Copy of article:
Rod Watson: Hochul on borrowed time with 'unconstitutional' gun law
Rod Watson Sep 7, 2022 Updated 22 hrs ago
Gov. Kathy Hochul pushed through a new gun-control law that a federal judge says is unconstitutional, even though he let it stand on procedural grounds.
So now you know: If only New York’s new gun laws had been in effect on May 14, there would have been no massacre at the Jefferson Avenue Tops. Why not? Because it would have been illegal for the shooter to buy his firearm or to take it to a “restricted location” like the supermarket, and that surely would have stopped him.
At least that’s what Gov. Kathy Hochul would have us believe, based on her news conference last week when she cited the Buffalo murders in trying to justify the new restrictions that a federal judge – while allowing them on procedural grounds – has called unconstitutional.
If she’s right, it is one of those head-slapping “Wow, I could have had a V-8!” moments. Like the characters in the old TV commercial who realize too late they could have opted for the vegetable juice, we realize now all we had to do was pass her Concealed Carry Improvement Act sooner to prevent such crimes without impinging on the constitutional rights of gun owners.
At least that’s what Hochul and the State Legislature’s Democratic majority would like us to think.
However, the judge wasn’t buying it, even while letting the law take effect because the plaintiffs lacked “standing” to bring the suit against the CCIA.
But any gun-banner rejoicing in Chief District Judge Glenn Suddaby’s ruling should read the rest of the 78-page decision before celebrating. In the sometimes-biting tone such preposterous laws deserve, he eviscerated the substance of the state’s case, saying that despite laudable goals, “the New York State Legislature has generated an unconstitutional statute.”
In its haste to respond to the U.S. Supreme Court’s June ruling striking down a previous law requiring that New Yorkers demonstrate “proper cause” to protect themselves with a concealed weapon, the state passed the CCIA to ban carrying a gun in almost all public places. But, Suddaby wrote, the new law “reads much less like such a measured response than a wish list of exercise-inhibiting restrictions glued together by a severability clause in case some of the fanciful restrictions were struck down.”
Suddaby let the law take effect Sept. 1 because he found that the plaintiffs – including Schenectady County pistol permit holder Ivan Antonyuk and the Gun Owners of America – lacked standing to sue, in part because Antonyuk never showed the “concrete intention” to violate the new law and thus face its sanctions.
As for the organizations, he found they lacked the standing to represent their members and failed to show sufficient financial or other harm to their groups to be able to sue on their own.
Law shoots holes in Constitution
But though Suddaby could have stopped there, he didn’t. While judges often rule as narrowly as possible and leave it at that, Suddaby included a section whose title, alluding to the plaintiffs' case, says it all: Substantial Likelihood of Success on the Merits.
In case the plaintiffs appeal and a higher court concludes they have standing to sue, he writes, “what follows would constitute the Court’s ruling.”
He then points out that the law is so poorly-written that it calls for granting a license to carry only to those of “good moral character” who will use the gun “only in a manner that does not endanger oneself or others.”
Obviously, if you use a gun to protect yourself against a mugger, you’ve going to “endanger” your attacker. Suddaby bitingly notes that leaving out the phrase “other than in self-defense” means “the statute is conditioned on a logical impossibility” and thus would be “doomed.”
Similarly, he found the new “good moral character” requirement does not eliminate the subjectivity the Supreme Court condemned when it struck down New York’s previous law requiring an applicant to demonstrate “proper cause” to carry a gun for protection. When it comes to the Second Amendment right of self defense, he said, “licensing officials may not arbitrarily abridge it based on vague, subjective criteria.”
The judge also agreed with the plaintiff that having to let the state probe their social media accounts to see if they might be a threat violates their First Amendment speech rights, as well as their Fifth Amendment rights against self-incrimination. He noted that the Supreme Court has previously ruled it “intolerable that one constitutional right should have to be surrendered in order to assert another.”
And the law’s prohibitions on carrying firearms in “sensitive locations" – written so broadly as to cover practically any public place – is precisely the kind of language the Supreme Court “considered and rejected,” he pointed out. Similarly, barring guns in "restricted locations" – meaning private property – without the owner’s express consent usurps the rights of property owners to decide for themselves, Suddaby said.
Essentially, the judge found all of the major elements of the new law violate the constitutional rights of law-abiding gun owners who have gone through the state’s extensive vetting process to be able to carry a concealed weapon to protect themselves and others.
New York State’s shell game
Maybe that’s why, at a news conference with Hochul last week, New York City Mayor Eric Adams bragged about police recovering 4,700 illegal guns so far this year. Like the carnival huckster distracting the shell-game dupe, he was talking about criminals – not the law-abiding gun owners the CCIA targets. Neither he nor Hochul nor any other politician has come up with any such numbers to show that legal permit holders are a problem.
Yet that’s who they are going after with a law whose major provisions a federal judge has warned violate the U.S. Constitution.
Attorney Stephen Stamboulieh said the plaintiffs are still examining their options. Presumably, that means either appealing or filing a new case that satisfies the concerns about “standing.”
Either way, Suddaby has made clear what should have been clear all along to New York officials.
Granted, individual district judges have been known to go rogue before being reeled in by higher courts. But Suddaby’s analysis is so grounded in the rationale of the U.S. Supreme Court’s June decision that it’s hard to imagine it being rejected barring a wholesale change on the high court.
That makes it just a matter of time before New York’s unconstitutional law – just like the previous one – is struck down. The only question is: How many lives of law-abiding gun owners will Hochul and the Democrats put at risk in the meantime?