New York Governor Hochul
New York Gov. Kathy Hochul (AP Photo/Jeenah Moon)

Gosh, this hasn’t been a good week for America’s gun control industry. First Governor Ron DeSantis signed permitless concealed carry into law, tipping the balance in favor of states that don’t require a government-issued permission slip to keep and bear arms. That was traumatizing enough for the forces of civilian disarmament.

Today, however, another blow has landed. New York’s Supreme Court — which for some damned reason is the second highest court in the Empire State — has ruled that the state’s due process-free red flag firearm confiscation law is unconstitutional. Go figure.

The ruling, written by Judge Craig Stephen Brown, makes it clear how an individual’s civil rights are violated under the current law . . .

Without the requirement of any input from a medical or mental health expert, the Court is required to make a determination of whether “the respondent is likely to engage in behavior that would result in serious harm to himself, herself, or others in…section 9.39 of the mental hygiene law.” Under Mental Hygiene Law, a person’s liberty rights cannot be curtailed unless a physician opines that a person is suffering from a condition “likely to result in serious harm.” Further, in order to extend any such curtailment of liberty beyond 48 hours, a second doctor’s opinion must be obtained and such opinion must be consistent with the first doctor’s opinion. 

Absent from New York’s Red Flag Law is any provision whatsoever requiring even a single medical or mental health expert opinion providing a basis for the order to be issued. New York’s Red Flag Law, as currently written, lacks sufficient statutory guardrails to protect a citizen’s Second Amendment Constitutional right to bear arms. 

In other words, the New York legislature, in its unyielding zeal to disarm as many citizens as possible, didn’t give the slightest thought to the protection of a targeted individual’s civil rights when they wrote their red flag gun confiscation law. The only thing they cared about was grabbing the guns.

As a result, using a quote from McDonald v. Chicago, Judge Brown concluded . . .

“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.” Accordingly, this Court joins the Monroe County Supreme Court in holding that, “under CPLR 63-a, in order to pass constitutional muster, the legislature must provide that a citizen be afforded procedural guarantees such as a physician’s determination that a respondent presents a condition ‘likely to result in serious harm,’ before a petitioner files for a [temporary extreme risk protection order] or [extreme risk protection order].

Since this standard is required to prevent a respondent from being deprived of fundamental rights under the Mental Hygiene Law, then anything less (as contained in 63-a) deprives a citizen of a fundamental right without due process of law.” This Court declares [New York’s Extreme Risk Protection Law] to be unconstitutional. 

You can read the full ruling here.

The New York Supreme Court, then, has concluded exactly what we and every other gun rights supporter have been arguing since the first red flag confiscation order was passed in California. They deprive gun owners of their basic, constitutionally protected civil right to due process, frequently issuing ex parte confiscation orders for which the gun owner wasn’t even present to defend himself.

Again, today’s ruling was issued by New York’s Supreme Court. The highest court in New York is the Court of Appeals. New York Attorney General Letitia James’ minions are no doubt already hard at work drafting their filing for an appeal, so this battle is far from over. Still, it’s a positive step and one that will upset the state’s rabid gun-grabber community, lead by none other than Governor Kathy Hochul, to no end…and who could quibble with that?

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63 COMMENTS

  1. As with the NYC permit issue, they will simply re-write the law to get around the ruling while continuing to deprive the slaves of NY of their rights.

  2. The California statute does not have any reference to the mental hygiene law (Welfare & Institutions Code section 5150, 5152.) Simply threatening specified others with physical harm/bodily injury is enough if established by “clear and convincing evidence.” There is a separate statute for a gun prohibition for an involuntary psychiatric hold. At least some ERs are aware of this and ask the patient to consent to a voluntary admission, thus avoiding the lengthy prohibition. (I can’t remember if the original 5 year ban has been extended to 10 years on a 5150, even though there is no admission to a psychiatric facility as the law if framed.)

  3. Hope this law is overturned in Md., two persons have been gunned down here using red flag. Note; these two cases had nothing to do with domestic abuse or violence. Seems to be a very fine line that could be construed as a ‘Swatting’.

