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Schneiderman wins major gun-control case



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Attorney General Eric T. Schneiderman recently won a noteworthy victory in preserving New York gun regulations. The state’s gun laws were challenged by a group that says the right to carry a concealed weapon should not require a special permit, making the law unconstitutional. Photo by Gazette file.
September 19, 2011
Attorney General Eric T. Schneiderman has won a significant legal battle concerning gun control in New York.

The case of Kachalsky, et al. v. Cacace, et al, raised the question of whether or not individuals have a right to carry a concealed handgun in public.

The Second Amendment Foundation, along with five individual plaintiffs, filed a federal lawsuit against Westchester County, seeking a permanent injunction against enforcement of a state law that requires a person applying for a concealed gun permit to show "good cause" for his or her application.

The plaintiffs argued that this requirement infringes on their Second Amendment rights. Two of the plaintiffs, Alan Kachalsky and Christina Nikolov, applied for a permit and were denied. Kachalsky was denied because he could not "demonstrate a need for self protection distinguishable from that of the general public" and Nikolov because she could not prove that there was "any type of threat to her own safety anywhere."

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The constitutional challenge was rejected by Southern District Judge Cathy Seibel who, agreeing with the state's gun control laws, granted the state a motion for summary judgment and dismissed the plaintiff's case.

The plaintiffs cited two recent Supreme Court decisions in their arguments. In the 2007 case of District of Columbia v Heller and the 2009 case of McDonald v. City of Chicago, the court confirmed that the right to bear arms is guaranteed not only to citizens who own firearms for militia purposes, but who wish to possess them for lawful reasons, and that this right is guaranteed not only by the federal government, but applies to state governments as well, as per the Fourteenth Amendment.

Schneiderman's office represented the defendants.

Along with Westchester County, Susan Cacace and Jeffrey Cohen were named as defendants because they both served as handgun permit licensing officers for Westchester County.

The defendants argued that the "proper cause" provision was not unconstitutional because it did not violate the precedents set by the Supreme Court in Heller and McDonald. Seibel agreed with the defendants, ruling that the Second Amendment does guarantee a person's right to keep and bear arms in his home, but does not guarantee without restriction, a person's right to carry concealed handguns in public.

Seibel went on to elaborate that even if the Second Amendment did guarantee that right, New York State's "proper cause" provision would still be considered constitutional because the law exists to preserve the important government interest of promoting public safety by cutting down crimes committed by concealed handguns. She additionally ruled that the provision did not violate the Equal Protection clause of the Constitution because it didn't discriminate between license applicants. Despite his organization's loss in New York State Southern District Court, Dave Workman, spokesman for the Second Amendment Foundation, remains optimistic. "I think it's a little too soon for the defendants to be having a victory dance … this case is going to be appealed," he said. "Our attorney Alan Gura lost the two cases (Heller and McDonald) … in the lower courts, but managed to bring them all the way to the Supreme Court … he won where it counts."

Executive Vice President of the Second Amendment Foundation Alan Gottlieb echoed Workman's sentiment. "Thanks to our recent victory before the Supreme Court, the Second Amendment now applies to state and local governments. Our lawsuit is a reminder to state and local bureaucrats that we have a Bill of Rights in this country, not a 'Bill of Needs,'" Gottlieb said. Executive Director of New Yorkers Against Gun Violence Jackie Hilly is satisfied with the court's decision.

"It was a really good victory for the public safety in New York." She was pleased that "the proper cause provision has been named constitutional." In response to the idea that this case could go to the Supreme Court, Hilly answered "the Supreme Court was pretty clear in Heller. As [Supreme Court Justice Antonin] Scalia said, '[the Second Amendment] doesn't mean any gun, anywhere, any time.'"

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  1. print email
    September 19, 2011 | 10:34 PM

    Let's hope the plaintiffs appeal

    Allen Z
  2. print email
    September 20, 2011 | 07:14 AM

    It is a shame that we pay judges to trample our liberties. What part of, "the right of the people to keep and bear arms shall not be infringed.", doesn't she understand?

