UPDATE: Nassau Handgun Ban Lawsuit Benefits Gun Owners – AGAIN!
Editor
UPDATE: Nassau Handgun Ban Lawsuit Benefits Gun Owners � AGAIN!
Mineola, NY � June 17, 2009 � An important new ruling from a New York
intermediate appellate court found that the fundamental right to possess
a handgun applies in New York. On this point, the court relied on the
decision in Chwick v. Mulvey, the lawsuit that challenged Nassau
County�s ban on the possession of handguns mislabeled as �deceptively
colored.�
People v. Perkins, a decision of the Supreme Court Appellate Division,
Third Department, cites Chwick for the proposition that the United
States Supreme Court�s Heller decision, which held that the right to
possess a handgun is a fundamental right, applies to challenges of New
York gun laws through Civil Rights Law � 4. That state law mirrors the
Second Amendment in the United States Constitution. In briefing Chwick,
the petitioners argued that Heller must apply to New Yorkers because
prior New York rulings held that the interpretation of the right to keep
and bear arms provision in state Civil Rights Law follows federal case
law on the Second Amendment. Nassau County did not contest the Chwick
petitioners� argument that Heller applies in New York via the Civil
Rights Law, and the state Supreme Court accepted it as well.
Post-Heller cases challenging New York�s weapons laws, such as Maloney
v. Rice, have been unsuccessful because the Court of Appeals for the
Second Circuit has ruled that Heller does not apply. This is because
Heller reviewed a District of Columbia gun ban and did not explicitly
address whether the Second Amendment applies to the states. The Perkins
decision, relying on Chwick, is thus highly significant because it
bypasses the need for incorporation of the Second Amendment to the
states via the Fourteenth Amendment. That issue will likely come before
the United States Supreme Court via appeal of the Maloney decision and
possibly also an appeal decision of the Seventh Circuit denying the
challenge to the Chicago gun ban. Both of those decisions conflict with
the decision of the Ninth Circuit in Nordyke, which found that the
Second Amendment was incorporated and thus applies to state gun control
laws.
The holding in Chwick was the direct result of the petitioners� strategy
to neutralize the incorporation issue. With the decision in Perkins
building upon the foundation laid in Chwick, it is now the law within a
significant part of New York that handgun ownership is an individual
right protected by state Civil Rights Law, though one subject to
�reasonable regulation.� Future suits will certainly be required to test
the permissible boundaries of such regulations under Heller.
The Perkins ruling is a second direct benefit to gun owners resulting
from the Chwick litigation. Immediately after being sued, Nassau County
amended the original gun ban by deleting blue guns from the ban list,
and also made other changes that narrowed the scope of the ban.
Despite the positive results from the Chwick lawsuit, the petitioners
were unsuccessful in achieving total reversal of the ban at the trial
court level. The petitioners are therefore appealing the ruling to the
Appellate Division, Second Department.
Recognizing the importance of the Chwick lawsuit and beneficial results
like the Perkins ruling, the Shooters� Committee On Political Education
(SCOPE), of Tonawanda, NY, and the Sportsmen�s Association for Firearms
Education (SAFE), of Commack, NY, are garnering their members� support
for the appeal of Chwick v. Mulvey.
SCOPE, SAFE, and the petitioners are seeking donations to help with the
appeal of Chwick v. Mulvey. A victory in this appeal may well be the
springboard for challenging other burdensome and senseless New York gun
control laws. Appeals are not inexpensive. Please donate whatever you
can to either SCOPE or SAFE. Send donations to:
SCOPE
PO Box 12711
Rochester, NY 14612
Please make checks payable to SCOPE, Inc.
or
SAFE
PO Box 343
Commack, NY 11725
Please make checks payable to SAFE, Inc.
Please, note in the memo area of your check "Legal Defense Fund-Chwick
v. Mulvey."
All donations are greatly appreciated.
The petitioners continue to express their gratitude to SCOPE, the
Freeport R&R Association Junior Club, SAFE, and to those individuals
that have donated to help us succeed in this appeal.
For more information, contact:
Nassau County News Flash
Alan Chwick, Editor
516-903-1959
Edi...@iNCNF.org
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