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

Max ...Please

Stop referring to semi auto sporting rifles as assault weapons. This will not help the cause.

Assault weapons have a legal definition.

Going forward your team will have much press time and many interviews. MODERN SPORTING RIFLES. So important that we use this terminology so that people start to understand over time that we are not fighting for the right to own fully auto macine guns. This is unfortunately the rap we have gotten because of to much negative and uneducated press.

It will help your cause and ours. Thank you for all the hard work the team is putting forth to guarantee we can continue to exercise our pre-existing right to self protection. When a donation cause is established, you can count me in.
 
Posted by 2ndsupporter:Assault weapons have a legal definition.
Click to expand...


The Truth About Assault Weapons

Assault weapon has no basic set of characteristic criteria. It changes definition depending on how the news outlet or politician wants to define as an "assault weapon" at any given time

So I believe you're Wrong. That's a made up term for any firearm that looks scarey.
There is however an Assault Rife with a select fire capability.
An assault rifle is a selective fire (selective between automatic, semi-automatic, and burst fire) rifle that uses an intermediate cartridge and a detachable magazine.[1] Assault rifles are the standard service rifles in most modern armies.
Click to expand...
http://en.wikipedia.org/wiki/Assault_Rifle

At the same link, you will also find this.
Assault rifles vs. Assault weapons

In the United States "assault weapons" are usually defined in legislation as semi-automatic firearms that have certain features generally associated with military firearms, including assault rifles. Some definitions in "assault weapon" legislation under consideration (in 2013) are much broader to the point of including the majority of firearms, e.g. to include all semi-automatic firearms or all firearms with detachable magazines.
Click to expand...
If I'm in error, please post the relevant code or law to back up your statement.
 
Last edited:
^^^^

Gents: We should control the language and not let the other side define it.

To the point, we should categorically refuse to use the word "assault" in anything we say or write, and should categorically use other terms.



Let's all practice now: Repeat after me:


I shoot a Modern Sporting Rifle and a Semi-Automatic Handgun, which both accept a Factory Provided Standard Capacity Magazine. They are the same models used by my local Police Department for Personal Defence, and they are also suitable for many sporting purposes.


We fall into a trap when we let the other side define the terms we use.


Back on track, this is a huge win. Well done to all involved.


Willie


.
 
From what I've read, this challenge will likely fail. For one it doesn't include a TRO (Temporary Restraining Order) to really stop the law from taking effect. It also is only at the lowest level court, and according to other lawyers it's being filed incorrectly.

Sounds like it's going to fail. I hope not but it doesn't look good.
 
From what I've read, this challenge will likely fail. For one it doesn't include a TRO (Temporary Restraining Order) to really stop the law from taking effect. It also is only at the lowest level court, and according to other lawyers it's being filed incorrectly.

Sounds like it's going to fail. I hope not but it doesn't look good.
Click to expand...
Which challenge? Is the judge not showing some degree of confidence in the case's merits to specify a date by which the state need defend itself lest an injunction apply?
 
From what I've read, this challenge will likely fail. For one it doesn't include a TRO (Temporary Restraining Order) to really stop the law from taking effect. It also is only at the lowest level court, and according to other lawyers it's being filed incorrectly.

Sounds like it's going to fail. I hope not but it doesn't look good.
Click to expand...

Max has already addressed this concern in the Holtz v. State of New York thread...

http://thefiringline.com/forums/showthread.php?t=518010

Maxb49 said:
As a matter of law, temporary restraining orders cannot be granted against a State, body, or officer from carrying out Statutory law. You need a full injunction. This is the way it was in the CPLR, every judge's hands are tied regarding TROs. Nevertheless, the team applied for a TRO. The judge simply cannot grant the request. This isn't simply a lawsuit. The way the order is written places the burden on the State to demonstrate the Constitutionality of the law. That's a major shift from the Petitioner having to prove that the law is unconstitutional. Remember, the judge was not required to sign the order. Further, Mr. Holtz now has a court order. That's a big deal.
Click to expand...
 
I'm just going based on what I've read, and have seen no Holtz thread before this. I'm no law student unfortunately.

http://www.thetruthaboutguns.com/2013/02/foghorn/ny-supreme-court-considers-safe-act-injunction/

"Armchair Command'oh says:
February 27, 2013 at 22:42

Sorry to break it to you, but this is meaningless. An order to show cause is standard fair in New York. Although it sounds like the burden is on the State, it is not. The language is just legalize. Also, an order to show cause is always issued. A victory at this point would have been a TRO pending a hearing on the motion for a preliminary injunction. The lack of a TRO is a bad sign.

Also, not to be an elitist ass, but top notch constitutional lawyers are not based out of Buffallo. These types of cases need to be meticulously planned and litigated. A bad argument that leads to bad precedent must be avoided at all costs.

