A three-judge panel from the United States Court of Appeals for the Second Circuit has upheld New York’s “special need” requirement for concealed carry permits, ruling it does not violate the Second Amendment, the panel unanimously decided yesterday in the case of Kachalsky v. Westchester. Judges Robert Katzman, Gerard E. Lynch and Richard C. Wesley rebuffed arguments presented by attorney Alan Gura and the Second Amendment Foundation challenging the “proper cause” requirement” and ensured the status quo will be maintained unless the Supreme Court rules otherwise on an expected appeal.
Referring to the earlier Heller and McDonald decisions successfully argued by Gura, the panel punted on the issue of firearms carried in a public setting.
“What we know from these decisions is that Second Amendment guarantees are at their zenith within the home.” The decision stated. “Although the Supreme Court’s cases applying the Second Amendment have arisen only in connection with prohibitions on the possession of firearms in the home, the Court’s analysis suggests, as Justice Stevens’s dissent in Heller and Defendants in this case before us acknowledge that the Amendment must have some application in the very different context of the public possession of firearms. Our analysis proceeds on this assumption.”
The panel’s assumption, along with the mixed bag of historic state applications (and misapplications) it presents in order to eviscerate the clear intent of the Founders and give the default nod to state power over individual liberty, fails to consider what the Supreme Court admitted in the odious Dredd Scott decision, that is, when they showed the elitist foundation of gun control by arguing why blacks could not be considered citizens, because “It would give to persons of the negro race, who were recognized as citizens in any one State of the Union, the right … to keep and carry arms wherever they went.”
“Keep and carry” — they said nothing about limiting guns to anybody’s homes, did they?
That this particular panel would arrive at the conclusion they did should hardly surprise anyone who understands who they are and that expecting fair and unbiased judicial review from establishment-approved jurists with an agenda is a myth perpetuated to give such courts the appearance of authoritative legitimacy. In fact, all three of these characters have pasts and documented sympathies that would have made any other ruling improbable, to put it kindly.
Katzman was appointed by Bill Clinton, and aside from being a consummate connected elite insider, was an admirer as well as “editor and contributing author of ‘Daniel Patrick Moynihan: The Intellectual in Public Life.’” Moynihan, of course, was so anti-gun he proposed a “ten thousand percent” tax on “hollow-tipped bullets.”
Lynch, a Clinton appointee to the District Court, was appointed to the Second Circuit by Barack Obama, and is a 2008 recipient of Columbia University’s Wien Prize for Social Responsibility. Prior recipients include U.S. District Judge Jack B. Weinstein, a Bloomberg ally with a long history of judicial assaults on the firearms industry, as well as other past corporate recipients including anti-gun companies such as Sara Lee, Ben & Jerry’s and Levi-Strauss.
Wesley, the odd man out, would appear to undermine the suspicion of total “progressive” dominance of the panel, being a George W. Bush appointee (although he had earlier been appointed by Mario Cuomo to New York’s Supreme Court Appellate Division). That’s until one considers he “was featured on President Obama’s daily talking points memo. He said of colleague Sonia Sotomayor, ‘Sonia is an outstanding colleague with a keen legal mind. She brings a wealth of knowledge and hard work to all her endeavors on our court. It is both a pleasure and an honor to serve with her.’”
That would be the same Sotomayor who dissented on both the Heller and McDonald decisions. [Correction: Jeff Knox correctly points out “Sotomayor ascended to the Court after Heller, but did join the dissent in McDonald.”]
So while yesterday’s setback was not unexpected, it is nonetheless severe –depending on the composition of the Supreme Court when and if the case makes its way to their docket, the outcome there, particularly with the way ostensible “conservatives” have a way of surprising court watchers, is unpredictable. Add to that all the court need do is not hear the case (as per their current precedent), and this decision will likely be the benchmark by which similar cases are decided.
We can expect to hear no small amount of crowing from anti-gun quarters about another legal a setback for “the gun lobby,” and we can expect them to exploit that for all it’s worth to bolster the “behold a god who bleeds” meme.
What they in turn should expect is that, robed elitists and their intentional torturing of the clear proscription “shall not be infringed” notwithstanding, the Second Amendment will ultimately mean what uncompromising men with guns say it does.
UPDATE: Attorney Ed Stone weighs in with an important dimension that shows how dishonest the panel’s “reasoning” was when citing precedent from his home state. See “Federal Court of Appeals Misstates Georgia History to Subvert Second Amendment.”
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