The New York Sun
By DAVID KOPEL
June 30, 2008
When the case of District of Columbia v. Heller was before the Supreme Court, Mayor Bloomberg filed a brief in support of the District's handgun ban, arguing that a militia-only interpretation of the Second Amendment was necessary to keep New York City's gun laws intact.
On Thursday, when the Supreme Court ruled against Mr. Bloomberg's position, the mayor claimed that the ruling was a "benefit" and would not affect any New York City laws. His claim was half-right. It is a benefit, but it's unlikely that it will not affect any New York City laws.
In most of America, Heller will have little effect on state and local laws, because the vast majority of states already have an individual right to arms in their state constitutions.
Illinois and California are two of the states that don't have a right to handguns; suits have already been filed challenging the handgun ban in Chicago and the S.F. ban on firearms possession by public housing residents. Those cases will help decide whether the Second Amendment is enforceable against state and local governments or only against the federal government
New York's state Constitution has no right to arms, but the Civil Rights Law does. The Civil Rights Law begins with a Bill of Rights.
Article 4 declares: "A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms cannot be infringed." It is identical to the Second Amendment of the United States Constitution, except that New York follows modern standards for capitalization and punctuation, and says "cannot" instead of "shall not."
As a Monroe County court accurately observed in the 1994 case Citizens for a Safer Community v. City of Rochester, "The Courts of this State have concluded that the language of federal law interpreting the Second Amendment (which is identical in its language to Article 2, section 4 of the Civil Rights Law) should be used in interpreting the provisions of this state law."
Some New York courts have interpreted the New York right to arms restrictively, but these decisions were explicitly based on misunderstanding of the same language in the Second Amendment. The cases treating the Civil Rights Law as almost meaningless are of dubious validity now that Heller has made is clear that "the right of the people to keep and bear arms" is a broad and important individual right.
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Tuesday, July 01, 2008
The New York Sun
Posted by No Apology at 8:51 PM