  4. The real issue isn’t who should or shouldn’t have their 2A rights. Rather, if as a society we deem someone not trustworthy with a gun then why do we allow them amongst us in the first place. These red flag laws do nothing to stop a determined person from getting a gun or any other weapon of choice. Does not an ex-felon who has served their time have the fundamental right of self protection?

    • Gman,

      Your comment is spot on.

      A violent person who is determined to attack one or more people will do so–successfully–if he/she is walking freely among us.

      Just about anyone can manufacture their own highly effective short-sword out of a $10 piece of steel flat stock using nothing more than a $7 metal file and $8 hack saw.

      Just about anyone can make their own archery equipment capable of delivering fatal wounds with arrows–and the requisite parts are growing almost everywhere and available for free.

      Just about anyone can spend $9 on chain, $4 on a padlock, $3 on a sturdy bucket, $2 on a common household chemical, and $2 on another common household chemical (which are toxic/fatal when mixed together in an enclosed space).

      I listed (above) three simple and inexpensive avenues to harm people. There are many more. Any attempts to limit the ways in which a violent person can harm people is a fool’s errand–a never-ending game of whack-a-mole–and a total waste of resources. We would be much better off expending those resources on ACTUAL cures to the ACTUAL root causes of violent attacks.

    • They do, they will have doctors t̶h̶e̶y̶ ̶p̶a̶i̶d̶ ̶t̶o̶ ̶s̶a̶y̶ ̶w̶h̶a̶t̶ ̶t̶h̶e̶y̶ ̶w̶a̶n̶t̶ to l̶i̶e̶ evaluate for the court.

  6. NY Lawyer here – the Supreme Court is the lowest Court we have.
    You’ve got the appellate division and the court of appeals as the next two.
    So basically this doesn’t mean shit.

    • So basically Orange county and whichever the other one was until challenged in either county?

      • Mr. Beef has been here for years, and is considered credible, and is in no way a ‘snowflake’.

        Got a link to prove him wrong?

    • Not quite the lowest court in NY, All court decisions are open to appeal but the appellate courts can also decline and send it back to the lower court which would be a win til NY legislature rewrites the law… Stayed at a Holiday Inn once several years ago…

      Court of Appeals
      Appellate Division of the Supreme Court
      Appellate division of the County Courts

      Superior Couts are:
      Supreme Court
      County Court
      specialized courts (Family Court, Surrogate’s Court, Court of Claims)

      And the inferior courts are the local courts
      District Court
      New York City courts (NYC Civil Court, NYC Criminal Court)
      city courts
      justice courts (town and village courts)

  7. They cannot enter your home without a warrant, period. Nor can they confiscate your property without one as well nor arrest you.

        • And I’m sure your grieving widow and children will be so proud… Unless you’re OLD and worn out like me, then a blaze of glory last stand can be an epic ending…

    • dprato,

      See jethro the janitor’s comment above.

      The sad reality of our current experience is that police and the courts often violate their official policies, the law, and justice. I recommend that you have a contingency plan in the event that the police come calling at your home and violate their department policies, the law, and justice.

    • Well actually they can. A warrant is nothing but a court order allowing a search and/or seizure. A red flag order is a court order as well that has the same force and effect.

    • Cop #1 Hey Ralph, did you hear a scream?

      Cop #2 Yeah, I sure did… As he’s kicking your door in…

      Cop #1 in court, “Yes sir, your honor, I swear I THOUGHT I heard a woman scream, must have been a tv or a radio or something”…

      Cop #2 in court, “Yes sir, your honor, I heard the same thing…

      Just like the cop driving through a Walmart parking lot “happens” to see a bag of dope laying on the seat of a car 20 feet away… It’s called probable cause… Warrant?… WARRANT?… We don’ need no stinking warrant…

      • While body cams and ring doorbells(amongst other products) have reduced a lot of this yes it still is a thing.

  8. If the readers here check, they will find I said that Red Flag Laws are unconstitutional some months ago.

    • It took you that long to catch on? The greater gun community has been saying it for years.

      😜

  9. Here is to hoping that the New York Court of Appeals upholds the New York Supreme Court’s decision.

    • Here is hoping it gets any higher than supreme court in NY for any of the times it is found unconstitutional.

