NY Attorney To Sue State Over Gun Ban, Claims 5th Amendment Violation

Attorney Plans Lawsuit Against Gun Law

It did not take too long for someone to come out and say they will sue the state of New Yrk over the gun control law that was recently passed in the state. The law says that automatic weapons banned under the law would have to be grandfathered out, which means if you are in New York and own one of these weapons then you would not be able to pass them on to your children or another person that you wish to have them. The law is not clear on what would happen if you passed on and did not give your gun back to the state, but one could theorize that if your family did not turn in that weapon, they would be breaking the law. That weapon, which was owned by someone who had passed away, is no longer a legal weapon because the person it is registered to is no longer around to claim ownership. The state, most likely, would want to take that weapon, and that is where this lawsuit is headed toward.

One would think this attorney, James Tresmond, would fight this law on Second Amendment grounds, but he is going in a different direction. He plans to file a lawsuit in the coming weeks, more than likely in federal court, claiming the state of New York violated the 5th Amendment when they passed this legislation into law because it does not allow for due process before the item is taken by the government. In case those of you reading this do not know what the 5th Amendment is:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The key part we want to look at here is "nor be deprived of life, liberty, or PROPERTY, without due process of law". Tresmond is going to argue that because the state of New York will have to take the weapons into their possession after the death of the person who they are legally registered to and that weapon cannot be passed on, that person's 5th Amendment right to not be deprived of property without just cause is being violated. I have never seen this argument before, but as I have read in the past day or so, the legislature actually discussed this when passing the law. One would think they were told that it would be fine and there was no 5th Amendment ground to stand on for those who wanted to fight it, but I think this will be one of the more interesting cases of our generation.

One could argue, as Tresmond more than like will, that the state nor the federal government have the right to grandfather these weapons out of the hands of citizens that legally own them because the state has no claim to them in the first place. The state has shown no cause to take the weapons and if the family would keep them then they would be breaking the law, which means the state has in fact criminalized an activity without giving the individual their due process rights. When you think about the argument, it is very brilliant to say the least. As we all argue the 2nd Amendment all over the internet and everywhere else, in the case of New York their citizens who are against this law want to jump on board to a suit claiming 5th Amendment violations.

It is much too early to tell where this will go, but more than likely we will see this suit or one like it hit the Supreme Court at some point in the next year to year and a half, maybe a little longer depending on the rulings. While I have never thought about this argument, it may have some weight when you get to a court like the Supreme Court who have ruled very narrowly when it comes to 5th Amendment violation over the past century. One would think the people of New York may have a shot to take out this law, but again we are so far away from that at this point it is hard to speculate on what will happen and when.

One thing is for certain: it is good to see a true American stand up for the rights of others as well as himself and fight this constitutional law. It will be exciting for court watchers like myself to see where this goes and the discussions that will be had because of this fight.