the right to bear arms extends only to open
carrying, the police would enjoy no qualified immunity for enforcing an
open carry prohibition. The decision would instantly place New York
among the states that generally allow the unlicensed open carrying of
handguns—and many individuals could be counted upon to
immediately exercise that right here, as is already done elsewhere.

Hilarious.


And something that I don't think is "unappealing" at all.

All the talk about Section 1983 (page 48 of the Brief) is making me think that the individuals who promote this 'stuff' (like Bloomberg) are going to have their own individual butts at risk in the future. Am I reading this correctly?


The Raisuli

hoffmang
04-05-2012, 2:08 PM
And something that I don't think is "unappealing" at all.
But you're not a NY anti gun politician or bureaucrat. If they're going to lose Bloomie at least wants them under our coat.

All the talk about Section 1983 (page 48 of the Brief) is making me think that the individuals who promote this 'stuff' (like Bloomberg) are going to have their own individual butts at risk in the future. Am I reading this correctly?

Not really. It's the person who denies you your right that's the 1983 "person." In NYC it would be whatever the decision maker on the permit is usually.

-Gene

press1280
04-06-2012, 12:40 AM
It was my understanding that Kachalsky was at the top of the civil carry cases as far as court progression. I preferred Miller, but NJ mooted most of the best parts by finally granting permits. Ill. carry ban would probably be better then Kachalsky in front of review, but Kachalsky is a strong case. It is made even stronger because NY is so adamant that they defend the "may issue" permitting that they have sunk themselves deep into erroneous facts and outdated decisions.

Peterson I believe is further along, then Kachalsky and pretty much the rest have just gotten to the circuit appeals court. The NJ case(formerly Muller) isn't mooted as it was only one plaintiff who got the carry permit, the rest were still denied.
Hopefully these cases don't get stonewalled and we have a circuit split so SCOTUS will hear a case next term.

Mulay El Raisuli
04-06-2012, 4:31 AM
But you're not a NY anti gun politician or bureaucrat. If they're going to lose Bloomie at least wants them under our coat.


Which is still a good thing. :)


Not really. It's the person who denies you your right that's the 1983 "person." In NYC it would be whatever the decision maker on the permit is usually.

-Gene


That's not bad. Just as long as someone has his personal tail at risk.


The Raisuli

safewaysecurity
08-22-2012, 9:43 AM
We going to get any info on how oral argument went today?

Gray Peterson
08-22-2012, 9:54 AM
We going to get any info on how oral argument went today?

Hasn't happened yet.

safewaysecurity
08-22-2012, 9:58 AM
2 pm right?

Gray Peterson
08-22-2012, 9:59 AM
2 pm right?

Yep, the session starts in two minutes

HowardW56
08-22-2012, 10:11 AM
Yep, the session starts in two minutes

Is there an audio feed? If there is no live feed, does anyone know if a recording will be available?

safewaysecurity
08-22-2012, 10:51 AM
I heard that the 2nd circuit isn't good about putting Urals out. Could be wrong. I hear they put out a pdf transcript. I'm sure some of the people with a direct line to gura can give us the details.

randian
08-22-2012, 12:20 PM
Did the 2nd get relocated to Russia when I wasn't looking? :D

krucam
08-22-2012, 12:56 PM
Did the 2nd get relocated to Russia when I wasn't looking? :D

Not geographic...think stone age...

Gray Peterson
08-22-2012, 9:35 PM
From NY Firearms

http://www.nyfirearms.com/forums/laws-politics/33122-kachalsky-oral-argument.html#post259256

1. There was a general sense in the courtroom today about how important this case is. It was the last one heard, and the judges took a break immediately beforehand. Oral arguments lasted about 90 minutes! (Each side had been allotted 10 minutes.)

2. Westchester County as a defendant was basically a non-entity. They were trying to argue that they shouldn't be a party to the case, but the judges weren't buying it. Their argument only lasted 5 minutes. The NY State AG's office was the main defendant, arguing in favor of proper cause.

3. The State essentially conceded that THE SECOND AMENDMENT APPLIES OUTSIDE THE HOME. This is huge. At the very least, the Court should hold that the right to bear arms protects a right to bear arms in public.

4. The State was arguing that the proper cause regime is constitutional because New Yorkers can carry rifles and shotguns in public. HUH? But then they admitted that you'd probably get arrested for causing public alarm if you did so in NYC. I don't know how the judges will rule on this one.