  10. New York’s red flag law is far from dead. New York will appeal the decision and if that fails will simply revise the law and the whole process will start all over again.

    Let’s face facts red flag laws save lives and if one is innocent one can always appeal to get one’s guns back. The dead victims cannot appeal to get their lives back once a rouge husband has murdered his wife in a fit of maniacal rage. Its called “common sense gun laws” something the maniacal far right paranoid lunatics cannot ever understand. To the far right lunatics life is to be considered cheap and expendable, women are to be treated as sex slaves, and killing one’s wife is to be considered only a misdemeanor offense.

    Civilized foreign countries have now wrote off the U.S. as a nation gone completely mad and on the path to self destruction just as President Lincoln hinted might one day happen. Republicans are hell bent on making that happen. Republicans have made even some of the worst of the demented Roman emperors like Caligula or later the mad Adolf Hitler seem sane by comparison.

    • darcydodo…hitler was an insane Gun Control zealot like you and your ilk…that’s enough for someone to red flag you.

      • Yeah, I had to laugh when I saw dacian talking about “a rouge husband.”
        Unlike dacian, I don’t think men wearing rouge are dangerous at all, certainly not so dangerous that they should be “red-flagged” just for wearing rouge.

    • Typical fascist. Take a persons rights before they commit a crime and dare them to try and get them back.

    • dacian the demented dipshit,

      So, just to be clear, you hate and are happy to trample on at least THREE parts of the Bill of Rights? Is that really what you mean??? Yeah, it figures – scratch a Leftist, find a fascist.

      Go suck-start a shotgun, you ignorant, uneducated, lying assclown.

    • Civilized foreign countries have now wrote off the U.S. as a nation gone completely mad and on the path to self destruction

      COOL, so NOW you can STFU about that “Capitalvania” bullshit and our guns and move on to something you are more likely to win… Not sure exactly what that might be but I’d be willing to wager that there are some folks around here who can offer up some suggestions… OBTW: that’s WRITTEN off… Just sayin’, you being so intelligent and all…

    • Republicans have made even some of the worst of the demented Roman emperors like Caligula or later the mad Adolf Hitler seem sane by comparison.

      You mean Mao, Idi, Stalin and Atilla are still safe as history’s bad boys? Or did you just forget about them

    • If one is innocent, why should you have to appeal to get your guns back…in a year or two.

    • dacian, the DUNDERHEAD, I have some very bad news for you. The NYS “Red Flag Law” is deader than last night’s dinner, Clearly neither you, nor your Leftist chorts haven’t read the 14th Amendment? But then again, your knowledge of the US Constitution is not just lacking, it’s non-existent.

    • dacian the demented dipshit,

      Oooh, is little dacian the demented get all ticky because a court in a blue state didn’t jump to do his UNCONSTITUTIONAL bidding??? I bet if you hold your breath and stomp, they’ll see it your way. Holding your breath for a week or two ought to do it. Get back to us when you’re done holding your breath. Or if you decide to stop being a lying fascist pig, whichever comes first.

    • “retarded court ruling declaring that Minnesota’s common sense gun law prohibiting gun slinging irresponsible teenagers from shooting it out on the streets with handguns fighting over girls or parking spaces is not constitutional.”

      you liar. the decision did nothing of the kind.

      if we are going to take rights away then let’s take the 18 year old right to vote away too.

      the justification for giving them the right to vote, having them serve in the mitary, that they were responsible enough to elect our countries leaders and die for their country but then we are going to tell them they are not citizens by denying them an enumerated right because they are not responsible enough?

      where in your delusional mind is this thought process generated?

      • Its well known to educated people Booger Brain that young bucks full of piss and vinegar do not fully mature until age 25. They do not realized the consequence of their actions both short term and long term. Of course the evil militaries of the world have known this for centuries that is why it’s so easy to brainwash them and turn them into unthinking viscous robotic killers. You simply wind them up and point them in the direction of the enemy. They also make good cannon fodder.

        Insurance records also prove young people under age 25 have the most auto accidents as well.

