Cuomo Gun Ban Violates Second Amendment

Excerpted from my Albany Lawyer blog
Read the full story at Cuomo Gun Ban is Unconstitutional:

NY Governor Andrew Cuomo’s so-called SAFE Act (Secure Ammunition and Firearms Enforcement Act) is unconstitutional.

The law explicitly goes after “military-style” firearms while purporting to protect hunting and sporting purposes. The Second Amendment is not about hunting and sporting uses of arms. Despite all the disputes about the phrasing, there can’t be any question that it refers to “militia” and “the security of a free state.” Neither of these has anything to do with hunting or sports.

The key language in the ban shows that the legislative intent is to discriminate against “military-style” features, and favoring (in a relative sense) hunting and sporting purposes.

When the Cuomo gun ban heads to SCOTUS (as the Supreme Court of the United States is sometimes known), the Court will have to first come to grips with the purpose of the Second Amendment. While the only sensible reading is that in includes military arms, we can’t count on the Court being sensible. With anemic conservatives like Kennedy and Roberts on the bench, we could end up with a ruling that leaves no purpose at all.

This would bring us to the next step – scrutiny of the challenged law. It seems likely that SCOTUS will retain the notion that there is still an individual right to keep and bear arms. Being a fundamental right, the Court will likely apply strict scrutiny: Asking whether the law narrowly tailored to a compelling state interest.

6 Comments

  1. Strict gun control is necessary to the establishment of a police state. People like Andrew Coumo and Michael Bloomberg are just would-be dictators.

  2. Not so. In Heller the majority rejected the view that the term “to bear arms” implies only the military use of arms:

    Before addressing the verbs “keep” and “bear,” we interpret their object: “Arms.” The term was applied, then as now, to weapons that were not specifically designed for military use and were not employed in a military capacity.

    Therefore, the Second Amendment can be about hunting and sporting and whatever else uses of arms. And government can enact limitations upon “military” weapons. Very sensible.

  3. The Heller case reaffirmed part of the 1939 Miller case. In it there is something about that sawed off shotgun Not being a militia “type” weapon that would be used for common defense. As such it could be restricted. Does that then assert that since an AR-15 could be considered a militia style gun used for common defense, it cannot be banned? Heller was only about pistols.

  4. bloombrerg is violating the rights of law abiding people with his pushing around attitude, he is playing the role of king. the supreme court must stop him, i have not seen it yet, he should be taken from office

  5. Well to keep and bear arms to me means to own and carry. in new york,militias are outlawed but if i organize what i call( boreg) ” bill of rights enforcement group” i wont have many friends. we use our brave men and women soldiers ( much respect to them!) to protect us from outside threats and border protection. but to protect our citizens within, and from the tyranny of govt we need our ( well established militia) also we need equal or greater firepower than our oppressors. i think if any true American actually read the bill of rights and thinks its out dated like some politicians think. than they need to move to china or somewhere. i may or may not have any of the firearms in ? but if i did and im not saying i do. the gustapo will not get them. lol
    sorry this is so long but im very upset and decided to vent to you. lol

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