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A NY Judge finally gets it. (C&P)
COBmmcmss
Member Posts: 1,174 ✭✭✭✭✭
Here's an interesting read where the NY State Appeals Judge finally recognizes that the states is stopping their people's 2nd Amendment right under the U.S. Constitution.
(Colored highlights courtesy of "Yours Truly")
COB
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N.Y. High Court Judge Takes Colleagues to Task Over Constitutional Issue in Gun Case
Joel Stashenko
New York Law Journal
March 05, 2010
In a rare written dissent, Judge Robert S. Smith has taken his six colleagues on the New York Court of Appeals to task for not finding the "substantial constitutional question" that would allow them to review a judge's denial of a pistol permit to a Westchester County, N.Y., attorney.
Smith said the refusal of the court to hear an appeal in Kachalsky v. Cacace (pdf), SSD4, highlights the "amorphous definition" that the judges have come to attach to "substantial" and how it is at odds with provisions in Article 6, A?3(b)(1), of the state Constitution and provisions of CPLR 5601 and 5602 governing when the court recognizes a right to appeal in civil cases.
Most such appeals are dismissed unanimously in batches, with the court merely noting that "no substantial constitutional question is directly involved."
One court observer said he could recall only a few dissents in the last decade to denials of leaves to appeal.
Here, however, Smith protested that the majority had used a standard with no basis in state law to deny a hearing in a case that raised a serious constitutional issue.
The judge acknowledged that, like his colleagues, he also has been guilty of relying on loose readings of what constitutes a "substantial" constitutional question triggering the court's review as of right.
"We have at times followed the practice -- one in which, I confess, I have joined -- of giving 'substantial' a much more flexible meaning, so flexible that it confers on us, in effect, discretion comparable to that we have in deciding whether to grant permission to appeal under CPLR 5602," Smith wrote. "I am convinced that this practice is inconsistent with both the constitutional provision and the statute implementing it."
Kachalsky v. Cacace presented the question of whether Penal Law A?400.20(2)(f), which requires "proper cause" for the issuance of a license to carry a concealed handgun, violated the Second Amendment of the U.S. Constitution. Smith argued that there could hardly be an issue posing a more "substantial" constitutional question for the court.
Kachalsky raises the questions of whether the Second Amendment limits the states or the federal government from issuing gun-possessing permits and whether a prohibition from carrying a concealed weapon without proper cause is consistent with the Second Amendment, Smith wrote.
"I make no comment on the merits of either issue, except to say that neither is insubstantial," the judge wrote in his Feb. 16 dissent to the majority's summary refusal to grant leave to appeal. "On neither issue could petitioner's case, by any remote stretch, be called frivolous or fanciful."
He noted that the issue of whether the Second Amendment limits the powers of states and the federal government to set limits on gun possession is of "such great substance" that the U.S. Supreme Court heard oral arguments on Tuesday in a case about the legality of Chicago gun control ordinances in McDonald v. City of Chicago.
If nothing else, Smith's dissent provides some insight into the thoughts of at least one judge on his colleagues' bases for denying leave to appeal on constitutional grounds in civil matters, court observers said.
Stewart Sterk, a professor at Benjamin N. Cardozo School of Law, said Smith is suggesting that it is not really "intellectually honest" for the court to be declining jurisdiction on appeals where it says a substantial constitutional question is missing when "there are some cases where you can't really say that, because the Supreme Court appears to be dealing with those issues."
"What he is really complaining about is that in some cases, the court effectively is deciding a case on the merits by declining to take jurisdiction," said Sterk, who once clerked for Court of Appeals Judge Charles D. Breitel. "The constitutional question is rejected and he is objecting to that practice."
E. Leo Milonas, a partner at Pillsbury Winthrop Shaw Pittman who writes a column on Appellate Division practice for the New York Law Journal, said he welcomed Smith's unconventional dissent in Kachalsky.
"It is good that they differ and when they do so, that they feel strongly enough about it that judges want to assert their position," said Milonas, a former state chief administrative judge. "It is good for the public. It is good for the law."