    Nick Konstantin
  3. print email
    September 20, 2011 | 08:40 AM

    Allen,
    The appeal has already been filed. Both the Heller and McDonald cases were lost in the district courts. So, as with those two decisions, this one will most likely end up in the Supreme Court of The United States of America, and it will be found that the right to carry(bear) arms is in fact a Constitutional right

    Robert L.
  4. print email
    September 20, 2011 | 09:06 AM

    So the judge is saying that the 2nd Amendment right may only be exercised in the home? It would be interesting to hear this argument if we were talking about any of the 1st Amendment rights. Maybe folks can only practice the religion of their choice in the homes or only speak freely in their homes or assemble in their homes. I understand that the Heller and McDonald cases didn’t spell out every detail of the limits surrounding the 2nd Amendment but one would think that rights cannot be confined to the home and still be called rights. On a legal note, the recent decision in Chicago that struck down part of that town’s effort to deny citizens their 2nd Amendment rights should give the state of New York pause. In that decision the judge stated the obvious when addressing the City’s contention that citizens could travel outside the city limits to get the range training required by the city in face of the city ban on gun ranges. The court ruled that it was completely wrong to think you were not infringing on the right simply because there were opportunities elsewhere for a person to exercise that right

    Jim Gallagher
  5. print email
    No surprise
    September 20, 2011 | 01:21 PM

    Should it surprise anyone that a NY Judge ruled this way? They have been ignoring the constitution for a long time to even have these laws, and to be upheld for so log before Heller/McDonald decisions were rendered. So it should be the expectation that they would resist, and be overturned on appeal for two reasons. One reason is the obvious, this was the law before, and they may think its good and out of hand dismiss all challengers. The other reason is that district judges are too shy to change precedence and will leave it to the appellate level to direct their actions.
    I have heard gun control advocates wax poetic about the hollow victory of Heller/McDonald and point to tall these district court level decisions as evidence. This is wholly nonsensical. Clearly in order to expand the Heller/McDonald decisions, or to even further limit them to their current jurisdiction (in the home only) a case that has the carry issue at its heart needs to reach the supreme court (because even if decided at an appellate level is sure to be appealed by the gun control side of the case). So either way a conceal carry case, permit, interstate travel and the issues that come with that, something along those lines specific to the issue of crossing state lines and being outside the home and STILL having a right to preserve ones life is the only way this matter will be settled. HR 822 won't hurt either (federally mandated reciprocity between states on conceal carry).

    Bukkiah
  6. print email
    No discrimination?
    September 20, 2011 | 03:37 PM

    "She additionally ruled that the provision did not violate the Equal Protection clause of the Constitution because it didn't discriminate between license applicants."

    Really? Take a look at who actually gets NY carry permits: The politically connected.

    If any other regulatory scheme produced the same discriminatory results NYCLU would be up in arms. But apparently it's PC to discriminate against minorities in the service of gun control.


    LarryArnold
  7. print email
    Ridiculous
    September 20, 2011 | 03:43 PM

    This is a ridiculous ruling. "SHALL NOT BE INFRINGED" is pretty unambiguous language. This MUST go to the supreme court. Inevitably they will see through the haze of nonsense.

    In every jurisdiction where people have been permitted to carry weapons in self defense, crime rates have PLUMMETED, even as crime rates remain variable or have the opposite trend nationwide. There is a reason that Britain has 4x as much violent crime per capita as the US.

    Conlaw Bloganon
  8. print email
    2nd Amendment Right
    September 20, 2011 | 07:03 PM

    The Second Amendment guarantees individual citizen’s right to keep AND BEAR arms. This ruling must be overturned.

    Willbill!
  9. print email
    September 20, 2011 | 08:02 PM

    The appeal was filed immediately. This is no win. The plaintiffs never expected to win in district court. Plaintiffs are well aware of their political leanings in New York state lower courts. The fun begins when this judge's deeply flawed reasoning is eviscerated by the high court. And it will be. Buckle up.

    Christopher Hoffman
  10. print email
    September 22, 2011 | 01:21 AM

    It seems to me the crimes committed by people with concelaed hand guns are committed by people who don't care what the law says anyway. Criminals aren't going to stop carrying concealed guns just because the law abiding citizens have been forbiden by law to do so. Do you feel safer knowing the only people out there with guns are criminals?

