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GlennMacGrady
Joined: 03 Jan 2005 Posts: 8231 Location: Heisenberg
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Posted: 07/02/22 8:16 pm ::: NY Exploits Loophole in 2nd Amendment Case |
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People wonder why there is so much litigation. It's because all laws and all judicial opinions are written in language, and language is inherently vague and ambiguous in many situations.
Two weeks ago the Supreme Court held in the Bruen case that the Second Amendment protects the right to bear firearms in public outside the home, and hence struck down a New York law that interfered with that right. However, it said that certain regulations of public carry were historically valid, such as a prohibition of guns in "sensitive places", giving the examples of schools and government buildings.
Loophole time! With a bulldozer!
New York has now reacted with a new gun law prohibiting guns in the following "sensitive places":
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- private property where the owner has not explicitly authorized weapons on the premises.
- Federal, state, or local government buildings, including courts;
- Places providing health or medical care, such as hospitals, nursing homes, adult care facilities, domestic violence shelters, medical campuses, behavioral facilities, mental health and chemical dependency facilities, and clinics;
- Places of worship or religious observation;
- Places where children gather, including but not limited to, schools, libraries, daycare centers, playgrounds, parks, and zoos;
- Any OCFS regulated locations that provide services to children youth or young adults
- Any OPWDD, OASAS, OMH, and OTDA funded or regulated locations, including homeless shelters;
- Places used for public transportation or transit including, airports, train stations, subway and rail stations, and bus terminals;
- Establishments where alcohol or cannabis is consumed;
- Locations when being used as a polling place;
- Educational institutions including, colleges, universities, and private schools;
- Theaters, stadiums, arenas, racetracks, museums, amusement parks, performance venues, concerts, exhibits, conference centers, banquet halls, casinos, and venues for athletic games or contests;
- Any public sidewalk restricted from access for a permitted special event that has signage
- Any gathering of individuals who are collectively expressing First Amendment rights of protest or assembly.
- Times Square |
Of course, this is all far more restrictive of gun rights than the NY law that Bruen just struck down, but it relies on the very words of Bruen (and Heller).
So, who decides what sensitive places are: state legislatures or federal judges? And what does "sensitive" mean, anyway?
We'll need many lawsuits to sort all this out given the many sensitive place gun control laws that likely will emanate from blue states, further enriching the litigation profession.
My guess is that much of this new New York law will eventually be struck down after several years, on the ground that many of the sensitive place restrictions have no historical analogues. |
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Queenie
Joined: 18 Nov 2004 Posts: 18033 Location: Queens
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Posted: 07/02/22 10:41 pm ::: |
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Please elaborate for me, sirrah, which place or places upon that list would be improved by the possession of guns, so that I may ensure that we never have the displeasure of meeting in any of them.
_________________ Ardent believer in the separation of church and stadium.
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GlennMacGrady
Joined: 03 Jan 2005 Posts: 8231 Location: Heisenberg
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Posted: 07/03/22 12:24 am ::: |
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Queenie wrote: |
Please elaborate for me, sirrah, which place or places upon that list would be improved by the possession of guns, so that I may ensure that we never have the displeasure of meeting in any of them. |
Are you talking to me? If so, I'm not a legislator or judge. Hence, I don't make gun policies, review them or decide the constitutionality of them. I'm just reporting what I think is an ironic situation: A Supreme Court opinion directly produces a more restrictive gun law than the one it just struck down.
I will say that constitutional rights have nothing to do with "improving" anything. You have a constitutional right to free speech in all public places, but your speech doesn't have to improve that place or anything at all. You have a constitutional right to travel anywhere in the U.S., but your travel doesn't have to improve any place or anybody. You have an absolute constitutional right to have a gun in your home, but the gun doesn't have to improve your home. Last week you had a constitutional right to an abortion, but the abortion didn't have to improve anything, not even yourself. These are simply rights that come gratis via the supreme law of the land that created our country, the Constitution.
