This is the thirteenth 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), Part VII (Corruption? You Can’t Prove It!), Part VIII (appeal to N.Y. high court), Part IX (N.Y. Court of Appeals won’t hear), Part X (Federal Lawsuit Filed), Part XI (Federal Court Refuses Challenge), Part XII (U.S. Court of Appeals).
Total Time Spent So Far: 79 hours
Total Money Spent So Far: $2,296
In July last year, I filed a notice of appeal of the U.S. District Court’s decision that New York City’s gun licensing scheme was constitutionally sound. Federal court appeals are heard by the appellant filing a brief, the appellee filing an opposing brief, and the appellant gets an opportunity to file a reply brief. Often, but not always, oral arguments are heard, wherein the parties get a short period of time (typically, 5 – 15 minutes each) to persuade the judges hearing the case and to answer their questions.
Oral arguments were ordered in this case and heard on June 3rd, 2020. Getting the Second Circuit to overturn longstanding precedent regarding New York gun laws was always a long shot, so I prepared for a somewhat hostile reception. The judges randomly assigned, however, were two Trump appointees and 1 Bush 43 appointee — a favorable selection for a gun rights case. Because of coronavirus, the arguments were telephonic, and a recording is available from the court (.mp3).
Alas, despite the favorable panel selection, the judges apparently had made up their mind before hearing arguments, as they put out a 5-page opinion the next day (.pdf) affirming the judgment of the court below. The judges did not reach the merits of the case (the constitutional issue). Instead, they agreed with the city that because of the way I presented my case in state court, I could not challenge again in federal court.
Let me try to explain. Some cases can be heard in both state and federal court — gun issues are one of them. However, if your case is heard in state court, it generally can only be heard in federal court if the state court doesn’t provide the same type of remedy (in the legal world, we describe this issue using the Latin phrase “res judicata“). Gun license challenges in New York courts (called “Article 78” proceedings) typically only come with the remedy of ordering the issuance of the license or a new administrative hearing, while in federal court I can ask for money for the infringement of my rights. So, I should have been good. The problem is that when I asked for the review of my gun license issue in state court, I also asked them to review their refusal to provide me with records I requested. The federal court held that this type of case allows for money damages also. In other words, if I had filed 2 separate cases — one challenging the gun license denial and the other challenging the records refusal — my case could be re-reviewed in federal court, but since I did both at once, no dice.
As far as I can tell, this is the first case in which such a distinction has been made, and in my opinion creates an unjust result: there should be no penalty for saving the courts time by asking them to hear two matters at once. Needless to say, it leaves my court battle over my 2015 gun license application dead, as although I can appeal to the U.S. Supreme Court, it is highly unlikely that they have interest in hearing such a case.
But, the fight is not over. Stay tuned for Part XIV over the next month or two, in which we explore the contours of New York’s “proper cause” requirement. 🙂
Wow! With all that is going on, I was looking into get a regular gun permit and found this website. They need to make it easier to get a gun now that ‘no one’ we protect us but ourselves. We need to make our political representatives understand this.
Wow I just read your entire series and I have to say I am both thoroughly impressed and dishearten by the results of your struggle. I mean the sheer effort is just amazing but as a young adult with hopes of getting their license in NYC, I can’t believe the amount of work needed just to buy a gun. I don’t know, I am a liberal so I won’t fair well in pro-gun areas (republicans) so I guess I will have to live with the fact that a personal handgun is just out of my reach. Thank you for your articles! They kept me on edge.
Is there a time limit on when you can appeal to the Supreme Court? Just asking because I am not sure if the appointment of Judge Barret changes your mind any in your consideration of whether or not to appeal.
Wow you are the exact thing that is wrong with America right now, you are going out of your way to try and force a city that is overwhelmingly In favor of its firearm restrictions. You admit that you didn’t need or even really want to own an gun only to “test how hard it is to get your firearm.” Do you know why NYC is the safest major city in the US? because it has 8.5M people in 800miles squared and it doesn’t just let anyone who wants a gun have one.
You are trying to make the city unsafe. You are trying to make it harder for the city to keep track of who has a gun. You are trying to make shooting rise. Go somewhere else if you want to have fun with guns! NYC has managed to stop its gang problem though strict gun laws!
Frivolously trying to get strict measures struck down for your own enjoyment. I bet you would be the first person to say “Wow they sure are a violent democrat run city, look at all that gun violence” after getting their gun laws stuck down. Go suck a duck and get the fuck out of NYC idiot.
You know.. The Jews said the same thing. Until they were prodded into box cars headed to concentration camps.
> Wow you are the exact thing that is wrong with America right now
A civil rights lawyer? Er, ok…
> to try and force a city that is overwhelmingly In favor of its firearm restrictions
The funny thing about constitutional rights is that the exact purpose of having them be constitutional rights is to prevent them from being overridden by localities or other groups less than what is required to amend the Constitution. If a municipality banned a religion, or gays, or speech in opposition to the military, you’d not sit here supporting their right to do so, right? So cut that shit out here.
