by Diane Rufino, January 7, 2023
Individuals and organizations continue to ask the Supreme Court to interpret the Second Amendment while New York continues its hostility to it. It is apparent that the state will do everything in its power to frustrate its operation, to deny dealers their rightful opportunity to sell firearms, and ultimately, to deny citizens of New York their rightful exercise to “keep and bear arms.”
This is what is at stake in the recent Second Amendment case – Gazzola v. Hochul.
The Second Amendment reads: “A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
The most recent case – Gazzola v. Hochul – concerns a constitutional challenge to a package of bills (4 bills) that New York State Governor Kathleen Hochul signed from last May to July 1 for the purpose of strengthening gun laws. The laws were in response to a mass shooting that occurred in Buffalo.
On May 14, 2022, 18-year-old Payton S. Gendron targeted a Tops Friendly Markets supermarket in the predominantly black neighborhood of Buffalo’s east side. He killed ten people, all of whom were black, and injured three. Gendron was arrested and charged with murder, terrorism, and hate crimes. He had written a manifesto, acknowledging that he is a white supremacist and criticizing political elites who are allowing the unchecked mass immigration of non-whites and asserting that Black people disproportionately kill white people. All and all, he concludes that there is a plan to have non-whites overwhelm the population and to eventually wipe out the white race. In his manifesto, Gendron called for political violence in order to protect the white race.
In light of the mass shooting, Governor Hochul promised policy changes in the state as a result of the attack. She called for new gun control measures in New York, which, by the way, already has the strictest gun control measures in the nation. She also asserted that the gun control measures will help stop the evil deeds of white supremacists. In her mind, without any evidence to support it, she believes that it is too easy in New York for white supremacists to buy firearms to kill blacks.
As NY always does, it uses a crisis to blame violence not on individuals but on firearms, which are protected by the Second Amendment. The Second Amendment encompasses the right of individuals to purchase, keep, and bear arms for self-protection (see the Heller, McDonald, and Bruen cases). Violations of the Second Amendment include legislative, executive, and judicial burdens on firearms dealers, sellers, ammunition manufacturers, ammunition sellers, excessive permitting, excessive fees and fines to register firearms, limitations on the types of “legitimate” firearms allowed, limitations on the quantity of guns permitted, limitations on the amount of ammunition allowed, and the individual’s right, in general, to keep and carry firearms for protection.
For much of its early history, the Second Amendment went largely unscrutinized and undefined by the Supreme Court. The few nineteenth century cases implicating the Second Amendment established for a time that the Amendment was a bar to federal, but not state, government action, and the Court’s only significant Second Amendment decision in the twentieth century seemed to suggest that the right protected under the Amendment was tied only to state militia use of certain types of firearms. In this relative vacuum, the lower federal courts and legal scholars disputed the meaning of the Second Amendment and how it applied, if at all, to an expanding universe of federal, state, and local laws governing the private possession and sale of firearms.
By the beginning of the twenty-first century, many of the U.S. Courts of Appeals that considered the matter concluded that the Second Amendment protected a collective right tied to militia or military use of firearms, while some courts and commentators maintained that the Amendment enshrined an individual right to possess firearms outside the context of militia or military activity. In the 2008 case District of Columbia v. Heller, which addressed the constitutionality of a (federal) strict gun law in the DC, the U.S. Supreme Court held, after a lengthy historical analysis, that the Second Amendment protects an individual right to possess firearms for historically lawful purposes, including self-defense. Heller is a landmark Second Amendment case. In 2010, a similar challenge was made to a state law (a strict Chicago law) restricting gun ownership and gun storage in the home, in the case of McDonald v. Chicago. Justice Clarence Thomas wrote the absolutely brilliant opinion, spending time addressing the history of the Second Amendment and the government’s statistics on gun violence in cities that have strict gun control laws. McDonald is another landmark Second Amendment case.