        But what would a far right nut case like yourself know about science.

        • young bucks full of piss and vinegar do not fully mature until age 25

          You have run that WHOLE spiel word for word before, GET some new material, your stuff is old, stale and as useless as you are…

        • The 18 to 20 year olds that qualify for a permit are not the group to worry about,
          d-boy. Come on up to Minnesota and drive through one of the major cities until you’re carjacked and robbed by the 12 year old and up little thug-banger boys…oops, I mean the din-doos that the AG doesn’t bother with charging.
          Also, glad to hear that the civilized countries have written off Capitalvania – that’ll save us a coupla’ Billion a month on foreign aid.

        • dacian the demented,

          “Educated” people? Well that would exclude you, wouldn’t it, you uneducated ignoranus? What was your “degree” in, dacian the demented??

          And if your contention, as you have stated several times, is that we don’t “mature” until 25, then let’s raise the voting age to 25. How about that, assclown??

      • Need to raise the age for military service to 21 as well… Yeah, IT is a simple minded little fuk…

    • The way your mind works. Wow. It is scary and lonely there, isn’t it? When will you pick your school to attack? Got your manifesto already written out? Of course you do.

      A disturbing look into how a fascist sees the world.

      • Hey lil ‘d, regarding your line about ” unthinking viscous robotic killers “, of course the military thought of that. 5W-20 for wintertime battles, and then change to 20W-50 desert warfare. Oh, and they substituted antifreeze for the piss and vinegar shortly after the Korean War.

    • dacian, the DUNDERHEAD, so “irresponsible teens” can join the armed forces but can’t own a firearm? I’ll bet you were one hell of an irresponsible teen” but then again, you still are irresponsible.

  16. I’m still waiting on them to take Fetterman’s guns…He should be red flagged…after his trip to the looney bin…

    • yepper, I actually sent in a email about that to this site , ammoland and nra ILA.
      as well as multiple second amendment communities on mewe.
      see my post below.

    • …after his trip to the looney bin…

      After his… VOLUNTARY… trip to the looney bin… Not gonna happen, he self admitted.

  17. I do hope the unconstitutional red flag laws are disallowed in appeals. While I have little issue with guns being denied from those proven to be dangerous in court, depriving anyone of their rights without due legal process is and should continue to be against constitutional law.
    As for the Minnesota ruling, good on the courts. If someone can sign contracts, enlist in the ,military, purchase real estate, or any number of adult activities, they should be able to have weapons as well. The age of majority should be all or nothing. Including being able to purchase alcohol, handguns, tobacco etc.
    And yes, if someone has met the courts requirements and served their full sentence if convicted of a felony, they should have their civil rights restored automatically upon meeting those court ordered requirements.

  18. well, if wacko daco and the anti-gun people are all for red flag laws then I hope they are contacting the Pennsylvania state police to have the firearms taking away from John fetterwoman, as we all know and fetterwoman has admitted, he is suffering from and is under treatment for severe depression.

    it is well know that people like him are at risk of suicide and can take family and friends with them in suicide.

    so I expect wacko dacian, minor iq to call for the RED FLAG removal of the firearms of fetterwoman to be taken away, preferably at a 03:46 am raid without warning.

  19. It may well have been noted before in these comments, but the Supreme Court in New York State is the THIRD highest court; the Court of Appeals is the top level, followed by the Appellate Division (technically, the “New York Supreme Court, Appellate Division”), and followed by the Supreme Courts, which are New York’s trial-level courts. There’s actually a historical explanation for this; a “Supreme Court” was created in 1691, which was retained after the Revolution, and formalized in 1846’s Constitution. That same Constitution created the Court of Appeals as the top-level court; the A.D. were created in 1894.

  20. We used to have a law that the police could use to put you in for a 3 day mental health evaluation, but the police abused it so it was taken away. It should be brought back, but this time each department has to maintain an on-call panel of 3 psychiatrists to make the call. Taking away a non-adjudicated mentally ill person’s property, with a RFPO, will only push them over the edge.

    • SuperG, I don’t know what state you are in but NYS still has that law and here it’s 10 days. And it is used quite often.

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