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Be glad she retired before Heller

O’Connor steps in NY gun case

3 Responses to “Be glad she retired before Heller”

  1. Calvin Says:

    Holy #^&@*! Did they forget to bury her or did she dig her way out?

  2. Random Passer By Says:

    Love the blog, but I think you and I may have slightly different views on her position.

    What she actually did is delay her ruling until the New York Court of Appeals (the highest court in the state) told her whether or not non-residents have a right to apply for a pistol permit. If the New York Court of Appeals tells her they do, my guess is that she will remand the case back to the original judge who denied the permit basically telling him to justify the denial when the highest court (way way above him) says he can’t do that. If the NYCOA tells her that non-residents are not allowed to apply for a permit, then she can strike the law down (or let it stand) without worrying whether or not she actually interpreted NY law correctly.

    What we are all seeing here is a combination of two factors that support moving cautiously. First, judges (who are appointed) are always hesitant to strike down the laws made by the democratically elected officials, so when it is a possibility, they make sure to dot all the Is and cross their Ts (wow that idiom looks weird when typed out). Second, she was a Supreme Court Justice: her opinions defined the law for 300 million people. Justices are used to taking small steps and considering cases very carefully. The SCOTUS only hears 70 or so cases per year and work very hard even then.

    Anyway, my longwindedness notwithstanding, I think that we can’t write her off as a supporter based on this article. Besides, she is a firm believer in stare decisis and, sitting as an appeals court judge, would never overrule the SCOTUS if she thinks that there is direct precedent on the issue.

    Now to the case at hand. The question presented in McDonald and Heller was: does a citizen have the right to have a handgun for self defense in his home? The question presented in the case you linked to is: does a citizen have the right to have a handgun for self defense in his second/vacation home?

    As you can see above, I think that this is pretty close to Heller/McDonald, and the man should get his permit. That doesn’t guarantee he’ll win though. I think the most likely outcome is that either (i) he will win on 2A grounds or (ii) he will lose or the case will be remanded back to the initial court for further consideration (most likely due to NYCOA response, but could be anything, including procedural tactics). It would take some legal gymnastics to say he loses because the right is limited to your primary residence, and that outcome is unlikely.

  3. SayUncle Says:

    I think your assessment is reasonable but it leaves a lot of questions as to her actions. I didn’t trust her.