And then last year, the Supreme Court heard the case of New York State Rifle & Pistol Association v. Bruen, which addressed a challenge to a NYC gun control law which essentially forbade residents from carrying and transporting firearms outside one’s home. In that case, the Court considered the constitutionality under the Second Amendment of a portion of New York’s firearms licensing scheme that restricts the carrying of certain licensed firearms outside the home. In a 6-3 decision, the Court struck down New York’s requirement that an applicant for an unrestricted license to carry a handgun outside the home for self-defense must establish “proper cause” (the language of NY’s licensing scheme which was the basis for the case), ruling that the requirement is at odds with the Second Amendment. In doing so, the Court recognized that the Second Amendment protects a right that extends beyond the home and also clarified that the proper test for evaluating Second Amendment challenges to firearms laws is an approach rooted in text and the historical tradition of firearms regulation, rejecting a two-step methodology employed by many of the lower courts. Bruen is the third in the trilogy of landmark Second Amendment cases.
Progressives and liberals like to point out a paragraph that Justice Antonin Scalia included in the Heller opinion, which he authored. He wrote: “Like most rights, the right secured by the Second Amendment is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” They use this as their entitlement to enact gun control laws. They use this as their entitlement to punish decent law-abiding citizens in their rightful exercise of the Second Amendment because of the actions of a few deranged individuals. And this is true – that with each mass killing, such as a school shooting, the call for gun control gets more and more intense.
I idolize Scalia, it’s absolutely true, but what he wrote in Heller is reckless and incorrect. As justices often like to do, they substitute their interpretation of the Constitution and the Bill of Rights for the clear intent and meaning of our Founding Fathers and drafters of our founding documents:
Second Amendment – “… the right of the people to keep and bear Arms, shall not be infringed.” I believe our founders couldn’t be more clear with the words “shall not be infringed.”
First Amendment – “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Again, the phrase “shall make no law” is absolutely clear, just as “Thou shalt not kill” and “Thou shalt not steal,” etc.
Fourth Amendment – “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Still again, the phrase “shall make no law” is absolutely clear, just as “Thou shalt not kill” and “Thou shalt not steal,” etc. SHALL NOT = MUST NOT.
And so we have the four new crushing gun control laws in New York state. And so we have the Gazzola v. Hochul case.
Gazzola v. Hochul is a case of first impression. It asks a court to interpret the words “to keep” in the Second Amendment, which apparently hasn’t been done before, and to establish a standard of “constitutional regulatory overburden.” This case also presents an opportunity to establish protection of federal firearms and to protect compliance records against a state attempting to build a Firearm Owners Registry. It also presents an opportunity to expand the right of the individual to purchase a class of firearms known as the “semi-automatic rifle,” to purchase that rifle without a license, and to purchase ammunition without a background check.
FACTS of the CASE: This lawsuit challenges thirty-one (31) inter-connected statutes that contain a multitude of new mandates impacting Federal Firearms Licensees (FFL’s) as both individuals and businesses who are engaged in the lawful commerce in firearms and in gun shows. Federal Firearms Licensees are individuals who are licensed to engage in the business of manufacturing, importing and/or dealing in firearms. Persons must be licensed by ATF to engage in the business of firearms.
[There are 3 types of FFL dealers: 01- Dealers in firearms other than destructive devices. 02- Pawnbroker in firearms other than destructive devices. 09- Dealer in destructive devices].
The thirty-one (31) statutory provisions being challenged originated in four (4) Bills, signed into law between May 30, 2022 and July 1, 2022:
Bill S.9407-B – signed May 30, 2022 (eff. June 30, 2022) – This law relates to the unlawful purchase and the unlawful sale or delivery of a body vest. The Official Title: “An act to amend the penal law, the general business law and the executive law, in relation to the unlawful purchase and unlawful sale or delivery of a body vest.” Its purpose: This bill prohibits the unlawful sale and possession of body vests.
