This is the seventh installment of a series documenting an ordinary New Yorker attempting to exercise his Second Amendment rights: Part I (license application), Part II (application rejected), Part III (the lawsuit), Part IV (appeal filed), Part V (appellate briefing complete), Part VI (N.Y. Appeals Court Not Interested in Ending NYPD Corruption).
Yesterday the Appellate Division of the N.Y. Supreme Court affirmed the lower court’s ruling dismissing my challenge to New York’s corrupt practice of issuing gun licenses only to those whom the NYPD feels have a “good reason” to have a gun — a practice that has resulted in corruption for a century now. This result is, of course, not surprising: as the landmark case District of Columbia v. Heller, 554 U.S. 570 (2008), approaches its 10 year anniversary, New York courts still petulantly resist the mandate that firearm ownership is a right — not a privilege, and not requiring membership in a “militia” — subject to intermediate scrutiny or higher.
In this case, the Appellate Division has finally used “intermediate scrutiny” by name, which is a slow step towards acceptance of Heller. Intermediate scrutiny is the lowest level of scrutiny that the U.S. Supreme Court has allowed for gun laws since Heller, and it requires that a regulation be: 1) substantially tailored, 2) to an important government interest.
As should be obvious, that’s a 2-part test, and while the “important government interest” part is easily satisfied (it’s certainly reasonable for the government to want to protect its citizens from gun violence), the Appellate Division has plugged their ears to the second part of the test. During oral arguments, I specifically asked the judges to require that the most vague, invasive, and irrelevant questions on the gun license application, all of which ask if you have ever done something (e.g., taken a prescription painkiller under doctor supervision) be narrowed by temporal or other boundaries:
Justice Sweeny: “[The disputed questions are] not the be all and end all. It could very well be the basis for further investigation. Why is that not relevant?”
Jon: “Right, because they could narrowly tailor it. They could say, ‘have you used [prescription painkillers] for more than a week?’ Have you done it within the last 5 years? Any of these things would allow them to more narrowly tailor it.”
[Watch Oral Arguments] [More Details About Oral Arguments]
Their decision, of course, is silent on the matter, stating that the rules “are justified because they serve to promote the government’s” interest without any thought to tailoring. In affirming the court below, the Appellate Division has made it clear that they refuse to set any boundaries whatsoever on gun license restrictions in this state.
Further, the court continues to ignore the persistent corruption in the NYPD Licensing Division:
“Petitioner has not established that the denial of his application was the result of corruption or other impropriety”
This ignores the fact that my original case in the lower court was dismissed before I had a chance to gather or present any such facts. I got no period of “discovery” or any other procedure by which I could demand the turning over evidence. Meanwhile, officers literally in the office where and when I submitted my gun license application have pled guilty to federal corruption charges, admitting they accepted cash in exchange for approval of gun licenses. Under these circumstances, due process is lacking whether I can prove that my individual case was affected or not.
I look forward to petitioning New York’s highest court, the Court of Appeals, to hear this case.
Keep up the fight.
Keep up the fight. We all must fight. NYS has and continues to violate it’s citizens rights under the 2A and the Heller decision. In downstate NY no one gets a full CCP for any reason unless you are retired law enforcement. If you own a business and you are lucky they may give you a business carry permit but it only allows you to carry to and from your business. This BS must stop. We need to get national reciprocity passed then no State will have any say in who carries in their State as long as the person possesses a valid CCP from any other State. The fight is just begining and we will win despite Cuomo and his corrupt regime of puppets.
In NYC is there any way an average citizen can be armed in public?
In the home, you “keep” arms — and they let you do that.
How do they construe “bear arms,” if not outside the home?
There is no way an average citizen can be armed in public. There is no open carry (except off-duty police seem to be able to here) and CCW requires a showing of need *greater* than the average citizen.
They argue that bearing arms is not the primary right conveyed by the Second Amendment.
Just a question, I was watching a documentary on Amazon the other night and thought of this blog. The doc is called “Fed Up” details the intricate circus that is the Food industry. They brought up a valid argument approximately 3-4 times throughout the Doc, something to the extent of the government overstepping its involvement and boundaries. The issue was should the food industry be censored from marketing and advertising towards “minors”, they explained that this wasn’t something for the government to censor much less pass rule or judgement on. How can this argument be made applicable along side your argument, the exercising of a constitutional right?
There is no right to carry concealed firearms. Heller clearly indicated that position. Government can’t license a right. Murdock v Penn 1945 case. Winning case would require a damage while exercising ones right to self defense with a weapon in common use such as what Miss Caetano did in Caetano v Masshole…Gotta do it without the license/contract. Norman v Florida lost for that reason…He was under a license agreement which he entered into with the state. It was in essence a waiver of right.
