Uh Oh…New York Supreme Court Rules the State’s Red Flag Confiscation Law is Unconstitutional

Gosh, this hasn’t been a good week for America’s gun control industry. First Governor Ron DeSantis signed permitless concealed carry into law, tipping the balance in favor of states that don’t require a government-issued permission slip to keep and bear arms. That was traumatizing enough for the forces of civilian disarmament.

Today, however, another blow has landed. New York’s Supreme Court — which for some damned reason is the second highest court in the Empire State — has ruled that the state’s due process-free red flag firearm confiscation law is unconstitutional. Go figure.

The ruling, written by Judge Craig Stephen Brown, makes it clear how an individual’s civil rights are violated under the current law . . .

Without the requirement of any input from a medical or mental health expert, the Court is required to make a determination of whether “the respondent is likely to engage in behavior that would result in serious harm to himself, herself, or others in…section 9.39 of the mental hygiene law.” Under Mental Hygiene Law, a person’s liberty rights cannot be curtailed unless a physician opines that a person is suffering from a condition “likely to result in serious harm.” Further, in order to extend any such curtailment of liberty beyond 48 hours, a second doctor’s opinion must be obtained and such opinion must be consistent with the first doctor’s opinion.

Absent from New York’s Red Flag Law is any provision whatsoever requiring even a single medical or mental health expert opinion providing a basis for the order to be issued. New York’s Red Flag Law, as currently written, lacks sufficient statutory guardrails to protect a citizen’s Second Amendment Constitutional right to bear arms.

In other words, the New York legislature, in its unyielding zeal to disarm as many citizens as possible, didn’t give the slightest thought to the protection of a targeted individual’s civil rights when they wrote their red flag gun confiscation law. The only thing they cared about was grabbing the guns.

As a result, using a quote from McDonald v. Chicago, Judge Brown concluded . . .

As a result, using a quote from McDonald v. Chicago, Judge Brown concluded . . .

“Second Amendment rights are no less fundamental than…Fourth Amendment rights (the right to liberty), and must be afforded the same level of due process and equal protection.” Accordingly, this Court joins the Monroe County Supreme Court in holding that, “under CPLR 63-a, in order to pass constitutional muster, the legislature must provide that a citizen be afforded procedural guarantees such as a physician’s determination that a respondent presents a condition ‘likely to result in serious harm,’ before a petitioner files for a [temporary extreme risk protection order] or [extreme risk protection order].

Since this standard is required to prevent a respondent from being deprived of fundamental rights under the Mental Hygiene Law, then anything less (as contained in 63-a) deprives a citizen of a fundamental right without due process of law.” This Court declares [New York’s Extreme Risk Protection Law] to be unconstitutional. 

You can read the full ruling here.

The New York Supreme Court, then, has concluded exactly what we and every other gun rights supporter have been arguing since the first red flag confiscation order was passed in California. They deprive gun owners of their basic, constitutionally protected civil right to due process, frequently issuing ex parte confiscation orders for which the gun owner wasn’t even present to defend himself.

Again, today’s ruling was issued by New York’s Supreme Court. The highest court in New York is the Court of Appeals. New York Attorney General Letitia James’ minions are no doubt already hard at work drafting their filing for an appeal, so this battle is far from over. Still, it’s a positive step and one that will upset the state’s rabid gun-grabber community, lead by none other than Governor Kathy Hochul, to no end…and who could quibble with that?