Bill S.9458 – signed May 30, 2022 (eff. August 30, 2022) – This law relates to the purchase or taking possession of a semiautomatic rifle. The Official Title: “An act to amend the penal law, in relation to the purchase or taking possession of a semiautomatic rifle.” Its purpose: This bill will establish a permit to purchase or take possession of semiautomatic rifles without affecting currently-owned semiautomatic rifles.
Bill S.4970-A – signed June 6, 2022 (eff., generally, June 30, 2022) – This law requires the creation and imposition of restrictive commercial practices and stringent recordkeeping and reporting to prevent gun and ammunition sales to individuals with a criminal record. The Official Title: “An act to amend the executive law, in relation to requiring reporting on a seized or recovered gun to the criminal gun clearinghouse; and to amend the general business law and the penal law, in relation to preventing the unlawful sale of firearms, rifles, and shotguns to individuals with a criminal record.” Its purpose: This bill will require enhanced reporting by law enforcement to state and federal databases and will require gun dealers to enact uniform security and reporting standards.
Bill 51001 – signed July 1, 2022 (eff., generally, September 1, 2022) – This law relates to the licensing and other provisions related to firearms. The Official Title: “An act to amend the penal law, the general business law, the executive law, the civil practice law and rules and the state finance law, in relation to licensing and other provisions relating to firearms.” The purpose of the law is stated as: The United States Supreme Court’s decision in New York State Rifle & Pistol Association, Inc., v. Bruen (NYSFPA v. Bruen) struck down a 100-year law requiring applicants for conceal carry gun permits to show “proper cause.” (The right to bear firearms for self-defense is the same outside the home as it is when in one’s home). It deemed New York State’s existing law unconstitutional because the law afforded too much discretion to the State and its licensing officers in determining “proper cause.” As a result of this decision, the State must amend the State’s laws on concealed carry permits and take other steps to address the consequences of the Supreme Court decision and the resulting increase in licenses and in the number of individuals who will likely purchase and carry weapons in New York State. The proposed legislation changes the concealed carry permitting process and adds specific eligibility requirements, including the taking and passing of firearm training courses for permit applicants. It will
enable the State to regulate and standardize training for license applicants.
These new laws affect and thus have direct impact also upon 1,782 federal firearms licensees Type-01 (“dealers”) and nine Type-02 (“pawnbrokers”) in New York.
The new legislation was signed into law by NY Governor Hochul, from May 30 – July 1, 2022, in coordination with big-money, outside influence, about which she bragged as being “joined at the hip.” On July 1, Governor Hochul incessantly took to the bully pulpit, repeatedly attacking the U.S. Supreme Court and its Justices, pronouncing her legal superiority as a state governor over the authority of this federal Court, and vowing revenge for this Court’s decisions of June 23, 2022 in New York State Revolver and Pistol Association v. Bruen.
On that same day, Hochul stood at a podium, bearing the emblem of the State of New York to broadcast her official ‘reaction-to’ press conference in a room full of reporters, holding a stack of papers in a spring clip as a visual prop she claimed to be a print-out of the Supreme Court opinion. This is what she said:
“Today, the Supreme Court struck down a New York law that limits who can carry concealed weapons. Does everyone understand what a concealed weapon means? That you have no forewarning that someone can hide a weapon on them and go into our subways, go into our grocery stores like stores up in Buffalo, New York, where I’m from, go into a school in Parkland or Uvalde. This could place millions of New Yorkers in harm’s way. And this is at a time when we’re still mourning the loss of lives as I just mentioned. This decision isn’t just reckless, it’s reprehensible. It’s not what New Yorkers want. We should have the right of determination of what we want to do in terms of our gun laws in our state. If the federal government will not have sweeping laws to protect us, then our states and our governors have a moral responsibility to do what we can and have laws that protect our citizens because of what is going on – the insanity of the gun culture that has now possessed everyone all the way up to even to the Supreme Court.”
