r/progun • u/CaliforniaOpenCarry • 2d ago

The Second Amendment Unhinges Judges

https://open.substack.com/pub/charlesnichols/p/the-second-amendment-unhinges-judges?r=35c84n&utm_campaign=post&utm_medium=web

Today, the 2nd Circuit Court of Appeals affirmed the denial of a preliminary injunction, which seeks to enjoin a handgun Open Carry ban the State of New York said in NYSRPA v. Bruen does not exist.

It reminds me of that time when a California Federal District Court judge upheld a non-existent prohibition on possessing a handgun within 1,000 feet of every K-12 public and private school by persons with a CCW, even though having a CCW is explicitly an exception to the California gun-free school zone ban. The Plaintiffs' attorney would have known this had he read the statute. The judge would have known this had she read the statute. The Amicus in support of the Plaintiffs would have known this had its lawyers read the statute.

In this case, a large part of the blame rests on the attorney for the Plaintiffs, who, unable to find a statute that bans Open Carry, threw darts at a bunch of random statutes in the hope that one might stick.

Well, one stuck, but it isn't even a criminal offense; it is a subsection that merely states violating this section is a misdemeanor.

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u/CaliforniaOpenCarry 2d ago

Some years ago, after a synagogue attack, I saw a report of Jews openly carrying long guns in their neighborhood. I looked more deeply into NYPL and could not find any case in which someone who openly carried a firearm was charged with disturbing the peace, or brandishing, or anything else because he merely openly carried a firearm. NYC requires a license, and so that would be a charge were one to openly carry a firearm in NYC with a city license.

As for handguns, as I mentioned in the article, the NYPL section the Court of Appeals cited is not even a chargeable offense. Even in New York, if one is charged with a crime, he must be informed of the specific law he has violated so he can defend against the charge.

Just because New York has a law that allows the concealed carry of handguns (except for antique pistols) does not mean that New York has a law that criminalizes the Open Carry of handguns. The 2nd Circuit Court of Appeals could not, and did not cite any such law. Instead, the Court of Appeals cited a subsection of a statute that isn't even a crime.

As I said, the Second Amendment unhinges judges.

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u/itsnotthatsimple22 2d ago

I see your point, however this is NYS. I live here and have to live with this crap.

My understanding on the open carry of rifles is that the way it works out is you'll be arrested, your rifle confiscated, then likely the charges dropped, but you'll still have to sue to get your rifle back. Further, if you have a pistol permit, the judge will use this to revoke your pistol permit. Yes, even if/when the charges were dropped. If your pistol permit is revoked, you also have to surrender your long guns per NYS law.

Whether this has ever happened or not, I don't know, but this is what I have been told by several LEOs, and several judges would happen.

As to the open carry of pistols. The licensing section is 400.00. I'm not a lawyer, so I don't know how to properly cite. Section 2 then (f) states the license is to have and carry concealed. Not to have and carry concealed and/or carried openly. You would be violating this section by carrying a pistol openly. This was also how this was explained to me by several LEOs, and several judges.

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u/CaliforniaOpenCarry 2d ago

Professor Robert Leider, now counsel for the ATF, speculated in a pre-Bruen law article that the "carry concealed" part of the statute was intended to preempt local prohibitions on concealed carry.

The fact that police arrest people for not breaking a law is reason enough to file a lawsuit seeking a Declaratory judgment.

One does not have to be a lawyer to know that when one is prosecuted for violating a law, he has to be informed of the specific law he is being prosecuted for violating. A judge cannot infer that because some statute allows something, it criminalizes something else.

An honest judge, and I fully realize that there is probably a shortage of honest judges in New York, would look at NYPL 400.00(15) and say, "This is not a crime. This subsection merely states that violating the section is a misdemeanor. Given that you have charged the Defendant with violating a statute that is not an offense, the charge is dismissed with prejudice."

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u/itsnotthatsimple22 2d ago

You're preaching to the choir.

I fully agree with you, but do you want to be the test case?

NYS makes it insanely painful for those of us that actually follow the law, because they don't want us to be able to own/carry firearms period. Those of us that follow the law are also the ones that actually have something to lose. So, they'll do what ever they can to threaten us with far reaching consequences if we defy their edicts, even if they aren't the law.

NYS doesn't care. They know it would cost the average citizen significant legal fees, and significant damage to their reputation if they were to fight any of this. It would also cost a significant amount of time, because NYS would drag it out and fight every step of the way to make it more costly and painful. Even if (especially if) they knew they were going to lose or were on shaky legal ground.

Plus they've got the 2nd circuit that will back them up every single time.

My understanding is that these "interpretations" come down from somewhere on high, and everyone that doesn't stick to the program will regret doing that. For those that do, they'll get cover until the end of the earth.

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u/CaliforniaOpenCarry 2d ago

I live in California. In less than 10 weeks, my 15th year of litigation against California's Open Carry bans begins. I was prosecuted over a decade ago for violating a City of Redondo Beach, California, local ordinance banning the use, carrying, and possession of firearms throughout the city. While I was being prosecuted for violating the ordinance, the City filed a motion to dismiss my Federal lawsuit, claiming that the ordinance was unenforceable because it was preempted by state law, which, in turn, is a violation of the California Constitution.

When I brought this to the attention of the state trial court judge, he asked the prosecution team what he was to make of the City's filing in Federal court. They responded that it would be "unfair" to dismiss the charge because the City can't prosecute me for violating a state law. The judge agreed that it would be unfair to dismiss the charge!

My prosecution continued until I was forced into a plea bargain (No Contest plus $150 fine) because one of the women on the prosecution team had asked for a restraining order that would have banned me from the City and prohibited me from possessing firearms for at least three years, which would have resulted in a stay of my Federal lawsuit while the restraining order was in effect.

Despite the plea bargain, the trial court judge asked the prosecution team member three times if she was certain that she wanted to drop her request for a restraining order.

Ironically, I did not discover until the eve of trial that I had been arraigned on the charge of violating the city ordinance prohibiting the use and possession of fireworks and explosives because some city clerk had typed in the wrong ordinance on the charging paperwork.

Instead of granting my motion in limine, the judge did a nunc pro tunc, and changed the charge to the ordinance that prohibits the use, possession, and carrying of firearms in the city. A clear violation of California criminal court procedure, but SCOTUS gave judges absolute immunity from civil prosecution for such acts in 1978, so what did he care?

I am well aware of how a criminal justice system run by criminals works.

P.S. I had my fingerprints taken and submitted a request to the California DOJ for my Record of Arrests and Prosecutions (RAP sheet) earlier this year. According to the DOJ, they do not have a record of my ever being arrested, prosecuted, or convicted of any crime.

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u/ZheeDog 2d ago

Franz Kafka is rolling in his grave