The New York problem

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I'm trying to do some legal research on why NY is so darn problematic on getting their gun laws struck. It doesn't help, of course, that we have only had Heller for a year or so and thus far the only court challenge based on it is the half baked Maloney case. But apparently the problem lies further back, much further, yes? OK, so I need an education on the matter: what's the lineage of court decisions in the state and 2nd Circuit which keep NY so iron clad screwed up?

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BillMCyrus wrote:

I'm trying to do some legal research on why NY is so darn problematic on getting their gun laws struck. It doesn't help, of course, that we have only had Heller for a year or so and thus far the only court challenge based on it is the half baked Maloney case. But apparently the problem lies further back, much further, yes? OK, so I need an education on the matter: what's the lineage of court decisions in the state and 2nd Circuit which keep NY so iron clad screwed up?

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Pretty simple - the Second Amendment has never applied to state power and the 2d Cir. correctly ruled up until Heller as such. After Heller, they apparently ruled against incorporation.

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So it's nothing more than the 2nd circuit childishly putting their fingers in their ears and saying "Lalalalala....no I don't wanna do it, no I don't wanna do it, we hate guns, we hate guns, we hate guns...lalalalalalala!"....

And that's it? They've been hiding behind Presser and Cruikshank for 70-90 years and that's all there is to it?

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for decades it seems, some judges and benches seem too timid to make any rulings that might be looked at as radical or controversial. They would rather rule strictly by stare decisis and let the USSC change what it wants to at the whim. An unfortunate tact and a damned good reason that judges like that should just retire.

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BillMCyrus wrote:

So it's nothing more than the 2nd circuit childishly putting their fingers in their ears and saying "Lalalalala....no I don't wanna do it, no I don't wanna do it, we hate guns, we hate guns, we hate guns...lalalalalalala!"....

And that's it? They've been hiding behind Presser and Cruikshank for 70-90 years and that's all there is to it?

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Actually that court was BOUND to rule as such - there is no hiding about it. Now after Heller's n.23, the high appeallate state and federal courts are freer to consider incorporation, and 9th Cir. did incorporate in Nordyke and apoparently 2d Cir. declined.

if you are actually serious researching somthing, using words like "childish" and "hiding" to describe judicial rulings is not very helpful.

Frankly, a split of high appeallate authority is the only way to get the US S. Ct. to rule on incorporation anyway.

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It is important to note that when adopted in the 1700s, the Bill of Rights only applied to the federal government. States were not bound by them, but that changed with the 14th amendment in the 1860s. In the 1800s, the SupremeCourt did not apply it to the states. This trend changed in 1925 with Gitlow vs. New York which said that states were bound to observe 1st Amendment free speech protections. Since then, many but not all rights have been applied to the states, and the 2nd Amendment is still somewhat of an open question it seems.

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It's getting answered bit by bit. We don't have a whole lot to work with thus far because prior Circuit Court opinions didn't incorporate because the Supreme Court precedent they used up until Heller was Cruikshank and Presser. The wording of Hickman v. Block in the 9th Circuit worked PERFECTLY because it said the 2nd Amendment wasn't incorporated because it wasn't an individual right but if it was it would be, so when Heller said that it was, the dominoes fell and Nordyke v. King gave us 9th Circuit incorporation.

Big kudos to Don Kilmer for being the genius he is and for sticking this out for 10 years.

One task is getting 2nd Circuit incorporation if necessary by getting a case the 2nd Circuit cannot say no to. Or, most likely, putting lots of good cases in place to start cutting big chunks out of NY's nonsense gun laws when the Supreme Court rules on incorporation over their heads. The win in Nordyke was achieved by having a good case far enough along that when the incorporation question was reached it was in position to do something about it. It took Heller right into its refiled arguement as it was up for 9th Circuit consideration, taking perfect advantage of the positioning of prior legal cases. Heller took a long time and Nordyke took a long time; neither waited for the other to get started.

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BillMCyrus wrote:

One task is getting 2nd Circuit incorporation if necessary by getting a case the 2nd Circuit cannot say no to.

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The 2d Cir. already declined to incorporate in tne nun chucks case, right? Then that panel decision binds future panels unless it is overturned by either en banc review or the US S. Ct.

Accordingly, you might stand a better chance in NY state court.

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Quite right. So, does anyone know much about New York state court decisions?