NY State Supreme Court: Gov. Cuomo Must Prove New Gun Laws are Constitutional

03/1/13 1:17 PM | by

Cuomo Rally

Do New York Gov. Andrew Cuomo’s new draconian gun laws pass constitutional muster?

This is a question to be debated in the state Supreme Court following a lawsuit that was filed by Buffalo-based attorney James Tresmond.

In the lawsuit, Tresmond challenges the constitutionality of the NY SAFE Act on the grounds that it violates not one’s Second Amendment rights, but one’s Fifth and Fourteenth Amendment protections against government seizure of private property without “due process and just compensation.”

In an interview with the Utica Observer-Dispatch, Tresmond explained how his two plaintiffs, both gun owners who possess ‘assault’ weapons and ‘high’-capacity magazines will be forced to forfeit their property when the new laws take effect.

The plaintiffs “have several firearms that fall under this category … and they have money invested in these firearms and they’re really upset about it,” Tresmond told the Utica OD.

“If you can take somebody’s $20,000 gun or firearm without any compensation whatsoever, that’s criminal,” Tresmond added, noting that the case may be on its way to becoming a class action lawsuit.

State Supreme Court Justice Daine Devlin recognized the potential merit in Tresmond’s argument and has granted a preliminary injunction against the SAFE Act, meaning state Attorney General Eric Schneiderman must prove in court that, among other things, a retroactive ban on ‘high’-capacity magazines does not violate one’s Fifth and Fourteenth Amendment rights before the law goes into effect.

Oral arguments have been scheduled for April 25 but the state Attorney General’s Office has signaled that it will respond to the challenge to show cause by mid-March.

Thoughts and Analysis

It’ll be interesting to see how this plays out.  As Tresmond has said, this is the first legal challenge of the SAFE Act and “the beginning of taking the state into account for their actions in passing this law back in January.”

But will Tresmond’s argument hold water in court?

The SAFE Act does not call for the confiscation or forfeiture of ‘assault’ weapons.  It does broaden the definition of what an ‘assault’ weapon is (from two cosmetic characteristics down to one) and requires all citizens to register their ‘assault’ weapon with the state government.

However, it does call for citizens to sell off or discard any ‘high’-capacity magazines (those that hold more than 10 rounds) that were grandfathered in prior to 1994 magazine ban.  So, if one lawfully possesses a pre-ban 30 round mag today, he/she will have to “modify the magazine so that it holds no more than ten rounds, responsibly discard it, or sell it to a dealer or an out of state purchaser by January 15, 2014.”

It’s this aspect of the law that seems, at least to me, most constitutionally dubious if one is to follow the logic of Tresmond’s argument.

It really boils down to a simple question, given the fact that we have a Constitution, how is it possible that the government can force one to destroy, sell, or discard his/her lawfully owned private property?

I’m anxious to hear state Attorney General Schneiderman answer that question.  Aren’t you?

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