“A state Supreme Court judge on Wednesday denied a motion for a preliminary injunction of the state’s new gun control law.” That’s the word from democratandchronicle.com. The suit argued that Governor Cuomo’s “message of necessity” ruse to rush civilian disarmament legislation through the New York Assembly in twenty minutes was unconstitutional. Judge Thomas McNamara claimed that he was constrained by precedent preventing judicial interference with a message of necessity. The Supreme Court, however, is not the highest court in New York state. That distinction is held by the Court of Appeals. Lead plaintiff Bob Schulz vowed to take the case at least that far. Note: this is a preliminary injunction for the class action suit we discussed yesterday, and not the Tresmond case which has yet to be heard. This isn’t over yet.
Not a great day. Do the judges in NY run for office, or are they appointees?
If I recall correctly, they are elected.
This may not be a win, but it surely isn’t a loss; the judge just wants to pass the buck, rather than deal with politics.
I hope that the NY law stands for two reasons:
a) it then becomes ripe for a federal appeal
b) there will be that much more ammunition for people living outside of NY, which might reduce the waiting time for 9mm and .223
Reason b is why I’m also hoping that CA passes the “no lead ammunition” bill currently moving through its legislative
sewage systempipeline.And no, I do not have sympathy for “innocent” New Yorkers. Living in New York is tacit acceptance of this kind of totalitarian nonsense. If you don’t like it, move. Need a job? Plenty available in civilized states like Texas.
You are an asshole and have no conception of Logic or reality, but hey keep doing nothing till they come for you.
COWARD
a) Other than the ad hominem, which is arguing like a liberal, you only make one point – that I am doing nothing.
Hardly doing nothing. But other than membership in pro-2A organizations and supporting local 2A rights, I refuse to cry over what is happening in states like NY, CA, and IL. Those states are destroying themselves in so many different ways that this issue is just one. It will not spread from them to any state that still has a near-balance between Liberty and Liberalism. Case in point: the center-left WA, which just shot down an expanded background-check bill.
With finite resources, in politics as in war, you have to choose your targets and where and when to fight. Chicago law was so ridiculous that it was worth the effort. CA is a lost cause, especially given the Ninth Circuit. And NY will be a long, protracted battle because it is controlled by Dems and the Second Circuit is more than a little liberal.
And you can’t protect people from their own stupidity.
But as another posting on this blog points out, this law has caused such a polarizing schism between NYC and the rest of the state that the political fallout may be more important for securing gun rights than legal maneuvering.
“And no, I do not have sympathy for “innocent” New Yorkers. Living in New York is tacit acceptance of this kind of totalitarian nonsense. If you don’t like it, move. Need a job? Plenty available in civilized states like Texas.”
No, he’s right. You are an asshole. Not everyone who lives in NY lives in NYC. Look at the map showing counties that have opposed the law. You are out of touch with reality and if you think one firearms law is plenty enough for a mass transit out of NY, leaving my business I’ve worked hard for years to build, my family that is based here, and a future in a beautiful western NY rural area, you’re deluded and “asshole” is putting it lightly.
You are an idiot if you don’t think they’ll come for you too, and a coward for saying living in the same state as NYC is somehow “tacit acceptance”. You do not represent pro-2A, you represent selfishness and immaturity.
Then again, I’m getting worked up over (what’s probably) a 17 year old’s post on the internets. *sigh* Oh well.
Well this just stinks!
Why’s everybody so upset? The court just saved the entire state of New York from dangerous guns, RIGHT?
I’m going straight to NYC and celebrate. They’re dancing in the streets, like when the Yankees used to win. RIGHT?
In related news, Best Buy posted a statement claiming warranty repairs of TVs and Computer Monitors in New York State are at an all time high.
Yes, far from over Dan. This judge apparently can’t determine constitutionality, he couldn’t be just saying that? Randy
“The Court of Appeals has been clear that judicial intervention with a message of necessity is not allowed,” McNamara said.
He is not wrong on that point. The courts in NY (from what I can google) have said that only the elected legislature can determine what an “emergency” happens to be. I hope Bob Schulz has more to argue about because at this point he is just blowing smoke.
Every lawyer I’ve seen opine on this agrees with you.
Unfortunately, the NY Court of Appeals (NY’s highest court) has held that the use of a message of necessity is not reviewable by the courts. The court said that it is a matter of checks and balances. If the legislature want to vote on something immediately and the Governor approves the vote with a message of necessity, that is good enough. According to the Court of Appeals, NY court’s don’t have the power to override the other two branches of government on this particular issue.
