Dywinski v. State Of New York (SAFE Act Challenge)

[Glenn E. Meyer]

I posted somewhere a NY Times piece discussing the issue and that the Times writer thought Cuomo and company were pretty stupid to mess up their law (well, isn't that too bad).

I saw the same piece and asked Brian what he knew but haven't heard yet.

Glenn - off to work.

[maestro pistolero]

Wait a minute, they pass and sign a law, and all they need to do to change it is just say "never mind this provision, or disregard that provision"?

They now look even more foolish than before. It should call into question the half-baked, ill-considered ramifications of the entire bill. This gives weight to efforts to strike the whole thing.

[Come and take it.]

Perhaps they are beginning to fear that the entire law is in jeapordy if it goes up the court ladder.

[Spats McGee]

Originally Posted by maestro pistolero

Wait a minute, they pass and sign a law, and all they need to do to change it is just say "never mind this provision, or disregard that provision"?

Two things come to mind: (1) virtually every bill will have (or should have) a severability clause, which says something to the effect of "should any provision or clause of this law be found unconstitutional or unenforceable, it shall be severed, leaving all remaining clauses intact;" and (2) if they're amending the bill, delaying it, or what have you, that will still need to go through some legislative process. Exactly what? I'm not sure.

[NWPilgrim]

Obviously they put a lot of thought into this bill and it was not just a knee-jerk reaction by finger-in-the-wind pols and agenda driven fanatics.

/sarcasm

[Come and take it.]

So have they pretty much dropped the magazine limit altogether now?

[KyJim]

Wait a minute, they pass and sign a law, and all they need to do to change it is just say "never mind this provision, or disregard that provision"?

My understanding is that the suspension provision was added to the budget bill. I know nothing about NY's bill process but, in Kentucky, you can do about anything in the budget bill so long as it even remotely effects the budget. For example, enforcing a 7 round mag limit might cost the state money in legal fees because nobody makes them (for many guns).

[kayakersteve]

I thought we were going to hear something about this case yesterday?? I may be getting the different cases mixed up?? Anybody know?

[hermannr]

They didn't even manage to give an Mag exemption to LE, why should you think they have a severability clause Spats... This was so rushed they didn't even read it...and who knows who from the Brady bunch wrote the thing.

[Brian Pfleuger]

They didn't include a severability clause... but they added one afterwords.

[gunloony]

They didn't include a severability clause... but they added one afterwords.

Is that legal?
That is, adding additional verbiage to a statute after it has already been voted on in a different form?

[JimDandy]

As long as they vote on it again, why not? Same thing happens with the Senate and House. House/Senate Passes bill, it goes to the other, they modify it and pass it back and forth until they pass the same version. They also pass bills that are nothing more than amendments to a previously passed law.

[csmsss]

Yeah, they call that "conferencing"

[Brian Pfleuger]

Is that legal?

It's attached to another bill. Another one of the faults of our current system that is regularly exploited and should be fixed. A real "loophole" that the lawmakers could fix.

[csmsss]

@Spats - sometimes not having a severability clause actually helps a bill's chance to withstand SCOTUS scrutiny - witness ACA. If there had been a severability clause, I think it's quite likely that Roberts would have gone the other way and they would have ruled the individual mandate unconstitutional and left the remainder of the language intact. I think he was very concerned about ruling the entirety of the law unconstitutional and thus voted the way he did. Sometimes the severability clause is omitted not by accident, but after great deliberation. Not sure about the NY SAFE law, however.

[amathis]

I thought we were going to hear something about this case yesterday?? I may be getting the different cases mixed up?? Anybody know?

Think the hearing was on the 26th. Maybe no news is good news?

[Al Norris]

The hearing for the Dywinski case was set for tomorrow, the 29th. There are indications that the court, in waiting for SCOTUS to decide if it would hear Kachalsky might have reset the date. That indication was made at NYFirearms by Max.

We will know when we know.

As an aside, over at the other board, there were people who implied that the Tresmonds were not being forthright, honest and other derogatory remarks, in the past few weeks. There were also many who wouldn't read the thread and were asking questions that had already been answered and got extremely uptight when they didn't get a personal answer from Max.

