Kachalsky v. Cacase - NY Carry - Cert Filed

court sustained the law based on a public safety rationale
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Superficial rational aside, the court sustained the law based on the erroneous intent of depriving the aforementioned classes of their constitutional rights to protect other classes. It's bad law, and cannot be used as precedent.
 
secret_agent_man said:
...the court sustained the law based on the erroneous intent of depriving the aforementioned classes of their constitutional rights to protect other classes. It's bad law, and cannot be used as precedent.
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Really?

[1] And exactly what in the decision in Cockrum indicates that the case has anything to do with, "...depriving the aforementioned classes of their constitutional rights to protect other classes..."?

[2] As far as precedent, of course it would only apply in Texas, and the case is getting pretty long in the tooth. And as far as being bad law, the question for us isn't whether or not it's bad law. It's whether or not public safety is an exclusively modern concern in connection with the RKBA.
 
Fiddletown,

what in the decision in Cockrum indicates that the case has anything to do with...depriving the aforementioned classes of their constitutional rights to protect other classes
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It is what happened after Cockrum that was of note:

<<<by 1872, the Texas Supreme Court denied that there was any right to carry any weapon for self-defense under either the state or federal constitutions -- and made no attempt to explain or justify why the Cockrum decision was no longer valid. What caused the dramatic change? The following excerpt from that same decision -- so offensive that no one would dare make such an argument today -- sheds some light on the racism that apparently caused the sudden perspective change>>>

see http://www.firearmsandliberty.com/cramer.racism.html for the rest of the story.

Public safety is not to be confused with protecting some segments of society from others. I submit the latter was the goal of anti-weapons oriented legislation during the early years of this country. Gun regulation in the interest of true public safety seems to have gained traction as America changed from a rural society to an urbanized one after WWII and the citizens' familiarity with firearms began to diminish.

Certainly as older generations who grew up with guns have aged and left us, some, indeed, a great many of the newcomers, have come to a different realization about guns and their utility, which has given rise to modern-day public safety issues.
 
secret_agent_man said:
...Gun regulation in the interest of true public safety seems to have gained traction as America changed from a rural society to an urbanized one after WWII and the citizens' familiarity with firearms began to diminish....
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Nope. If Cockrum doesn't do it, Adam Winkler in Gun Fight goes into some detail about various public safety gun control laws common here the lat 18th through early 19th centuries. For example, Winkler notes (Winkler, Adam (2011-09-12). Gunfight: The Battle over the Right to Bear Arms in America (p. 117). Norton. Kindle Edition.):
...When public safety demanded it, the founding fathers were willing to go even further. In Boston, city leaders determined that the combustibility of gunpowder posed such a danger that all loaded firearms had to be kept out of buildings. A law from 1783 imposed a fine on “any person” who “shall take into any dwelling-house, stable, barn, out-house, ware-house, store, shop, or other building, within the town of Boston, any . . . fire-arm, loaded with, or having gun-powder.” A second provision of the law effectively prohibited keeping a loaded firearm even in one’s own home: “all . . . fire-arms . . . of any kind, that shall be found in any dwelling-house . . . or other building, charged with, or having in them any gun-powder, shall be liable to be seized” and forfeited. Given how time-consuming the loading of a gun was in those days, these two provisions imposed a significant burden on one’s ability to have a functional firearm available for self-defense in the home. Yet there is no record of anyone’s complaining that this law infringed the people’s right to keep and bear arms. Even though the inspiration for this law was prevention of fires, not, say, protecting children from accidental shootings, the lesson remains the same: pressing safety concerns led Bostonians to effectively ban loaded weapons from any building in the city....
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And as Winkler later adds (Winkler, Adam (2011-09-12). Gunfight: The Battle over the Right to Bear Arms in America (p. 117). Norton. Kindle Edition):
...The individual-rights literature that arose in the wake of Don Kates’s article featured countless confident claims that gun control was a modern, twentieth-century invention. The facts suggest otherwise. The founding fathers had numerous gun control laws that responded to the public safety needs of their era. While our own public safety needs are different and require different responses, the basic idea that gun possession must be balanced with gun safety laws was one that the founders endorsed....
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Despite the strong wording of, "shall not be infringed," the public safety component exists.

As the Ezell Court instructs, it is not enough merely to raise the concern. It must be an identifiable and quantifiable concern.

In the Kachalsky decision, the Judge relied upon certain legislative floor debates which purported to raise the public safety issue.