The trial court here was bound by this controlling precedent. Only the Court of Appeals can reverse it.
Note: this does not mean that the courts are unable to review the substance of the law and overturn it on other constitutional grounds, like the 2nd Amendment (not that a NY court would ever overturn the SAFE Act, by hypothetically speaking, they could).
The denial of a preliminary injunction just means that the law will stand until a ruling on the merits after trial. (assuming that the NY Court of Appeals does not grant the injunction)
The court denied the preliminary injunction based on legal grounds, as opposed to factual grounds. Specifically, the court said that it does not have the power to review the use of a message of necessity.
That is a threshold question. If the court can’t review the message of necessity, then there is no follow-up factual determination as to whether Cuomo complied with the NY Constitution. If there is no need for a factual determination, there is no need for a trial.
For this type of case, a denial of a preliminary injunction means that you will lose on the merits.
This makes no sense. OK I understand that a trail court Judge may indeed (and should) follow higher court precedent but for a higher court to state it has no standing to rule on a Constitutional question brings up the question of what the hell they’re there for.
If the Legislature and Executive can determine what the Constitution means, where does that leave the “Balance of Power”?
By the way, in answer to a previous question, the Supreme Court Justices are elected by the people but are usually put up by political parties in multi-party slates. Supreme Court Appellate Division and Court of Appeals Judges are appointed by the Governor for 14 yr terms – with some exceptions. The whole NY court system is a wondrous melange of old and new with all sorts of exotic features passed on from colonial days.
Courts cannot decide every dispute, only disputes that are “justiciable.” The Supreme Court cannot hear a case unless the plaintiff has standing (which means the plaintiff suffered a particularized harm vs. something that affects everyone) and the case cannot be a political question. There are a few other limits. These limits are a check on the judiciary’s power.
For example, what constitutes a “high crime or misdemeanor” for impeachment purposes is entirely up to Congress. If Congress decided that chewing gum in the oval office were an impeachable offense, then it is. The Court can’t overrule that determination. It is called a political question because the check on Congress abusing its impeachment power is the ballot box, not the courthouse.
The message of necessity has been held to be a political question. The legislature and the governor have to both agreed to the accelerated voting. The Court can’t overrule those two coequal branches on this issue. The recourse for the governor’s abuse of this power is the ballot box. Elections matter.
Of course they can. Simply by making a decision that they can’t make a decision means they can and have made a decision!
As I recall you are the one who suggested that the Safe Act be challenged on the 3 day rule. I was dubious of that and figured that the NY State courts wouldn’t go for it and the Federal Courts are always loath to intervene in state procedural matters which would lead nowhere, but that – aside from doing nothing – was your suggestion.
Until you find something useful to contribute to the cause why don’t you just butt out.
In the meantime, just communicating with you is such a bummer that I’ll do no more of it.
I don’t mean to be a bummer. I am just providing realistic analysis.
As far as recommending a challenge based on the 3-day rule, I suggested doing that because 1) procedural challenges are the only thing that has worked in these types of liberal state courts; 2) it is theoretically possible to succeed, although it would require the Court of Appeals to reconsider its stance on the messages of necessity (highly unlikely); and 3) losing does not risk creating bad 2A precedent. I don’t, however, believe such a challenge will succeed.
The truth is we are not ready to mount a 2A challenge of the SAFE Act. What we need first is good precedent in other more conservative circuits defining what an “arm” is under the 2A. Then we need to challenge an AWB and mag restriction in a state like Maryland, which is in a conservative circuit. Then challenge the SAFE Act, which is in a liberal circuit. When we lose the Safe Act challenge in the 2nd Circuit, we’ll then have a circuit split, which means the Supreme Court would likely review and make a final determination of whether ABWs and Mag limits are constitutional. This path takes years. I understand that you want to overturn the law right now, but that just isn’t going to happen.
Judge Mcnamara is nothing short of a coward for not repeling the Safe Act. Every County In NY had passed resoloutions opposing the safe act along with numerous law enforcement agencies and1000’s of constituents. Wait until election day or appoitntion date he is gone along with the other supporters or the safe act. KEEP IN MIND UNTIL WE GET A JUDGE NOT APPOINTED BY GOVERNOR CUOMOM WE WILL NOT HAVE ANY DIFFERENT RESULTS. THIS IS KEY
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