She also asserted: “The Supreme Court’s decisions were certainly setbacks. But we view them as only temporary setbacks because I refuse, as I’ve said from day one, I refuse to surrender my right as Governor to protect New Yorkers from gun violence or any other form of harm. We’re not going backwards. They may think they can change our lives with the stroke of a pen, but we have pens too, I give out a lot of pens. And that draws from the office of the Governor of the State of New York. And I intend to fully exercise those rights, working with our partners in the legislature to protect our freedoms and to keep New Yorkers safe.”
The lawsuit charges: “express animus against Plaintiffs…seeking to exercise their rights under the Second Amendment…the new laws collectively impair and impede the ability of the Plaintiffs to engage in the lawful commerce of firearms and to host a gun show, and to serve as a conduit for those seeking to exercise their fundamental Second and Fourteenth Amendment rights. The new laws also violate the Fifth Amendment rights of the Plaintiffs, including the right against self-incrimination.”
Some of the specific issues (ie, those established in the laws) cited in the lawsuit include:
1. The transfer of the federal National Instant Check Criminal Background Check System (NICS) background check making the New York state (NYS) Police the “Point of Contact,” and the creation of a new division within the NYS Police to perform background checks, as a forced intermediary between the licensed dealer and the current, federal NICS system.
2. The “security plan,” including a “safe,” “vault,” or “secured and locked area on the dealer’s business premises” and the separate storage of ammunition.
3. A “security alarm system,” including installation and maintenance by a third-party vendor, as well as specified placement of cameras with video recording devices with feed storage.
4. The prohibition against entry of persons under eighteen years of age without a parent or legal guardian.
5. Mandatory, semi-annual submission of the Book of Acquisitions and Dispositions (A&D Book) to the Defendant NYS Police. (This violates federal law.)
6. Access to inventory records “at any time” by “law enforcement agencies.”
7. Authorization to the Superintendent of the NYS Police to “…promulgate such additional rules and regulations as the superintendent shall deem necessary to prevent firearms, rifles, and shotguns from being diverted from the legal stream of commerce.”
8. Restriction against the sale of body vests.
9. Establishing a new, standardized, classroom and live-fire course and test necessary for concealed carry handgun permits.
10. Restriction against the purchase of a semi-automatic rifle without a license.
11. Requirement of an ammunition background check.
Furthermore, the lawsuit points out that many of the new laws are vague and poorly defined. (Vagueness is considered a constitutional defect)
Obviously, the purpose of these new laws is to bury the Federal Firearm Licensee’s in paperwork and then find an error in the paperwork, so the FFL’s license can be revoked. Another purpose of the laws is to financially drive FFL’s out of business.
Plaintiffs are small business owners, ranging from self-employed sole proprietors to small to medium-sized retail shops with less than five employees. The costs directly burden a law-abiding citizen’s right to acquire a firearm and the necessary ammunition for self-defense. Many of the new laws will financially burden the Plaintiffs to a point that they will be forced out of business, potentially as early as December 5, 2022, if no immediate relief is had from the Court. (You can carry a gun in NY State but if you can’t find a store in which to buy one or to buy ammunition for it).
The lawsuit highlights the important role that Federal Firearms Licencee’s play in preventing disqualified / unlicensed people from obtaining a firearm. It says, “The FFL…play a greater role even than state and local law enforcement relative to commerce in firearms.” These FFL’s:
— Are the entities that assure that firearms are sold only to persons who are not “disqualified.”
— Personally make the preliminary assessment of the customer across the counter.
— Collect the personal information for the background check on the Alcohol Tobacco Firearms (ATF) Form 4473 and check the valid identification document.
— Says the words “denied” or “delayed,” and is face-to-face with the man or woman who will be leaving the store without the firearm.
— Has a federally-protected right to decline to complete a sale to an individual, even if the background check comes back “Proceed.”
