Second Amendment Legal Update, December 2024

A monthly update, prepared for the Schuyler County Chapter of S.C.O.P.E. NY, a statewide 501(c)4 organization dedicated to preserving the 2nd Amendment rights for the residents of New York State. For a complete copy of this month’s report, click here.

Second Amendment Legal Update: March 2024

A monthly update, prepared for the Schuyler County Chapter of S.C.O.P.E. NY, a statewide 501(c)4 organization dedicated to preserving the 2nd Amendment rights for the residents of New York State. For a complete copy of this month’s report, click here.

Second Amendment Legal Update, January 2024

A monthly update, prepared for the Schuyler County Chapter of S.C.O.P.E. NY, a statewide 501(c)4 organization dedicated to preserving the 2nd Amendment rights for the residents of New York State. For a complete copy of this month’s report, click here.

Second Amendment Legal Update: March 2023

A monthly update, prepared for the Schuyler County Chapter of S.C.O.P.E. NY, a statewide 501(c)4 organization dedicated to preserving the 2nd Amendment rights for the residents of New York State. For a complete copy of this month's report, click here.

Schuyler County joins fight against New York gun law

Elmira Star-Gazette:

Schuyler County has joined several other upstate New York counties, including Chemung and Steuben, in supporting a Supreme Court challenge to a New York City law that officials say could have statewide implications.

The county legislature unanimously authorized county attorney Steven Getman to assist in an upcoming case filed by the New York State Rifle and Pistol Association against the city and state of New York.

At issue is a New York City law that prohibits licensed handgun owners from carrying their weapons outside the city, even if they are locked and unloaded....

Getman and the other litigants argue the law is unconstitutional in that it violates the right to travel, interstate commerce, and the Second Amendment right to keep and bear arms.

Schuyler County considers joining U.S. Supreme Court challenge to New York gun law

The Schuyler County legislature will vote at its Monday (April 8) meeting whether to join a constitutional challenge to a New York City law that could have broad implications for the state’s gun control measures.

The proposed resolution, which has passed both the county’s management and finance committee and its legislative resolution review committee, authorizes County Attorney Steven Getman to “render aid, where possible and practicable, to the various states listed as Amicus Curiae in the pending United States Supreme Court case of the New York Rifle and Pistol Association, Inc. et. al. v. City of New York, State of New York et. al.”

Those states have joined the New York Rifle and Pistol Association in arguing that New York City’s general prohibition on transporting even licensed, locked and unloaded handguns outside the city is unconstitutional, in that it violates the right to travel, interstate commerce, and the Second Amendment right to keep and bear arms.

They also argue that the Second Circuit Federal Court of Appeals, which covers New York, applied an incorrect standard in upholding the law. The appeals court, the plaintiffs argue, erred by failing to subject to the law to a “strict scrutiny” test.

“Strict scrutiny is the highest standard of review a court may use to evaluate the constitutionality of governmental action,” Getman explained. “It is often applied when a law infringes upon a fundamental right or involves a suspect classification.”

“Under that test, a law must further a compelling governmental interest, and must be narrowly tailored to achieve that interest.”

According to Getman, this is the first significant Second Amendment case the Supreme Court will hear since ruling in District of Columbia v. Heller (2008) that the Constitution protects an individual right to keep and bear arms, and further that this right applies against the states as well as the federal government, in McDonald v. Chicago (2010).

The New York State Rifle and Pistol Association challenged the city’s ban on taking a licensed handgun out of the licensee’s home except to a gun range within the city. The Second Circuit upheld the ban based on “intermediate scrutiny,” even though that standard requires that a restriction actually works to achieve a legitimate goal. Under the law, a city resident licensed to possess a handgun cannot transport their handgun to a weekend second home (even for self-defense), to another county to participate in a shooting competition, or even to a neighboring city for target practice. This, opponents argue, amounts to requiring a handgun owner to leave a firearm in a vacant house in the city while traveling, where it is more susceptible to burglary. They further argue that the city was unable to explain how a legal gun owner inflicts any risk on society when transporting a firearm outside the city, but not when transporting the identical firearm under identical conditions by identical means within the city itself.

How the Supreme Court rules could have broad implications for Schuyler County residents in terms of what sort of gun control measures the state might impose going forward, Getman noted. In recent years, Governor Andrew Cuomo has been a vocal advocate for increased firearm restrictions.

This is not the first time that the Schuyler County legislature has weighed in against Cuomo’s strict gun control laws. In 2013, the legislature passed several resolutions opposing the controversial SAFE act, arguing that the law violated the Second Amendment and created an unfunded mandate on the counties.

If the county joins the action, it would be at no cost to the county, the resolution notes.

Schuyler County is not the first county in New York to join the amicus filing. As of Wednesday (April 3), the following counties are known to have passed resolutions supporting the law’s challenge on Second Amendment grounds: Cortland, St. Lawrence, In addition, the following upstate counties are currently considering joining the action: Steuben, Montgomery, Lewis, Tioga, Chemung, Schenectady and Jefferson.

The states currently filing in support of the Amicus Curiae, and against the law, are: Louisiana, Alabama, Arizona, Arkansas, Georgia, Idaho, Kansas, Kentucky, Michigan, Mississippi, Montana, Oklahoma, South Carolina, Texas, Utah, West Virginia, and Wisconsin. A brief in opposition to the New York law has also been filed by: The Western States Sheriffs’ Association, International Association of Law Enforcement Firearms Instructors, Law Enforcement Legal Defense Fund, Law Enforcement Action Network, Law Enforcement Alliance of America, and International Law Enforcement Educators and Trainers.

The current resolution was sponsored at management and finance by legislator Phil Barnes (R), District VI, Town of Dix.

A copy of draft resolution, submitted to the legislature by Getman, can be found here.

Resolution (Draft): Adoptin... by on Scribd

Defense attorney group offers Second Amendment challenges to NY Penal Law 265.01(1).

The Center for Appellate Litigation (CAL) has released an article on legal challenges to prosecutions under NY Penal Law 265.01(1) (fourth-degree criminal possession of a weapon) on sufficiency and constitutional grounds.

The article looks at the United States Supreme Court decisions in District of Columbia v Heller and Caetano v Massachusetts and presents ideas for making Second Amendment challenges to the per se nature of the statute, including:

· Move pretrial (in writing) to dismiss charges of fourth-degree criminal possession of a weapon under Penal Law § 265.01(1), on Second Amendment grounds (citing District of Columbia v. Heller and Caetano v. Massachusetts). [F]ocus your arguments on the lawful, protected purposes of the weapon (including, but not limited to, self-defense). It can be argued that some of the more obscure items in PL § 265.01(1) are collectible items, or used for recreation.
· Also consider sufficiency challenges based on the statutory and/or common law definitions of certain per se weapons. Argue that the weapon doesn’t fit the definition.

The CAL newsletter offers litigation strategies to challenge the use of such evidence and preserve the record in a way that may lead to a resolution that protects the Constitutional Rights of gun owner defendants.
The newsletter is available here.