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NY court strike down "red flag law."
Opinion here.
"Without the requirement of any input from a medical or mental health expert, the Court is required to make a determination of whether the respondent "is likely to engage in conduct that would result in serious harm to himself, herself or others, as defined in... section 9.39 of the mental hygiene law" (CPLR § 6342[1]; CPLR § 6343[2]). Under Mental Hygiene Law § 9.39, a person's liberty rights cannot be curtailed unless a physician opines that the person is suffering from a condition "likely to result in serious harm." Further, in order to extend any such curtailment of liberty beyond 48 hours, a second doctor's opinion must be obtained and such opinion must be consistent with the first doctor's opinion. Absent from New York's Red Flag Law is any provision whatsoever requiring even a single medical or mental health expert opinion providing a basis for the order to be issued. New York's Red Flag Law, as currently written, lacks sufficient statutory guardrails to protect a citizen's Second Amendment Constitutional right to bear arms."
13 Comments | Leave a comment
WOW! Exactly what I've been stating for a couple of years. Family, police, etc are NOT qualified to make such claims as red flag laws propose. Due process? NOT!
I also propose red flag laws for drivers: See a bad driver, call it in, cops come and stop the driver, impound car, suspend license. What's the difference? Autos kill tens of thousands every year and most folks think they are Dale Earnhart racers. No signal to turn or change lanes, take the car and licence. Stopping past a stop sign rather than before it. Take the car and licence.
/sarc
Glad some wiser heads prevailed, and it's good to know that lawywers cannot be made competent physicians by fiat.
If a person is adjudicated---through due process---as a danger to self or others, don't take just one class of lethal instrument from the person.
Seize the person. The person constitutes the threat.
Anything less is a veiled bid to seize that class of instrument from people who are not threats.
That is an excellent point, one that I had not considered before.
If they are a risk to others, they should be 5150'd (or whatever the local laws provide). But of course, that requires an actual professional analysis and agreement by two or three physicians who have their own licenses and malpractice premiums on the line - not an absolute immunity judge.
Doc- you should visit Joe Huffman's place too, if you don't already.
I do from time to time, mostly linked.
Does this decision have statewide effect?
Fyooz,
I’ve felt for years … maybe decades … that if someone has been adjudicated to be a danger to themselves or others that they are to dangerous to be at large in society. The idea that someone is “too dangerous” to be armed but that we can effectively prevent them from having arms, is ludicrous. “Too dangerous” means too dangerous. Period.
I recognize that folks don't like what I say on various topics on the net,like the Constitution REQUIRES that all laws of the Union be executed by the Militia. I also recognize that 99% of the folks out there have not read as extensively as I have on the Constitution.
After anyone reads all these books THEN they can argue with me. Here's the list of what I've read and studied. I own all these books.
We have never followed the Constitution. The courts are the greatest threat to our freedom. Judges are ignorant azoles who are flaunting powers they were never delegated.
A New Birth of Freedom
Charles L Black, Jr.
A View of the Constitution of the United States of America
William Rawle
America's Constitution
Akil Reed Amar
America's Great Depression
Murray N Rothbard
American History (1933)
Thomas M Marshall
Basic Economics
Thomas Sowell
Blackstone's Commentaries with notes of Reference to the Constitution of the Federal Government of the United States and the Commonwealth of Virginia:
Volumes 1 through 5
St George Tucker
Breach of Trust
Tom Coburn
Cato's Letters: Volumes 1 & 2
Trenchard Gordan
Colossus: The Price of America's Empire
Niall Ferguson
Commentaries on the Constitution of the United States: Volumes 1, 2, & 3
Joseph Story, LLD
Commentaries on the Laws of England: Volumes 1 through 4
William Blackstone
Congress and the Supreme Court
Raoul Berger
Constitutional Chaos
Andrew Napolitano
Constitutional Faith
Sanford Levinson
Constitutional History
Thomas M Cooley
Democracy in America: Volumes 1 & 2
Alexis De Tocqueville
Discourses Concerning Government
Algernon Sidney
Documentary History of the Ratification of the Constitution:
Volumes I – XXXVII, XXXVIII-XLII coming
John P Kaminski et al, Ed
Dreams from My Father
Barack H Obama
Economics Facts and Fallacies
Thomas Sowell
Elliot's Debates on the Federal Constitution: Volumes 1 through 5
Jonathan Elliot
Empire
Niall Ferguson
Executive Privilege: A Constitutional Myth
Raoul Berger
Exiled: The Story of John Lathrop
Helene Holt
Fletcher of Saltoun: Andrew Fletcher
David Daiches, Ed.
Franklin: The Essential Founding Father
James Srodes
Freedom Betrayed
Herbert Hoover
From my Cold Dead Fingers
Richard I Mack
George Washington: American Statesman Volumes I & II
Henry Cabot Lodge
Go Directly to Jail
Gene Healy
Good to be King
Michael Badnarik
Government by Judiciary
Raoul Berger
Gun Control and the Constitution Volumes 1, 2, 3
Robert Cottrell et al.
