Kachalsky v. Cacase - NY Carry - Cert Filed

[raimius]

Is that like the idea that CCW will never happen in IL?

[maestro pistolero]

The political reality is that there will never, ever, as long as the United States of America governs the country, be legal guns in the holsters, whether open or concealed, of citizens walking the streets of New York City.

This is incorrect. There is carry in NYC right now for an elite, connected, and influential few. Until NYC IS, in fact no longer part of the US, it is, in fact, governed by the same constitution as the rest of the country. The SCOTUS will NOT carve out an exemption for NYC, nor will they dumb down a fundamental civil right for NYC, no matter how different Bloomeburg or anyone else thinks it is. Your proposed best chance of carry would require a constitutional amendment that would entirely lack support outside of the city.

[Luger_carbine]

I think there is a strong argument for Kachalsky prevailing.

i don't think SCOTUS is going to overturn Moore.

Moore says that Heller/McDonald identified the right to self defense as part of the Second Amendment :

To confine the right to be armed to the home is to divorce the Second Amendment from the right of self-defense described in Heller and McDonald.
...this case, like Heller and McDonald is just about self-defense.

'The Supreme Court has decided that the amendment confers a right to bear arms for self-defense, which is as important outside the home as inside.

If you just look at "good cause" in light of the Moore decision - "good cause" fails. We know that it's not only people who work in dangerous professions - like the owner of a jewelry store or a diamond courier, who get robbed and killed, and people don't get warnings before they are raped or mugged. A small percentage of people become aware of the danger before being attacked, and they are able to do things like get orders of protection or a restraining order, but that is small percentage of crime victims. The second amendment confers the right to bear arms for self defense outside of the home. No American has to show just cause to exercise a constitutional right, and no one can be denied a constitutional right pending the showing of their need for it.

If you don't believe that logic has anything to do with it - which I am sometimes inclined to believe when I read some of the nonsense that Judge Sue Myerscough or Judge Ann Claire Williams has written, then you just hope that the 5-4 majority votes along traditional lines (not counting Obamacare).

[Southwest Chuck]

I completely concur with your assessment. Excellent post Luger

For those of you who don't frequent Calguns.net, here is another analysis posted by Gene Hoffman, Chairman of the Calguns Foundation of the inter-play between Moore and Kachalsky, with an obvious emphasis of the effects on California:

Originally Posted by hoffmang

There are three likely outcomes and then I'll explain how this impacts California.

1. Madigan doesn't apply for Cert. There are lots of politics and even the other side knows we can count to 5. I haven't thought enough to be able to handicap this, but if that happens a Kachalsky has a near certainty of grant.

2. Upon a cert application, SCOTUS relists and holds Kachalsky until they grant both. Of #2 and #3, I only give this about a 10% chance.

3. Kachalsky is granted in the early April timeframe and Moore's cert petition gets relist/hold until the decision in Kachalsky is delivered. I give this about a 90% chance.

As long as a carry case gets granted before June 2Xish 2013, we will have a decision on carry 5 (maybe 6) 4 (maybe 3) by the end of June 2014. Oral arguments are likely to take place in October/November. A decision could come as early as January, but the betting money is on late June 2014. That means that in July and August of 2014 we will be able to force almost all sheriffs to issue carry licenses in California and with a small amount of very quick mop up litigation, get them all issuing. The lines will be long and it will take a while to get past the initial crush, but buy June 2015, getting a carry license will be like getting a parade permit - even in California.

-Gene

http://www.calguns.net/calgunforum/s...9&postcount=78

[hermannr]

You mischaracterize the point. Unless something like that happens, you're not going to get anywhere near shall-issue carry across the entire State of New York

If there is no shall issue for concealed carry in NYC and all of NYS after a US Supreme Court ruling that there is a RIGHT to carry outside the home...then you will just have to Openly Carry your sidearm.