5. Alan Gura was incredible, as expected. I can't imagine anyone else I'd rather have on our side fighting for our rights.

6. As far as reading the judges, it's tough to say. Judge Wesley was asking Gura a ton of questions, but I think it's because he agrees with him. Judge Katzmann was mostly silent the whole time. Judge Lynch asked some tough questions to both parties.

So, to sum up:

--It looks like the Second Circuit will hold that the Second Amendment protects a right to bear arms in public for self-defense. What remains to be seen is whether they'll buy the State's argument that, since New Yorkers can carry rifles and shotguns in public, there's no right to carry concealed handguns.

One of our friends at MDS Shooters is in the process of purchasing this oral argument on CD. He will generously share it with us.

When Judge Stephen Reinhardt of the 9th Circuit, along with a New York based federal appeals court says that there's a right to bear outside the home, it's time to close up shop and turn out the lights insofar as our opponents go.

Maestro Pistolero
08-22-2012, 9:43 PM
Something at last. Conceding bearing outside of the home is huge. Since the argument that long guns satisfy the right didn't fly in Heller, let's hope it doesn't fly here. I am anxiously awaiting that recording like all of us. Thanks for posting.

safewaysecurity
08-22-2012, 9:44 PM
How long does it take for them to mail out the CDs with the MP3 oral arguments on them? They really need to work on updating their system.

hoffmang
08-22-2012, 9:45 PM
It appears that a MD Carry person will order the oral argument so we'll have it in the next 60 days.

My understanding is that things went better than expected. No guarantees, but this will be useful to us one way or another.

-Gene

safewaysecurity
08-22-2012, 9:52 PM
Well if they rule that long gun open carry i good enough I propose the NRA hold their next event in NYC after we get national reciprocity passed and everyone carry long guns in time square lol.

Crom
08-22-2012, 9:53 PM
Gray, thanks for the repost.

nicki
08-22-2012, 10:52 PM
From NY Firearms

http://www.nyfirearms.com/forums/laws-politics/33122-kachalsky-oral-argument.html#post259256

1. There was a general sense in the courtroom today about how important this case is. It was the last one heard, and the judges took a break immediately beforehand. Oral arguments lasted about 90 minutes! (Each side had been allotted 10 minutes.)

2. Westchester County as a defendant was basically a non-entity. They were trying to argue that they shouldn't be a party to the case, but the judges weren't buying it. Their argument only lasted 5 minutes. The NY State AG's office was the main defendant, arguing in favor of proper cause.

3. The State essentially conceded that THE SECOND AMENDMENT APPLIES OUTSIDE THE HOME. This is huge. At the very least, the Court should hold that the right to bear arms protects a right to bear arms in public.

4. The State was arguing that the proper cause regime is constitutional because New Yorkers can carry rifles and shotguns in public. HUH? But then they admitted that you'd probably get arrested for causing public alarm if you did so in NYC. I don't know how the judges will rule on this one.

5. Alan Gura was incredible, as expected. I can't imagine anyone else I'd rather have on our side fighting for our rights.

6. As far as reading the judges, it's tough to say. Judge Wesley was asking Gura a ton of questions, but I think it's because he agrees with him. Judge Katzmann was mostly silent the whole time. Judge Lynch asked some tough questions to both parties.

So, to sum up:

--It looks like the Second Circuit will hold that the Second Amendment protects a right to bear arms in public for self-defense. What remains to be seen is whether they'll buy the State's argument that, since New Yorkers can carry rifles and shotguns in public, there's no right to carry concealed handguns.

One of our friends at MDS Shooters is in the process of purchasing this oral argument on CD. He will generously share it with us.

When Judge Stephen Reinhardt of the 9th Circuit, along with a New York based federal appeals court says that there's a right to bear outside the home, it's time to close up shop and turn out the lights insofar as our opponents go.

Back around 2003, the Ohio Supreme court upheld a ban on carrying concealed arms because Ohioans had the right to openly carry guns under the Ohio's state RKBA.

Indeed, the Ohio Supreme court went on in their ruling that OPEN CARRY was the preferred method rather than concealed carry.:rolleyes:

Ohio gun rights activists reponded having mass open carry marches all across the state. In fact the open carry marches in Ohio is probably the reason our state libtard legislature had a cow about unloaded open carry.

