Not so. While this decision is poorly written, and probably poorly thought out, as a matter of federal law, a decision that one of the first nine amendments has been incorporated by the Fourteenth Amendment, so as to be applicable in bar of some form of state enactment, can be made by any state or federal court of competent jurisdiction in which the issue is necessary to a decision. Such a holding, rendered by a state court, as here, necessarily implicates a federal question, so that, if the holding stands after review (if sought) in the Appellate Division and Court of Appeals, there would be a jurisdictional basis for seeking cert.
General Observations on this Decision:
A) While it is certainly refreshing, I'd hold off going out and mortgaging the house in the basis of it.
B) In New York, judges are elected, and that means that typically they are not of great quality. This decision reaches a result (namely, that the 2d Amendment controls over some form of state regulatory enactment (never spelled out as to source or detail)) without expressly addressing a syllogistic predicate to that result (namely, that the 2d Amendment is applicable to limit the state regulatory power). If this decision is appealable and appealed, it is open to criticism on this ground alone.
C) The decision may not be appealable, since it remanded, I gather to the Police Chief, for further proceedings. It isn't clear what those proceedings are supposed to be, but what the Court may have had in mind (albeit not spelled out with the clarity that any decision ought to display) is the development of a factual record that might bear on the question of incorporation. That is to say, what the Court may have meant is: I can't tell if there is incorporation or not; if there is, petitioner wins; lower tribunal (i.e., licensing authority) was obliged to consider that and didn't; therefore, I send it back to him for such consideration and taking of new action after doing so. There are a lot of problems with this, not the least of which is that, even considering a Chief of Police as an administrative agency, it (he) is not a tribunal of record.
D) Given that most NY state court judges are basically politicians at heart, I would read into this order an exhortation to the Chief to restore the Pistol Permit in order to avoid a hard question, which neither the Court (nor, he says to the Chief) the Chief wants to get enmeshed in.
For those who want to follow this, a bit of orientation re: the New York state court system:
1) The "Supreme Court" is the superior trial court of general jurisdiction; it is the equivalent of the Superior Court in Massachusetts.
2) There is an intermediate appellate court, which is called the Appellate Division (of the Supreme Court). Not all Supreme Court decisions are appealable to App. Div.
3) The highest court in New York is called the "Court of Appeals." It is the equivalent of the Supreme Judicial Court in Massachusetts.
![[smile]](/xen/styles/default/xenforo/smilies.vb/001.gif "Smile [smile]")
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