    Laura K.
  11. print email
    Mr.
    September 26, 2011 | 09:55 AM

    My right to concealed handgun carry, IS the Second Amendment. To bear arms does not, in any context, limit that bearing to open or concealed carry. Permits or CCW are issued, against the provisions of this Constitutional Amendment, only so government can make another buck off it's citizens. When governments outlaw guns, only outlaws will have them .. a very proven fact ...

    Sam Sandlin
  12. print email
    No Justice Anymore in the US
    September 26, 2011 | 10:08 AM

    When judges start making rulings based on their political beliefs instead of what the US Constitution says, then there is no justice in the US anymore. It makes no difference if a judge is a democrat, republican or independent, judges must base their rulings on what the Constitution says. It makes no difference if it is a local municipal judge, state judge or federal judge, they can not make rulings that go against the ultimate law in the US, the US Constitution. The problem is instead of interpreting the Constitution and making rulings based of what the Constitution says, these judges try to make their own laws and that is not the job of judges. I doubt if 10% of the judges in the US have even bothered to read the Constitution or Bill of rights. Judges are no appointed according to their knowledge of the Constitution, but according to whose butt they kissed. In Georgia, our demodonkey governor wanted to change our state flag because it had the Confederate battle flag on it. He knew the people of Georgia did not want the flag changed, so he went through the state legislature to get it done so he could run for president. He bribed the head of the Georgia senate with a job as a Georgia Superior Court judgeship. So that state senator whored himself and gave the deciding vote to change our state flag. He is still sitting on the bench, making ruling that flavor democrats instead of based on the US Constitution. We tossed out that poor excuse for a governor and as US citizens, we need to start looking closely at how these judges are getting their jobs. Mostly likely it is to repay some favor instead of their knowledge of the law and constitution. Until we do, we will be stuck with these no justice for the little man judges.

    JohnnyReb
  13. print email
    gun control ruling
    September 26, 2011 | 10:14 AM

    This just shows you how the progressive's are taking over our courts in order to follow the Obama doctrine. Disarm the public. When they push for the take over of the USA the criminals and the new Presidential military will be the only ones armed. The Constitution means nothing to these people Obama included. We have to vote these progressive people out of office. Also don't let Hillary fool you, she is pushing for a world wide gun ban through the UN.

    Daniel
  14. print email
    These Words never Rang Truer Than They Do Today
    September 26, 2011 | 10:47 AM

    "The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed -- where the government refuses to stand for re-election and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees. However improbable these contingencies seem today, facing them unprepared is a mistake a free people get to make only once." - Chief Judge ALEX KOZINSKI, 9th Circuit Court (Son of a Holocaust Survivor)


    These words never rang truer than today.

    AmmoMerchant
  15. print email
    Gun controlers have good reasons for controls
    September 26, 2011 | 11:00 AM

    When law-abiding citizens are kept from self protection the controlers have no fear of being removed from power when they become tyranaical. Thats what I call a good reason!

    The second amendment had tyranical government in mind when they enacted the amendment

    Tim Lenihan
  16. print email
    Lloyd R.
    September 26, 2011 | 11:20 AM

    it seems that there is always some individual(s) trampling on the rights of the citizens. The Constitution is very clear, and any one who can read should understand. Yet, the are always some who try to bend it so it agrees with their way of thinking.

    Lloyd Revalee
  17. print email
    Self-Defense: Constitutional or Biblical
    September 26, 2011 | 11:39 AM

    "Tragically, the United States federal and state governments have practically stripped their citizens of their inherent God-given responsibility for self-protection and intervention, with the exception of those who petition and jump through the government’s hoops to secure a concealed weapons permit. Keep in mind that one of the definitions for a permit or license is the permission to do what the government otherwise considers illegal, which makes a criminal of anyone who desires to fulfill his biblical responsibilities without the government’s permission....

