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Judge refuses to block tougher NY gun law

Wednesday, March 13, 2013
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— A state judge refused Wednesday to block New York’s tough new gun law challenged in a lawsuit by more than 1,000 people who claim it violates the state constitution because it was passed too quickly and restricts the rights of a citizen militia.

Justice Thomas McNamara said case law by New York’s top court prevents him from reviewing Gov. Andrew Cuomo’s justification for pushing the bill quickly through the Legislature instead of waiting the three days usually required. Cuomo used a “message of necessity” to skirt the waiting period.

Robert Schulz, who brought the suit, said he will ask the Court of Appeals to review the precedent, claiming Cuomo’s emergency justification was false. The law enacted Jan. 15 sets a seven-bullet limit on magazines, tightens the definition of illegal “assault weapons” and requires owners of formerly legal semi-automatic guns to register them.

“I’m a trial-level court and a trial-level judge and I’m constrained to follow the law as set forth by the Court of Appeals,” McNamara said from the bench. “It is clear that judicial intervention, judicial review of a message of necessity, is not allowed.”

The judge gave state attorneys 30 days to file their response to the suit’s underlying claims that the law should be voided as unconstitutional.

Schulz told supporters and other plaintiffs afterward that he wasn’t surprised by the judge’s ruling and will petition the top court Thursday to consider whether governors’ messages of necessity can be reviewed by courts when the facts they use to justify quick legislative action are false.

“They key word there is facts. Facts have to be true,” he argued before McNamara.

Cuomo’s message to lawmakers, who gave final passage to the 59-page bill the day after it was introduced, said: “Some weapons are so dangerous and some ammunition devices so lethal, that New York State must act without delay to prohibit their continued sale and possession in the state in order to protect its children, first responders and citizens as soon as possible. This bill would do so by immediately banning the ownership, purchase and sale of assault weapons and large capacity ammunition feeding devices, and eliminate them from commerce in New York State.”

Schulz told the court that he owns a semi-automatic rifle with a pistol grip, now classified as an assault weapon under the new law, which he can legally keep provided it’s registered within 18 months. Therefore the law didn’t actually prohibit owning those guns, he said, adding that Cuomo himself estimated there were about 1 million of them in New York.

He also argued that the legislative deal was reached between Cuomo and legislative leaders, and the Assembly and Senate accepted his message of necessity without having it read aloud and passed the legislation with little time to read it and no public debate.

Assistant Attorney General James McGowan said the suit’s focus is assault weapons, but the law does many things, including requiring federal background checks for private gun sales, setting new registration requirements and enacting tougher penalties for gun crimes.

“In some respects it’s exceedingly offensive to suggest there’s no immediate need for the passage of this bill,” he said, citing mass shootings last year that involved assault weapons and large-capacity magazines.

H. William Van Allen of Hurley, another plaintiff, said for him “it’s strictly a state constitutional issue” — that the governor and Legislature simply ignored it by using the message of necessity to push through the law.

“I don’t want to see us disarmed,” said Fairlene Rabenda of Poughkeepsie, another plaintiff, citing the federal constitution’s right to bear arms. “It’s an affront to the Second Amendment.”

The suit cites Article XII of New York’s constitution, which says: “The defense and protection of the state and of the United States is an obligation of all persons within the state. The legislature shall provide for the discharge of this obligation and for the maintenance and regulation of an organized militia.”

Schultz also argues that the 1,256 plaintiffs’ obligation to defend the state and nation was violated by the new law. They have the right, specified in New York’s Civil Rights Law, “to be armed with weaponry suitable for use by the militia in warfare and for the general defense of the community,” he wrote.

McGowan countered that New York has had an assault weapon ban in place since 2000 and regulated firearms and related materials for a century.

“Obviously the Legislature could, and did, determine that possession of certain semi-automatic assault weapons and high-capacity magazines was outside the ambit of the right to bear arms the Legislature granted in Civil Rights Law,” he wrote.

 
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comments

March 13, 2013
4:10 p.m.
tplansing says...

The issue here is they, the Governor and those members of the legislature responsible for this stupid piece of legislation,are still violating the Second Amendment Rights of every citizen in this state, whether or not they choose to exercise those rights or not. The State of New York is still in violation of those rights and must be held accountable whether it be in court or through the sissy press presently owned and operated by the liberal Democrats. New York State is in VIOLATION OF THE CONSTITUTION OF THE UNITED STATES regareless. Since the Constitution of the United States is the law of the land. If I am not mistaken! Governor Cuomo would then be sitting in a septic tank of trouble waiting to be pumped out by the local septic tank truck driver.

March 13, 2013
6 p.m.
pnotto says...

This law will cost Andy the election in the next Gubernatorial race.

March 13, 2013
9:16 p.m.
tomkellermusic says...

Cuomo really screwed this one up. Yes, it (among other non-related issues)will definately cost him his seat. How about concentrating on going after the down-state scum pols that are raping us of our tax dollars? Like Boyland and his $65,000 in per diems? THEY are the real terrorists...

March 15, 2013
7:03 p.m.
jfiglio1 says...

Well if Cuomo did lie, he isn't the only one playing fast and loose with the truth. No one is being "disarmed" as one person quoted said. Nor are 1,256 individuals being deprived of their supposed obligation to defend the state. None of these plaintiffs are in a state-sponsored militia--which if we're naming names is the State's National Guard. There have always been limitations on what a citizen may legally own in this sphere. But if they're really intent on defending the state, there are an incalculable number of legal guns from which they can still choose.

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