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I found this info in an article linked by Hardrada on the recent NSA unconstitutionality ruling. How do you think the State will argue against an injunction?

"Note the bar for injunctive relief; it is a three-prong test and you must satisfy all of them:

1.You are more-likely than not to win on the merits when the case is decided. That is, whatever you're arguing has to be quite-clear and convincing facially from the material you present, to lead to a winning conclusion.

2.You will suffer irreparable harm if you don't get relief. That is, mere payment of money does not compensate you for whatever is happening. If money will compensate you then if the harm goes on for longer that simply means you get more money.

3.The balance of harms is in your favor. That is, if the relief is granted the harm done to others (if any) is outweighed by the harm done to you if the relief isn't granted.
You have to win all three or you lose on an injunction. This is an extremely high bar to meet."
 

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Nice positive constructive analysis!
 

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Public saftey doesn't trump enumerated rights. That's why we have a republic not a pure democracy.

Not to mention the number of crimes rifles are used in is tiny, assault weapons even smaller... and that's at the national level.

No way the harm done to other is greater then the registration and eventual confiscation of our firearms and enumerated rights.
 

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The OP seems to speak of a Temporary Restraining Order. That is where the "irreparable harm" comes in.

We are beyond that.

IF the law or parts or it are found unconstitutional, you don't need an injunction. The State can not enforce and prosecute on a law that was found unconstitutional. If they do, you win the lottery.

For example, the Court of Appeals struck down the Death Penalty provisions of the Penal Law as unconstitutional. The law is still on the books.
There is no injunction.

However, there can be no death penalty prosecutions as the law is struck as unconstitutional.
 

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I found this info in an article linked by Hardrada on the recent NSA unconstitutionality ruling. How do you think the State will argue against an injunction?

"Note the bar for injunctive relief; it is a three-prong test and you must satisfy all of them:

I'm not a lawyer but I think the standards are relaxed when it comes to a Constitutional issue. The problem for the judge is that an injunction will certainly be appealed so the judge will want to be sure that the state was given a reasonable chance to respond. The fact that the state is dragging this out is a positive. The injunction could be lifted on a technicality, rather than on substance, so the judge may want to be sure the court is on solid ground.

Of course, I really don't know. But Max and Shooter have put their professional reputations on the line and they keep telling us to hold our ground and not dispose or modify anything so I have to believe that we will get injunctive relief. My only argument is that I trust that The Team is giving us solid legal advice.
 

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That an injunction already has not been issued is cause for concern, and if one is not issued on Jan 16, all bets are off AFAIC. The state has had months to prepare. EDIT: actually years, since this thing wasn't conceived on a weekend night in Jan 2013.
 

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That an injunction already has not been issued is cause for concern, and if one is not issued on Jan 16, all bets are off AFAIC. The state has had months to prepare. EDIT: actually years, since this thing wasn't conceived on a weekend night in Jan 2013.
I think that the criteria for a TRO have not been met because, the State would argue:

As of this moment in time, no one has been denied anything. (The inability to purchase an "AW" is not harm in the legal sense).
No gun has to be registered.
No property has been taken away.

So their argument would be that no harm has occurred. Any criminal cases will run their course separately from the civil trials.

Of course, on Jan 14 and April 14, all that changes and there IS harm at which point if the trials are not resolved there should be grounds for a TRO.
 

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I think that the criteria for a TRO have not been met because, the State would argue:

As of this moment in time, no one has been denied anything. (The inability to purchase an "AW" is not harm in the legal sense).
No gun has to be registered.
No property has been taken away.

So their argument would be that no harm has occurred. Any criminal cases will run their course separately from the civil trials.

Of course, on Jan 14 and April 14, all that changes and there IS harm at which point if the trials are not resolved there should be grounds for a TRO.
So impeding and infringing on an enumerated right is not considered "harm"?!
 

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Interesting example, the death penalty.

First, if a law or act is unconstitutional, then it was ALWAYS unconstitutional. It doesn't become, suddenly, unconstitional.

As an aside, I found it extremely humorous when Cook Co. Illinois court found their handgun ban unconstitional...but put in a 180 stay to the state lawmakers could fix the law. The 180 stay is a joke because the judge can't delay a constitutional right.

In the case of the SAFE act, any portion of it found to be unconstitutional was ALWAYS unconstitutional, not just when the court said so. Meaning, anyone prosecuted under any portion of SAFE that is later found to be unconstitutional has grounds to sue...and, LEOs should keep in mind that their immunity does not cover rights cases. So if a cop arrests someone under a law later found unconstitutional, he/she can be sued and found to have violated another's rights, and suffer the consequences.