You cannot license a RIGHT...that has already been through the courts, long ago. If you require a license it is no longer a right, but a privilage.

[maestro pistolero]

You cannot license a RIGHT...that has already been through the courts, long ago. If you require a license it is no longer a right, but a privilage.[sic]

Which court cases were those? As I understand it, that's not always true. You have a right to have a parade or to demonstrate, but the city/county can require a license or a permit, but it can't be arbitrarily denied or unduly burdensome.

There is a difference between regulation; time, place and manner restrictions or fairly administered licensing schemes, and the complete denial or arbitrary rationing of a fundamental right.

[Brian Pfleuger]

Originally Posted by maestro pistolero

Which court cases were those? As I understand it, that's not always true. You have a right to have a parade or to demonstrate, but the city/county can require a license or a permit, but it can't be arbitrarily denied or unduly burdensome.

There is a difference between regulation; time, place and manner restrictions or fairly administered licensing schemes, and the complete denial or arbitrary rationing of a fundamental right.

True enough, but those are more akin to having a permit to have a turkey shoot on public lands or some such thing.

If I want to have an organized rally at the court house, I need a permit. This would be more like a gun show than individual carry.

If I want to stand at the courthouse, or anywhere else, and talk, I don't need a permit. This would be individual carry.

I also don't need any manner of government permit to exercise my right to free speech in any ordinary, every day context.... Talking to wife and kids, coworkers, strangers in line at grocery store, letters to the editor, etc. This would be the same as owning a gun.

So, yeah, you want to get 200 people together on state land for a skeet shoot or 200 at the courthouse for a rally? You need a permit.

You want to go about your ordinary day talking to people, or carrying your gun? No regulation warranted.

[maestro pistolero]

Excellent analogy.

[Soccoro]

New York has filed their response the Gura's petition for cert. You can read it here

[Aguila Blanca]

Well, the state got off to a great start. I see two problems just in their opening paragraph:

To obtain a license to carry a concealed handgun in public places without restriction, known as a “full-carry license,” an applicant must show “proper cause” for the license, N.Y. Penal Law § 400.00(2)(f) (Pet. App. 152), which New York courts have defined to mean a need for self-protection distinguishable from that of the general public. Klenosky v. N.Y City Police Dep’t, 75 A.D.2d 793, 793 (1st Dep’t 1980), aff’d on op. below, 53 N.Y.2d 685, 421 N.E.2d 503 (1981); accord Matter of Bando v. Sullivan, 290 A.D.2d 691, 693 (3d Dep’t 2002). In most parts of the State, and as relevant here, state judges are responsible for receiving and acting on applications for firearms licenses. N.Y. Penal Law § 265.00(10) (Pet. App. 148).

It was my understanding that ALL applicants, even for restricted licenses, have to show good cause.

Secondly, by acknowledging that the process is not the same for all residents of the state, the State is admitting that the process is either arbitrary and capricious, or that some citizens/residents of NY state are deprived of due process.

I haven't waded through the entire 25 pages yet. I'm sure it becomes more laughable from here.

[NJgunowner]

I read through a good chunk of it. Their case really centers around "No, Heller and McDonald" does NOT mean we have to issue concealed carry licenses to everyone who wants one, as it was solely ruling against a TOTAL ban, and " we think you should wait for these other cases to solve the issue for you".

I have feeling that New York's concealed carry license scheme is going to hold up until it gets to SCOTUS.

I'm more optimistic about New Jersey atm, but we'll see how it all plays out.

I'd caution anyone here to not get overly optimistic. There have been more than one case people thought was a slam dunk that we lost.

[Brian Pfleuger]

Originally Posted by Aguila Blanca

Secondly, by acknowledging that the process is not the same for all residents of the state, the State is admitting that the process is either arbitrary and capricious, or that some citizens/residents of NY state are deprived of due process.

Oh, there's no doubt whatsoever that the process is arbitrary and capricious.