Speaking of abortion, the Dobbs case was decided on the constitutional basis that states, not federal judges, should decide abortion policy. I would expect New York to cite this rationale when some gun owner sues to overturn the new NY gun law—i.e., New York will argue that Dobbs says state legislators, not federal judges, should decide policies about "sensitive places."
The web of language ambiguity litigation always expands upon itself. Never contracts. Every decision about language ambiguity is itself couched in unavoidably ambiguous language. And lawyers will get hired and paid by some interested party to exploit it, or legislate about it, or litigate about it.
________________
Oh, maybe you were asking about this:
GlennMacGrady wrote: |
My guess is that much of this new New York law will eventually be struck down after several years, on the ground that many of the sensitive place restrictions have no historical analogues. |
That prediction was based on the Bruen opinion's stated process for reviewing the constitutionality of restrictions on the 2nd Amendment right. The Court essentially said that states have the burden of showing that any prohibition or restriction has historical precedents or analogues in the laws of earlier times. I'm guessing that New York won't be able to do that for many of the prohibited places, notwithstanding the argument that state legislators should be the ones to decide this. But I could be wrong. |
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Howee
Joined: 27 Nov 2009 Posts: 15747 Location: OREGON (in my heart)
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Posted: 07/05/22 12:31 am ::: |
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GlennMacGrady wrote: |
Queenie wrote: |
Please elaborate for me, sirrah, which place or places upon that list would be improved by the possession of guns, so that I may ensure that we never have the displeasure of meeting in any of them. |
That prediction was based on the Bruen opinion's stated process for reviewing the constitutionality of restrictions on the 2nd Amendment right. The Court essentially said that states have the burden of showing that any prohibition or restriction has historical precedents or analogues in the laws of earlier times. I'm guessing that New York won't be able to do that for many of the prohibited places, notwithstanding the argument that state legislators should be the ones to decide this. But I could be wrong. |
[I think Queenie's question was, of that entire list, which of those places calls for/requires/warrants the carrying of a gun by an average citizen, and therefore does NOT qualify as a 'sensitive' place?]
If I'm understanding your explanation here, your saying that NY's newest list of "sensitive places" won't hold up cuz...."historically", there haven't been OASAS, OMH or OTDA funded locations, nor perhaps there weren't any casinos or airports when the original laws were put in to place, so....they can't count as 'sensitive' places?
_________________ Oregon: Go Ducks!
"Inévitablement, les canards voleront"
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scullyfu
Joined: 01 Jan 2006 Posts: 8862 Location: Niagara Falls
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Posted: 07/05/22 11:45 am ::: |
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Howee wrote: |
GlennMacGrady wrote: |
Queenie wrote: |
Please elaborate for me, sirrah, which place or places upon that list would be improved by the possession of guns, so that I may ensure that we never have the displeasure of meeting in any of them. |
That prediction was based on the Bruen opinion's stated process for reviewing the constitutionality of restrictions on the 2nd Amendment right. The Court essentially said that states have the burden of showing that any prohibition or restriction has historical precedents or analogues in the laws of earlier times. I'm guessing that New York won't be able to do that for many of the prohibited places, notwithstanding the argument that state legislators should be the ones to decide this. But I could be wrong. |
[I think Queenie's question was, of that entire list, which of those places calls for/requires/warrants the carrying of a gun by an average citizen, and therefore does NOT qualify as a 'sensitive' place?]
