{"id":75450,"date":"2021-12-20T03:46:09","date_gmt":"2021-12-20T09:46:09","guid":{"rendered":"https:\/\/milesfortis.com\/?p=75450"},"modified":"2021-12-20T03:46:09","modified_gmt":"2021-12-20T09:46:09","slug":"75450","status":"publish","type":"post","link":"https:\/\/milesfortis.com\/?p=75450","title":{"rendered":""},"content":{"rendered":"

New York aims big on gun control \u2014 and misses, again<\/a><\/p>\n

In hunting, there is an old adage: \u201caim small, miss small.\u201d The point is that, if you want to hit a target, aim for a small part rather than the whole target. It is often the difference between a total miss and a marginal hit. In the area of Second Amendment law, the most promising legislative measures are the ones that aim small on the edges of the constitutionally-based right \u2014 the strategy used by abortion opponents. The problem is that politicians rarely want to aim small when they are trying to score big with voters.<\/p>\n

An example is the recent New York public nuisance law seeking to make gun manufacturers liable for gun crime. Not only is the law likely to be a large miss, it will likely deliver another blow to gun control efforts by adding precedent protecting Second Amendment rights.<\/p>\n

I\u2019ve\u00a0discussed<\/a> the New York public nuisance law aimed at gun manufacturers, a law that doubles down on a failed legal theory using torts as a substitute for direct legislative bans or barriers. As expected, gun groups like the National Shooting Sports Foundation (NSSF) as well as 14 firearms manufacturers, distributors, and retailers are now filing suit. They should have an excellent shot at a preliminary injunction.<\/p>\n

<\/p>\n

The New York nuisance law was heralded by then-Gov.\u00a0Andrew Cuomo<\/a><\/span>\u00a0as a response to the new “epidemic” facing New Yorkers. There is, of course, nothing new about gun violence in New York, but Cuomo and other New York politicians knew that promising to crush the gun industry never fails to garner support in the Empire State \u2026 and few people hold you responsible when you aim big and miss big.<\/p>\n

The problem is that major Democratic cities are delivering lasting self-inflicted wounds to gun control efforts with poorly conceived and poorly drafted measures.<\/p>\n

In 2008, the District of Columbia in 2008 brought us\u00a0District of Columbia v. Heller<\/em><\/a>, the watershed decision declaring that the Second Amendment protects the individual right of gun possession.<\/p>\n

In 2010, Chicago brought us\u00a0McDonald v. City of Chicago<\/em><\/a>, in which the Court declared that that right is incorporated against state and local government.<\/p>\n

However, no state has done more for the Second Amendment than New York.<\/p>\n

In 2020, the city triggered a controversial appeal in\u00a0New York State Rifle & Pistol Association, Inc. v. City of New York<\/em><\/a>.<\/em>\u00a0The law barred the transfer of unloaded and locked firearms from one’s residence to anywhere other than a small number of designated shooting ranges within the city. At its passage, New York officials pounded their chests and promised they were certain of the constitutionality of the law and would litigate it all the way to the Supreme Court. When the court accepted the case for review, however, the same officials scrambled to dismiss the case as moot after later rescinding the provisions.<\/p>\n

The Court was not amused by New York’s gaming the judicial system. New York leaders had forced costly litigation only to pull the law at the last minute to avoid a likely finding of unconstitutionality.<\/p>\n

Justices\u00a0Neil Gorsuch<\/a><\/span>\u00a0and\u00a0Clarence Thomas<\/a><\/span>\u00a0specifically called out New York for \u201cmanipulating\u201d the docket by withdrawing an unconstitutional law just before a final opinion. Justice\u00a0Brett Kavanaugh<\/a><\/span>\u00a0joined in the condemnation and noted, in light of the Second Circuit decision in the case, that \u201csome federal and state courts may not be properly applying\u00a0Heller<\/em>\u00a0and\u00a0McDonald<\/em>. The Court should address that issue soon, perhaps in one of the several Second Amendment cases with petitions for certiorari now pending before the Court.\u201d<\/p>\n

The Court notably then proceeded to take a new case challenging a different New York law by the same lead plaintiff: the New York State Rifle Association. That case is\u00a0New York State Rifle & Pistol Association, Inc. v. Bruen<\/em><\/a>\u00a0and deals with the\u00a0Sullivan Act<\/a>\u00a0of 1911, giving local officials discretion over who can carry concealed guns based on a showing of “proper cause.”\u00a0Bruen<\/em>\u00a0could now result in a major enhancement of Second Amendment rights for concealed carry permits \u2014 negating a host of laws across the country.<\/p>\n

New York is not done with its circular firing squad on gun control.<\/p>\n

The New York nuisance law was crafted after a series of\u00a0failures of similar such nuisance laws in areas ranging from paint to, yes, guns<\/a>. Indeed,\u00a0Congress passed the Protection of Lawful Commerce in Arms Act of 2005, giving gun sellers and manufacturers immunity from liability arising out of the criminal misuse of firearms.<\/p>\n

It is political merit \u2014 rather than legal merit \u2014 that has often propelled New York anti-gun laws. In this latest effort, the state sought to aim big by using an exception under the law if a company \u201cknowingly violated a state or federal statute applicable to the sale or marketing\u201d of firearms. If allowed, the exception would swallow the rule, in a law expressly directed at preempting such nuisance lawsuits.<\/p>\n

Cuomo himself made the case against the law by publicly declaring that it was designed \u201cto reinstate public nuisance liability for gun manufacturers<\/a>.\u201d He declared the New York law as doing precisely what Congress forbade: \u201cThe only industry in the United States of America immune from lawsuits are the gun manufacturers, but we will not stand for that any longer<\/a>.\u201d<\/p>\n

The statement was remarkably moronic in a preemption case, but also showed the contempt not just for the courts but the public at large. Cuomo had no qualms in admitting that the law was a work-around of the federal law because it was more of a political than legal effort.<\/p>\n

Now, the courts are likely to deliver another loss for New York and another big win for the Second Amendment.<\/p>\n

That is the great irony of all of this. Gun activists often target “pro-gun states”<\/a>\u00a0and bemoan their legislative efforts to expand gun rights. However, the real damage being done to the gun control movement is by its own hand. Indeed, as shown this week, New York is the gift that keeps on giving to the Second Amendment. The state has thus far been about as effective in curtailing gun rights as Monty Python\u2019s \u201cJudean People’s Front Crack Suicide Squad<\/a>\u201d was effective in combating Roman occupation.<\/p>\n

After all, who needs Texas when gun rights advocates have New York?<\/p>\n","protected":false},"excerpt":{"rendered":"

New York aims big on gun control \u2014 and misses, again In hunting, there is an old adage: \u201caim small, miss small.\u201d The point is that, if you want to hit a target, aim for a small part rather than the whole target. It is often the difference between a total miss and a marginal … Continue reading “”<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[50,8],"tags":[],"class_list":["post-75450","post","type-post","status-publish","format-standard","hentry","category-goobermint","category-rkba"],"_links":{"self":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/75450","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=75450"}],"version-history":[{"count":1,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/75450\/revisions"}],"predecessor-version":[{"id":75451,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/75450\/revisions\/75451"}],"wp:attachment":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=75450"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=75450"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=75450"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}