Based on what Gray just shared with us, does this mean that we may see open carry marches with functional(loaded) common arms(AR15s) in New York.;)

If we have a right to bear functional(loaded) rifles and shotguns in NY, could this expand beyond the 2nd circuit.

Right now I guess the ruling would be only binding in NY and Conn.

So NY is going to try to weasel out with Open carry of long arms, our guys tried to weasel out with unloaded open carry of handguns and Judge Legg in Maryland seems to have it right all along and that is being appealed.

Seems to me that if we could wind up winning at en banc hearings by default all across the country if the other side didn't want to have a binding SCOTUS ruling nationwide.

Of course many of us thought we would get a favorable ruling out of the Peruta case and we got blindsided with the UOC weasel clause.

On to the SCOTUS.

Nicki

Rossi357
08-22-2012, 11:36 PM
Sure long guns are ok to carry.
Take your 12ga pump with 5 or 6 rds strapped to the stock down to Times Square and walk around. If you don't get killed, report back here after you get out of intensive care.

Baja Daze
08-23-2012, 12:30 AM
Again thanks to Gray for the re-post and this sounds better than I expected!

And what is with Westchester County arguing that they should not be a party to this case, this sounds rather similar to the actions of Denver County in Gray's case...could this be a trend? ;)

SilverBulletZ06
08-23-2012, 5:29 AM
Jeez. These idiots don't even read their own laws.

NYS Law:

"Possession of any loaded rifle or shotgun in a vehicle is illegal".

HowardW56
08-23-2012, 6:28 AM
From NY Firearms

http://www.nyfirearms.com/forums/laws-politics/33122-kachalsky-oral-argument.html#post259256

1. There was a general sense in the courtroom today about how important this case is. It was the last one heard, and the judges took a break immediately beforehand. Oral arguments lasted about 90 minutes! (Each side had been allotted 10 minutes.)

2. Westchester County as a defendant was basically a non-entity. They were trying to argue that they shouldn't be a party to the case, but the judges weren't buying it. Their argument only lasted 5 minutes. The NY State AG's office was the main defendant, arguing in favor of proper cause.

3. The State essentially conceded that THE SECOND AMENDMENT APPLIES OUTSIDE THE HOME. This is huge. At the very least, the Court should hold that the right to bear arms protects a right to bear arms in public.

4. The State was arguing that the proper cause regime is constitutional because New Yorkers can carry rifles and shotguns in public. HUH? But then they admitted that you'd probably get arrested for causing public alarm if you did so in NYC. I don't know how the judges will rule on this one.

5. Alan Gura was incredible, as expected. I can't imagine anyone else I'd rather have on our side fighting for our rights.

6. As far as reading the judges, it's tough to say. Judge Wesley was asking Gura a ton of questions, but I think it's because he agrees with him. Judge Katzmann was mostly silent the whole time. Judge Lynch asked some tough questions to both parties.

So, to sum up:

--It looks like the Second Circuit will hold that the Second Amendment protects a right to bear arms in public for self-defense. What remains to be seen is whether they'll buy the State's argument that, since New Yorkers can carry rifles and shotguns in public, there's no right to carry concealed handguns.

One of our friends at MDS Shooters is in the process of purchasing this oral argument on CD. He will generously share it with us.

When Judge Stephen Reinhardt of the 9th Circuit, along with a New York based federal appeals court says that there's a right to bear outside the home, it's time to close up shop and turn out the lights insofar as our opponents go.

It appears that a MD Carry person will order the oral argument so we'll have it in the next 60 days.

My understanding is that things went better than expected. No guarantees, but this will be useful to us one way or another.

-Gene

Canguns.Net needs a LIKE Button..... :D :D :D

Peaceful John
08-23-2012, 9:28 AM
[QUOTE=Gray Peterson;9185163]From NY Firearms

http://www.nyfirearms.com/forums/laws-politics/33122-kachalsky-oral-argument.html#post259256

3. The State essentially conceded that THE SECOND AMENDMENT APPLIES OUTSIDE THE HOME.

4. The State was arguing that the proper cause regime is constitutional because New Yorkers can carry rifles and shotguns in public.

Maestro Pistolero has already noted that Heller opined negatively on Item 4, so we're left with Item 3 as the takeaway: The State of New York concedes that the Second Amendment applies outside the home.

