Federal Judge upholds majority of NY SAFE Act

[TheLunk]

http://www.buffalonews.com/city-region/state/federal-judge-upholds-new-yorks-ban-on-assault-weapons-rejects-7-round-magazine-limit-20131231

Only scrap here is that we can go back to loading 10 rounds into 10 round magazines...

 

[Red Wind]

The SCOTUS may get this one eventually.

 

[MikeJackmin]

...and another half-scrap in that we are now closer to an appeal to the Supreme Court, which was our only real hope all along.

It's a good solid case - can you ban the most popular rifle in America, or not? Let's get a straight-up decision on this stuff.

 

[Red Wind]

It's a good solid case - can you ban the most popular rifle in America, or not? Let's get a straight-up decision on this stuff.

Agree. It's a good solid case,IMO, with the current court makeup. Another 5-4 cliffhanger, but we'll take it.

 

[vamo]

Don't get me wrong the entire act flies in the face of the second ammendment, but atleast he removed the stupidest portion.

 

[oneounceload]

can you ban the most popular rifle in America, or not?

What does that have to do with anything?......All they need to do is limit magazines to 2 rounds -- or less -- and then what?

 

[ChaoSS]

The scraps are a bad thing. The worse these laws are the better the chance that they end up in front of the Supreme Court sooner rather than later, in my opinion.

I was one of the few who was actually kind of hoping that Jerry Brown would sign the bill and make us register all of our semi autos as assault weapons, just let them seriously over step their bounds, put in in front of the Supreme Court, and let us know where we stand.


:edit:
Just finished reading the article, I really like this tidbit;

In one instance, he mentioned a brief filed by outgoing Rochester Police Chief James M. Sheppard and his conclusion that assault weapons “are designed for one purpose – to efficiently kill numerous people.”

So, I suppose we should expect that the police will start to neuter their assault rifles in the near future, as they clearly have no need of the ability to efficiently kill numerous people?

Also, he accepts the idea that these are in common use, but suggests that the law is still constitutional because of a government interest. This is contrary to the Heller decision, which clearly suggested a strict scrutiny, by refusing to uphold the law in spite of the government interest.

Gun control advocates are just as quick to point to Heller because the court ruled that the Second Amendment right to own guns, like most rights, is not without restrictions.

And yet it clearly said that the 2A protects guns in common use for lawful purposes, I forget the actual wording, but that's the gist of it, and these are clearly weapons in common usage. This flies square in the face of the Heller ruling, if only the Supreme Court has the wherewithal to stand up and back their own rulings in this next round.

 

[MikeJackmin]

I've just learned that the judge applied 'intermediate scrutiny' in his decision. Intermediate scrutiny is not a particularly strict standard, and the SAFE Act arguably falls within it.

The only way this gets overturned is if SCOTUS decides to explicitly determine that strict scrutiny must apply to even state laws. However, if they do that, they are going to overturn decades-old laws across the nation. I see this as an unlikely outcome.

We might see strict scrutiny applied at the federal level, but requiring the states to follow that standard would require a very aggressive court.

 

[bigfatdave]

Gun control advocates are just as quick to point to Heller because the court ruled that the Second Amendment right to own guns, like most rights, is not without restrictions.

And yet it clearly said that the 2A protects guns in common use for lawful purposes, I forget the actual wording,

I know the exact wording well, actually:

Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century
are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U. S. 844,
849 (1997), and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U. S. 27, 35–36 (2001), the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.

Emphasis mine
Link to Heller ruling in handy PDF form:
http://www.nraila.org/media/PDFs/HellerOpinion.pdf

The bolded part is especially helpful.
Sit down and make a list of "all insturments that constitute bearable arms"
Start with the Mark One Mod Zero rock, run your list up through the US Army issue 45 caliber pistol, model of 1911, and keep going until you get to the self-contained personal disintegrator ray. The list has interesting branches and goes on essentially forever.

The phrase "all instruments that constitute bearable arms" will TERRIFY authoritarians if they understand what it actually means.