    "Nearly all gun enthusiasts point to the Second Amendment as their authority for possessing firearms. In other words, their authority to keep and bear arms can be traced back to 1789. Where did the men living in America prior to 1789 get their authority to be armed in defense of themselves, their families, their communities, and their nation? I suspect they got it from Exodus 22:2-3; Deuteronomy 22:23-24; Psalm 149:6-9; Luke 11:21, 12:39, 22:36; and 1 Timothy 5:8 – just as those living before 1870, when the first marriage license was issued, got their authority to be married from Genesis 2:21-24, etc. Why did what was already lawful by Yahweh’s standards suddenly, in 1789, need the authorization of the Second Amendment? There is only one answer to this question: The people had transferred their allegiance to a surrogate god."

    Excerpted from "Amendment 2: Self-Defense: Constitutional or Biblical?" at http://www.missiontoisrael.org/biblelaw-constitutionalism-pt12.php.

    Ted R. Weiland
  18. print email
    gun control yea right
    September 26, 2011 | 11:51 AM

    There is no place you need to carry more than New York city. I am a over the road trucker and have delivered in the city many times.I have seen street crimes for myself.The police are a reactive body they can only act when a crime has been committed,a lot of good that does the victim after being raped,robed,or murdered.Carrying is like AMERICAN EXPRESS don't leave home without it!!! The one time you leave your gun at home maybe the one time in your life you need it.

    Bill J
  19. print email
    NY physician
    September 26, 2011 | 12:20 PM

    I'm a New York physician who currently has a NY full carry handgun permit and nothing illustrates the arbitrary nature of New York's laws than my own story.

    In other states, the STATE has to present just cause, like a felony record or record of mental illness, to deny a full carry permit..but in New York.. the right to full carry depends on the whims of a local judge..rather than on the US Constitution.

    I applied for a full carry permit and was granted a permit to own.. but NOT to carry by the local judge.

    I was furious and confronted the judge, asking why I wasn't given a full carry permit..pointing out that I was a doctor with NO record of mental illness, NO criminal record of any kind..not even a misdemeanour and that I was a former USAF officer who carried both a pistol and a submachince gun in the course of my duties..which was security of nuclear weapons on a Strategic Air Command base! If I could be trusted with the security of nuclear weapons..what was his rationale for denying me the permit?

    The judge said that if I was a doctor that all I had to do was write that I carried narcotics and that I needed a pistol to protect myself while doing so and he would grant the full carry permit.

    This was total BS..since I'm not the kind of physician who ever prescribes or carries narcotics..but I did as the judge suggested..and he gave me the full carry permit!

    As I said..this was total BS and TOTALLY arbitrary.

    A 'right" that can be so arbitrarily granted OR denied is NOT a right at all!

    Other law abiding New Yorkers don't have the loophole I was able to use and this method of deciding who gets and does not get a full carry permit is just WRONG!

    Prefers to remain anonymous for obvious reasons
  20. print email
    Supporter of Gun Rights
    September 26, 2011 | 12:25 PM

    After practicing criminal lew for more than forty years,I am sick of our judiciary and the way they " fall off the bench" in favor of governmenta action. Forget about fair consideration of law and individual rights thereunder if it doesn't fit their political agenda!
    The only solution is to block these "judicial legislators" from the bench! They are easy to identify:their prior experience is as a prosecutor, a police officer or other governmental positions!
    We, who would like a level playing field in enforcing individual rightsl versus governmental incursions thereon must become "activists" in defending our liberties: beat'em in the trenches before they "take the bench!"

    M. Gene Gouge, Atty. at law,ret'd.
  21. print email
    Another legal argument
    September 26, 2011 | 12:49 PM

    The law should also be challenged on the basis that it is impermissibly vague and arbitrary. It's a great day in America when despots can be dragged into court and held accountable. It elevates our civilization because it allows us to settle disputes without resorting to violence.