It's going to be a good 12 months.

IVC
08-23-2012, 9:38 AM
Long guns argument looks like grasping at straws not only because of Heller, but also because it cannot be done in reality. The idea behind the argument that "some sort of carry must be available," means that "some sort of carry must be available without harassment." The "without harassment" part really determines whether a particular method of carry is "available."

JasonM
08-23-2012, 9:49 AM
In reality, doesn't the defense ceding the argument that the 2A applies outside the home only serve to prevent the court from ruling on that issue? It doesn't all of sudden make it binding precedent.

Tempus
08-23-2012, 9:53 AM
Exciting times. I wonder how the next Mayors Against (Illegal) Guns meeting will be...

rero360
08-23-2012, 10:19 AM
Jeez. These idiots don't even read their own laws.

NYS Law:

"Possession of any loaded rifle or shotgun in a vehicle is illegal".

Yup, I learned that one the hard way at 15 or 16 years old, $100 fine and the shame and embarrassment of having the Dept. of Environmental Conservation officers drive me home and tell my dad about my screw-up.

Fast forward only a few years, two or three and I'm rolling around Queens with a fully loaded M16 in a van with no problem.

fizux
08-23-2012, 10:45 AM
The idea behind the argument that "some sort of carry must be available," means that "some sort of carry must be available without harassment." The "without harassment" part really determines whether a particular method of carry is "available."

The same issue arose here in CA, when the trial court held that UOC is an acceptable alternative that satisfies 2A in lieu of shall-issue CCW. Unfortunately, the PC also provided that UOC was reasonable suspicion for a detention to determine compliance with the old PC 12031, thus subjecting the UOC-er to frequent and arbitrary detention. Of course, that's all moot now, as UOC is now prohibited here.

I'm sure that open carrying long arms in NYC in response to an appropriate decision would result in a personal NYPD SWAT escort.

SilverBulletZ06
08-23-2012, 7:12 PM
The same issue arose here in CA, when the trial court held that UOC is an acceptable alternative that satisfies 2A in lieu of shall-issue CCW. Unfortunately, the PC also provided that UOC was reasonable suspicion for a detention to determine compliance with the old PC 12031, thus subjecting the UOC-er to frequent and arbitrary detention. Of course, that's all moot now, as UOC is now prohibited here.

I'm sure that open carrying long arms in NYC in response to an appropriate decision would result in a personal NYPD SWAT escort.

Sounds like a fun time. Bloomy would drop bricks in his trousers.

Rossi357
08-23-2012, 9:36 PM
The same issue arose here in CA, when the trial court held that UOC is an acceptable alternative that satisfies 2A in lieu of shall-issue CCW. Unfortunately, the PC also provided that UOC was reasonable suspicion for a detention to determine compliance with the old PC 12031, thus subjecting the UOC-er to frequent and arbitrary detention. Of course, that's all moot now, as UOC is now prohibited here.

I'm sure that open carrying long arms in NYC in response to an appropriate decision would result in a personal NYPD SWAT escort.

I may be wrong, but I think there was no 2a claim in the Peruta case in Superior Court. It was about the arbritrary issueing of LTC's.

press1280
08-23-2012, 10:43 PM
Long guns argument looks like grasping at straws not only because of Heller, but also because it cannot be done in reality. The idea behind the argument that "some sort of carry must be available," means that "some sort of carry must be available without harassment." The "without harassment" part really determines whether a particular method of carry is "available."

What NY is doing is trying to latch on to certain 19th century cases, specifically ones in which easily concealable pistols were considered outside the scope of the 2A. Of course this won't hold up considering Heller and McDonald found pistols are protected.
They could have tried what has been done elsewhere-the county says that OC of pistols is protected under the 2A(aka "go after the state law,not us), of course the state will say the reverse.
It'll be interesting, can't wait for audio or the transcript.

fizux
08-23-2012, 10:50 PM
I may be wrong, but I think there was no 2a claim in the Peruta case in Superior Court. It was about the arbritrary issueing of LTC's.

Arbitrary discretion is impermissible when regulating the time, manner, or place of the exercise of the First Amendment; Courts like the 7th Cir. opinion in Ezell have applied a similar analysis to the Second Amendment. In order to regulate TMP of a fundamental right, the municipal official has to use objective and content neutral criteria and be allowed virtually no discretion.

