View Single Post
Old August 24, 2012, 07:39 PM   #58
Al Norris
Join Date: June 29, 2000
Location: Rupert, Idaho
Posts: 9,524
The Gentleman from has posted a bit more.
Originally Posted by .357MagNYC
Ok, on to the NYS AG's arguments in Kachalsky.

Judge Katzmann started out the questioning, asking why people didn't have a need for self-defense wherever they are. NYS replied that Heller & McDonald limit the 2A right to the home for handguns.

Judge Kaztmann then asked about Stevens' dissent in Heller, where he suggests that Heller is just the beginning, and he contemplates the expansion of the right beyond the home.

Judge Lynch then chimed in with a great point. He asked how NYS could justify a limit to the home when the text of the 2A says "keep and bear"? The Judge said that Heller and McDonald only dealt with keep, but how could NYS justify a right to bear arms that becomes no right at all?

NYS replied that there may be a 2A right outside the home, but it doesn't cover concealable weapons.

Judge Katzmann then said it's not an answer to ban handguns so long as long guns are allowed (i.e., you can't ban handguns just because you allow long guns).

NYS replied that Heller indeed says that, but limits the right to the home. There's a difference between access to a handgun in the home, as opposed to a long gun.

Judge Katzmann then asked what would happen if he carried a long gun in NYC.

NYS replied that carrying a weapon in a dangerous way that frightens the public has traditionally been forbidden, and bans on carrying concealed and concealable weapons have been upheld in the past.

A bit later, NYS stressed that since NY allows the carrying of long guns, the 2A is still intact as a right, even if there's no right to bear concealable handguns in public.

Judge Wesley then pressed NYS on the fact that, since some citizens are allowed to carry concealed, there's an acknowledgment that some citizens have that right. NYS couldn't really answer that one.

Judge Wesley then said that the court is basically considering 2 issues: 1) Determine the parameters of the 2A right under Heller & McDonald; 2) If Gura is correct and that right extends beyond the home (here Judge Wesley acknowledged that Gura has a good argument), what standard of scrutiny would apply to regulations.

NYS replied that intermediate scrutiny would apply, and pointed to Heller's mention of presumptively lawful prohibitions on carrying in sensitive places. NYS said that unwitting members of the public risked being exposed to the dangers of firearms, and that NYS was tailoring the restriction to how strong the need for self-defense is.

Judge Lynch then responded with a great point: if less than 50% of the people eligible to bear arms have the right, then it's really not much of a right at all.

NYS responded that the other 50% can carry long guns.

Judge Lynch then went into a First Amendment analysis, and said that you don't need a particularized need under the 1A. He discussed the origins of prior restraint, where you needed a license from the king in order to open a printing press.

Then he said something that to this day gets me all choked up: something like "Freedom means you don't have to go to the king for a license."

Judge Lynch then said that Gura is just asking for the narrowest thing for the 2A right (although he suspected that Gura would not stop here, and that there would be more to come from him in the future): that you didn't need to go to the king for permission because the Constitution says we all have this right.

NYS answered that Gura concedes there are limits to the 2A, subject to an interest-balancing approach by state legislatures. NYS said that when a concealed handgun is present in a public place, the nature of that public place changes, and that it's a similar situation with open carry.

Judge Katzmann then said that concealed carry is unknown to other people, who are unaware of the weapon.

NYS answered that if NYS made more licenses available, people would know there are more guns out there. He said this would also raise public safety concerns, with accidental use, mistaken use, and someone else taking the gun from a licensed holder. Then NYS kept hammering at the notion that Gura conceded that the government's interest can justify restrictions [but the only thing Gura "conceded" was that safe-storage laws would probably survive scrutiny].

NYS had a pretty crazy argument that the current law permits the licensing official to tailor the license to the need for self-defense, and came up with the example of being allowed to carry on the Upper West Side, where there are people hanging around and threatening you, but not when you're dropping your children off at school. NYS said the state's compelling interest in public safety justifies the proper cause requirement, just like the examples that Gura conceded.

In closing, though, NYS basically conceded that the 2A right extends outside the home.
Note well that last stetment. That is where the State may have made a tactical blunder.

Originally Posted by .357MagNYC
Gura then came back with 4 quick points.

1) Gura distinguished the present case from Masciandaro, a 4th Cir. case dealing with carry in national parks. Here, NYS prohibits the ability to carry a handgun anywhere, by anyone, without proper cause.

2) Gura said that many of the old cases upholding bans on carry prohibited the carrying of pocket pistols, which were the only pistols available to Freedmen in the South, but allowed the carrying of the Army-Navy pistols that were owned by Ex-Confederate soldiers, which were larger guns like the Colt .45 that Judge Wesley mentioned earlier. But NYS doesn't allow people to carry those types of guns, either, and people can conceal carry 1911s.

3) There is no legitimate state interest in rationing a right and balancing it out of existence.

Here Judge Wesley interrupted and mentioned that constitutional rights have different applicability in the home as opposed to in public.

Gura responded that more restrictions are allowable in public, but that people have the right to protect themselves and their families in public.

4) Gura closed with saying it's a quality of life issue. Plaintiffs are reasonable people, and reasonable people would not go into a situation knowing there would be a confrontation. But the reality is, no one knows when such a confrontation may occur. The 2A right gives a person the peace of mind, that you can walk into a dark parking lot or through a bad neighborhood if you have to. It protects a sense of well being.

And that was the end of oral arguments.
If the audio of the orals bears out the above synopsis (when Esqappellate uploads it), then I think we can see a good decision from the CA2.
Al Norris is offline  
Page generated in 0.03598 seconds with 7 queries