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aileron
11-07-2007, 6:20 AM
I wonder if this case will get attention by the supreme court in making their decision. That there is a real conflict out there on the interpretation of what the second means.

http://likelihoodofsuccess.com/2007/11/06/handsome-but-not-home-free/


Handsome but not home free

Posted by Ron Coleman on November 6th, 2007

A New York state criminal court judge, not unexpectedly, rejects the decision of the U.S. Court of Appeals for the District of Columbia in Parker v. District of Columbia, and rules that Rashawn Handsome has no “a constitutional right to bear arms [that] protected his keeping three unlicensed handguns in his apartment,” according to the New York Law Journal (subscription required) :

In refusing to follow Parker, Judge Gerstein noted that the ruling’s conclusion is at odds with the holdings of nine other circuits and the last U.S. Supreme Court decision to address the issue, U.S. v. Miller, 307 U.S. 174 (1939). All those rulings concluded that the Second Amendment, rather than creating a personal right to bear arms, circumscribes potential efforts by the federal government to curb state militias.

While the Second Circuit has not directly addressed the issue, Judge Gerstein wrote, it observed in a 1984 ruling that “the right to possess a gun is clearly not a fundamental right” (U.S. v. Toner, 728 D.2d 115).

The U.S. Supreme Court in Miller and the nine circuits agreeing with it, Judge Gerstein noted, all considered the prefatory clause of the Second Amendment controlling.

In its entirety, the Second Amendment reads: “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.”

Mr. Handsome’s argument relying on the Parker case to overturn New York’s law “requires rejection of viable Supreme Court precedent and half of the [Second] Amendment’s text,” Judge Gerstein wrote.

The New York decision is here. It may not do justice to the learned opinion or the level of complexity surrounding this issue, but it is certainly a full-bore gun control opinion. In short, it rejects the assertion that there is any independent right to bear arms except in connection with the establishment of a “well-regulated militia” or that the right to bear arms could be numbered among the fundamental individual rights of the Constitution such as free speech. On the one hand, the New York Times quoted former Chief Justice Warren Burger as saying, “The Second Amendment doesn’t guarantee the right to have firearms at all,” and calling the individual rights view “one of the greatest pieces of fraud — I repeat the word ‘fraud’ — on the American public by special interest groups that I have ever seen in my lifetime.” In the same article, however (hat tip to Instapundit), no less a liberal light — and considerably more respected legal scholar than Burger, who was not really regarded as an intellectual heavyweight — comes to the exact opposite conclusion.

Judge Gerstein’s opinion does note that, unlike the D.C. statute that was overturned, the New York statute does not purport to be a total ban, merely a (draconian) licensing and regulation scheme. That means that even if, in the fantasy world of gun rights enthusiasts (such as myself — why, some day I may even see a real gun thingy up close), the Supreme Court were to take up and affirm the Parker decision, this New York law would probably be unaffected.

EastBayRidge
11-07-2007, 6:57 AM
Who'd have thunk it: a judge actually misinterpreted Miller. Again... :rolleyes:

AJAX22
11-07-2007, 7:06 AM
This could be important.

I may have to move to NYC next fall... and I'd have to stay there for a few years.

tgriffin
11-07-2007, 9:01 AM
This could be important.

I may have to move to NYC next fall... and I'd have to stay there for a few years.

Say good bye to your right to bear arms.

EastBayRidge
11-07-2007, 10:00 AM
"This could be important.

I may have to move to NYC next fall... and I'd have to stay there for a few years."

My suggestion would be to live on Long Island or Westchester, close to the LIRR or Metro North if you have to work in the city - NYC is a nightmare to even get a long gun registered, and as far as handguns go you'll be SOL - plus, if you're caught with an "illegal" handgun, it's pretty much an automatic trip to Rikers.

AJAX22
11-07-2007, 10:17 AM
I'll probably live in the Bronx (cheap rent) or the upper west side if I can get my old appartment back.

I've lived in NYC before.

Everyone's got guns, they're cheap and easy to get if you want them.

The problem is trying to be a law abiding gun owner. Most people just say F it and buy a throwaway gun from the local street kids.

I'll probably just cary a big 'utility' knife and work out like crazy.

bulgron
11-07-2007, 10:19 AM
It's painful to see a sitting judge in the United States of America misunderstanding the constitution to that great of a degree. Especially when I think the guy is probably not a stupid man. Judges like that really do not hold American freedoms in any high respect, do they?

In Pakistan, the Supreme Court was recently surrounded by the military and the chief justice physically removed from the bench so as to protect a military dictator's hold on power. I wonder if people like Judge Gerstein look at that and have even the tiniest thought that maybe the entire bill of rights isn't worth the paper it's printed on without the 2A's protections.

EastBayRidge
11-07-2007, 11:56 AM
I'll probably live in the Bronx (cheap rent) or the upper west side if I can get my old appartment back.

I've lived in NYC before.

Everyone's got guns, they're cheap and easy to get if you want them.

The problem is trying to be a law abiding gun owner. Most people just say F it and buy a throwaway gun from the local street kids.

I'll probably just cary a big 'utility' knife and work out like crazy.

