- The Washington Times - Sunday, March 3, 2013

With congressional action on gun control largely stuck in a holding pattern on Capitol Hill, the real battlefields on the issue may become local, state and federal courtrooms.

The New York attorney general’s office is due before the state Supreme Court next month to defend the constitutionality of Gov. Andrew Cuomo’s tough new gun control package, and two separate appellate courts recently issued opposing opinions on whether the Second Amendment guarantees the right to carry a concealed weapon in public.

Mr. Cuomo signed sweeping gun control measures into law in January that included a beefed-up ban on so-called assault weapons and a limit on magazine capacity to a maximum of seven rounds of ammunition — even less than the 10-round limit proposed by President Obama. But Buffalo lawyer James Tresmond is arguing on behalf of two gun owners that the law amounts to an unconstitutional seizure of property under the Fifth and 14th amendments to the U.S. Constitution.

State Supreme Court Justice Diane Devlin has ordered the state to show cause by April 25 — when oral arguments are scheduled — though the state attorney general’s office plans to respond by mid-March. Mr. Tresmond also has represented a gun dealer in a separate case challenging the law, with a hearing set for late April.

Illinois concealed carry

Farther west, in another state with stringent gun laws, the U.S. Court of Appeals for the 7th Circuit denied a petition last month to rehear a December ruling that declared an Illinois law prohibiting people from carrying concealed handguns in public unconstitutional.

“There is no suggestion that some unique characteristic of criminal activity in Illinois justifies the state’s taking a different approach from the other 49 states,” Judge Richard A. Posner wrote in the opinion. “If the Illinois approach were demonstrably superior, one would expect at least one or two other states to have emulated it.”

Three judges on the 10-judge court joined Judge David F. Hamilton in dissenting, and Judge Michael S. Kanne did not participate in the consideration of the state’s petition to rehear the case before the full court. A three-judge panel ruled in December that the Illinois General Assembly had 180 days to come up with some type of concealed-carry law, overruling proponents of gun control.

Recent Supreme Court rulings on gun rights have left open the question of whether the “individual right to keep and bear arms at home under the Second Amendment extends beyond the home,” Judge Hamilton wrote in the dissent. “The panel’s split decision in these cases goes farther than the Supreme Court has gone and is the first decision by a federal court of appeals striking down legislation restricting the carrying of arms in public.”

But unlike the 7th Circuit’s ruling that denied a petition for rehearing, the U.S. Court of Appeals for the 10th Circuit, shortly after that decision, actually declared that the Second Amendment does not guarantee the right to carry a concealed weapon outside the home.

Second Amendment limits?

The 10th Circuit case arose from a Washington resident who applied for a concealed handgun license in Colorado but was denied; state law says Colorado sheriffs can issue them only to state residents.

The ultimate opinion, however, effectively placed an outer limit on the Second Amendment and — perhaps in anticipation of another appeal — leaned significantly on prior U.S. Supreme Court cases. The 2008 D.C. v. Heller case affirmed that a person has the right to keep a firearm in the home for self-defense, and the 2010 McDonald v. Chicago case determined the Second Amendment applies to individual states.

“In light of our nation’s extensive practice of restricting citizens’ freedom to carry firearms in a concealed manner, we hold that this activity does not fall within the scope of the Second Amendment’s protections,” Judge Carlos F. Lucero wrote in the opinion.

More court battles coming

The Senate Judiciary Committee this week is set to weigh a package of gun control measures, including a ban on so-called assault weapons. But there is no guarantee that even less-ambitious parts of Mr. Obama’s gun control package, such as universal background checks for all gun purchases, will get out of the Democrat-controlled Senate, and Republican leaders in the House have consistently said they will wait to see what the Senate is able to pass.

The office of John W. Suthers, the Republican attorney general of Colorado, intervened on behalf of the city of Denver in the case that went before the 10th Circuit. But he said there are serious constitutional questions to a bill introduced in the state Senate last week that would hold firearms dealers and manufacturers liable for crimes committed using their guns.

A 2005 federal law keeps gun sellers and manufacturers immune from liability for injuries resulting from “criminal or unlawful misuse” of a weapon. But state Senate President John Morse, who introduced the bill, has said a stipulation requiring manufacturers and sellers to “exercise the highest degree of care in selling, transferring, distributing and storing” the guns helps ensure it doesn’t conflict with that law.

Mr. Suthers wasn’t as certain and alluded to more potential legal fights.

“Needless to say, the very quick analogy that has been all over the news in Colorado is, you know, the speed limit is 75 miles an hour and they’re still manufacturing these cars that go 130, 140 miles an hour — that’s the equivalent of putting a magazine on [a gun],” he said. “I would not assume that a lot of these ultimate decisions are going to be determined on a legislative level.”

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