Finally, in 1982, during a floor debate regarding substantive changes to portions of the state handgun licensing scheme, Senator Franz Leichter, speaking regarding Section 400.00(2)(f)’s “proper cause” requirement, observed,

[W]e are not only talking about crime, which obviously is important, but we’re also talking about public safety. . . . n this instance, it’s not only protecting a person from himself but it’s protecting innocent people who get shot every day because handguns are lying around, and that is something that should be of concern to all of us.​


N.Y. Senate Debate on Senate Bill 3409, at 2471 (June 2, 1987) (Tomari Decl. Exs. S(14)). Despite proposals to change the licensing scheme, Section 400.00(2)(f)’s “proper cause” requirement has remained. (State Defs.’ 56.1 ¶ 77.)
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The quoted section above (document #80, pg. 52 - pg. 54 of the pdf), is just one of several quotes that the court used to justify its decision.

What is conspicuously absent in those quotes and within the the decision itself, is any quantification of that aspect over that of mere assertion.

We have seen this in several district court decisions. None as blatant as was this decision. So it is something that must be addressed, at the circuit level.

While public safety may not be the most important aspect, it is one that cannot be left unchallenged.
 
Al, I follow your conclusion that while a state cannot prohibit the bearing of arms, they can regulate it. However, if strict scrutiny is applied (and I don't see how it won't be eventually if things continue the way they are, and certainly that would be the logical and moral stance considering that's what is applied to other natural rights) I don't see how banning a certain method of carry, as long as it is safe, could pass that kind of scrutiny. This may be the ultimate genius of Gura and company, but it's going to be increasingly difficult to argue that concealed carry poses any more of a public risk that open carry, or licensing provides better public safety than not, etc. If strict scrutiny is applied, most of this becomes mute. I am correct in thinking this?
 
Aside from prohibited classes being banned from the right, I don't know how much weight can be given to the public safety concerns when the right is to carry a lethal weapon.

Aside from the prohibited folks carrying, what public safety concern involves danger beyond what is already an inherently dangerous practice (at least, for criminals)?

Regulations that mitigate the danger like requiring training, proficiency, knowledge of force escalation (shoot, don't shoot) ought to pass muster. Certainly, inherent in the militia purpose was training, proficiency, i.e. well regulated.

But no regulation can address every public safety concern when the core of the right inherently involves the capability of lethal force.
 
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As there appears to be more jurisprudence on gun control back in the day than I was aware of, I am apparently beat, and humbly withdraw from the argument.
 
maestro pistolero said:
...what public safety concern involves danger beyond what is already an inherently dangerous practice (at least, for criminals)?

Regulations that mitigate the danger like requiring training, proficiency, knowledge of force escalation (shoot, don't shoot) ought to pass muster. Certainly, inherent in the militia purpose was training, proficiency, i.e. well regulated.

But no regulation can address every public safety concern when the core of the right inherently involves the capability of lethal force.
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I think that's correct. But that still seems to leave room for non-discretionary licensing/training requirements for lawfully carrying in public. And that probably also leaves some room for safe storage laws, such as found in California (e. g., criminal penalties if a child gets your loaded gun and hurts someone, unless you stored your gun securely). And there might be other sorts of regulations that courts in the future will decide reflect a constitutionally acceptable balancing of the right to keep and bear arms against governmental interest in public safety.

The real bottom line is that, as I've suggested in the past, we can't expect Heller and McDonald to herald the end of all regulation of the RKBA.
 
Common thought is that the current carry cases are fighting discretionary carry. That thought is only partially correct.

By and large, what we are currently fighting is the lower courts and their wholesale unwillingness to admit that the core of the right, is in fact, the right to keep and bear functional arms for self defense in case of confrontation.

Keeping in mind that the lower courts are relying upon the exact holding of Heller and calling everything else in that decision, dicta.

So far, the 7th Circuit is the only Court to do the necessary work that the Heller Court said they were to do. And that, only in the Ezell case.

Once it is established that carry for self defense means carry for self defense, public or private (in the home), the discretionary laws will fail. Fact of the matter is that this now is the whole purpose of these lawsuits. This can be seen in the way the later filings have been worded.

As fiddletown and Maestro have observed, permitting/licensing will be held constitutional. In many cases, even under strict scrutiny.
 
permitting/licensing will be held constitutional. In many cases, even under strict scrutiny
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Perhaps. But the most narrowly tailored fashion under strict scrutiny, permitting/licensing may well resemble the current background check for purchasing a handgun. You're in, you're out for a minimal fee. No training requirement. But then, strict scrutiny may not come to pass. That's going to be an itch.
 
I've really been remiss in reporting this case. sigh. Juggling too many balls?

Back on Nov. 9th, the opening brief was filed. Which I reported here, in the Main 2A cases thread, instead of this one.

Then the State sought and was granted an extension to file until Westchester County was due to file their reply. That would be on or before Feb. 8th.

Today Westchester County filed their brief a tad early. Does, "In the Home" ring any bells?

Don't let the size of the file scare you. It's only 28 scanned pages.
 

Attachments

Hoo, boy. As my late grandmother used to say, 'There are none so blind as those who will not see."