If I'm understanding your explanation here, your saying that NY's newest list of "sensitive places" won't hold up cuz...."historically", there haven't been OASAS, OMH or OTDA funded locations, nor perhaps there weren't any casinos or airports when the original laws were put in to place, so....they can't count as 'sensitive' places? |
When did you become an Alito acolyte? lol
_________________ i'll always bleed Storm green.
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GlennMacGrady
Joined: 03 Jan 2005 Posts: 8231 Location: Heisenberg
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Posted: 07/10/22 3:45 pm ::: |
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Howee wrote: |
GlennMacGrady wrote: |
Queenie wrote: |
Please elaborate for me, sirrah, which place or places upon that list would be improved by the possession of guns, so that I may ensure that we never have the displeasure of meeting in any of them. |
That prediction was based on the Bruen opinion's stated process for reviewing the constitutionality of restrictions on the 2nd Amendment right. The Court essentially said that states have the burden of showing that any prohibition or restriction has historical precedents or analogues in the laws of earlier times. I'm guessing that New York won't be able to do that for many of the prohibited places, notwithstanding the argument that state legislators should be the ones to decide this. But I could be wrong. |
If I'm understanding your explanation here, your saying that NY's newest list of "sensitive places" won't hold up cuz...."historically", there haven't been OASAS, OMH or OTDA funded locations, nor perhaps there weren't any casinos or airports when the original laws were put in to place, so....they can't count as 'sensitive' places? |
Yes, I believe that essentially will be the issue in much future litigation, Howee.
In the Bruen case the Supreme Court struck down a very restrictive NYS gun licensing law, which prevented most people from getting a public carry license at all, on the grounds that the type of licensing restriction at issue was not consistent with the American "historical tradition" of regulating firearms. Justice Thomas's majority opinion then announced the following new history-based methodology for courts to decide 2nd Amendment cases:
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'We reiterate that the standard for applying the Second Amendment is as follows: When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation. Only then may a court conclude that the individual’s conduct falls outside the Second Amendment’s “unqualified command.” |
After Bruen people will more easily be able to get a public carry license; but after the new NYS statute, that license won't allow people in NYS to carry the gun to any of those many listed "sensitive places." When the law is challenged in court, NYS will likely have to prove that there was a "historical tradition" of prohibiting firearms in each of the claimed sensitive places.
The majority opinion in Bruen even warned states not to try to take the "sensitive places" exception too far, by saying:
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. . . we have no occasion to comprehensively define “sensitive places” in this case . . . . But expanding the category of “sensitive places” simply to all places of public congregation that are not isolated from law enforcement defines the category of “sensitive places” far too broadly. Respondents’ argument would in effect exempt cities from the Second Amendment and would eviscerate the general right to publicly carry arms for self-defense that we discuss in detail below. . . . Put simply, there is no historical basis for New York to effectively declare the island of Manhattan a “sensitive place” simply because it is crowded . . . . |
So, there is now ambiguity over what "sensitive places" means in crowded cities, and the litigation will go on and on as more and more states try to exploit that terminological loophole. |
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Howee
Joined: 27 Nov 2009 Posts: 15747 Location: OREGON (in my heart)
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Posted: 07/10/22 9:03 pm ::: |
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Thank you for the clarification.
GlennMacGrady wrote: |
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'We reiterate that the standard for applying the Second Amendment is as follows: When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation. Only then may a court conclude that the individual’s conduct falls outside the Second Amendment’s “unqualified command.” |
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That word - "presumptively" - bothers me. The second amendment is so plain, so simple....written in a time when guns ("arms") were NOTHING like they are today. And what exactly IS a "Well-regulated militia"? The Marines? The Oath Keepers? "Presumptions" are what have turned this ongoing debate into a culture war, imo.
GlennMacGrady wrote: |
So, there is now ambiguity over what "sensitive places" means in crowded cities, and the litigation will go on and on as more and more states try to exploit that terminological loophole. |
I have no doubt Clarence Thomas & Co. consider their sacred hall a "sensitive place". And a Trump rally. Etc .
IFF I had to spend time in South Philly, Watts, etc., I think I'd want to be able to legally carry a weapon. And I'm not convinced that this ruling, in and of itself, will make much difference in my life. But it certainly seems to be in conflict with The Problem of America being the leading nation (by far) in death by firearms.
_________________ Oregon: Go Ducks!
"Inévitablement, les canards voleront"
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Stonington_QB
Joined: 05 Jul 2013 Posts: 756 Location: Siege Perilous
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