Attorneys looking to make a name for themselves need to back off and let the 2nd Amendment Foundation take the reigns. They have already shown that they know how to get the job done."

There's more in the comments underneath it too.
 
I'm just going based on what I've read, and have seen no Holtz thread before this. I'm no law student unfortunately.
Click to expand...

Based on what I've read, the guy you quoted isn't much of a student of law, either.
 
MercifulState, I like many others have no practical legal knowledge (of the intricacies of cases) so have to go on what others say.

Whether armchair commando is right or not, I still won't count any chickens before they hatch. A lot of people are speaking as if this injunction is a done deal and I am sure they are getting ahead of themselves. It's not done until it is; you have no contract until it's signed; there's no reward for almost, ad infinitum.
Based on what I've read, the guy you quoted isn't much of a student of law, either.
Click to expand...
If you read other comments by armchair in that link he is a lawyer.
 
That may be, but everything I see just seems to be assumptions no matter where I look.

Yes, I agree. Opinions are flying every which way from "This is great!" to "This means nothing!" and as I'm not a student of law, I've seen nothing convincing yet either.
 
By definition, everything is some level of an assumption until the final decision is read and entered. Now isn't the time to get our collective shorts in a bunch over maybes and couldbes when the first trial hasn't even started? finished? yet.
 
The guy I quoted claims he knows it, but this is the internet.

http://www.thetruthaboutguns.com/2013/02/foghorn/ny-supreme-court-considers-safe-act-injunction/

"The article says the attorney was based out of Buffalo. That’s where I got that from.

The problem here is that neither the NY Court of Appeals (highest state court) nor the 2nd Circuit Court of Appeals (the federal appellate court) will ever overturn the NY Safe Act on 2nd Amendment grounds. We have absolutely zero chance. Moreover, the US Supreme Court typically doesn’t agree to review a case unless there is a split in the circuits. This means that a 2nd Amendment challenge will most likely result in bad precedent.

The better bet is probably to challenge the law for violating the three-day waiting period required before a vote is held on legislation. That has a much better chance of success. If that works, we win. If it doesn’t work, then we could still bring a new case on 2A grounds and hope the U.S. Supreme Court agrees to review. This approach is similar to how that CA ammo law was challenged and overturned. It wasn’t on 2A grounds, but on a state procedural technicality."

Can we get someone to say whether this whole thing even means something or if it doesn't? That would help.
 
http://www.northeastshooters.com/vb...ess-state-can-prove-law-constitutional-4.html

"Before anyone spends too much on champagne, consider a couple of things:

1) I have not been successful in obtaining a copy of anything issued by the NY Sup. Ct. in this case, but my understand is that what was issued is a "Show Cause" order. While it has been a while since I practiced in the NY state courts, my recollection is that a "Show Cause" order is essentially a hearing scheduling notice, signifying nothing about the merits or the Court's inclination for a ruling. Nor do I believe that issuance of a "Show Cause" order has any effect on the burdens of production and persuasion.

2) Again from a distance, my understanding is that a substantial issue exists under the New York state constitution about the procedures used to enact the Cuomo laws; could this be the "constitutional" issues at stake (versus anything under the 2nd Amendment to the federal constitution)?"

http://www.uticaod.com/features/x930806341/Lawsuits-against-state-gun-control-law-moving-forward
 
I've been reading these threads and had to register to reply because there's some misunderstanding going on.

Formalities first. Hi everyone. :)

Here's the deal -

An order to show cause is nothing special under most circumstances. Its simply the means by which a pre-trial order can be obtained. Normally, the burden on obtaining a stay of the SAFE act lies squarely with the side the filed the motion.

The way an order to show cause works is the side that want a pre trial order submits a motion to the clerk of the court. If the format is correct, its presented to the judge for signing and the judge sets the timetable for both sides to submit all papers.

The only way a judge won't sign an order to show cause is if the format is incorrect. Its not big news.

Its about as significant as a mechanic opening a hood of a car to work on an engine. Its necessary, but its not something a mechanic would claim as monumental.

Obtaining an injunction is hard, extremely hard.

Expect the state to file its own motion to dismiss this entire case as part of its response.

After both sides submit all papers, the judge will rule on both sides request for pre-trial orders, usually within 60 days.

I don't mean to be a downer, but simply filing routine paperwork is nothing to get excited about, and calling it monumental doesn't exactly give me the warm and fuzzys.

Added: But like most aspects of the law, there are exceptions and it seems like this case falls into one. Having learned more facts, it seems there was some confusion on my end as to the context of the order to show cause.
 
Last edited:
You must log in or register to reply here.
Back
Top