Decision in Kachalsky LOSS

[Maestro Pistolero]

It's just a purpose, one among many, that is no longer relevant.

Not completely irrelevant. Even Heller acknowledged the anti tyranny purpose while observing that modern technology created disconnect in that regard. So did the 9th circuit when they first incorporated the 2nd (before it was struck, en banc)

Modern warfare technology notwithstanding, several million semi-automatic rifles in determined hands is a helluva deterrent. Even were such a theoretical future tyranny willing to fire on its own people, modern tanks and bombers do nasty things to the infrastructure, which a government would be reluctant to do.

 

[mtb]

Someone correct me if I am wrong, but isn't NY's permit to purchase also their permit to carry? In other words, isn't the NY case fundamentally different from Wollard becuse the permit to purchase and the permit to carry are the same permit?

Sorry if this is a dumb question but it has had me wondering.

 

[Maestro Pistolero]

Someone correct me if I am wrong, but isn't NY's permit to purchase also their permit to carry? In other words, isn't the NY case fundamentally different from Wollard becuse the permit to purchase and the permit to carry are the same permit?

Sorry if this is a dumb question but it has had me wondering.

To possess a pistol in NY at all, one needs a New York State pistol permit. A carry permit is a separate license.

 

[ToneGrail]

To possess a pistol in NY at all, one needs a New York State pistol permit. A carry permit is a separate license.

If I'm not mistaken, it's the same permit, except to carry one needs an endorsement to carry on the permit.

 

[mtb]

The part of the law I was referring to was: "A license to possess a handgun serves also as a license to carry unless restricted."

NY is "may issue" for the permit to purchase/possess, and the same permit is used for carry unless explicitly restricted.

So this seems pretty different from Wollard to me.

Ken

 

[Les Gawlik]

The part of the law I was referring to was: "A license to possess a handgun serves also as a license to carry unless restricted."

NY is "may issue" for the permit to purchase/possess, and the same permit is used for carry unless explicitly restricted.

So this seems pretty different from Wollard to me.

Ken

It seems darned near identical to me. It's an administrative licensing system where good and substantial need must be shown, instead of "good and substantial" need.

 

[mtb]

Except the "good and substantial" requirement applies to purchase and posession as well as carry. Again, that seems like a key difference to me. They deny the right to keep as well as the right to bear.

It seems like for them you would have to get past the restriction on purchase before carry.

In that vein, is their restriction on purchase not in violation of Heller since it is "may issue?"

 

[Les Gawlik]

Except the "good and substantial" requirement applies to purchase and posession as well as carry. Again, that seems like a key difference to me. They deny the right to keep as well as the right to bear.

It seems like for them you would have to get past the restriction on purchase before carry.

In that vein, is their restriction on purchase not in violation of Heller since it is "may issue?"

Then isn't that much worse than Woollard, making a denial of cert more devastating to our cause?

 

[mtb]

Don't know. My only point was that to me it is *different* from Wollard in that maybe it is not as narrowly defined, and partially already answered in Heller.

Just $0.02 from a non-lawyer looking for opinions from the lawyer types.

Ken

 

[2ndsupporter]

Penal law 400 in ny creates two seperate permits.
1 for home possession. Another for carry.

 

[press1280]

Don't know. My only point was that to me it is *different* from Wollard in that maybe it is not as narrowly defined, and partially already answered in Heller.

Just $0.02 from a non-lawyer looking for opinions from the lawyer types.

Ken

The "hole" in this case was that they are asking for a CCW, and the OC ban in NY was not challenged. It may be too big of a leap for the justices to grant a CCW when they just said in Heller that CC bans were OK; even though OC was OK. We have to remember SCOTUS does not like complicated cases, the easier,narrower cases are the ones that get through.
Woollard is a little better in that regard, but only God and the justices know why cert. was denied here.

 

[JD-IAFF]

No, I don't. The first half of the 2A indeed states a purpose, but it is not a limiting clause. Bog standard textbook English. Since it is not a limiting clause, whatever purpose it states is irrelevant. The purpose does not limit the right, it only gives one example of why it is important.

Which is pretty much what I said.

That said, again, it's a moot point. SCOTUS is not going to sign off on an unfettered 2A right. Neither are the circuits. It just isn't going to happen, and getting squared with that reality sooner rather than later is a prudent thing to do.

 

[JD-IAFF]

Not completely irrelevant. Even Heller acknowledged the anti tyranny purpose while observing that modern technology created disconnect in that regard. So did the 9th circuit when they first incorporated the 2nd (before it was struck, en banc)

Modern warfare technology notwithstanding, several million semi-automatic rifles in determined hands is a helluva deterrent. Even were such a theoretical future tyranny willing to fire on its own people, modern tanks and bombers do nasty things to the infrastructure, which a government would be reluctant to do.

