Dents in the Machine

Last Friday, after nine months wait, the Second Circuit Court of Appeals issued two decisions on the pending requests for preliminary injunctions in the five cases of Gazzola v. Hochul, Antonyuk v. Chiumento, Christian v. Chiumento, Spencer v. Chiumento, and Hardaway v. Chiumento.  No preliminary injunctive relief was granted in Gazzola, neither to the plaintiffs in their roles as federally-licensed dealers in firearms, nor to them as individuals.  About half of the preliminary injunctive relief was granted in Antonyuk, et al. cases.  The surprise is not so much in the outcome of the two rulings, as in the language, logic, and precedents from the Second Circuit.  These decisions signal the expressed movement of the Second Circuit towards application of U.S. Supreme Court rulings about the Second Amendment.

First, a blog on the ruling in Gazzola v. Hochul.  To follow as the week proceeds, a blog on Antonyuk v. Chiumento.

Let’s kick off commentary about the Gazzola ruling with my trademark lesson:  the win is in the loss.  We didn’t get the preliminary injunction, but we won a reversal of the lower court on the most important aspect of our case.  The ruling contains new law, now binding upon New York and Connecticut and persuasive for all other states and U.S. territories.  In their own words, the Second Circuit now joins the Ninth Circuit (CA, AK, AZ, HI, ID, MO, NV, WA, OR, Guam, and the Northern Mariana Islands) and the Third Circuit (DE, NJ, PA, and the U.S. Virgin Islands) in saying that dealers in firearms have standing to bring Second Amendment derivative claims on behalf of customers. 

In my words?  The Second Circuit went further and was more deliberate than the other circuits.  Plus, it positioned us well for the long haul through to a final (“merits”) decision.  It is a ruling that our District Court Judge “must” apply.

We put a dent in the machine!  If opponents of the Second Amendment and individual rights thought they could shove through a law in New York, get a rubber stamp from the Second Circuit, and photocopy it across blue states?  Not so fast!  We won the adoption of a new standard in NY + CT, and one that will serve as a national leader for federally-licensed dealers in firearms to sue governments.

How so?  You ask.  Grab a free download of the Gazzola ruling.  Turn to page 11, which is Section I.  Second paragraph: “We have no trouble concluding that Appellants have standing to bring such a derivative claim.”  Turn to page 12, bottom paragraph, which is the reversal of the lower court:  “We conclude that there is a sufficient basis for that [novel] theory, but we hold that Appellants are not entitled to preliminary injunctive relief.”

You may be asking how I can be pleased with that top line outcome?  The answer is the acknowledgement of the validity of the “novel theory” plus the standing to bring it.  Our entire case in Gazzola hinges on the adoption by a court of our watershed theory that “to keep” of “to keep and bear arms” has an independent legal value, reflective of the right of the law-abiding individual to obtain a firearm through lawful channels, such as a federally-licensed dealer in firearms.

Let’s lay it out as straight here as I did in my court papers:  we have no precedent to support our theory, except for one comment in a dissent of a case out of Tennessee Supreme Court from 1871.  Well, I have news for you: the Second Circuit adopted that moment in judicial history and converted it into a positive precedent!  On page 14, first paragraph, the Second Circuit wrote:

“As the Tennessee Supreme Court observed in 1871, “[the] right to keep arms, necessarily involves the right to purchase them, to keep them in a state of efficiency for use, and to purchase and provide ammunition suitable for such arms, and to keep them in repair.” Citing to Andrews v. State, 50 Tenn. (3 Heisk.) 165, 178 (1871). 

Our “novel theory” of the interpretation of “to keep” is a novel theory no longer.  It is now law. The ruling affirms my research.

In fact, in the nine pages of 11 through 20 of the Gazzola ruling, the Second Circuit adopted multiple of our citations and much of our logic.  The ruling draws to a high point in the words of Second Circuit Justices Lee, Lynch, and Jacobs: 

“It follows that commercial regulations on firearms dealers, whose services are necessary to a citizen’s effective exercise of Second Amendment rights, cannot have the effect of eliminating the ability of law-abiding, responsible citizens to acquire firearms.” 

Continuing with the footnote 6, thereto: 

“We have no present occasion to set out specific guidance as to how a trial court must assess evidence that a commercial regulation is stifling the individual right of access to firearms (assuming a plaintiff one day produces it).  But whatever the standard is, a State cannot impose a regulation on commercial firearms dealers as a class that has the effect of prohibiting law-abiding, responsible citizens from possessing common-use weapons.”

And that, my friends, is as good as hoisting a big ol’ checkered flag, down a road about two years long. We’re green lighted, if we can, to win a merits decision in our favor to overturn much of the heinous laws Governor Hochul and her co-defendants and third-party cohorts hoisted onto the backs of FFLs in NY in 2022.  This Circuit Court language, and that of this entire section, opens the road for our presentation of not only the plaintiffs’ evidence of inability to serve individuals for their fundamental Second Amendment rights, but also that of witnesses, including, but not limited to, other FFLs such as those who have resultantly gone out of business.