That thread was shutdown once. Reopened and then shutdown again. The second time, Max said that there would be no further interaction with NYFirearms, because of the manner in which the members there treated him and some of the people working with him.

Whether or not that statement extends to TFL, remains to be seen. I suspect that it does.

The last time Max posted was on March 19th. Since then, he tried to keep his brethren in NY State appraised of what was going on. He got caught up in much flack. Add to this, that it is Max and a couple of others that are doing all the research for these cases (which now number 3). I believe the reception at NYF has soured Max on gun forums.

This is just another reason the bar has been is so high at TFL.

[Maxb49]

Good evening,

The attorneys working on these cases have been absolutely swamped with communications from other attorneys, aggrieved gun owners, media interviews, etc. (not to mention the David Lewis debacle), over the past few weeks. It it at times difficult to keep posting on multiple forums, especially when a paranoid few make repeated, and unwarranted personal attacks by purported firearms owners upon the character of people working tirelessly to protect their rights to keep and bear arms. Unfortunately, our side has our own paranoid few - decidedly a tiny minority, but nonetheless quite vocal, who are behaving in ways that hurt the image of the lawful gun community. Our record of defending firearms rights speaks for itself. Unfortunately, there were several attorneys of varying motives engaging in unethical behavior to discredit lawsuits against NY SAFE for who knows what purposes.

Forums are a great means of communication for updating people on time sensitive issues that affect their civil rights. The most important issue here is securing and preserving our constitutional rights, period. This isn't about personalities; it's about the People, with capital "P", meaning YOU.

I am happy to keep folks here updated on these cases. You must forgive me if I do not reply in a timely fashion; things are getting very, very busy.

In short: There was a stay in place on Dywinski and Kachalsky in both Erie and Chautauqua counties pending the determination of the merits of the Kachalsky petition for certiorari. If granted, Kachalsky would have interpreted Heller directly to New York State. It made no sense to pursue cases that would probably have to be re-litigated if Kachalsky was heard; however, the Supreme Court denied certiorari and Dywinski and Holtz are now active. The court dates were moved, albeit only slightly. Holtz is set for a preliminary conference this week on May 3rd instead of tomorrow; Dywinski is returnable to Justice Devlin on May 13th. Not a big deal.

Things are getting interesting.

Sincerely,
Maximillian G. Tresmond

[Al Norris]

Thank you for that, Max. It is appreciated.

[amathis]

Thanks for the update Max! I'm not from the state, rather neighboring VT, but recognize the weight that these cases potentially hold.

Keep up the good fight and we look forward to updates!

[Spats McGee]

Thanks for the update, Max! There are at least a few of us out here quietly watching.

[Maxb49]

Thanks for the support everyone. I will do my best to keep everyone updated as the cases progress.

Just a brief recap for anyone who might be confused, here is where things stand:

May 3rd: Holtz conference, Justice Deborah Chimes (Assault Weapons Ban)

May 13th: Dywinski conference, Justice Diane Devlin (LCAFD, common (non-AWB) firearms ban, registration.

Some people have expressed interest in the David Lewis case. That is a separate matter involving the targeted confiscation of Mr. Lewis's firearms. That said, anyone interested can email me; I can discuss anything that has already been released in the case.

There will be a release forthcoming in the next day or so about NY SAFE, were it stands, and how it affects you.

There is also another case filed by the New York State Rifle and Pistol Association scheduled to be heard at the end of this year. There are many paths to victory and the cases should not directly influence each other, and in many ways augment each other; NYSRPA put forth identical arguments to those raised in our case, although there are a few other areas addressed by Dywinski.

Gun owners in New York State, and throughout the nation can rest assurred that every possible legal remedy is being pursued on multiple fronts by competent legal professionals.

[camper4lyfe]

It appears the date for Holtz changed. Can anyone verify this, and possibly answer why?

[NY Stagehand]

It was rescheduled by the courts. August 12, see the Holtz thread for more detail.

[USG]

So here we are.... it's May 13th!