    Craig S. Andersen, Attorney at Law
  22. print email
    Second Amendment
    September 26, 2011 | 12:52 PM

    Have you not realized yet that every gun law anywhere in this country is in violation of the Second Amendment. The Amendment specifically states, " the right of the people to "KEEP" and "BEAR" arms shall not be infringed. What the hell is it that these brain dead judges do not understand about the word "INFRINGED". Webster States, "failure to observe the terms of, violate, Violation or encroachment". There is absolutely no room for interpretation of the Second Amendment. It stands on it's own merit. Judges at all levels for years have pulled interpretations out of their A**. Such as Scalia stating, "doesn't mean any gun, anywhere, any time". It most certainly does mean that. "Keep and Bear" does mean I can have any gun anywhere(home or person) any time I so desire. All gun laws across the USA are for one purpose and that is to only allow certain individuals to possess them, such as law enforcement. None of these laws have ever kept guns out of the hands of bad people. So now we have only law enforcement and crooks with guns and frankly THAT SCARES THE HELL OUT ME FOR I TRUST NEITHER. Down thru time, law enforcement have made many serious mistakes for which most have never been prosecuted. Such as breaking into an innocent home because they had the wrong address and there are many, many more. Happened more than once in my state without the first conviction of any law enforcement person. So you know where I am coming from, I am 68 and have never been arrested or convicted of anything and have no grudge against law enforcement. My grudge is against the direction my country is going and it makes me sick. So maybe I want be around long but my grandchildren will.


    teaman
  23. print email
    Bounty Hunter
    September 26, 2011 | 02:10 PM

    the law exists to preserve the important government interest of promoting public safety by cutting down crimes committed by concealed handguns.... People with concealed guns that have permits are not the criminals with concealed handguns that commit crimes. Just as no one is against immigration but we are against illegal immigration. They keep leaving out the word that truly defines the meaning of the law to achieve their agenda. This is not justice.

    In L.A. it doesn't matter if you do have good cause. CCW's are denied period. maybe the fight should be here instead.

    Spyder Dalton
  24. print email
    Gun control
    September 26, 2011 | 03:47 PM

    Any body that wants to control our firearms in reality wants to control us so strongly that our safety is irrevelant to them .

    Clarence Crosby
  25. print email
    September 26, 2011 | 03:58 PM

    The Second Amendment does not require a good cause clause requirement. If you are a citizen you should have the right to carry consealed/openly without a permit from anyone. I applied for a concealed carry permit in VA and had to pay the city 50.00 for the right. Va is an open carry state and I often open carry to exercise my right. Everyone should carry a pocket constitution and when stopped by law enforcement and questioned present it as your permit.

    James
  26. print email
    September 26, 2011 | 04:07 PM

    It looks like a long haul. We need to speak up when and where ever we get a chance. We need to gently push our so-called public servants to accept the Constitution. Look for chances. Be polite, but ask why their department does not accept the Constitution. Carry a copy of the Constitution (or 2 or more) and offer them a copy, marking the page while you are there. You can think up other ways, like acting confused as to why their department does not accept the Constitution. Good Luck

    Joe Layman
  27. print email
    Vote with your feet
    September 26, 2011 | 11:15 PM

    I understand that not everyone can or wants to leave NY, CA, and other progressive controlled socialist states, but for those who have the wherewithal, why don't you move? In large numbers, take your tax dollars, your energy, and intellect to a state that does not infringe your constitutional rights and rob you of your earnings. If enough of you do over time, the states that honor the constitution will control the country instead of the right and left coasts of liberal do gooders.

    Steve Shirk Lawrenceville, GA
  28. print email
    Second Amendment Rights
    September 26, 2011 | 11:24 PM

    If you believe in the Second Amendment, then you also believe in the whole Constitution. Where the Constitution says: "The people have the right to KEEP and BEAR arms"; there should be no one, any where who can/has the power to change how that phrase is interpreted. The Constitution is the Law of this Country, and if you try to change one aspect of that work, then it is obvious, to me, that you don't believe in the Constitution.

    Richard Moses
  29. print email
    Infringement
    September 28, 2011 | 11:31 AM

    What happened to our second amendment right? If i recall, it says that the people's right to "keep and bear arms shall not be infringed."

    I see some serious infringing going on. The very CONCEPT of a gun license is infringing directly upon that.

    John Sproul
  30. print email
    October 12, 2011 | 09:38 AM

    The plaintiffs lawyers should make each person, including the defendants attorneys, to testify under oath that legislated law SUPERSEDES CONSTITUTIONAL LAW.
    Watch the backpedaling begin......

    GrumpyOldGoat
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