JURIST – Judge upholds New York state gun law

 

[JURIST] A trial judge for the Supreme Court of New York [official profile] dismissed [text] a lawsuit on Thursday challenging the state’s strict gun laws. The plaintiffs, a group of gun rights activists, argued [lohud news report] that the New York Secure Ammunition and Firearms Enforcement Act of 2013 (SAFE Act) [text] infringes upon rights granted by the state constitution[text]. Judge Thomas McNamara held that the plaintiffs failed to show any right being infringed upon by the act.

Judgment by Jon Campbell

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PRESENT: HON. THOMAS

J.

McNAMARA

Acting Justice

STATE OF

N W YORK

SUPREME COURT

COUNTY OF ALBANY

ROBERT L. SCHULZ, et aI.,

Plaintiffs,

JU GMENT

Index No.: 1232-13

RJI No.: 01-13-109432

-against-

N W

YORK STATE EXECUTIVE; ANDREW

CUOMO, Governor; STATE OF

N W

YORK

LEGISLATURE; SHELDON SILVER, Speaker

of

the

New York State Assembly; DEAN SKELOS, Temporary

President and Republican Coalition Leader; JEFFREY

KLEIN, Temporary President and Democrat

Coalition Leader,

Defendants.

(Supreme Court, Albany County, Motion Term)

APPEARANCES:

Robert

1

Schulz

laintiff

Pro Se

2458 Ridge Road

Queensbury,

New

York 12804

Eric

T.

Schneiderman

Attorney General

of

the State

of

New

York

(By: James B. McGowan, Assistant Attorney General,

of

Counsel)

ttorney

for

Defendants

The Capitol

Albany,

New

York 12224-0341

McNamara,

J.

In their complaint plaintiffs maintain that the

New

York Secure Ammunition and Firearms

Enforcement Act (NY SAFE Act) (L 2013, ch

1

violates

New

York State Constitution Article III,

§

14

and

Article XII. After plaintiffs application for a preliminary injunction to enjoin enforcement

of

the SAFE

Schulz, et

al

v

State

of

New York Executive, et

al

Index No.:

1232-13;

RJ

No.: 01-13-109432

Act was denied, defendants moved for summary judgment dismissing the complaint.

New York Constitution Article III,

§

4

provides that:

No bill shall be passed or become a law unless it shall have been printed

and upon the desks

of

the members, in its final form, at least three calendar

legislative days prior to its final passage, unless the governor, or the acting

governor, shall have certified, under his or her hand and the seal

of

the state,

the facts which in his or her opinion necessitate an immediate vote thereon

The challenge under Article III,

§

4

is based on a certificate issued by the Governor on January 14,

2013 calling for immediate passage

of

a bill then pending in the Legislature: Assembly Bill Number

23

88

and Senate Bill Number 2230. The message contained the following language:

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,

if

enacted, 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. For this reason, in addition to enacting a

comprehensive package

of

measures that further protects the public,

immediate action by the Legislature is imperative.

Because the bill has not been on your desks in final form for three calendar

legislative days, the Leaders

of

your Honorable bodies have requested this

message to permit the immediate consideration

of

this bill.

Later that same day, the Senate passed the bill and on the following day the bill was approved by the

Assembly. While plaintiffs argue that the certification issued by the Governor is a sham, the law in this

regard is well settled:

as

long as the Governor’s certificate contains some factual statements, the sufficiency

of

the stated facts to support the Governor’s conclusion may not be challenged

Maybee

v

State

of

New

York,

4 NY3d

415,417

[2005]). Here, while plaintiffs may disagree with the Governor’s and Legislature’s

-2

Schulz, et

al

v State

o

New York Executive, et

al

Index No.:

1232-13;

RJ1 No.: 01-13-109432

assessment

of

theneedto actquickly,theGovernorincludedinhiscertificatearecitation

of

hisreasonsfor

urging speedy passage. That is all the Constitution requires and consequently, the challenge based on

Article III,

§

14

fails.

The complaint and memoranda submitted by plaintiffs are unclear as to other bases for challenging

the SAFE Act. For instance, in the complaint plaintiffs allege that the Safe Act arguably infringes on

rights protected by the Second Amendment

of

the United States Constitution and Civil Rights Law

§

4

Plaintiffs also assert that the statute arguably infringes

on

rights guaranteed by

New

York Constitution

ArticleXII. However,Legislativeenactmentsenjoyastrongpresumption

of

constitutionalityandwhilethe

presumption is rebuttable any invalidity must be demonstrated beyond a reasonable doubt

Matter

o

McGee

v Korman,

70 NY2d 225,231 [1987]). Here, plaintiffs have failed to demonstrate in what manner the SAFE

Act infringes upon their asserted rights.

The Second Amendment and Civil Rights Law

§

4 contain nearly identical language:

A

well

regulated Militia, being necessary to the security

of

a free State, the right

of

the people to keep and bear

Arms, shall not [cannot] be infringed. While the United States Supreme Court concluded in

[District

o

Columbia v Heller,

554 US 570 (2008)] that the Second Amendment confers a constitutionally protected

individual right to keep and bear arms as a means

of

self-defense within the home, it also held that the right

conferred by the Second Amendment and, by extension, Civil Rights Law

§

4 is not absolute and may be

limited by reasonable governmental restrictions

People v Perkins,

62 AD3d 1160,

1161

[3d Dept 2009]

Iv

appeal denied

13

NY3d

748 [2009], citations omitted). The right is not a right to keep and carry any

weapon whatsoever in any manner whatsoever and for whatever purpose (see

District

o

Columbia v Heller

at 626). [L]ongstanding prohibitions on the possession offirearn1s by felons and the mentally ill, or laws

-

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