The Peruta Court reasoned that the availability of UOC satisfied 2A rights, therefore CCW was not required to exercise the fundamental right of self defense. Thus, the arbitrary discretion to issue or not doesn't impact the right to have a firearm available for self defense in public, so it's all good (admittedly, I am grossly oversimplifying here). Somehow GFSZs (which cover substantially all of my county, SF), harassment by LEOs conducting 12031 checks, and a host of other issues were not really addressed.

For those reasons, I believe that 2A was a core consideration for the Plaintiffs (and a core impediment for the Defendants). By way of illustration, the discussion part of the Peruta District Court order begins with:
-----
DISCUSSION

I. Right to Bear Arms

A. The Scope of the Right: Heller and McDonald

The Second Amendment provides: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."
-----
Quoted from http://scholar.google.com/scholar_case?case=6520000334116920795

spalterego
08-24-2012, 9:24 AM
The Person from the NY Firearms blog (Username .357MagNYC, Thank you very much Sir/Madam) posted some additional notes that I thought I would aggregate here:

From NY Firearms

http://www.nyfirearms.com/forums/law...tml#post259256
http://www.nyfirearms.com/forums/laws-politics/33122-kachalsky-oral-argument-2.html

1. There was a general sense in the courtroom today about how important this case is. It was the last one heard, and the judges took a break immediately beforehand. Oral arguments lasted about 90 minutes! (Each side had been allotted 10 minutes.)

2. Westchester County as a defendant was basically a non-entity. They were trying to argue that they shouldn't be a party to the case, but the judges weren't buying it. Their argument only lasted 5 minutes. The NY State AG's office was the main defendant, arguing in favor of proper cause.

3. The State essentially conceded that THE SECOND AMENDMENT APPLIES OUTSIDE THE HOME. This is huge. At the very least, the Court should hold that the right to bear arms protects a right to bear arms in public.

4. The State was arguing that the proper cause regime is constitutional because New Yorkers can carry rifles and shotguns in public. HUH? But then they admitted that you'd probably get arrested for causing public alarm if you did so in NYC. I don't know how the judges will rule on this one.

5. Alan Gura was incredible, as expected. I can't imagine anyone else I'd rather have on our side fighting for our rights.

6. As far as reading the judges, it's tough to say. Judge Wesley was asking Gura a ton of questions, but I think it's because he agrees with him. Judge Katzmann was mostly silent the whole time. Judge Lynch asked some tough questions to both parties.

So, to sum up:

--It looks like the Second Circuit will hold that the Second Amendment protects a right to bear arms in public for self-defense. What remains to be seen is whether they'll buy the State's argument that, since New Yorkers can carry rifles and shotguns in public, there's no right to carry concealed handguns.

One of our friends at MDS Shooters is in the process of purchasing this oral argument on CD. He will generously share it with us.

When Judge Stephen Reinhardt of the 9th Circuit, along with a New York based federal appeals court says that there's a right to bear outside the home, it's time to close up shop and turn out the lights insofar as our opponents go.

____________________________
Just to clarify, what I did was take about 10 pages of notes where I wrote down the gist of what everyone said. Originally, I copied and posted the whole thing here, but then realized that might be a problem since I was basically misquoting everyone.

Instead, I'll try to keep posting summaries of what was said from time to time. If anyone knows how to get the transcript from a Second Circuit oral argument, please let me know. I called the court clerk today, was transferred to a voice mail, left a message, and will probably never hear back from the person I called.

-------------------------------------------------------
Things started out on a somewhat humorous note, which makes me think the judges might be sympathetic to our cause.

Judge Wesley started out asking Alan Gura if it would be constitutionally protected to carry a handgun, just because. Not for self-defense, but just because a person liked the feel of a "Colt .45" and wanted to carry one. Gura said that would still be a protected interest, as would carrying for target practice or hunting.

Judge Lynch asked if there's a right to shoot guns in the air to celebrate Cinco de Mayo. Gura responded that states can regulate the discharging of firearms.

Judge Lynch then asked if the class of protected arms includes shoulder-mounted anti-aircraft missiles. Gura responded that those are not protected under Heller's common-use test.

