The upper house of the state legislature is poised to make a change to the penal law this week in hopes of blocking U.S. Supreme Court review of NYSRPA v. NYC

June 3, 2019 – BATAVIA, N.Y. – On April 29, 2019, the U.S. Supreme Court (SCOTUS) rejected New York City Assistant Corporation Counsel Richard Dearing’s doomed and feeble effort to halt the Court’s review of NYSRPA v. NYC. The case before the nation’s highest court challenges the city’s ban on transferring even licensed, unloaded guns anywhere outside the city limits – including to a weekend home or shooting range for target practice – restrictions NYSRPA describes as “draconian.” Dearing had argued that, because the city is working to amend its firearms transport rule in a manner that resolves the concerns raised by NYSRPA in its case against the city, the legal dispute should not be permitted to continue because “the Court could not grant petitioners any effective relief.” This did not convince the Court, and so the NYSRPA case remains active and viable.

Still stinging from the defeat suffered in April, progressive autocrat Brian Kavanagh (D, WF – 26^th Senate District) has taken up Dearing’s cause in the state senate. On Wednesday, Kavanagh introduced S.6151 at a meeting of the Senate Codes Committee. The bill would amend the state penal law to allow New York City firearms premises licensees to transport a legally-owned handgun directly to and from specified locations, provided the handgun is transported unloaded, in a locked container, with the ammunition carried separately. S.6151 passed the Codes Committee Wednesday on a 9 to 4 vote. The legislation will next be heard on the Senate floor as early as this week, and attempts the same weak legal maneuvering that Dearing initiated little more than a month ago – an effort to preemptively change New York City’s firearms transport rule in such a way that SCOTUS must dismiss NYSRPA v. NYC because the legal issue under review would no longer exist.

As noted with humor and some surprise by a committee member during Wednesday’s codes meeting, in addition to support from Senator Kavanagh, S.6151 is “also supported by New Yorkers Against Gun Violence (NYAGV) as well.” Why are far-left progressive mouthpieces like Dearing, Kavanagh, and NYAGV actually rooting for an expansion of New Yorker’s Second Amendment civil rights, even as minor as those allowed by S.6151? It’s because they recognize that SCOTUS justices likely would not agree to hear the NYSRPA case if they did not intend to reverse New York City’s draconian firearms transport rule.

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If SCOTUS intends to reverse the aforementioned transport rule, they’ll very likely need to assess the appropriateness of judicial review currently allowing it to survive constitutional scrutiny. If the Court reviews the current level of judicial review (intermediate scrutiny), it is likely to find that such review is insufficient to permit impingements on a constitutional right like the one protected by the Second Amendment, and proclaim that strict scrutiny is the appropriate level of judicial review for all Second Amendment cases.

If the above were to occur, as 2AWNY.COM noted in January when SCOTUS agreed to hear the NYSRPA case, 2AWNY.COM’s cases against the New York State pistol permit regime and SAFE Act, the latter of which has been appealed by the state, would proceed and severely damage if not totally eviscerate both unconstitutional gun control edicts, as neither are capable of surviving strict scrutiny review. The same would likely hold true for the state’s red flag law, safe storage law, and the vast majority of Albany’s imperial gun control designs.

“The actions taken by Senator Kavanagh and his colleagues last week confirm that Second Amendment supporters are on track to score a major victory before the U.S. Supreme Court in 2019 – 2020, procuring the critical legal instrument required to destroy New York State gun control: strict scrutiny,” 2AWNY.COM Second Amendment Civil Rights Advocate Steve Felano said. “Senator Kavanagh and, no doubt, Imperial Criminal Andrew Cuomo and his progressive acolytes, are terrified at such a prospect. This is why they’re attempting to fashion the ‘Mootness Doctrine’ into a permanent obstruction for NYSRPA v. NYC. Should Senator Kavanagh be successful, the prescription by SCOTUS that strict scrutiny be applied to all Second Amendment cases by all courts will simply be delayed, not permanently halted. 2AWNY.COM has two strong and compelling Second Amendment cases active at the highest levels of the state and federal court systems, and we are assessing several others that we may launch in the coming weeks. 2AWNY.COM will keep these cases coming until they reach SCOTUS, and we have decades over which to accomplish this goal with the current pro-Second Amendment majority in place on the bench. Efforts by progressives to pack SCOTUS to avoid this outcome will fail, and legal review at that level may not even be necessary given that the U.S. Court of Appeals for the Second Circuit’s anticipated Republican majority could simply apply strict scrutiny to Second Amendment cases themselves.”

