• NY Supreme Court - New York Gun Control Law Ruled Unconstitutional

    January 5, 2023
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    The New York Supreme Court has ruled the Extreme Risk Protection Order or the red flag law unconstitutional. The law permits police officers and other individuals to petition a court to allow the seizure of firearms from anyone the individual believes to be a threat to themselves or others.

    As long as a judge agrees, law enforcement can confiscate the guns from the individual.

    The law has seen 1,900 removal orders issued since it went into effect in 2019. However, the measure was deemed to be in violation of the Second and Fourteenth Amendments of the U.S. Constitution because it does not "sufficiently protect a citizen's rights," according to New York Supreme Court Judge Thomas Moran's December ruling.

    New York has a second law named the Mental Hygiene Law that requires a person to be involuntarily admitted to a hospital if they are deemed to be a danger to themselves or others. A doctor must also confirm that the individual is, in fact, a danger and likely to cause serious harm. If the person is to be held in a facility longer than 48 hours, then a second doctor must confirm the determination that the person is a danger.

    The red flag law does not mandate doctor involvement.

    In his opinion, Moran wrote, "Why should respondents under the Mental Health Law be granted greater safeguards (such as having their case be reviewed by a physician with the educational background and experience to make such a determination) than matters pursuant to [the red flag law] in which 'laypeople' make such a determination?"

    Moran continued, "These are similarly situated people (by legislative definition) but as such are not to be treated equally, nor afforded the same constitutional guarantees that protect all citizens of New York State."

    Moran also stated in his ruling that nonmedical workers, such as police officers, should not be authorized to make determinations regarding an individual's mental health and the level of danger to themselves or others.

    With respect to the Constitution's guarantee of a right to bear arms, Moran said, "This Court is not unmindful of the dangers firearms may pose when possessed in the hands of a person suffering a mental illness, harboring a criminal intent, or both. However, when viewed objectively, [the law's] goal of removing weapons from the otherwise lawful possession of them by their owners, without adequate constitutional safeguards, cannot be condoned by this Court."

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    Moran added, "While some may advocate that 'the ends justify the means' in support of [the law], where those means violate a fundamental right under our Bill of Rights to achieve their ends, then the law, on its face, cannot stand."



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