Watch out for those roving subway police bag checkpoints...

Shotgun Man
11-07-2007, 5:32 PM
I read the decision which is found here:

http://www.nylawyer.com/adgifs/decisions/110507gerstein.pdf

That judge sure did his homework. Boy, he sounds like a real judicial activist, almost as though he is anti-gun lobbyist.

But am I correct in reading that this PL 265.01 criminalizes the possession of any firearm in NYC? In NYC, you just can't have guns, period?

Even in DC weren't you allowed to have them if they were somewhat disassembled/locked?

Piper
11-07-2007, 6:50 PM
Made a trip to NYC 31 years ago. I wasn't impressed. Then I was stationed at Seneca Army Depot in Romulus, N.Y. (real home of the Rumulans :D). I got the heck out of Dodge ASAP and went to Ft Hood, Tx. I've havn't been back to N.Y. and I have no plans to go back.

Dr. Peter Venkman
11-07-2007, 7:35 PM
Your right to bear arms is not affected by illegal government regulations. It is an inalienable right.

O RLY?

I don't see the federal government or the "free men of the country" planting a flag down on any state's land and reclaiming it. On top of that, I don't see anyone en masse across the country (plenty of Calguns members have done just that here in this state) stepping up and directly challenging the political ne'er-do-wells. Hell, most of the country doesn't even vote.

All it would take for the 2nd Amendment to follow the Dodo would be for a SCOTUS ruling that declares it to be a right of the "militia" or "national guard".

Piper
11-08-2007, 9:20 AM
All it would take for the 2nd Amendment to follow the Dodo would be for a SCOTUS ruling that declares it to be a right of the "militia" or "national guard".

The recent commentaries that I've read indicate that SCOTUS could rule 6-3 in favor of the individual right, so I'm a bit more optimistic. Right now, it seems like we are in a siege war against the anti's, but by next June that could be the beginning of the end for the anti's and their draconian gunlaws, God willing.

SemiAutoSam
11-08-2007, 9:36 AM
I have to take off soon SO I dont have the time to fully explain to you what registering to vote does but I will do my best to inform all that have an interest in this POV.

If you knew who you really are You would realise that registering to vote would be fraud. Or maybe If you felt the same way that I do about who I am.

Alot of the documents that clarify who we are are somewhat fraudulent in that they do more in depth than is shown on the surface and or what they claim to do.


O RLY?

I don't see the federal government or the "free men of the country" planting a flag down on any state's land and reclaiming it. On top of that, I don't see anyone en masse across the country (plenty of Calguns members have done just that here in this state) stepping up and directly challenging the political ne'er-do-wells. Hell, most of the country doesn't even vote.

All it would take for the 2nd Amendment to follow the Dodo would be for a SCOTUS ruling that declares it to be a right of the "militia" or "national guard".





That's right a muzzle loader is still an ARM right?

Maybe its OK if they just restrict us to single shot Rifles and pistols after all they are still arms so our rights haven't been affected right ?:rolleyes:

Maybe the antis will be happy once they take away everything that fires a projectile that is center fire ?

Then we are left with 22LR ? and a few others.

Your right to bear arms is not affected by illegal government regulations. It is an inalienable right.

and BTW, look who's talking, as a CA resident, you can't buy ANY of the standard issue firearms used by the US military, so where's your right to bear arms? Beretta M9? Think again, 15 round magazine. M16? I don't even need to say how many ways that's illegal. M14? Nope, not legal either. Barrett M82? Sorry, also banned.

AJAX22
11-08-2007, 9:38 AM
That's right a muzzle loader is still an ARM right?

Maybe its OK if they just restrict us to single shot Rifles and pistols after all they are still arms so our rights haven't been affected right ?:rolleyes:

Maybe the antis will be happy once they take away everything that fires a projectile that is center fire ?

Then we are left with 22LR ? and a few others.

I'll be buisy working onthe pinfire .50 BMG

RAD-CDPII
11-08-2007, 9:46 AM
I read the decision which is found here:

http://www.nylawyer.com/adgifs/decisions/110507gerstein.pdf

That judge sure did his homework. Boy, he sounds like a real judicial activist, almost as though he is anti-gun lobbyist.

But am I correct in reading that this PL 265.01 criminalizes the possession of any firearm in NYC? In NYC, you just can't have guns, period?

Even in DC weren't you allowed to have them if they were somewhat disassembled/locked?

In NY state, you need a permit to purchase/own a gun, even in your own home. If you are driving through the state on vacation with a pistol in a locked case in the trunk of your car and no ammunition, it is a felony. It's been that way at least going back to the late '60's.

56Chevy
11-08-2007, 10:14 AM
In NY state, you need a permit to purchase/own a gun, even in your own home. If you are driving through the state on vacation with a pistol in a locked case in the trunk of your car and no ammunition, it is a felony. It's been that way at least going back to the late '60's.
Of course. The criminals don't want people to be armed. That's why they pay the politicians to make those laws.

RAD-CDPII
11-08-2007, 10:43 AM
Of course. The criminals don't want people to be armed. That's why they pay the politicians to make those laws.

I thought that the criminals in NY were the politicians!!