When it comes to state’s new gun law, handwriting is on the (courthouse) wall
November 16, 2022' Rod Watson, The Buffalo News
The advice is both timeless and priceless: When you’re in a hole, stop digging.
Of course, when taxpayers are handing you a gold-plated shovel and political ego is on the line, that’s easier said than done. Maybe that’s why the state appealed – and won a stay of – last week’s federal court ruling that eviscerated New York’s Concealed Carry Improvement Act.
Despite the stay issued Tuesday, the detailed rationale in last week’s ruling makes clear it’s time for Gov. Kathy Hochul and other state officials to pull the plug on their efforts to defend the indefensible. Whistling past the judicial graveyard is not a viable legal strategy.
Hochul pushed through the CCIA earlier this year after the U.S. Supreme Court struck down New York’s previous law requiring law-abiding gun owners to demonstrate “proper cause” to protect themselves with a concealed weapon outside the home. The state’s response – despite clear warnings in the high court’s decision – was the CCIA and its near-total ban on carrying a concealed handgun anywhere in the state.
But in a 184-page decision last week that was both thorough in its research and appropriately caustic in its dismissal of the state’s flimsiest justifications, U.S. District Judge Glenn Suddaby blocked enforcement of most provisions of the new law.
In the earlier case, the Supreme Court had laid down guidelines essentially saying that any restrictions on gun rights must be analogous to those in widespread use when the Second Amendment guaranteeing the right to bear arms and the 14th Amendment making that applicable to the states were ratified. Using that template, Suddaby blocked enforcement of the new law in parks, zoos, theaters, restaurants serving alcohol, public assemblies or protests and a host of other so-called “sensitive locations” where the state wanted to make self-defense off limits.
The judge was at times caustic in his derision, noting for instance, that public protests often move from one location to another. That means, he noted, that “under this vague regulation, a law-abiding responsible license holder … might suddenly find himself ... in the middle of a protest that has come to his location." His only alternative? "He would have to instantly flee lest the protesters render him a felon, which would appear to be a novel rule in America.”
He was similarly unsparing in striking down another ridiculous provision barring concealed carry on private property – including businesses – unless the property owner posts conspicuous signage allowing it. To justify that restriction, the state – in what can only be called a reach – cited 18th and 19th century anti-poaching laws meant to prevent people from taking game off of someone else’s property.
“Rest assured,” Suddaby noted, “none of the six Plaintiffs in this action has alleged that he has been injured by not being able to hunt turkey and deer (with his handgun) inside commercial establishments on privately owned property that is open for business to the public.”
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Such provisions involving “compelled speech” also run into First Amendment problems, the judge noted, as do other provisions requiring permit applicants to divulge their social media information. He also blocked enforcement of the law’s unconstitutionally vague “good moral character” requirement, as well as provisions mandating that permit applicants reveal the contact info of other adults living in the home.
In short, even while dismissing Hochul as one of the defendants because the governor herself does not have enforcement responsibility, he made mincemeat of almost all of the state’s arguments.
That bodes well for concealed-carry permit holders – who have already jumped through bureaucratic hoops including background checks and training requirements – once the stays are lifted and the case is finally decided on its merits.
Suddaby made clear last week that, with a few exceptions, the state’s case has no merit.
Instead, the CCIA brings to mind the old Jack Benny line. When confronted by a robber demanding “Your money or your life,” the notorious tightwad paused before replying “I’m thinking, I’m thinking.”
Law-abiding New Yorkers, after jumping through all the hoops required to carry a concealed weapon, should not have to face a similar dilemma, being forced to choose between risking their lives or risking arrest. Suddaby clearly agrees.
GOP gubernatorial candidate Lee Zeldin’s narrower-than-expected loss last week was based in large part on perceptions of crime. It’s hard not to believe some of those defecting voters recoiled at the thought of being left unarmed at the mercy of criminals who, by definition, will ignore the CCIA.
A Hochul spokesman noted the law is being defended by the State Attorney General’s Office, not outside counsel, so it’s not costing state taxpayers extra. But those resources still could be better spent fighting actual crime rather than creating a new class of “criminal” out of otherwise law-abiding gun owners.
While we laud Election Day losers who had the good sense – and grace – to concede, the governor and state Democrats should take a lesson and read the handwriting on the courthouse wall. It’s time to drop this Quixotic quest to disarm law-abiding permit holders who have never been the problem.
Instead of continuing to appeal, it’s time for Hochul and her fellow Democrats to stop digging – and let the courts bury this blatantly unconstitutional law.