Kachalsky v Cacace (NY) CA2 Opening Brief Filed

[krucam]

SAF/Gura's Opening Brief was filed today in New York.

[Kharn]

Thanks Krucam!

Link to the previous thread: Here

[ckprax]

Holy cow this one is long! Thanks for the link. I always look forward to reading what Gura has to say.

[SoCal Bob]

Long, but interesting, read. It appeared to be more assertive than some of his other works with little, to no, humor. I think he means business

[yellowfin]

Of course, Defendants have an interest in regulating firearms in the
interest of public safety

Um, no they don't. I know he's an expert, but don't start by validating the other side's reasons for their argument by repeating half of it when they're lying their ***es off. Hardest but most fundamental lesson you learn in closing a sale is DON'T REPEAT THE OBJECTIONS!

That's my only nitpick: gotta entirely ditch the other side's vocabulary right off the bat, give em nothing at all. Other than that, we see how beautifully that the district ruling sets up every single point so he can beat down on them with a hammer. Seibel threw a slow easy pitch right down the middle and for Mr. Gura to clobber it out of the park. Bringing up all the nasty decisions that make up NY's ugly case law and licensing practices all in one opinion so they can all be nuked at once simply couldn't be any better for our side--it also shows you just how ugly that legacy has been.

[Connor P Price]

Um, no they don't. I know he's an expert, but don't start by validating the other side's reasons for their argument when they're lying their ***es off.

Government most certainly does have an interest in regulating firearms for the purpose of public safety. He isn't validating their argument at all, he's acknowledging that there are instances where regulation is warranted but stating that this is not one of those instances.

Government does and should regulate certain things with regard to firearms such as discharge of a firearm in certain populous areas (with exceptions for self defense) or brandishing for example.

[smn]

The public interest is secondary to individual rights because we're in a republic (still, thankfully). I'm looking for the correct reference...

“The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon.” Heller, supra, at ___ (slip op., at 62–63).

Having to check each gun control law at the courts is a court ordered waste of our time, imo.

[Rossi357]

Am I reading this wrong?
It reads like it's attacking the whole idea of issuing a license to carry, and only the legislature may regulate carry. Many cases were cited and much was said about the issuing of a license for a core right. It was a long read, and I don't remember seeing anything about shall issue as relief.
Perhaps I should read it a few more times.

[Connor P Price]

Am I reading this wrong?
It reads like it's attacking the whole idea of issuing a license to carry, and only the legislature may regulate carry. Many cases were cited and much was said about the issuing of a license for a core right. It was a long read, and I don't remember seeing anything about shall issue as relief.
Perhaps I should read it a few more times.

The “proper cause” requirement of Section 400.00(2)(f), and
Defendants’ manner of implementing it, vests unbridled discretion in
Defendants’ authority to license the exercise of fundamental rights. It
must be enjoined.

Plaintiffs agree that licensing is acceptable in certain situations, and that New York may maintain their licensing regime, however they request that the court enjoin them from enforcing the "proper cause." It's not dissimilar from Richards asking that the "good cause" and "good moral character" requirements be stricken from CA law. Effective shall issue appears to be the specific request to me.

ETA: I think there were better quotes to illustrate this point elsewhere in the brief, but I'm getting the "Are you seriously on Calguns again?" thing from the girlfriend. You know how that is.

[Librarian]

Am I reading this wrong?
It reads like it's attacking the whole idea of issuing a license to carry, and only the legislature may regulate carry. Many cases were cited and much was said about the issuing of a license for a core right. It was a long read, and I don't remember seeing anything about shall issue as relief.
Perhaps I should read it a few more times.

Yes, do that. It's only 164 pages.

As Connor said, you are reading it the wrong way.

See pages 47, 54/55

The right is to carry arms, generally

[Fyathyrio]

What it appears Gura's done, to my layman's brain anyway, is use the cases and in some instances the passages the anti's will use, but turned around to make his case. Nice legal judo in there. I think it pretty clearly lays out shall issue and NY statutes are unconstitutional, I also think it's clearly written for the next level.

[SilverBulletZ06]

Interesting. Still trying to figure why the lawyers don't make it a numbers game though. If the "if it saves 1 life its a good law" works, generally speaking the stats say that for every time a gun is used improperly or maliciously you have 15 times its used for protection and uncountable numbers of other legitimate uses.

Other then that I found it interesting. Lots of previous cases to support the cause, but personally I think all of this is for deaf ears. USCoA is going to want direct guidance by the SCOTUS on issues like this.

[Flopper]

Still trying to figure why the lawyers don't make it a numbers game though. If the "if it saves 1 life its a good law" works, generally speaking the stats say that for every time a gun is used improperly or maliciously you have 15 times its used for protection and uncountable numbers of other legitimate uses.

Enumerated fundamental rights have not the need nor the patience for anything less than Strict Scrutiny, that's why.

[wildhawker]

Pure law (constitution, rights) > evidence.

Think of it this way: if we get the law settled [as we feel it should be], evidence will either matter less, or not at all.

-Brandon

[SilverBulletZ06]

Enumerated fundamental rights have not the need nor the patience for anything less than Strict Scrutiny, that's why.

No doubt, but it could have avoided a lot of the "interest balancing" nonsense we have been dealing with.