I'm not a legal expert, but it seems to me that Heller and Miller define "arms", "keep" and "the people" fairly explicitly, what we need now is to drag the words "bear" and "infringed" to SCOTUS.
Then we'll have enough paper to roll up and beat congresscritters & wannabe tyrants over the head with whenever they start yapping about "reasonable regulations" or "common-sense gun control".

And it might happen in my lifetime. I'm getting right on "all instruments that constitute bearable arms" as my standard for armory stocking, the ninnies can deal with it or not.

 

[Claude Clay]

following this decision will NY still prosecute the man who was arrested last year for having more than 7 rounds in his magazine?
http://freedomoutpost.com/2013/10/l...a-bullets-results-man-facing-6-months-prison/

reason says-- of course. but this is political and...i'm left wondering; does this new ruling nullify that portion of the law from this date forward or retro to its date of becoming law?

 

[bigfatdave]

It was never valid in the first place, but I'm not on that jury.

 

[Queen_of_Thunder]

Any "RIGHT" that can be restricted is no longer a Right. Its nothing more than a Privilege that can be taken away on a whim.

Something to consider. In Colorado one cannot buy a 30 round Pmag but they can buy Dope.

 

[jmr40]

following this decision will NY still prosecute the man who was arrested last year for having more than 7 rounds in his magazine?
http://freedomoutpost.com/2013/10/la...months-prison/

Maybe, maybe not. Just an educated guess, but the local DA may decide to proceed, but the odds of a conviction would be pretty slim in my opinion.

 

[ole farmerbuck]

Any "RIGHT" that can be restricted is no longer a Right. Its nothing more than a Privilege that can be taken away on a whim.

Something to consider. In Colorado one cannot buy a 30 round Pmag but they can buy Dope.

Makes a lot of sense doesn't it?

 

[HexHead]

Of course he upheld most of the SAFE Act, he's a NY judge with messed up NY values. Why would one expect any different of an outcome.

 

[HexHead]

Something to consider. In Colorado one cannot buy a 30 round Pmag but they can buy Dope.

Makes a lot of sense actually. Gun control isn't about guns, it's about people control. And stoned people are easier to control, being more likely to be placid and submissive.

 

[steelerdude99]

...
Also, he accepts the idea that these are in common use, but suggests that the law is still constitutional because of a government interest. This is contrary to the Heller decision, which clearly suggested a strict scrutiny, by refusing to uphold the law in spite of the government interest.
...

Government interest? That's an awkward way to support the limiting of a right. The whole Bill of Rights runs counter to "government interest".

chuck

 

[Mike1234567]

I long for the day that we can all buy groceries, firearms, ammo, booze and pot all in one great superstore.

 

[ThorinNNY]

Mike 1 thru 7
Me too! I also long for the day when all our constitutional rights are upheld!

 

[Mike1234567]

mike 1 thru 7
me too! I also long for the day when all our constitutional rights are upheld!

bingo!!!

 

[heyjoe]

if you lived in ny you would have no trouble believing that the judiciary both state and federal are riddled with corruption. decisions such as this are torturously crafted to fit ideological and/or political goals.

 

[ChaoSS]

Government interest? That's an awkward way to support the limiting of a right. The whole Bill of Rights runs counter to "government interest".

chuck

But you do understand that that's basically how intermediate scrutiny works, right? If there is a government interest, the right becomes immaterial. Intermediate scrutiny basically nullifies any rights that we have.


That's why Scalia has stated that his distaste for different standards of scrutiny. It was also clear that Heller was written with strict scrutiny in mind, even if he, with his distaste for other standards, didn't state it in so many words.

 

[Speedo66]

Of course he upheld most of the SAFE Act, he's a NY judge with messed up NY values. Why would one expect any different of an outcome.

So what are you saying, that all NY'ers have "messed up NY values", including the NY members of this wonderful forum?

He's a federal judge, not a NY judge, and he's in Buffalo, upstate NY, about as far from NYC as you can get. But I guess if you've got that mindset, nothing else matters.

 

[Frank Ettin]

It looks like everyone just wants to rant. Since there seems to be a shortage of useful posts and helpful insights, there's no sense keeping this open.