> You admit that you didn’t need
You didn’t “need” to make this comment, yet it was your right to do so, and you did. I don’t have to justify “need” to exercise my rights.
> Do you know why NYC is the safest major city in the US?
Because that’s a statistic you just made up?
> because… it doesn’t just let anyone who wants a gun have one.
Time and time again the statistics show that cities that have easy access to guns have less crime, on the average, than cities that don’t. Chicago, LA, DC… hard to get guns, lots of crime. Think, McFly. Think.
> You are trying to make the city unsafe.
That is, quite obviously, not my intent.
> You are trying to make it harder for the city to keep track of who has a gun.
Ok, yes, that one is my intent.
> You are trying to make shooting rise.
No, you’ve lost it again.
> NYC has managed to stop its gang problem though strict gun laws!
If you don’t think there’s gang violence in NYC, you must be very, very white.
> Frivolously trying to get strict measures struck down
Not one court has called my challenges “frivolous” yet — ever, actually, in any matter. But I’m sure you know better.
> get the fuck out of NYC idiot.
> A civil rights lawyer? Er, ok…
Civil rights is fighting for racial/gender/LGBT equality, not fighting for people to be able to get a deadly weapon. Guns might be a “constitutional” right but it damn sure is not a civil one.
> The funny thing about constitutional rights is that the exact purpose of having them be constitutional rights is to prevent them from being overridden by localities or other groups less than what is required to amend the Constitution. If a municipality banned a religion, or gays, or speech in opposition to the military, you’d not sit here supporting their right to do so, right? So cut that shit out here.
The NYC council is 48 dem and 3 rep, the people of the city know what is best for them, they don’t need someone moving from out of state and getting residency just so they can sue over a law the people voted for and clearly support.
> You didn’t “need” to make this comment, yet it was your right to do so, and you did. I don’t have to justify “need” to exercise my rights.
How do you justify moving to the city for the expressed reason of overturning their gun laws? Like you literally didn’t live in the city, or state, you moved to the city, to buy a gun in the city, so you could sue the city. That is bad faith and should be thrown out of court, which is keeps being, because thats bullshit.
> Because that’s a statistic you just made up?
NYC has a 3.0 murder rate. despite having the population density of 10K people per square mile.
> Time and time again the statistics show that cities that have easy access to guns have less crime, on the average, than cities that don’t. Chicago, LA, DC… hard to get guns, lots of crime. Think, McFly. Think.
NYC has managed to keep a basically total ban on civilian firearms. Those other cities have not because they had their laws struck down, and after it was murder rates went up.
> That is, quite obviously, not my intent.
Then leave the city and drop the cases at its peak in 1990 they had 2300 homicides a year, its down to about 300. That is why they have such strict gun control, how about you learn about a places history behind its laws before you move to a place to mess stuff up. If you some how win your case and the homicide rate ticks up again it will be 100% on you.
> Ok, yes, that one is my intent.
Why? YOU DID NOT LIVE IN THE CITY BEFORE YOU DECIDED TO TRY AND BUY A GUN THERE! Its fucking stupid. You came from a different state, where you could have gotten the gun you don’t really want, but no you have to be a busy body and go messing up other localities. Read the fucking 11th amendment and drop the fucking case.
> If you don’t think there’s gang violence in NYC, you must be very, very white.
I’m not white, im mixed brown, I was born in NYS and currently live in MD which also has strict gun laws. I and everyone else would like it if you went back to whatever state you came from and stopped your “GUNS FOR ALL” campaign.
Gang violence is tiny in NYC Baltimore has 300 homicides a year out of 600K NYC has 300 homicides out of 8.5M chicago has 8 times the murders that NYC has. Leave NYC alone.
> Not one court has called my challenges “frivolous” yet — ever, actually, in any matter. But I’m sure you know better.
Didn’t live in the city before attempting to buy the gun? check!
Didn’t have work, family, school, cheaper housing? Check!
Filed a lawsuit imminently after becoming a resident? Check!
Probably going to leave the city after your court cases are over? Check!
Bad faith at best, frivolous at worst.
> No u
I’m not in NYC because I don’t go to other localities just to try and overturn the will of their people.
Your entire comment was premised on the idea that I obtained a residence in NY for the purpose of challenging the laws. Except I was born in New York and have resided in it for about 30 years of my life.
Have you been able to make any headway?
The upcoming NYSRPA v Corlett in the Supreme Court could be huge leverage.
Best of luck,
A Fellow NY’er who happens to live so far north of the city they were able to obtain their unrestricted CCW
Any news on this, Mr. Corbett? It’s been a bit over a year, but I haven’t seen any post about it. 😦