For me, it’s a relief more than fourteen months of non-stop toil.  No question in my mind that the ruling wouldn’t have been possible but for the oral arguments in which I engaged on March 20, 2023 before the Second Circuit panel in Manhattan.  Listen to the Gazzola oral arguments HERE.  I was allotted the standard ten minutes.  I ended up using nearly thirty.  The four tandem cases were heard first and each judge had demonstrated working knowledge of their records.  I stood, and immediately felt the wave of oh shit – they haven’t read a word I wrote; they’re relying on some clerk’s notes and the notes are wrong.  Perhaps I was wrong in my impression, but that was my impression, and I immediately ground into the four corners of my feet where they stood in my new black patent leather shoes and I fought like hell.

Reading through the Gazzola ruling last Friday, what I plainly saw were words from three judges who graciously did exactly what I asked: they dared to be the first.  Like the scene from the movie “Hidden Figures,” Judges Lee, Lynch, and Jacobs became the first judges in the history of this nation to open the door to the word “to keep.”  Even though they didn’t use the word “to keep.”  Even though they didn’t immediately adopt my proposed standard of evaluation of evidence of “constitutional regulatory overburden.”  The Second Circuit gave us permission to present our case and told the District Court Judge she “must” hear the evidence…because if it’s put in front of them in the future, they are open to considering how to set a standard.

If we were only going to win one point, we won it.  And it’s a big point.

As to Sections 2 and 3 of the Gazzola ruling.  Unfortunately, the panel missed points in the record that would have answered some of their questions.  They also made some mistakes.  We spent little to no time in orals on these two sections – I have to grant that, as I write this commentary.  I’m less concerned about those errors because the record already gets us past those points.

You know what’s next.  It’s time for our fourth submission to the United States Supreme Court on this motion for preliminary injunction.  I have received more decisions saying nothing more than the word “deny” since November 2022 than any case I’ve ever seen.  But now I have a blueprint with traction to set forth another submission. 

So let me conclude with something that may surprise you: we may not be granted cert on this fourth submission, either.  Every new regulation we tried to stop (except, arguably, one) is in effect.  The emergency of stopping implementation from happening has passed.  The standard for evaluation of laws now in effect (compared to ones not yet in effect) has vaulted.  The nation’s high court may be satisfied with the Second Circuit ruling and decide they’d like to see what we have to offer in a couple years on a full record, including trial testimony. 

Absolutely I will submit my best-ever-yet work – have no doubt of that.  I simply candidly feel that our September “Emergency Motion” had incredible momentum and was superior timing.  That denial of cert was and remains, for me, and I know for many of you, a much more difficult denial given its timing in juxtaposition to the highjacking of the background check system by the NYSP and the start of the NYSP “Joint Terrorism Taskforce” dealer inspections.  I will never understand why Justice Thomas didn’t grant our motion, at least in part.

Following the upcoming fourth submission, our lawsuit of Gazzola v. Hochul will then move forward on its merits.  The doors open wide to let in all the frustration, failures, and heartache caused by these new laws and the actions, inactions, and ineptitude of the co-defendants, especially the New York State Police through their so-called implementation.  You see, the lawsuits after the “SAFE Act” were all about motions for summary judgment and motions to dismiss.  Those cases didn’t go through full litigation to merits decisions.  We will.  It will be longer, slower, and deeper.  It will include discovery of documents and depositions of parties and witnesses.  It will include trial.  And, likely, further appeals, whether by us or the state.

Federal civil rights litigation is about demonstrating harm to the people who stand up against government infringement.  It’s about striking down laws – permanently – that cause the harm.  Many a successful civil rights case had no temporary or preliminary injunction.  And some that win TRO/PI fail on the merits, allowing statutes to go into effect that were postponed during litigation.

A super long blog!  But I wanted to lay out a top line on the Second Circuit ruling in Gazzola v. Hochul on the request for preliminary injunction, given that we waited, together, for nine months to get it.  My analysis bottom line is that every dollar raised was well spent.  Every hour of your work and mine to put together our submissions – worth it.  It’s a new day in New York and Connecticut, and across the U.S.  A platform is now erected upon which FFLs can stand when they want to stand for your rights under the Second Amendment.

Hey! P.S.!:  Grab yourself free downloads of the Gazzola and the Antonyuk Second Circuit rulings from my website.  Do sign up for my free e-blasts.  And, avail yourself of a copy of my White Paper on the CCIA in New York.  This spiral bind volume sets out each of the laws at issue in Antonyuk as “sensitive places” and “restricted places.”  It is designed to anchor your understanding of these laws for the life of the cases, until a final (“merits”) decision is reached.  I’ll be putting out a free update memo to those who already purchased it and that will accompany new purchases.