NY ruling applying Heller

Note that this appears to the Supreme Court of Suffolk County, NY, the judge in question is on the roster for the County Court for Suffolk County, NY, with a notation that he's an acting Supreme Court Justice (more than half of the County Court judges have that notation).

I've been discouraged that so far, most of the Heller based rulings have been to uphold convictions and such. Reasonably so, in the cases I'm aware of, but still....

Nice to see Heller actually being used to uphold someone's rights. Red letter day, for me.

Does New York state have something in its constitution or laws that require it to respect federally recognized rights? If so then the 2nd may be incorporated by New York rather than the SCOTUS.

New York also has a law (not a constitutional right, just a regular law?) that is identical to the Second Amendment except that it uses the word "cannot" instead of "shall not". The New York courts have interpreted this to mean what the courts used to say the 2nd meant, i.e. it's only for militia members.

In Citizens v Rochester (available at nysrpa near the very bottom of the left column under "research library") the court wrote "The Courts of this State have concluded that the language of federal law interpreting the Second Amendment (which is identical in its language to Article 2, section 4 of the Civil Rights Law) should be used in interpreting the provisions of this state law. Therefore, as noted above, in order to fall within its protection, the plaintiffs bear the burden of establishing that the gun itself will be used for the purpose specified in Article 2, section 4, and that they have more than a mere technical association with an unorganized, reserve militia"

I doubt that New York courts will hold themselves to interpreting Article 2 section 4 the same as the SCOTUS did the 2nd in Heller.

I know little of New York gun law and have no idea if this Rochester case is current or binding precedent.

Wouldn't the fact that a NY court recognized a federal case as the controling legal authority be defaco incorporation of the 2A for the state of NY?

A few things of note here:

- New York is a may-issue state, and the issuance (or not) is determined by a county court judge.

- Many counties will issue "restricted" permits, typically stamped "sportsman only" or "target and hunting only", etc. This is an administrative restriction, and a permit holder found in possession when not hunting or target shooting is not subject to any criminal penalties - but may see his license revoked or suspended for violating the administrative restrictions.

- Expiration dates on NY pistol permits are technically illegal - the state says they are lifetime permits, but no one has ever (to my knowledge) fought the courts on it.

- New York State has no safe-storage laws; unless Suffolk County has their own law, the judge in question revoked this permit based on a "feeling" that the permit holder didn't show good judgment.

Ah, to live in a shall-issue... *sigh*

This is actually a very poorly-reasoned little opinion. I don't think it's something that folks should be citing as the obvious result for may-issue state courts to follow in a post-Heller world. In fact, it's far from clear that the petitioner here will actually prevail in the end.

First, as is glaringly obvious, there's absolutely no analysis of whether the Second Amendment right is incorporated, and if so, whether the Constitutionally-required level of incorporation compels the result here.

Second, it's not clear whether, even under Heller, a full restoration of petitioner's license in a may-issue state is actually required on these facts. Remember, Petitioner's wife committed suicide with his gun, so the county revoked his permit based on prima facie lack of safe storage. With or without a specific safe storage requirement, these are "yucky" facts to have to litigate; the county might well have argued that it's per se negligent to leave unattended firearms accessible by unauthorized persons (even more so if petitioner was on notice his wife might be suicidal). And a court could have more narrowly held that Heller only requires access to operable firearms by the lawful owner, but if the owner is away (as he probably was when his wife killed herself), there is a reasonable counter-argument that regardless of a licensee's self-defense rights under Heller, unattended firearms simply must be secured so that unauthorized persons cannot use them.

Third, apparently the county initially yanked his pistol permit entirely, but at some later point (probably because of the Heller cite in the lawsuit?), the county restored the permit but deleted the "sportsman" endorsement which also allowed petitioner to leave home with it. Thus, before the court ruled, petitioner obtained a partial remedy of retaining a post-Heller right to possess the handgun in the home. The court does no analysis why Heller or any other legal principle also requires restoring his "sportsman" endorsement.

Finally, this trial court opinion is far from the last word -- it merely remands the cause to the county for further factfinding and other proceedings to determine whether petitioner's actions (or inaction) is outside the scope of Heller's Second Amendment right. If the county wants to, I'm guessing that it can get some facts on the record suggesting that petitioner's situation was beyond what was specifically authorized by Heller.

[now, what I REALLY think: New York's may-issue scheme for licensing possession of firearms in the home for self-defense is facially Unconstitutional under any reasonable interpretation of an incorporated Heller doctrine. If petitioner here had the luxury of (a) money, (b) time, and/or (c) good pro bono counsel, it might be fun to use this as a vehicle to blow up the state's whole home handgun licensing scheme altogether. And that case should be filed U.S. District Court, not local state court: the E.D.N.Y. Islip Federal courthouse may be the ugliest building on Long Island (if not in America), but at least the Judges there can parse legal principles (but whatever you do, don't file in E.D.N.Y./Brooklyn or the case might get assigned to Mayor Bloomberg's anti-firearms co-conspirator Jack Weinstein)].