This is the sixth 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.”
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.