On the above, it would be a very good idea to spread the word that NY LEOs should be very concerned about arresting under any part of NY SAFE because some parts are going to be struck down. And, when it is, those LEOs are open for prosecution- and will be. It would benefit NY gun owners to start an organization right now, and start raising cash, for which the sole purpose is to prosecute offending LEOs once parts of SAFE are found unconstitutional- put the LEOs on notice right now so that they are informed and can avoid personal liability.

Now, on the death sentence- since it's unconstitutional, clearly those who were terminated and their families have grounds to persue criminal and civil cases. I wonder it any have ever done so?

The OP seems to speak of a Temporary Restraining Order. That is where the "irreparable harm" comes in.

We are beyond that.

IF the law or parts or it are found unconstitutional, you don't need an injunction. The State can not enforce and prosecute on a law that was found unconstitutional. If they do, you win the lottery.

For example, the Court of Appeals struck down the Death Penalty provisions of the Penal Law as unconstitutional. The law is still on the books.
There is no injunction.

However, there can be no death penalty prosecutions as the law is struck as unconstitutional.
 

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Interesting example, the death penalty.

First, if a law or act is unconstitutional, then it was ALWAYS unconstitutional. It doesn't become, suddenly, unconstitional.

As an aside, I found it extremely humorous when Cook Co. Illinois court found their handgun ban unconstitional...but put in a 180 stay to the state lawmakers could fix the law. The 180 stay is a joke because the judge can't delay a constitutional right.

In the case of the SAFE act, any portion of it found to be unconstitutional was ALWAYS unconstitutional, not just when the court said so. Meaning, anyone prosecuted under any portion of SAFE that is later found to be unconstitutional has grounds to sue...and, LEOs should keep in mind that their immunity does not cover rights cases. So if a cop arrests someone under a law later found unconstitutional, he/she can be sued and found to have violated another's rights, and suffer the consequences.

On the above, it would be a very good idea to spread the word that NY LEOs should be very concerned about arresting under any part of NY SAFE because some parts are going to be struck down. And, when it is, those LEOs are open for prosecution- and will be. It would benefit NY gun owners to start an organization right now, and start raising cash, for which the sole purpose is to prosecute offending LEOs once parts of SAFE are found unconstitutional- put the LEOs on notice right now so that they are informed and can avoid personal liability.

Now, on the death sentence- since it's unconstitutional, clearly those who were terminated and their families have grounds to persue criminal and civil cases. I wonder it any have ever done so?
I believe you do not understand the law. No LEO is being prosecuted for a SAFE Act arrest, and they will be indemnified against civil suits. A law is generally presumed Constitutional until it is struck down. Therefore, no one enforcing that law acts in bad faith.

A "presumption" that a law is unconstitutional is only valid in a very very narrow sense. A law that says all black people must be put in concentration camps would be so clearly unconstitutional that I agree it would be folly to enforce it.

But the point that YOU believe SAFE violates the Constitution does NOT make it so. That is merely your belief. The final arbiter is the Court, and what they say goes.

What we have here is two issues: SAFE, or at least parts of it, do appear to be unconstitutional. As well, there are POLITICAL issues with the Act. Do not confuse the two. COURTS are the final arbiters of what is Constitutional. We got a great ruling in Heller, if it had gone the other way we would be having a different discussion, and I believe we only won that by one vote.

So saying that enforcement would lead to prosecution for the enforcers is just total nonsense. It is the duly enacted law of the State, and until and unless struck will be legally enforced. THAT is the reality. I do agree that any SAFE Act conviction will fall if the law itself is shot down. NOTHING will happen to the Police for enforcing it, it is legal and proper to do so while it is on the books and not struck.

As far as the death penalty, you do not understand what I wrote.
The NEW YORK death penalty stature was declared unconstitutional. The Death Penalty itself is not unconstitutional, only the way NYS tried to implement it. THAT is what was struck, and no one was executed. It was struck on the very first case that came before the Court of Appeals. So everything else you wrote about it is meaningless.
 

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I think that the criteria for a TRO have not been met because, the State would argue:

As of this moment in time, no one has been denied anything. (The inability to purchase an "AW" is not harm in the legal sense).
No gun has to be registered.
No property has been taken away.

So their argument would be that no harm has occurred. Any criminal cases will run their course separately from the civil trials.

Of course, on Jan 14 and April 14, all that changes and there IS harm at which point if the trials are not resolved there should be grounds for a TRO.
Seems like a good analysis to me, but are you saynig that we can not expect an injunction until at least Jan. 16, 2014?
 