Guns, Crime, and Freedom
Wayne LaPierre
Hamilton's Curse
Thomas DiLorenzo
Illiberal Education
Dinesh D'Souza
Impeachment: The Constitutional Problems
Raoul Berger
In Defense of Freedom and Related Essays
Frank Meyer
In Defense of the Constitution
George W Carey
In the Hands of Providence
Alice Rains Trulock
In the President's Secret Service
Ronald Kessler
Inventing Freedom
Daniel Hannan
It is a Constitution We are Expounding
Am. Const. Soc.
Lincoln Unmasked
Thomas DiLorenzo
Men in Black
Mark Levin
Moral Man and Immoral Society
Reinhold Niebuhr
On Reading the Constitution
Laurence H Tribe
Partners in Power
Roger Morris
Point Blank
Gary Kleck
Recapturing the Spirit: Essay on the Bill of Rights at 200
Eric Nesse
Tainted Truth: The Manipulation of Fact in America
Cynthia Crosse
Testifying in Court
Stanley Brodsky
That Every Man be Armed
Stephen P Halbrook
The 14th Amendment and the Bill of Rights
Raoul Berger
The Agenda
Bob Woodward
The Audacity of Hope
Barack H Obama
The Bell Curve
Richard J. Herrnstein and Charles Murray
The Bill of Rights
Akil Reed Amar
The Bill of Rights and the States
Patrick Conley and John Kaminski
The Christian Life and Character of the Civil Institutions of the United States
B F Morris
The Conscience of a Libertarian
Wayne Allen Root
The Constitution in Exile
Andrew Napolitano
The Constitution of the United States: A Critical Discussion of its Genesis, Development and Interpretation
John Randolph Tucker
The Constitutional Principles of Constitution Law in the United States of America
Thomas M. Cooley
The Cult of the Presidency
Gene Healy
The Debate on the Constitution: Federalist and Antifederalist Speeches
Bernard Bailyn, ed.
The Disuniting of America
Arthur N Schlesinger Jr
The End of America
Naomi Wolff
The End of Racism
Dinesh D'Souza
The Fiefdom Syndrome
Robert Herrold
The Great Rights of Mankind
Bernard Schwartz
The Growth of the Constitution
William Meigs
The Hinge Factor
Erik Durschmied
The Invisible Constitution
Laurence H Tribe
The Irrational Atheist
Vox Day
The Liberty Amendments
Mark Levin
The Life of General Stonewall Jackson
R L Dabney, DD
The Myth of Homeland Security
Marcus Ranum
The Oxford Companion to the Supreme Court of the United States
Kent Hall, Ed.
The Passing of Armies
Joshua Chamberlain
The Politically Incorrect Guide to the Constitution
Kevin R C Gutzman
The Qur'an
The Real Lincoln
Thomas DiLorenzo
The Revolution
Ron Paul
The Road to Serfdom
F A Hayek
The Roosevelt Myth
John T Flynn
The Story of Liberty
Charles C Coffin
The Supreme Court and the Constitution
Stanley Kutler
The Thomas Sowell Reader
Thomas Sowell
The Triumph of Nationalism
William P Murphy
The Tyranny of Good Intentions
Pail Craig Roberts and Lawrence M Stratton
The Vision of the Anointed
Thomas Sowell
The Writings of Thomas Jefferson: 15 Volumes
Thomas Jefferson
Three Felonies a Day
Harvey Silvergate
Two Treatises of Government
John Locke
Wealth of Nations
Adam Smith
What's so Great About America
Dinesh D'Souza
Who Killed the Constitution?
Thomas E. Woods and Kevin R. C. Gutzman
Who Killed the Constitution?
William Eaton
Why We Want to Kill You
Walid Shoebat
When you finish them all maybe, just maybe, you will have enough info to contradict what I profess.
Totally Agreed FW!
Carl from Chicago & Fyooz,
Along similar lines, regarding felons being banned from firearms, I’ve felt for many years that if someone in prison is considered too dangerous to have access to firearms then they should not be allowed parole. The idea that someone is “too dangerous” to be armed but that we can effectively prevent them from having arms, is ludicrous. “Too dangerous” means too dangerous. Period.
There might be "public safety" logic behind the original prohibition of felons ever possessing arms, when most felonies involved acts malum in se - typically violence or theft, that pretty much all societies have recognized as wrong and dangerous.
But today you can go to jail for failing to file government paperwork on time, or saying something different from what the FBI editorial team decided to write down in their "official" report of what you said in an earlier interview. Don't see a lot of additional public safety coming from disarming people like that.
NYS Gov & Co. slamming holes in walls. :-)