As of December 5, 2022 Petitioners are out of compliance with new laws, which impact FFL dealers only. No other business in the state is targeted or impacted. To make matters worse, each so-called regulatory violation is chargeable as a criminal class A misdemeanor, in addition to the revocation of their state-issued dealer license. The loss of the state license results in the loss of the federal license. A criminal conviction results in the loss of the concealed carry permit and more importantly, of the right to keep and bear arms guaranteed by the Second Amendment.
Petitioners are sitting ducks for having licenses revoked and being charged with violations that are in plain view any hour of any day that they are open to the public, including their valued law enforcement customers, not the least of whom are New York state police officers. Petitioners just want to be able to stay in business, not be harassed and retaliated against simply because they embrace the Second Amendment, which is their right to do. They are standing up for their Second Amendment rights.
Gazzola v. Hochul charges NY State with:
1. Deprivation of Civil Rights
2. Pre-emption by Federal Law
3. Unconstitutionality (void) on account of the Vagueness Doctrine
4. An Unconstitutionally-permissible Regulatory Burden
My questions: Should the lawsuit have also included a violation of the 5th Amendment and 14th Amendment’s “Due Process” clause? The due process clause applies to both individuals and corporations. [Example: Procedural due process requires fair procedures in the carrying out of a criminal trial, such as the right to notice and the ability to respond to an accuser]. The federal government, and state governments as well, require citizens to pay taxes (“to pay their fair share”). Doesn’t that imply that citizens have a right to work in order to provide those funds? We also have a concept known as a “free-market economy” (tied to the American Dream) in this country which provides that any individual that exploits a niche product or service and who is willing to invest in that idea, is entitled to reap its benefits. The Second Amendment certainly offers numerous opportunities for employment and business options. The Declaration of Independence, the document that outlines the reason for our nation’s independence states: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness….” Government is SUPPOSED to protect and secure our God-given and inalienable rights. In a pyramid diagram, government would be the tip, deriving its powers by an agreement among the true sovereigns, the People, which would be the base of the pyramid. The Constitution is that agreement, having been ratified by state conventions representing the people. All of a sudden government thinks it can flip the pyramid? I don’t remember any Article V Convention making such a pronouncement. American government is instituted to protect our rights – not to violate and destroy them. Government is supposed to encourage its citizens to work towards the American dream – not to destroy their dreams.
The remedy the Plaintiffs seek from the Supreme Court is two-fold: (1) for a declaratory judgment that all thirty-one (31) new laws, rules, and regulations to be struck down and denied of having any legal force or effect (declared “unconstitutional”), OR (2) an injunctive relief order restraining Defendants and their officers, agents, servants, employees, and all others from enforcing the laws, rules, and regulations complained of herein.
Not trusting the Hochul administration, the lawsuit further requests that: “…the appointment of a special referee or magistrate to monitor any actions by the Defendants and other associated offices and agencies…to monitor any claims of future Defendant compliance with their responsibilities…”
Petitioners hired Paloma Capanna, a New York second amendment constitutional attorney, to defend their rights. Trying to find a federal court that would respect and hear Petitioners’ case, and not having any luck, she submitted an emergency motion to the US Supreme Court to hear their plea for an preliminary injunction, blocking the enforcement of the four new NYS laws. Attorney Capanna submitted the motion – an “Emergency Application for Writ of Injunction” – to Justice Sotomayor, who is the Circuit Justice for the US Court of Appeals for the Second Circuit (which includes New York). The title of the motion was: “An Emergency Application to Reverse the Denial by the Second Circuit Court of Petitioner’s Request for Emergency Preliminary Injunctive Relief and for an Immediate Administrative Stay.”
