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  1. #1
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    Default Is There a Second Amendment Defense to Criminal Possession of a Weapon

    My question involves criminal law for the state of: New york (and any other for that matter)

    First time posting a question. Has the second amendment (or state's constitution version) ever successfully been used as a defense against a CPW charge? In NY for example, the SAFE act passed and was deemed constitutional even though it obviously infringes on the right of the people to bear arms. The state constitution doesnt guarantee the right but it does say all persons in the state are the militia and the state must uphold their right to perform militia functions. NY Civil Rights laws has a section that mirrors the second amendment to the letter. Now US vs Miller made clear the second amendment protects military weapons suitable for use in a militia so clearly banning those cosmetic features is unconstitutional. Secondly, in NY the state may deny people their right to buy a handgun, thus infringing on their right to bear arms. So if someone was caught with an unregistered handgun or rifle in violation of the SAFE act, how could a judge possibly ignore the "law of the land" and punish someone for exercising their constitutional rights? If the state can deny you from obtaining a handgun, wouldnt that make the 2nd Amendment a privilege instead of a right?

  2. #2
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    Sep 2010
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    Default Re: Weapons Possession Defense (Firearms)

    I can almost guarantee that the second amendment often enters into CPW charges. The problem is that it is one thing to argue whether the state has met the requirements to convict someone under enacted law, it's quite another to challenge the validity of the law on Constitutional issues. It's uncommon that a judge at an initial trial would ignore the enacted law on Constitutional arguments, though it has happened. Constitutional challenges typically occur at the appealate level.

    However, this isn't the place to discuss the validity of gun laws. There's a "Debate the Issues" forum for that.

    If you have a specific instance of the gun laws that you are having an issue, be specific. Otherwise, defer it to the forum for arguing that very opinionated topic.

  3. #3
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    Oct 2014
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    Default Re: Weapons Possession Defense (Firearms)

    No right under the federal Constitution is absolute; the federal courts have recognized certain limitations on those rights. It is quite clear that some restrictions on the right to possess a firearm are constitutional. For example, there is no doubt that the laws prohibiting felons and the insane from possessing firearms are constitutional. The question is the extent to which the government may regulate the possession of firearms. The case law on the second amendment is particularly uneven in determining exactly what the right granted by the amendment is and what restrictions the government may impose. The Supreme Court has yet to set out in detail the extent of the right afforded in the Second Amendment. Thus, at the moment, that is being sorted out by decisions of various lower courts. So what the trial court judge does is apply the current appellate court decisions that bind his court to the facts of the case and then decide whether the Constitution was violated by the government’s action.

    I disagree with flyingron that “constitutional challenges typically occur at the the appellate level.” The issue must first be raised in the trial court in order to argue the matter on appeal; appellate courts generally will not consider issues for appeal that were not first raised in the trial court. If the trial court is presented with a constitutional challenge, the trial judge is not simply going to reflexively uphold the statute. He or she is going to try to reach the right result as pretty much every judge hates to be overturned at appeal. Thus, a trial court judge is just as likely to hold a law unconstitutional as an appellate court on a matter of first impression. And plenty of trial courts have done just that.

    It is worth noting, though, that maxim used by all courts in dealing with a constitutional challenge to a statute is that they first try to find a construction of the statute that allows it to pass constitutional muster. Only when that is not possible will a court say the statute is unconstitutional. That's because it is a serious matter for a court to strike down an act passed by the people’s representatives in Congress or the state legislature.

  4. #4
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    Default Re: Weapons Possession Defense (Firearms)

    TM is right that it should be brought up at the initial trial, but I'll disagree that Constitutional issues are often decided there (and if they are it is without precedent as he knows). Despite the his presumption of judicial vanity, barring a clear violation of Constitutionality, trial judges often do defer the matter to the appeal. I've sat through plenty of cases that raised Constitutional issues and pretty much heard the judge dismiss them with the "you can address that on appeal."

    Still, it doesn't much sound like we have an actual issue here but a general "I feel the Constitution preempts any restriction on gun ownership."
    Such discussion isn't the purview of this section of the forums (and as TM points out, the federal couts have NEVER adopted that viewpoint). The fifth amendment is pretty clear. All it takes to preempt even the fundamental rights such as life and liberty, is due process.

  5. #5
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    Default Re: Weapons Possession Defense (Firearms)

    Quote Quoting flyingron
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    Despite the his presumption of judicial vanity, barring a clear violation of Constitutionality, trial judges often do defer the matter to the appeal. I've sat through plenty of cases that raised Constitutional issues and pretty much heard the judge dismiss them with the "you can address that on appeal."
    There are two possibilities here. The first is that the judge makes that comment because the challenge being made clearly is off in left field and fails and thus the judge has no problem with rejecting it with little need for extensive analysis. I too have seen many judges do that. Appeals in those circumstances also end up with the challenge being rejected because the claim made was simply way out in left field. In particular, a lot of pro se parties raise frivolous constitutional issues and sure, for those the trial courts (and appellate courts too) make quick work of those claims. It is sometimes the case that a pro se party will continue to argue the point after the judge has rejected it and the judge will say "take it up on appeal” to shut him up. It doesn’t mean that the judge didn't consider the matter and is just “kicking it upstairs” to the appeals court as you imply. Rather, the judge is just trying to get the party to move past the issue once the ruling has been made. And being reversed on appeal is not just a point of vanity; being reversed often means more work for the judge on remand, which they would rather not have to do.

    The second possibility is that the judges in your local courts do not do their jobs properly in analyzing a challenge that indeed may have some merit. If so, shame on them for being poor judges. The good judges (and that accounts for most of them) where I practice do not do that.

    Federal district court judges in particular are not just going to turn away a non-frivolous constitutional challenge. (And I have first hand knowledge of that having clerked for a federal judge and read numerous court decisions of various district courts.)

    Thus I stand by what I said: a trial court judge is just as apt to rule a statute unconstitutional as an appellate court is. But no matter the level of the court, the court is going to try to find a way to construe the statute to be constitutional.


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