It must be an open carry case I should add. Also, the best semi-automatic case would require a damage while possessing such common use weapon for self defense. A new Highland Park case should be redone with an arrest with such a weapon…Not a felony if convicted and 6mos max. Civil, I wanna use this weapon for self defense cases, will never make it to the SCOTUS. Maybe once the circuit courts are full with such cases and there is a split.
Can you just fill out the questions you previously didn’t and when they reject again use it as evidence? I mean if they are saying you can’t get the license because you didn’t answer the questions, if you answer them in the very least i suppose they’ll need a new excuse. I’m not a lawyer, just rooting for you. My father applied for a permit about 40 years ago and never got a reply. Think he tried reapplying years ago and just got emails that they are still processing application. So his reason is he is a home inspector who processes foreclosures and is often shot at by former home owners, stopped by drug dealers, or people send their pitbulls after him. If he can’t get one, then between that and your journey it’s impossible. When we moved to NC, he did safety course and paid a small fee, went to a local hardware store got a gun.
Your fight is valiant. Keep it up!
Interestingly, unless I am mistaken, the Heller court actually used a test of strict scrutiny when looking at 2A, especially when the potential for infringement struck at the core of the amendment, which was the right to keep and bear arms for the purpose of self-defense. Intermediate scrutiny was not considered to be the right test. The strict scrutiny test would put an even more substantial burden on the government to show not only that there is a public interest, but also that the regulation would likely lead to the significant futherance of that interest, and that regulation was the least intrusive way of achieving its goal (assuming that it could work).
Also, if I am not mistaken, the DC circuit in the Wrenn decision applied that very standard and concluded that while Heller was aimed mostly at ownership in the home, where the need for defense is most acute, it did not foreclose the notion that bearing arms outside the home was at the core of the 2A with respect to self defense. Moreover, the government could produce no relevant evidence that CCW holders posed any substantial risk or increase in gun violence. Hence, the Wrenn court invalidated DC’s may issue regulation based on that strict scrutiny standard.
I’m guessing that the DC government felt that the court’s conclusion was so airtight based on the SC’s (albeit limited) guidance, that they would not appeal to the SC for fear of knocking down every state’s “may issue” regs.
So, despite the nuttiness of the NY state courts and the 2nd circuit, if you are granted certiorari, you have a really good shot in the SC.
Keep it up, and thanks!
You need to keep using the law to your advantage to challenge it piece by piece. Keep noting how possession of a handgun in NY is a felony unless you fall under an exception, ie being a cop or begging the police for their blessing with a pistol lisence. Have you thought of contacting organizations outside the NRA? The Second Amendment Foundation were the ones that initially challenged the D.C ban when the NRA refused. There is also other grass roots organizations like gun owners of America and the Firearms Policy Coalition. The whole NY system is a caste system in which the law is used as a weapon to punish innocent citizens when no party has been harmed, such as magazine capacities and cosmetic features on rifles.
There’s also this organization that may help, even if it is just advice on what arguments to include or wording. I tend to favor GOA and SAF over the NRA. The NRA supports laws that violate the 2nd.
NYPD just denied me for a HOME premise permit due to ONE single arrest from almost a decade ago where the charges were dismissed and “sealed”. After reading the nasty letter they wrote me saying I lack moral character and have a violent past (again, only one arrest which was dismissed in court), I feel I have no choice but to take my case all the way up, no matter the cost, to vindicate my name, then sue the NYPD for whatever my lawyer thinks are grounds to sue them on.
Do I understand this correctly? You went to court, the charges were dismissed which means no CONVICTION on your record and you were still denied, as if you were convicted of a crime?
I tell you what, if a person who has never been convicted can still be treated as if they was, the justice system is broken. I can think of all sorts of situations where a person could be wrongly charged with a crime and the charges being dropped. Heck, it could be that a person was identified but able to prove they were somewhere else beyond any and all doubt which means they were and still are innocent of the charges. It could even be identity theft which is a big thing nowadays. I’m not typing in all the other ways this can happen because it would disturb a lot of electrons.
I know NYPD is corrupt, on a lot of levels, but this is low even for them.
dalek1967- This is correct man. The sad part is that after the corruption scandal they decided to become even more picky with their approvals. It’s incredible that they literally do whatever they want and they know the NYS courts will back them up and nobody has the guts to pool together and file suit all the way up. I fear the system will only change with the scotus mandating a change specifically to NYC and NYS gun application process. I mean nowhere else in the whole country other than this city do you have to go through all this crap for a home premise permit. Not even California, the holy grail of liberalism, take a safety course, wait 10 days and go pick up your firearm. Sometimes it feels like I am the only one seeing this clearly because nobody does anything about it. Drop the full carry BS and let’s at least force the NYPD to stop putting people through a 1 year process for a simple home premise license. It should be shall issue for home premise and issued within 30 days max. Anyone interested in talking more my email is firstname.lastname@example.org