In law, an applicant is entitled to preliminary injunctive relief upon the showing of: (1) a reasonable probability that four Justices will consider the issue sufficiently meritorious to grant certiorari; (2) a fair prospect that a majority of the Court will vote to reverse the judgment below; and, (3) a likelihood that would be irreparable harm will result from the denial of a stay. Granting the Petitioner’s motion to have its case heard by the Supreme Court is a good sign that they will likely prevail. It’s a good sign that at least four Justices will conclude that the four new New York State laws are unconstitutional in light of its previous landmark opinions – District of Columbia v. Heller (2008 – a federal case holding that the meaning and intent of the Second Amendment is for personal protection), McDonald v. Chicago (2010 – a state case holding the same), and New York State Revolver & Pistol Association v. Bruen (2022 – a state case that addressed the question of whether the Second Amendment encompasses the right to carry outside the home; the Court concluded that it does). According to the Bruen opinion: “The Second Amendment naturally encompasses public carry because “to confine the right to ‘bear arms’ to the home would nullify half of the Second Amendment’s operative protections,” and “that while the right to bear is perhaps most acute in the home, the need is not insignificant elsewhere.” Thus far, this Court has defined the term “to bear” as the right to “wear, bear, or carry…upon the person or in the clothing or in a pocket.” In this case, as explained earlier, Petitioners are asking the Court to define the term “to keep.” The operative clause of the amendment contains a joinder of two verbs and Petitioners argue that both should be equally used in constitutional analysis.
In spite of the disagreement of the Justices on the intent and meaning of the Second Amendment, there appears to be a consensus that “to keep” meant, historically (dating back to the British Crown) that the individual
“right to have arms” in private ownership, must, at least, be protected “should the sovereign usurp the laws, liberties, estates, and Protestant religion of the nation.” (from the Bruen opinion). Furthermore, the three historic New York laws (“Militia” laws) cited by the State in its various court hearings/opinions required able-bodied men to report for militia training, bearing their own privately-owned arms and ammunition. [New York (1780), Sec. I (“That every person so enrolled, and notified, shall within twenty days thereafter, furnish and provide himself, at his own expense, with a good musket or firelock…” and “…not less than sixteen cartridges, suited to the bore of the musket or firelock…”] In short, firearms and ammunition that were not furnished by the State were privately owned by individuals.
Citizens should note that among the many English Militia Acts (the King did not have a standing army and thus had to call up his “subjects” to fight for the Crown), there were also several American Militia Acts, including The Militia Act of 1775 (Massachusetts enacted this legislation to create and manage a state militia), The Militia Acts of 1792 (which were two separate pieces of legislation that provided for the organization and regulation of state militias and empowered the President of the United States to take control of them in times of invasion or insurrection), and the Militia Act of 1903 (creating an early National Guard).
From Capanna’s motion: “The firearm is the only object required to exercise a civil right in the Bill of Rights. This has yet to be formally recognized. The firearm is more than simply a thing of personal possession bought at a store, like a handbag or dangle earrings. Things lawfully acquired from stores are, generally, purchased. In 2022, very few hands forge a firearm from iron ore. Some, like Petitioner Mike Mastrogiovanni, a competition shooter, do reload ammunition, but even they do not make their own from metals and forge. In 2022, the exercise of the Second Amendment depends upon the ability of the individual to use his (or her) credit card at a retail dealer in firearms. The dealer in firearms is the indispensable extension of the individual for the
procurement of the firearm, and must be protected with as much rigor.” Furthermore, she asserts that “a company’s loss of reputation, good will, and business opportunities can constitute irreparable harm because these damages are difficult to establish and measure.’
Attorney Capanna, on behalf of Petitioners argues that this current case is the natural progression of the trilogy of Second Amendment cases (mentioned above). Luckily for the Petitioners, there are six (6) justices on the bench who decided New York State Rifle & Pistol Association v. Bruen.
Note: There are eighteen (18) County Legislatures across the State of New York are passing “Resolutions” in opposition to the complete package of ten Bills pushed through by Defendant NY Governor Kathleen Hochul (Democrat) and targeting, in particular, NY Bill S.51001. These “Resolutions” call out the animus and actions of the Defendants (NY Governor and state public officials) in submitting and passing these laws. Their animus and intent, as asserted, is to get around the landmark opinion by the US Supreme Court in New York State Rifle & Pistol Association v. Bruen (2022).