Judge Lynch then asked what would happen if someone stood in the street in NYC with a rifle or shotgun, and Gura said that person would probably be arrested for disturbing the peace or something. Gura added that Heller specifically said that the Second Amendment did not allow people to carry any arm whatsoever for any purpose whatsoever.

Next, in what will probably be an essential point in the decision, Judge Lynch said something to the effect of, "So the legislature can't say no to handguns, but only allow people to carry long guns." Gura responded that Heller said that the handgun is the quintessential weapon for self-defense chosen by Americans.

--------------------------------------------------------
Continuing with the Kachalsky oral argument summary. . .

Judge Katzmann then got to the core of the question, and asked why the state couldn't have a regulation stating that you need a documented threat in order to get a permit (so that individuals who can't show a recurrent threat wouldn't get licenses).

Gura replied that people are often raped or murdered without any previous threats against them. He said that the 2A protects the right to be armed and ready in case of a threat.

Judge Wesley (who admitted he's an avid hunter) then asked if the 2A would change when public preferences change. Heller says that handguns are protected because they're America's weapon of choice--does that mean handguns can't be regulated except under strict scrutiny?

Gura answered that the 2A has always meant that weapons commonly used for lawful purposes are protected.

There was then a historical discussion with Judge Wesley, where Gura said that the Bill of Rights is not technologically hind-bound to the technology available in 1778.

In another key moment, Judge Wesley then said something to the effect of, "Heller makes a strong statement in favor of your view that the 2A extends beyond the home." He then asked Gura why he concedes that the state would have a legitimate interest in prohibiting concealed carry.

Gura responded that the SCOTUS is deferential to the states on that one, that states can regulate the manner of carrying, and that there's a historical notion that concealment is dangerous and sneaky.

Continuing with the discussion of concealed vs. open carry, Judge Wesley then asked why the government didn't have the same interest in banning both forms of carry, and why must the state's citizens suffer one of the two burdens to public safety (either through concealed or open carry).

Gura answered that the state's interest stops at the point where the right is completely destroyed. Citizens must enjoy the freedom in one manner or the other.


---------------------------------------------------------------------
Moving along with the Kachalsky oral argument, the next topic discussed were safe-storage laws, which Gura said would probably survive scrutiny.

Next, on the topic of ammo capacity limits, Judge Lynch asked if it wouldn't make sense to leave those regulations up to the legislature, rather than to judges who had no clue about guns. When Judge Lynch asked what competence the courts have to rule in these matters, Gura replied that the job of the courts is to determine if the regulations are constitutional, and referred back to common use for traditional lawful purposes with reference to ammo capacity.

There was then a discussion in which Judge Lynch said that Gura's argument isn't really that licensing authorities have unbridled discretion, but that anyone is entitled to carry because they're American. Judge Wesley then chimed in and said that Gura's argument is that NY's heightened standard of self-defense is not enough to pass constitutional muster.

Judge Wesley then talked with Gura about differences between the home and in public. Judge Wesley acknowledged that most crimes are committed with illegal guns. Gura acknowledged that the interest in self-defense is most acute in the home.

Judge Wesley then went on to ask about the analogy to the 1st Amendment, which seems problematic since the 2A has far more immediate deadly effects. Gura pointed to the part in McDonald where the Court states that the 4th, 5th, and 6th Amendment rights all have dangerous effects, since they result in the release of dangerous criminals into society.

Judge Lynch then added that, even under the 1st Amendment, all kinds of speech can cause harm, but that courts have always responded that that's the price we pay for our 1st Amendment rights. He then said something to the effect of, "maybe a few dead bodies is the price we pay for the Second Amendment."

Gura said that the states could address those concerns through time, place, and manner restrictions.

Judge Lynch then asked about laws banning guns from within 100 feet of schools, and Gura said that would amount to an all-out ban in places like NYC. Judge Lynch also mentioned restrictions on possession within 100 feet of schools, churches, abortion clinics, daycare centers, and bars. He said something to the effect of, "if you can't carry within 100 feet of an airport, and there are too many airports, then you have no right, correct?" Gura added that there's no problem with state laws banning possession of a firearm while intoxicated, and stressed that this lawsuit is not the last word on permissible restraints.

In closing, Gura said that this law applies everywhere in NYS and places a substantial burden on the 2A right, since people can't walk outside their own door with a gun without a license, which they can't have without proper cause.