Again, from my chair that's the stuff of tri-corner hats and snake flags. I just don't lend it much credence, mainly because it's more a case of the people who are advocating it venting their frustrations than it is likely to ever occur. The Constitution specifically empowers Congress to employ arms in order to put down insurrections. Beyond that, the Treason clause (flowing as it did from the common law) arguably encompasses insurrection as well.

Now, while that's limited by Posse Comitatus and the Insurrection Act of 1807 (as modified), it should be pretty clear that the Constitution doesn't empower revolution.

 

[Hopalong]

Then isn't that much worse than Woollard, making a denial of cert more devastating to our cause?

Not necessarily. SCOTUS likes to tackle issues one at a time. It's possible that they wanted to wait for Wollard because its more of a "single issue" case.

 

[cowboy321]

Citizens do have a legal right to own firearms. They do not have the right to put one in their pocket and walk around , unless their state authorizes this activity.
The S Court will not even consider the argument.
Did people actually think that licenses to carry would be issued in Maryland or Manhattan as a legal right ? Think again.

 

[cowboy321]

EDIT: I don't think for a minute that we would surely prevail in the SCT even assuming cert is granted. Heller and McDonald were 5/4 splits. This will be hard.[/QUOTE]

Which is pretty much what I said.

That said, again, it's a moot point. SCOTUS is not going to sign off on an unfettered 2A right. Neither are the circuits. It just isn't going to happen, and getting squared with that reality sooner rather than later is a prudent thing to do.

It was worth a try, but the S Court or other courts will not force MD or other states to allow people to carry Glocks as a Constitutional Right. Is this difficult to understand? You can get a Va or Utah permit or others if allowed by the discretion of a state legislature. Convince the Md legislature that you should carry a 38 in your pocket because you want feel safer. Or get squared with "Reality".

 

[swinokur]

National Reciprocity becomes one of our only remedies now. MD will never allow it on their own.

 

[gmhowell]

Did people actually think that licenses to carry would be issued in Maryland or Manhattan as a legal right ? Think again.

I can't speak for everyone, but I don't think that's what the majority around here expected. I don't even think it was the argument made in the case. The argument, if I understand correctly, is that "good and substantial" is arbitrary and leads to unequal protection/rights, which is a violation of the 14th amendment.

Nobody is asking for or expecting constitutional carry.

 

[Patrick]

Not time to panic yet. Remember, Kachalsky was asking for a concealed carry permit, open carry was not challenged here. Perhaps this was enough to scare a few justices off.
Woollard, OTOH is asking for a permit to carry a handgun-not concealed, not openly. Perhaps that's their angle?

Moore is the simplest for the court to answer. Recall that the DC and Chicago gun bans were each the most Draconian in the country, and those were both taken by SCOTUS. IL's no-carry is also the most restrictive in the country(with DC and a case that's been stalled for 4 years). That's why I hope Madigan files for cert. The IL Supreme Court is also waiting to release an opinion that could end up running contrary to Moore, and would cause a split between a state supreme court and the federal court that oversees that state. Definitely ups the ante.

We also have to acknowledge there really wasn't a true circuit split here, even though SCOTUSBLOG and some others are saying it. The laws of IL and NY are not the same, so there's no real split. A victory in NJ or CA could make this a reality, although the cert denial doesn't install confidence that CA3 or CA9 won't simply cut and paste Kachalsky and be done with it.

I'll be worried if SCOTUS denies Woollard, Moore, and then we lose the CA3 and CA9 cases.

Smart, as usual.

I agree that there is no need to panic. There is at least one other case for cert consideration - Woollard - and possibly one more if Illinois wishes to push that button.

 

[Maestro Pistolero]

Again, from my chair that's the stuff of tri-corner hats and snake flags. I just don't lend it much credence, mainly because it's more a case of the people who are advocating it venting their frustrations than it is likely to ever occur. The Constitution specifically empowers Congress to employ arms in order to put down insurrections. Beyond that, the Treason clause (flowing as it did from the common law) arguably encompasses insurrection as well.

Now, while that's limited by Posse Comitatus and the Insurrection Act of 1807 (as modified), it should be pretty clear that the Constitution doesn't empower revolution.

Then why did the Heller court devote a paragraph or two, declaring that, although modern warfare technology created a disconnect from the militia clause, that fact could not change their interpretation of the right? Is the second amendment NOT a mechanism of check and balance to decentralize power and prevent a monopoly of force?

If it's the stuff of tin foil hats, then some circuit court justices in the ninth are wearing them, because the same view was expressed by the first Nordyke panel, right before they declared the second amendment applicable to the states (and before the decision was reversed en banc, for reasons unrelated to that view)