Smith is no stranger to standing apart from his colleagues on the court. He has by far been the member most apt to write dissents in cases the bench has heard, delivering 53 since he was appointed to the court by Governor George E. Pataki in 2003.
In some of those dissents, Smith has written in less-than-glowing-terms of the reasoning used by judges in the majority or the ramifications of their rulings.
THRESHOLD DETERMINATION
Challenging the failure to grant leave in this case, Smith wrote that neither Article VI, A?3, of the state Constitution nor CPLR 5601 and 5602 of state law require that a constitutional question be found to be "substantial" for an appeal to be taken to the court as of right.
"But we have interpreted them to mean that," he wrote.
____________________________________
(Colored highlights courtesy of "Yours Truly")
COB
_________________________________________________________
N.Y. High Court Judge Takes Colleagues to Task Over Constitutional Issue in Gun Case
Joel Stashenko
New York Law Journal
March 05, 2010
In a rare written dissent, Judge Robert S. Smith has taken his six colleagues on the New York Court of Appeals to task for not finding the "substantial constitutional question" that would allow them to review a judge's denial of a pistol permit to a Westchester County, N.Y., attorney.
Smith said the refusal of the court to hear an appeal in Kachalsky v. Cacace (pdf), SSD4, highlights the "amorphous definition" that the judges have come to attach to "substantial" and how it is at odds with provisions in Article 6, A?3(b)(1), of the state Constitution and provisions of CPLR 5601 and 5602 governing when the court recognizes a right to appeal in civil cases.
Most such appeals are dismissed unanimously in batches, with the court merely noting that "no substantial constitutional question is directly involved."
One court observer said he could recall only a few dissents in the last decade to denials of leaves to appeal.
Here, however, Smith protested that the majority had used a standard with no basis in state law to deny a hearing in a case that raised a serious constitutional issue.
The judge acknowledged that, like his colleagues, he also has been guilty of relying on loose readings of what constitutes a "substantial" constitutional question triggering the court's review as of right.
"We have at times followed the practice -- one in which, I confess, I have joined -- of giving 'substantial' a much more flexible meaning, so flexible that it confers on us, in effect, discretion comparable to that we have in deciding whether to grant permission to appeal under CPLR 5602," Smith wrote. "I am convinced that this practice is inconsistent with both the constitutional provision and the statute implementing it."
Kachalsky v. Cacace presented the question of whether Penal Law A?400.20(2)(f), which requires "proper cause" for the issuance of a license to carry a concealed handgun, violated the Second Amendment of the U.S. Constitution. Smith argued that there could hardly be an issue posing a more "substantial" constitutional question for the court.
Kachalsky raises the questions of whether the Second Amendment limits the states or the federal government from issuing gun-possessing permits and whether a prohibition from carrying a concealed weapon without proper cause is consistent with the Second Amendment, Smith wrote.
"I make no comment on the merits of either issue, except to say that neither is insubstantial," the judge wrote in his Feb. 16 dissent to the majority's summary refusal to grant leave to appeal. "On neither issue could petitioner's case, by any remote stretch, be called frivolous or fanciful."
He noted that the issue of whether the Second Amendment limits the powers of states and the federal government to set limits on gun possession is of "such great substance" that the U.S. Supreme Court heard oral arguments on Tuesday in a case about the legality of Chicago gun control ordinances in McDonald v. City of Chicago.
If nothing else, Smith's dissent provides some insight into the thoughts of at least one judge on his colleagues' bases for denying leave to appeal on constitutional grounds in civil matters, court observers said.
Stewart Sterk, a professor at Benjamin N. Cardozo School of Law, said Smith is suggesting that it is not really "intellectually honest" for the court to be declining jurisdiction on appeals where it says a substantial constitutional question is missing when "there are some cases where you can't really say that, because the Supreme Court appears to be dealing with those issues."
"What he is really complaining about is that in some cases, the court effectively is deciding a case on the merits by declining to take jurisdiction," said Sterk, who once clerked for Court of Appeals Judge Charles D. Breitel. "The constitutional question is rejected and he is objecting to that practice."
