By Dave Workman
Editor-in-Chief
An Acting State Supreme Court justice in New York has declared the Empire State’s “red flag” temporary extreme risk protection order (TERPO) law unconstitutional in a case involving a Middletown man identified only as “C.M.” in court documents.
According to the Mid Hudson News, the case involves a TERPO issued Jan. 20 against the man, following a Jan. 18 incident in which he allegedly brandished a loaded shotgun and aimed it at his neighbor during an argument. The man fought the charges.
Mid Hudson News quoted Justice Brown, who remarked in his ruling, “while ‘a licensed physician’ or ‘licensed psychiatrist’ may (under the law), be a petitioner, there is no requirement that such licensed professional be a petitioner or be involved in any manner to provide any evaluation or opinion whatsoever as a basis for the issuance of a Temporary Extreme Risk Protection Order or a Final Extreme Risk Protection Order.”
He called it a “constitutional impediment” with the New York law. “
Writing at the National Review, Dan McLaughlin, a fellow at the National Review Institute and a writer at the magazine’s online edition, asserted Justice Brown’s “reasoning is dubious.” He says gun control “faces four practical problems” which he then details:
The overwhelming majority of gun owners are law-abiding citizens who pose no threat to anyone.
Criminals and “dangerously unbalanced people” do not obey gun laws, ergo, gun control laws “are likelier to target the wrong people.”
Gun restrictions dictated by elected officials or judges run the risk “of unfair or discriminatory enforcement.”
A few lines later, McLaughlin acknowledges, “Second Amendment advocates have some legitimate concerns about due process of law and about that third problem (unfair or discriminatory enforcement) in how some of these laws are designed.”
Justice Brown’s ruling spans only four pages. He quotes the McDonald ruling (a Second Amendment Foundation victory before the U.S. Supreme Court), which states, “Second Amendment rights are no less fundamental than…Fourth Amendment rights (the right to liberty), and must be afforded the same level of due process and equal protection.”
There is little doubt the ruling will be appealed, but it is an important ruling nonetheless, because it shows there is some doubt about so-called “red flag laws” as they now exist, at least in New York.
