Lawsuit targets New York's post-Sandy Hook gun law

ALBANY, New York Wed Jan 30, 2013 6:01pm EST

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ALBANY, New York (Reuters) - Two gun owners have filed a lawsuit seeking to overturn New York state's sweeping new gun-control law, enacted after the mass shooting at the Sandy Hook elementary school in Connecticut.

The suit, filed on Tuesday in state Supreme Court in Erie County, is apparently the first to challenge the crackdown on firearms championed by Governor Andrew Cuomo.

Attorney James Tresmond, who is representing the gun owners, asked state Supreme Court Justice Diane Devlin to enjoin the law pending the state's response.

The law was passed on January 15, making New York the first state to enact tougher gun regulations after a gunman shot dead 20 students and six staff members last month at the Sandy Hook school in Newtown, Connecticut.

The law bans assault weapons and magazines that hold more than seven rounds of ammunition, requires gun owners to register most guns with the state and requires universal background checks, among other provisions.

The law also authorizes law enforcement to confiscate guns owned by a mentally ill person, if a mental health professional believes the person poses a threat to himself or others.

"A number of constitutional rights were just tossed aside here," Tresmond said on Wednesday.

Under the law, the failure to register a gun is a class E felony. The suit claims that the provision violates the Fifth Amendment right against self-incrimination, because it could force a gun owner who registers late to effectively admit to committing a crime.

The U.S. Supreme Court in 1968 ruled in Haynes v. United States that felons and others who are prohibited from possessing guns could not be forced to incriminate themselves through registration.

Tresmond said the law also violates the Fifth Amendment's ban on the taking of private property by the government. The law requires people who own high-capacity magazines to either sell them or surrender them to the state.

The lawsuit lists as defendants Cuomo, Assembly Speaker Sheldon Silver, Senate majority leaders Dean Skelos and Jeff Klein, and State Police Superintendent Joseph D'Amico.

At a press conference after the lawsuit was filed on Wednesday, Cuomo, a Democrat, said he expected legal challenges to the new law and that he believed courts would uphold it.

"The more (people) understand the law and the more they hear about the law, the better they are going to feel because it has nothing to do with the legitimate ownership of a gun," he said.

On Tuesday, the New York State Rifle & Pistol Association filed a notice of claim with the state, which gives the group 90 days to file a suit challenging the gun law. The association, which is the National Rifle Association's affiliate in New York, said in its filing that the law violates the Second and Fifth amendments, the Commerce Clause and constitutional rights to privacy.

The case is Richard Dywinski v. New York, New York State Supreme Court, Erie County No. 290-2013.

(Reporting by Daniel Wiessner; Editing by Tom Brown)

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