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What is the Mootness Doctrine? We can turn to the Congressional Research Service for an explanation. The Service states:

“A case pending before a federal court may at some point in the litigation process lose an element of justiciability and become ‘moot.’ Mootness may occur when a controversy initially existing at the time the lawsuit was filed is no longer ‘live’ due to a change in the law or in the status of the parties involved, or due to an act of one of the parties that dissolves the dispute. When a federal court deems a case to be moot, the court no longer has the power to entertain the legal claims and must dismiss the complaint. However, the U.S. Supreme Court over time has developed several exceptions to the mootness doctrine.”

That final sentence quoted above should cause alarm for Senator Kavanagh and his supporters, as one of the exceptions to the Mootness Doctrine – Voluntary Cessation – directly applies to his attempt to obstruct NYSRPA v. NYC. Again, from the Congressional Research Service:

“If a defendant voluntarily terminates the allegedly unlawful conduct after the lawsuit has been filed but retains the power to resume the practice at any time, a federal court may deem the case nonmoot. The ‘heavy burden’ of persuading the court that a case has been mooted by the defendant’s voluntary actions lies with the party asserting mootness, and the standard for such a determination is a ‘stringent’ one: ‘if subsequent events ma[ke] it absolutely clear that the allegedly wrongful behavior [can] not reasonably be expected to recur.’ This exception is supported by the Supreme Court because, in addition to ensuring that the defendant is not ‘free to return to his old ways,’ there is ‘a public interest in having the legality of the practices settled.’”

And there you have it. SCOTUS can easily employ the Voluntary Cessation exception to the Mootness Doctrine to keep NYSRPA v. NYC alive. This is due to the fact that the NYS Senate and New York City, which have signaled intent to voluntarily terminate the city’s allegedly unlawful conduct after the lawsuit against it has been filed, have made no commitment to divest themselves of the power to re-institute the current form of the city’s firearms transport rule, which is most definitely unconstitutional, at a later date. Furthermore, a public interest in having the legality of the practices imposed by New York City’s current firearms transport rule assessed most certainly exists, for both officials overseeing other large U.S. cities who might otherwise commit a similar constitutional infringement, and for citizens living in said cities who might seek to resist a similar constitutional infringement.

The flimsy attempts mounted by downstate progressives to derail NYSRPA v. NYC is a good way to test the commitment of SCOTUS to Second Amendment litigation after a decade-long hiatus on the issue. Will the justices correctly invoke the Voluntary Cessation exception to the Mootness Doctrine and hear the NYSRPA case as anticipated, or will they fold under pressure from New York City’s far-left autocrats? If the latter, 2AWNY.COM’s legal challenges to the New York State pistol permit regime and SAFE Act remain active, and will most definitely be appealed to SCOTUS for review in place of NYSRPA v. NYC. The myriad legal challenges to New York State’s imperial gun control regime will continue to manifest themselves in the court system at every level for decades to come. Progressives will be granted no reprieve from this deluge, and New York’s Second Amendment civil rights renaissance will eventually prevail.

To learn more about any of the above, please contact Steve Felano at (518) 852-1863 or sfelano@2AWNY.com.

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2AWNY is a force multiplier for the numerous Second Amendment civil rights advocacy enterprises forming the backbone of Western New York’s vibrant gun culture. We act as a 2A news and information distribution, policy analysis, and organizational driver for the many interest groups seeking to defend and expand Second Amendment civil rights throughout the region. 2AWNY is dedicated to assisting in the organization, promotion, and funding of legal challenges to the unconstitutional New York State gun control regime. We seek to make Western New York the epicenter of New York State’s Second Amendment civil rights renaissance. Learn more at WWW.2AWNY.COM.