Plaintiffs' contention that the County is liable for the natural consequences of its employees' actions in summarizing the results of their investigations in recommendations to the licensing officers is meritless inasmuch as there is no established Second Amendment right to possess a concealed firearm in a public setting.
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That pretty well sums it up, right there.
 
One thing you have to remember, unlike WA, ID and many other states, NY has no 2A equivilent in their state constitution, so all arguments have to be based on the bill of rights 2A.

NY does not want to see unbridled the right to bear arms in the 2A, so they will twist what does exist in any manner they can...this brief does not surprise me at all. Until the Supreme court comes out and flatly states that their is an unbridled right to carry anywhere you can legally be, there will be CA,NY, NJ, MD, MA, oh yes, and HI, Guam, the Marianna's etc.
 
Here's some quotes from the reply brief that I thought you would find amusing...
This Court does not referee academic debates. “[T]he enshrinement of constitutional rights necessarily takes certain policy choices off the table.” Heller, 554 U.S. at 636. Professors Cook and Zimring are certainly entitled to believe that the Second Amendment right to bear arms is disastrously dangerous. They are also entitled to that same belief regarding the exclusionary rule or the right to counsel. Doubtless, virtually every aspect of the Constitution finds strong disagreement among some segment of society... The question of what the Second Amendment secures is a matter of text and history, not an academic debate as to who has the best statistics.


Defendants offer that openly carrying handguns is socially unacceptable today, but that is hardly a basis for prohibiting constitutionally-protected conduct. Licensing Officers’ Br., at 38 & n.13. Nonetheless Defendants suggest Plaintiffs should have challenged New York’s general prohibition on carrying loaded handguns in public, which reaches the open carrying of firearms. Id. Defendants should consider carefully whether this is the outcome they want. If the licenses issued under Penal Law § 400.00(2) relate only to concealed carry, and if this Court holds that the right to bear arms extends only to open carrying, the police would enjoy no qualified immunity for enforcing an open carry prohibition. The decision would instantly place New York among the states that generally allow the unlicensed open carrying of handguns—and many individuals could be counted upon to immediately exercise that right here, as is already done elsewhere.


But the Second Amendment is not among the Bill of Needs. It is among the Bill of Rights. Defendants’ arguments amount to: the government’s “experts” have determined that the People do not really “need” one of their “rights.” That is not constitutional law. Social science may have a role to play in illuminating the relationship between a right and its regulation, but it cannot have the role of defining the content of a right.
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The best argument (IMO) in the reply, directed to all the social science that Cook and Zimring used:
Curiously, the one type of data that Defendants failed to offer is the data most relevant to their theory that law-abiding, responsible people cannot be trusted with guns: the crime rate of individuals licensed to carry handguns for self-defense in the states where such licensing occurs on a shall-issue basis. That information, readily maintained by various government agencies, is a matter of judicial notice. It does not advance Defendants’ theories.

Michigan, for example, issued 87,637 permits for the year ending June 30, 2011. In that time frame, it revoked only 466 permits. Texas compiles detailed information tracking the proclivity of handgun carry license permit holders to commit crimes. In 2009, of 65,561 serious criminal convictions in Texas, only 101— 0.1541%—could be attributed to individuals licensed to carry handguns, though not all such crimes necessarily utilized guns, or used them in public settings.

Perhaps the most comprehensive data comes from Florida, which reports having issued 2,145,632 handgun carry licenses since 1987. To date, Florida has only revoked 168 licenses—.0078%—for crimes utilizing firearms.

In any event, the social science debate is totally irrelevant. In considering constitutional claims, this Court does not weigh “expert” opinion disproving the utility of the right against search and seizure, various aspects of due process, or the right to counsel itself. Tax evaders cannot cite expert economists to explain the various policy deficiencies inherent in taxing income, the Sixteenth Amendment notwithstanding.

This Court does not referee academic debates. “[T]he enshrinement of constitutional rights necessarily takes certain policy choices off the table.” Heller, 554 U.S. at 636. Professors Cook and Zimring are certainly entitled to believe that the Second Amendment right to bear arms is disastrously dangerous. They are also entitled to that same belief regarding the exclusionary rule or the right to counsel. Doubtless, virtually every aspect of the Constitution finds strong disagreement among some segment of society. But McDonald's instructions bear repeating:

Municipal respondents . . . note that there is intense disagreement on the question whether the private possession of guns in the home increases or decreases gun deaths and injuries. The right to keep and bear arms, however, is not the only constitutional right that has controversial public safety implications. All of the constitutional provisions that impose restrictions on law enforcement and on the prosecution of crimes fall into the same category.​

The question of what the Second Amendment secures is a matter of text and history, not an academic debate as to who has the best statistics.
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I don't have time to read this brief this morning, but I do see Woolard in the table of authorities. Looking forward to a good lunchtime read. :cool:

Thank you, Al, for all of your hard work on these.
 
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