E. Leo Milonas, a partner at Pillsbury Winthrop Shaw Pittman who writes a column on Appellate Division practice for the New York Law Journal, said he welcomed Smith's unconventional dissent in Kachalsky.
"It is good that they differ and when they do so, that they feel strongly enough about it that judges want to assert their position," said Milonas, a former state chief administrative judge. "It is good for the public. It is good for the law."
Smith is no stranger to standing apart from his colleagues on the court. He has by far been the member most apt to write dissents in cases the bench has heard, delivering 53 since he was appointed to the court by Governor George E. Pataki in 2003.
In some of those dissents, Smith has written in less-than-glowing-terms of the reasoning used by judges in the majority or the ramifications of their rulings.
THRESHOLD DETERMINATION
Challenging the failure to grant leave in this case, Smith wrote that neither Article VI, A?3, of the state Constitution nor CPLR 5601 and 5602 of state law require that a constitutional question be found to be "substantial" for an appeal to be taken to the court as of right.
"But we have interpreted them to mean that," he wrote.
____________________________________
Comments
The judge acknowledged that, like his colleagues, he also has been guilty
At least, he admits it.
Here is another bit of light from the other side of the country. It looks like we got 'em surrounded.
http://www.saf.org/viewpr-new.asp?id=313
For Immediate Release: 2/25/2010
By Alan M. Gottlieb
Executive Vice President
Second Amendment Foundation
The Washington State Supreme Court has issued a precedent-setting opinion in the case of State v. Christopher William Sieyes which holds that the Second Amendment of the U.S. Constitution's Bill of Rights "applies to the states via the Fourteenth Amendment."
This outstanding opinion was authored by Justice Richard B. Sanders, a Supreme Court veteran who clearly understands the history of both the state and federal constitutional right to keep and bear arms. Perhaps what makes the Sanders opinion so remarkable is that it places the Washington Supreme Court ahead of the United States Supreme Court in recognition that the U.S. Constitution's recognition of the right to keep and bear arms applies to all citizens, and should also place limits on state and local governments, as it does on Congress.
Quoting Justice Sanders, "Lower courts need not wait for the Supreme Court.the Constitution is the rule of all courts-both state and federal judiciaries wield power to strike down unconstitutional government acts."
The Sanders opinion was issued February 18, 2010 and its significance quickly registered with gun rights organizations and activists across the map. For example, the National Shooting Sports Foundation hailed the ruling. NSSF Senior Vice President and General Counsel Lawrence G. Keane called it "a welcome development and victory for the rights of law-abiding firearms owners."
This state high court opinion, among other things, effectively "puts on notice" anti-gun groups in the Evergreen State that their continued efforts to impair the rights of legally-armed citizens will face not only growing legislative resistance, but intense legal scrutiny. Though not binding on other states, it clears a path for other state supreme courts to follow.
Despite its brevity at only 24 pages, Justice Sanders' opinion - which was co-signed by five of his colleagues, including Chief Justice Barbara A. Madsen - thoroughly and proactively debunks any suggestion that the authors of Article 1, Section 24 of the Washington State Constitution did not mean specifically what they wrote: "The right of the individual citizen to bear arms in defense of himself, or the state, shall not be impaired, but nothing in this section shall be construed as authorizing individuals or corporations to organize, maintain or employ an armed body of men."
Perhaps Justice Sanders put it best when he noted, "This right is necessary to an Anglo-American regime of ordered liberty and fundamental to the American scheme of justice."
The Second Amendment Foundation (www.saf.org) is the nations oldest and largest tax-exempt education, research, publishing and legal action group focusing on the Constitutional right and heritage to privately own and possess firearms. Founded in 1974, The Foundation has grown to more than 650,000 members and supporters and conducts many programs designed to better inform the public about the consequences of gun control. SAF has previously funded successful firearms-related suits against the cities of Los Angeles; New Haven, CT; and San Francisco on behalf of American gun owners, a lawsuit against the cities suing gun makers and an amicus brief and fund for the Emerson case holding the Second Amendment as an individual right.
-END-
Brad Steele