New York City Caught Lying to Court of Appeals in its Attempt to Deprive its Citizens of the Right to Bear Arms
I was reading Justice Alito’s concurring opinion in New York State Rifle & Pistol Ass'n, Inc. v. Bruen, 142 S. Ct. 2111, 2160 (2022) (Alito, J. concurring). He reveals something in that opinion that I find shocking. Justice Alito references another case from New York, New York State Rifle & Pistol Ass'n, Inc. v. City of New York, 883 F.3d 45, 63 (2d Cir. 2018), vacated and remanded sub nom. New York State Rifle & Pistol Ass'n, Inc. v. City of New York, New York,140 S. Ct. 1525 (2020). Justice Alito averred that New York City lied when it alleged in the court of appeals that its restrictive gun ordinance would protect the public.
At that time, under New York State law, a person needed a permit to possess a gun on his premises. But that “premises license is specific to the premises for which it is issued.” The litigants in the court of appeals were both residents of New York City. Under a New York City ordinance, the gun could only be possessed outside the home while it was unloaded, in a locked container with the ammunition carried separately to specified shooting ranges within New York City. In the court of appeals case, the litigants had home permits but wanted to be able to go to ranges outside New York City. One of the litigants wanted to be able to bring his gun to another home he owned in upstate New York. The law prohibited using a range outside New York City or even transporting it outside the house to another home outside the city.
The litigants contested the constitutionality of the state law and city ordinance. They argued that the laws infringed on their right to bear arms. The court of appeals sided with the city and state governments in upholding the constitutionality of the state law and city ordinance. The court of appeals stated in pertinent part:
The City has presented evidence supporting its contention that the Rule serves to protect the public safety of both license-holding and non-license-holding citizens of New York City. In a detailed affidavit, the former Commander of the License Division, Andrew Lunetta, discussed why taking a licensed handgun to a second home or a shooting competition outside the City, even under the restrictions imposed by the Rule for permitted transportation, constitutes a potential threat to public safety.
Id.
Justice Alito, in his Bruen concurrence, reveals that New York City lied in its NY Rifle & Pistol case before the court of appeals. The city represented to the court of appeals that their gun ordinance served to protect an important public safety interest. The court of appeals applied intermediate scrutiny, which required it to determine whether the ordinance infringing on the Constitutional Rights of citizens to bear arms was substantially related to the achievement of an important governmental interest. The court of appeals believed the city’s claim that it had an important public safety interest. The court, thus, upheld the ordinance. But when the U.S. Supreme Court issued a writ of certiorari and “after we agreed to review that decision, the city repealed the law and admitted that it did not actually have any beneficial effect on public safety.” Bruen, 142 S. Ct. 2111, 2160.
New York State and New York City realized that their state law and city ordinance were unconstitutional and would not pass muster in the U.S. Supreme Court. So, they pulled a trick and quickly repealed those provisions that prohibited travel with a gun outside the city. This action by the state and city governments mooted the issue before the Supreme Court. Justice Alito explained that when the attorneys for New York City appeared before the U.S. Supreme Court to argue that since the statutory restrictions were now repealed the case was now moot, “the City was asked whether the repeal of the travel restriction had made the City any less safe, and his unequivocal answer was no. Tr. of Oral Arg. 52.” New York State Rifle & Pistol Ass'n, Inc. v. City of New York, 140 S. Ct. 1525, 1532–33 (2020) (Alito, J., dissenting).
In its argument before the U.S. Supreme Court to moot the case New York City acknowledged its ordinance had no beneficial effect on public safety. But when they were defending that same ordinance in the court of appeals they presented a lengthy and detailed sworn affidavit, from the former Commander of the License Division that the ordinance served to protect public safety.
That puts the City of New York on record admitting that it lied to the U.S. Court of Appeals; they tricked it into ruling in its favor by falsely claiming the ordinance served an important interest in protecting public safety. They knew full well when they made that argument in the court of appeals that it was not true. And they were perfectly comfortable submitting a false sworn affidavit to support that lie. The brazenness of the deception is quite simply breathtaking. This shows that governments will do anything, no matter how underhanded, to deprive the people of their God-given right to bear arms.
Incidentally, the U.S. Supreme Court in New York State Rifle & Pistol Ass'n, Inc. v. Bruen, 142 S. Ct. 2111 (2022) reaffirmed what it said in District of Columbia v. Heller, 554 U.S. 570 (2008). The means-end test, such as intermediate or strict scrutiny has no place in determining the scope of a person’s Second Amendment Right to Bear Arms. Justice Alito has now given us some insight into how that means-end test can be abused by an unscrupulous government willing to lie. The Bruen Court ruled:
To justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation's historical tradition of firearm regulation. Only if a firearm regulation is consistent with this Nation's historical tradition may a court conclude that the individual's conduct falls outside the Second Amendment's “unqualified command. ... [T]he government must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.
Bruen, 142 S. Ct. 2111, 2126-27 (2022).
U.S. Supreme Court Justice Joseph Story explained why this is important:
One of the ordinary modes, by which tyrants accomplish their purposes without resistance, is, by disarming the people, and making it an offense to keep arms, and by substituting a regular army in the stead of a resort to the militia. The friends of a free government cannot be too watchful, to overcome the dangerous tendency of the public mind to sacrifice, for the sake of mere private convenience, this powerful check upon the designs of ambitious men.
Joseph Story, A Familiar Exposition of the Constitution of the United States § 450, p. 246 (1840), quoted in Nordyke v. King, 319 F.3d 1185, 1196, n.9 (9th Cir. 2003) (concurring opinion), overruled in part by District of Columbia v. Heller, 554 U.S. 570 (2008).
All laws intended to be enforced have enforcement provisions. The supreme law of the land is the U.S. Constitution. See U.S. Const. Art. VI. The federal government has only those express powers granted to it in the Constitution. See U.S. Const. Amend. X. The Bill of Rights is part of that Constitution. It lists some of the important God-given rights of the people. It places limits on the power of government to infringe on any of the God-given rights of the people, even though those rights are not expressly enumerated in the constitution. See U.S. Const. Amend. IX. The Second Amendment is the enforcement provision in the Constitution.
Government is one thing and one thing only, it is force. It is in the nature of government to want to take away from the people their ability to enforce the constitutional limitations on the government. If ever the people give up their God-given right to bear arms, the Constitution will become a meaningless series of unenforceable platitudes. Patrick Henry, in his speech to the Virginia Ratifying Convention on June 5, 1778, said it best:
Guard with jealous attention the public liberty. Suspect everyone who approaches that jewel. Unfortunately, nothing will preserve it but downright force. Whenever you give up that force, you are ruined.... The great object is that every man be armed. Everyone who is able might have a gun.