For purposes of this discussion, the NY permit system has two permits categories, Restricted and Unrestricted. Unrestricted is what we'd call a "Concealed Carry Permit".

Cortland County used to have a Judge Mullen, who wouldn't issue Unrestricted permits to anyone, ever. Change of judges and, Voila!, now they hand them out like candy.

Tompkins County permit office employees will tell an applicant straight to their face, "We don't give out Unrestricted permits."

Broome County used to never issue them, then a new judge came in and he started carefully issuing them under certain circumstances, more according to the laws language, such as business owners handling large amounts of cash. My understanding is that he now issues them to almost anyone who applies, who aren't prohibited.

Every county is different. You could live 100 feet from a county line where they'd issue you an Unrestricted permit in a few weeks but in your county you can't get one at all and even a Restricted permit takes 6 months.... and the whole situation might flip-flop at the next election.

It is the very definition of arbitrary and capricious.

[SilverBulletZ06]

Aguila,

You are correct. Applicants must show "good cause", however some counties consider "self defense" to be "good cause".

Nassau tells you "no" straight out. Their Chief of Police also says that the 6-month maximum the state gives to issue "starts when the county says it starts". Right now it is up to 14 months to wait for an interview for a permit.

Suffolk tells you "no" during your interview.

[press1280]

And those cases are difficult because the county will stall and stall, a lawsuit gets filed and all of a sudden the county gets their act together and the case is "mooted".

[btmj]

Is a class action permitted in these kinds of cases? i.e. challenging state law in state court?

[Frank Ettin]

Originally Posted by btmj

Is a class action permitted in these kinds of cases? i.e. challenging state law in state court?

Well, that's really not what a class action is.

A class action is a particular form of litigation primarily useful to collect money damages or financial restitution when, based on the same facts, a large group of people have suffered what to each of them is a relatively small economic loss. It is useful because it provides a way to pool a lot of small dollar claims, each of which would be economically impractical to pursue individually. A class action can become viable when the aggregate of the pooled claims reaches a sort of economic critical mass, making the remedy financially feasible.

In general the class action form offers no particular strategic or tactical advantage for most RKBA litigation.

In fact there are over 70 RKBA cases currently pending in various stages in federal courts around the country. None of them are framed as class actions, and doing so would offer no advantage.

[btmj]

I am thinking in terms of press1280's post

And those cases are difficult because the county will stall and stall, a lawsuit gets filed and all of a sudden the county gets their act together and the case is "mooted".

There are many people being harmed by the states actions. The state tends to settle with an individual if a serious legal challenge is campaigned. But the remaining citizens are still harmed. I thought perhaps that seeking class status for all of the harmed citizens might be path forward.

[Brian Pfleuger]

The Tresmond Law folks, in the Dywinski case, are trying to get it classified as Class Action. I don't know the exact whys and wherefores.

[Spats McGee]

btmj, I'm not sure class action status does what you think it does. Class action cases are just a way to preserve judicial resources in the litigation context. See Frank's post:

Originally Posted by Frank Ettin

A class action is a particular form of litigation primarily useful to collect money damages or financial restitution when, based on the same facts, a large group of people have suffered what to each of them is a relatively small economic loss. It is useful because it provides a way to pool a lot of small dollar claims, each of which would be economically impractical to pursue individually. A class action can become viable when the aggregate of the pooled claims reaches a sort of economic critical mass, making the remedy financially feasible.

The State can still settle class action suits. I seem to recall getting a notice that I had been awarded something like $1.43 as my part of a class action settlement. (Go, me!)

While class actions are useful for preserving resources, there's no reason that a multiple-plaintiff case without class action status cannot go forward. Sometimes the various plaintiffs are dissimilarly situated enough that class action just won't work.

It is a declaratory judgment that declares a law unconstitutional and that tells the State, "Stop it!"