Again, up until December 5, 2022, Petitioners were in compliance with all federal and state laws and regulations governing their personal and professional licenses and business ownership. On that day, most of the laws complained of went into effect and Petitioners went out of compliance. Petitioners allege that they are unable to comply with most of the new laws; they refuse to comply with several, specific laws under federal pre-emption and their Fifth Amendment right against self-incrimination. The new laws treat state-licensed dealers in firearms as if they are a group of potential criminals. Petitioners urgently seek a preliminary injunction to keep their doors open, while fighting to restore their civil rights through this lawsuit.
Petitioners (Nadine and Seth Gazzola and others similarly situated) sue in several capacities, “like facets of a cut diamond.” Petitioners are individuals, who are also dealers in firearms by profession. They are federal and state licensees and ATF “Responsible Persons” for the businesses they own and operate. Petitioners Nadine and Seth Gazzola are also firearms instructors. All are also individual New York state concealed carry permit-holders and they are also consumers and owners of firearms and ammunition. Appellants, as business owners, benefitted from new and renewing handgun permittee business connected to their own training courses or those courses of their affiliates.
Petitioners claim that when she addressed the public from the podium on July 1, 2022, Governor Hochel misrepresented the law as well as the Supreme Court’s opinion. Petitioners commenced their case November 1, 2022 in the Northern District Court of New York through the filing of a lengthy and detailed Complaint, setting out causes of action asserting violations of the Second, Fifth, and Fourteenth Amendments, arguing also federal pre-emption. Central to their case is the novel concept that Petitioners are the intended group for which the words “to keep” (of the “to keep and bear arms” provision of the Second Amendment) apply, and that, as dealers in firearms, their engagement in the lawful stream of commerce in firearms is inextricably inter-woven with the fundamental individual rights, including their own as individuals. Petitioners assert most of the new laws should be struck due to “constitutional regulatory overburden,” a novel theory that government mandates that target only dealers in firearms are unconstitutional when designed to be and are implemented in a manner incapable of compliance or when otherwise pre-empted by federal firearms law or the Second Amendment, in order to strip them of their operating licenses and place them under criminal charges.
Although there were six cases filed before the Gazzola case, this most current case is distinguished as the one case to challenge the now-effective laws against NYS-licensed dealers in firearms and ammunition (S.9407-B, 9458, and 4970-A). It is also connected to S.51001 which requires concealed carry permit training, new semi-automatic rifle licenses, and new ammunition background checks.
Unfortunately, on January 18 of this year, the Supreme Court responded to attorney Capanna, denying the request for an injunction. In a public statement, NY Governor Kathy Hochul announced: “The Supreme Court has once again denied a request to block the State’s laws regulating firearms, allowing us to continue our work to protect New Yorkers. Public safety is my top priority, and as we make major investments in law enforcement and proven gun violence prevention programs, we will continue to ensure that New York leads the nation in gun safety regulations.”
Gazzola v. Hochul (Governor of NY), motion to the US Supreme Court – https://www.supremecourt.gov/DocketPDF/22/22A591/251125/20221230122024094_22-%20Motion%20and%20Appendix.pdf [An Emergency Application for Writ of Injunction to the Honorable Sonia Sotomayor, Circuit Justice for the US Court of Appeals for the Second Circuit. It is an Emergency application to reverse the denial by the Second Circuit of Petitioner’s Request for an Emergency Preliminary Injunctive Relief and for an Immediate Administrative Stay]
Grazzola v. Hochul Lawsuit – https://nygunforum.com/threads/gazzola-v-hochul-lawsuit.55420/
New York Senate bills – www.nysenate.gov/legislation/bills/2021/S9407