Kachalski v. NYS - Updated

[Al Norris]

OK, first an apology. I had entirely forgotten about the Kachalsky thread (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 thread.

[Window_Seat]

There's also this one:

Osterweil v. Bartlett which has travel effects, and I like 2A cases with travel effects.

Erik.

[Gray Peterson]

Where's the Kachalsky reply, Al?

[CCWFacts]

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]

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]

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



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]

No mention of all the dead kittens and the amount of blood which will pour through the streets? Color me shocked! /sarcasm

[scarville]

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

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]

It appears I have gotten mixed up. Can I blame it on old age?

The reply brief is due 04-03-2012.

[Paladin]

What this case is about....

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]

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]

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]

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]

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]

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