[JimDandy]

Saw a link to the State's reply Brief for the State Respondents in Opposition in the 2A cases thread and I got to about the first paragraph and came upon

which New York courts have defined to mean a need for self-protection distinguishable
from that of the general public.

Was this a mistake? Doesn't it all but concede the 14th Amendment Equal Protection argument? That those who can articulate a specific threat have more access to a fundamental right and ability to protect themselves from random street crime, than those who cannot articulate anything more than a general desire to protect themselves?

Next we have

the law satisfies that test because it is substantially related to the important state interest “in promoting public safety
and preventing crime”

Can't it be argued that the simple act of exercising second amendment rights is not a crime, and preventing the carrying of a concealed weapon does not prevent crime?

Further isn't Posner's opinion going to give them fits? He mentions that much of the Amici curiae were reasonably similar as given to the Supreme Court for the Heller decision that there was no collective or individual right, but merely a guarantee the citizenry would be able to maintain arms to fulfill their legal obligation to participate in the militia. He then extends that point to say the appellees asked him to repudiate the Supreme Court's historical analysis. He quote's the McDonald decision that the

second amendment protects the right to keep and bear arms for self-defense

and points out one cannot ignore the implication of the analysis that the right to self-defense is more than the right to have a gun in one's home.

[Spats McGee]

Originally Posted by JimDandy

Saw a link to the State's reply Brief for the State Respondents in Opposition in the 2A cases thread and I got to about the first paragraph and came upon

Was this a mistake? Doesn't it all but concede the 14th Amendment Equal Protection argument? That those who can articulate a specific threat have more access to a fundamental right and ability to protect themselves from random street crime, than those who cannot articulate anything more than a general desire to protect themselves?

I don't think it was a mistake. I think the State will likely argue that the EP is satisfied in that "those who can articulate a specific threat" are not similarly situated relative to those who cannot. That's the crux of EP claims: all those who are similarly situated in all relevant aspects are entitled to Equal Protection. If one is dissimiarly situated, then the protections to which one is entitled may not be equal.

[speedrrracer]

Originally Posted by Jim Dandy

Was this a mistake? Doesn't it all but concede the 14th Amendment Equal Protection argument?

As Spats mentioned, the state will claim they're meeting EP.

Ultimately, in this Court, privileges & immunities is, unfortunately, a losing horse. Gura notes this in some of his discussions, and that's why he framed his arguments as he did, to make P&I a secondary claim. IIRC, only Thomas supports P&I in a meaningful way.

Can't it be argued that the simple act of exercising second amendment rights is not a crime, and preventing the carrying of a concealed weapon does not prevent crime?

The first part is always the case; the question is "were you engaged in an activity protected under the 2A?" That's open for interpretation, and if a carry case is taken by SCOTUS, we'll know a lot more than we do now.

As for the second part, that's rational basis, and the 2A is beyond that.

[JimDandy]

Right, but if it can't pass rational basis... if carrying a gun isn't a crime, then outlawing carrying a gun doesn't prevent crime... then how can it pass a heightened scrutiny?

[speedrrracer]

Originally Posted by JimDandy

Right, but if it can't pass rational basis... if carrying a gun isn't a crime, then outlawing carrying a gun doesn't prevent crime... then how can it pass a heightened scrutiny?

"Passing" rational basis in this day and age is just a matter of opinion. The govt can always hire "experts" who will disagree completely with any position. This is true pretty much for all subjects, and it's reason # 40,752 why Gura's victory in Heller was so monumental. You and I know carry generally is correlated with a decrease in crime, but a judge or Justices will just see our side and the other side, and note the disagreement among "experts".

Therefore, what's important isn't to pass or fail rational basis -- it's to identify it, and reject such discussion entirely. Because as we've seen lately, several disingenuous and / or clueless courts are using gussied-up rational basis and calling it heightened scrutiny.

[JimDandy]

Actually I don't know that it's generally correlated with a decrease in crime. I DO know that its not correlated with an increase in crime, so there's no reason to ban it.