Shepherd

A dear colleague called me yesterday.  “What the heck have you been up to?” he asked.  On the other end of the phone in his hands was a print out of the “Shepard’s” of my case, Gazzola v. Hochula.  “Gee whiz, Paloma!”

(Side note: “Shepard’s” is a company that tracks case reporting and citations in cases to precedent cases.)

With less than two weeks to go to our March 7 filing deadline to SCOTUS, the new Petition for Writ of Certiorari is my life.  It culminates fifteen months of intense litigation, thus far resulting in seven denials for preliminary injunctive relief.  That would be once (1) on the TRO/PI from district court on 12.07.2022.  Then no (2) from the Second Circuit Court of Appeals on the TRO on 12.21.2022.  Then no (3) from the Emergency Application to SCOTUS on 01.18.2023.  Then no (4) from the Emergency Rule 11 Petition for Writ of Certiorai on 04.24.2023.  Then no (5) from the 2d Cir on an Emergency Sub-Application on 08.29.2023.  Then no (6) from SCOTUS to the appeal of that Emergency Sub-Application with three Supplemental Briefings on 10.10.2023.  Then no (7) from the Second Circuit to the full briefing for the PI on 12.08.2023.

I’m not going to put in the hyperlinks, so that I can remain optimistic!

When I first filed the Emergency Motion for TRO/PI to district court back on 11.08.2022, I thought about one-third should be granted straight away under NYSRPA v. Bruen and the balance would take three to four months on appeal to circuit court.  I didn’t anticipate SCOTUS involvement that early in the case. 

To now be filing the fourth application to SCOTUS on the same request for preliminary injunctive relief in a bit over a year – and considering I last month filed an Amicus Brief in the Fischer v. U.S. case – means, well, yeah, I guess I’ve been busy.

But not alone. 

I could fill half this Friday morning sharing stories with you about the plaintiffs.  A fantastic group of individuals who didn’t know each other (or me), yet knew they had to do something when the new laws hit. They were willing to put their name on the cover of court papers, and be interviewed by the press, and contribute their analysis and feedback towards every submission we make.  They are the men + one woman of every small to medium gun shop I’ve ever set foot into.  Welcoming.  Friendly.  Full of stories and making one great-big, family-style conversation out anyone in the shop.  History!  Filled with history.  As plaintiff Jim Ingerick of Avon Gun said to me a few days ago, “Heck!  I’m estimating it’s going to take me three years just to shut down, I have so much stuff.”  More than fifty years of experience right there, and he’s not the only plaintiff over that mark of 50-years as a federally-licensed dealer in firearms.

I wouldn’t leave a round in the chamber in a gun fight.  I’m not going to leave a word in my pen. 

If I’ve learned anything from this, it’s two things.  First, I may never bring another motion for preliminary injunctive relief.  That’s mechanics and for another day.  Second – and more importantly – this blessed group of words we call the “Second Amendment” and the “Equal Protection Clause” from the Fourteenth Amendment, are in dire need of protecting.  As in actively, each and every day.  The fight raging in courts across this country and in U.S. territories, right now, will set the standards and limits on government laws versus government infringement.  These huge opinions like Heller, McDonald, Bruen – all since 2008 – guide every other court in every other case.  You get 80 cases per year to SCOTUS and tends of thousands in district and thousands in circuits below.

Gazzola v. Hochul aims to define the word “to keep” from “to keep and bear arms,” and we propose to do so through a standard of “constitutional regulatory overburden” when dealers in firearms are targeted by a government with mandates that imperil or terminate dealer operations. 

According to ATF monthly data I’m tracking, more than 150 federally-licensed dealers in firearms have terminated or not renewed their federal license since we started this case. 

The prior ten years – all post-SAFE Act – were relatively stable at approximately 1,775 dealers.  At this point, New York is losing roughly twenty (20) FFL-01 dealers per month.

Love Your Local.  Pass the Hat.  Keep up the fight, wherever you are at whatever pace you can.  We have been given no choice but to shepherd.