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So impeding and infringing on an enumerated right is not considered "harm"?!
In the legal sense, I believe "harm" has a different meaning than you envision.

Being denied the right to vote is harm because after election day you can't get it back, so you are harmed if you do not get an injunction that allows you to vote in the next election.

Not being allowed to sell your AR to your neighbor is probably not going to meet the legal definition of irreparable harm. As of this minute, you have not lost anything, in fact you can still sell that gun (to a dealer, a LEO or out of State). And you only lose money if in fact you sell the gun, which at this point you have not been required to do. So no, you have not YET suffered harm.

Even the seven round nonsense, how have you been HARMED? If there was a home invasion and you ran out of bullets and your child was killed, yes I would call that big time harm. The the claim that it is "likely" to happen any minute to justify a TRO is very weak, in my opinion.

Again, to get a TRO you need to show that you WILL suffer a NON REVERSIBLE harm.

The "philosophical" denial of your enumerated rights is what the case is about, but the issue is whether that is enough harm to obtain a TRO.
Apparently not.
 

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In the legal sense, I believe "harm" has a different meaning than you envision.

Being denied the right to vote is harm because after election day you can't get it back, so you are harmed if you do not get an injunction that allows you to vote in the next election.

Not being allowed to sell your AR to your neighbor is probably not going to meet the legal definition of irreparable harm. As of this minute, you have not lost anything, in fact you can still sell that gun (to a dealer, a LEO or out of State). And you only lose money if in fact you sell the gun, which at this point you have not been required to do. So no, you have not YET suffered harm.

Even the seven round nonsense, how have you been HARMED? If there was a home invasion and you ran out of bullets and your child was killed, yes I would call that big time harm. The the claim that it is "likely" to happen any minute to justify a TRO is very weak, in my opinion.

Again, to get a TRO you need to show that you WILL suffer a NON REVERSIBLE harm.

The "philosophical" denial of your enumerated rights is what the case is about, but the issue is whether that is enough harm to obtain a TRO.
Apparently not.
By Jan 15, 2014 standard capacity mags must be disposed of. Would that not constitute a harm?
 

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There are many things that are controlled prior to actual "harm" taking place; these are specifically designed to stunt harm- smoking and tabacco, for example. OSHA, road barriers, etc. Why not make OSHA, construction sites, etc like LE? No rules until somebody gets hurt, and only then can OSHA step in.

What is irreparable harm? What is the legal definition? If one has to sell a preban AR15 mag out of state, and takes a loss of $60, is that irreparable harm? What if one has a thousand mags? Is $60,000 irreparable harm?

DC Circuit said:
"First, the injury must be both certain and great; it must be actual and not theoretical. Injunctive relief 'will not be granted against something merely feared as liable to occur at some indefinite time.' It is also well settled that economic loss does not, in and of itself, constitute irreparable harm. . . . Implicit in each of these principles is the further requirement that the movant substantiate the claim that irreparable injury is 'likely' to occur. Bare allegations of what is likely to occur are of no value since the court must decide whether the harm will in fact occur. The movant must provide proof that the harm has occurred in the past and is likely to occur again, or proof indicating that the harm is certain to occur in the near future."

In context to this discussion, SAFE has economic loss, clearly the harm is "likely" to occur, in fact it has a date. NYC's recent forced sale is record that loss has occurred in the past.

As far as "you don't have to sell now" but your offspring cannot inherit would die fast in many countries, since 99 year property leases (very rare in USA) are quite common. Guess what happens to the property value as it nears the end of the lease? Guess what happens when a condo complex reaches the 99 year lease end and there are 300 condos on the market? Right- the same as when 200,000 "NY pre ban" rifles hit the market.

On the 7 round limit- that is indeed, according to DC circuit, on shaky ground. But that's why there is a 2nd- to avoid playing legal games with a natural right.

In the legal sense, I believe "harm" has a different meaning than you envision.

Not being allowed to sell your AR to your neighbor is probably not going to meet the legal definition of irreparable harm. As of this minute, you have not lost anything, in fact you can still sell that gun (to a dealer, a LEO or out of State). And you only lose money if in fact you sell the gun, which at this point you have not been required to do. So no, you have not YET suffered harm.

Even the seven round nonsense, how have you been HARMED? If there was a home invasion and you ran out of bullets and your child was killed, yes I would call that big time harm. The the claim that it is "likely" to happen any minute to justify a TRO is very weak, in my opinion.

Again, to get a TRO you need to show that you WILL suffer a NON REVERSIBLE harm.

The "philosophical" denial of your enumerated rights is what the case is about, but the issue is whether that is enough harm to obtain a TRO.
Apparently not.
 
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