Next it was the State's turn to argue. Gura got a chance to respond at the end.

safewaysecurity
08-24-2012, 9:37 AM
I don't know I'd I'm having deja or what but I feel like some odds the last things you posted aren't fr on the recent oral args but something earlier in the case like when rhetoric judge asks about the interest in banning both styles of carry. I remember hearing that before.

GaryV
08-24-2012, 12:41 PM
Sure long guns are ok to carry.
Take your 12ga pump with 5 or 6 rds strapped to the stock down to Times Square and walk around. If you don't get killed, report back here after you get out of intensive care.

If the court agrees with this and rules for the state, then a large group of protesters needs to get together, inform NYPD and the media that they plan to hold a march with loaded long guns, and then do so. And do it every day until NY concedes like Ohio did. Any individual going it on his own is just suicidal.

rero360
08-24-2012, 1:31 PM
Keep in mind gentlemen that NY, unlike CA, requires a pistol permit to simply own a handgun. Granted there are numerous types of permits:
premise dwelling
premise business
bank or express messenger
Justice of the Court
Employee of Corrections
Proper Cause (unrestricted concealed carry)
Antique Pistols

Now I don't know what the restrictions are exactly of them other than the Proper Cause, as thats what I have and knowing NY the restrictions probably vary county to county. But you have to show your permit to even handle a handgun at a gun store in NY.

So I had to apply for my permit, get my references to fill out their paperwork and send back in (pain in the butt) then wait for a judge to sign off on it, then go pick up my permit, drive down to the store, buy the pistol, get receipt of sale, drive back to the permit office to have the gun added to the permit, and then drive back to the store to show that it was indeed added to my permit, then finally take possession of the pistol and go home.

nicki
08-24-2012, 2:22 PM
If the court agrees with this and rules for the state, then a large group of protesters needs to get together, inform NYPD and the media that they plan to hold a march with loaded long guns, and then do so. And do it every day until NY concedes like Ohio did. Any individual going it on his own is just suicidal.

At this time NYC has licensing and registration on long guns and their own outright ban on many semi auto long guns.

NYC politicians are "viscerally anti gun", what we don't know is how the residents of NY will actually react.

Marchers need to be prepared for hostile reactions including people who will deliberately provoke them.

Things like mace/pepper spray and other non lethal self defense tools are also illegal in NY.

Nicki

Mesa Tactical
08-24-2012, 2:54 PM
Holy crap.

I wonder if judges actually rather enjoy sparring with someone like Gura, who has done his homework and knows the subject inside ad out.

SilverBulletZ06
08-24-2012, 3:46 PM
Thanks for the recap. I am waiting for the release of the orals now.

HowardW56
08-24-2012, 4:33 PM
Holy crap.

I wonder if judges actually rather enjoy sparring with someone like Gura, who has done his homework and knows the subject inside ad out.

No doubt some of them do...

hoffmang
08-24-2012, 10:05 PM
No doubt some of them do...

Competence begets competence.

-Gene

GaryV
08-25-2012, 1:09 PM
At this time NYC has licensing and registration on long guns and their own outright ban on many semi auto long guns.

NYC politicians are "viscerally anti gun", what we don't know is how the residents of NY will actually react.

Marchers need to be prepared for hostile reactions including people who will deliberately provoke them.

Things like mace/pepper spray and other non lethal self defense tools are also illegal in NY.

Nicki

Other than making sure that everyone is carrying a properly registered long gun, how is this different from what every protest needs to deal with? I didn't mean that a bunch of out-of-state people need to descend on NY; I mean that concerned New Yorkers need to do this. After all, it's their carry rights that would be at stake.

rero360
08-25-2012, 2:04 PM
Other than making sure that everyone is carrying a properly registered long gun, how is this different from what every protest needs to deal with? I didn't mean that a bunch of out-of-state people need to descend on NY; I mean that concerned New Yorkers need to do this. After all, it's their carry rights that would be at stake.

Registered long guns? huh? I would say so long as all long guns comply to state and federal laws and regulations then all is good.

In NY sales of guns (all guns) between two private parties don't have to go thru an FFL or anything, only thing handguns need is a letter written up signed by the first owner with the make, model and serial number to be presented to the permit office to have it added to your permit. Some counties don't even need that, they have some weird setup but thats what I was accustomed to.

No registration.

All the above is in regards to the whole state minus NYC (that place is screwy)