NY State Rifle and Pistol Association v. City of New York

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It Was A Big Day For Amicus Briefs

May 15, 2019 by

Monday and Tuesday were big days for amicus briefs in NY State Rifle & Pistol Association et al. v. City of New York. By my count, there were 25 briefs submitted pro and con but mostly in favor of NYSRPA. Obviously, when you have 25 briefs that is a lot of reading. I haven’t even begun to start.

In Favor of New York City

In Favor of Neither Petititioner

In Favor of NY State Rifle and Pistol Association

The counsels of record for the petititioners (NYSRPA) read like a who’s who of Second Amendment attorneys. You have Alan Gura, Stephen Halbrook, Dave Kopel, Don Kilmer, Stephen Stamboulieh, David Jensen, Dan Schmutter, Dave Hardy, and the list goes on. If you have been following Second Amendment law for the last 10-15 years you would have come across them one way or another.

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SCOTUS To New York City – Motion Denied

April 29, 2019 by

The City of New York had filed a motion to hold the briefing schedule in NY State Rifle and Pistol Association v. City of New York in abeyance. Their argument was that since the NYPD were proposing to modify regulations on transport for those with premises permits that the briefing schedule should be suspended. In other words, we say we are going to change the regulations in question which might moot the case so don’t make us go to all the work necessary to respond to the plaintiffs.

In the orders issued by the Supreme Court today, their motion was denied.

18-280       NY STATE RIFLE & PISTOL, ET AL. V. NEW YORK, NY, ET AL.


The motion of respondents to hold the briefing schedule in
abeyance is denied.

Paul Clement is the attorney of record for the NY State Rifle & Pistol Association and opposed this motion to hold briefing in abeyance. He said that “a stay is neither necessary nor appropriate” and then went to note the case was over six years old.

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NYC Blinks. Unfortunately

April 15, 2019 by 3 Comments

When the Supreme Court surprised us by granting certiorari in NY State Rifle & Pistol Association v. City of New York et al, those of us in the pro-rights community rejoiced. This would be the first major Second Amendment case involving firearms accepted for cert since McDonald v. Chicago. A number of states as well as a number of gun rights organizations filed amicus briefs urging the Court to accept the case. As issue in the case was a New York City law that forbid those with handgun licenses from traveling outside the city limits with their handguns. They were only allowed to transport their handgun to one of seven licensed ranges within the city.

It was felt that this case might be used to establish both the right to carry outside the home and to set the standard that should be used in Second Amendment cases. David Kopel said the case offered the opportunity to “to begin reining in lower court nullification of the Supreme Court’s precedents in District of Columbia v. Heller and McDonald v. City of Chicago.” Brian Doherty writing in Reason noted that the Second Circuit “believed that the constitutional right to keep and bear arms pretty much only counts in the home, and thus these transport laws do not harm its core purpose.” He went on to say the many American believe their right to self defense does not end when they step out the door of their home.

At the end of March I noted an op-ed by Ladd Everitt, Director of George Takai’s gun control organization One Pulse for America, which urged the City of New York and the NYPD to change the law forbidding transport. I postulated that the gun control lobby was getting a bit nervous by this case and wanted the city to do what it took to moot the case. While I don’t think Everitt’s op-ed would case the City of New York to reevaluate its law, I’m sure some heavy hitters among the gun prohibitionists getting on-board this bandwagon would.

Michael Bloomberg’s wholly funded mouthpiece, The Trace, ran a story on Monday on the case and by Friday the City of New York had filed a motion with the Supreme Court advising them that the NYPD was engaging in a proposed rulemaking that would moot the case.

From the city’s attorney:

The Court granted the petition for a
writ of certiorari in this case on January 22, 2019, and petitioners’ merits brief is
currently due on May 7, 2019.


I write to advise the Court of a proposed rulemaking. If adopted in
accordance with established procedures, the proposed rule would render this case
moot before the parties complete the merits briefing in this case. For this reason, I
also write to request that the Court stay the current briefing schedule pending final
action on the proposed rule.

The proposed rule would allow residents with a premises permit for their handgun to transport them, unloaded, in a locked container, with the ammo in a separate container to:

  • Another premises of the licensee where the licensee is authorized to
    have and possess a handgun;
  • A small-arms range/shooting club authorized by law to operate as
    such, whether located within or outside New York City; and
  • A shooting competition at which the licensee may possess the handgun
    consistent with the law applicable at the place of the competition.

The NRA-ILA released a statement calling the move, in essence, a sham.

“The City of New York clearly knows that its current restrictions on the carrying and transportation of lawfully owned firearms are unconstitutional and will fail under any standard of constitutional review, as the NRA has been saying for years. Today, it asked the U.S. Supreme Court to ignore the Constitution and allow the City to slow walk a narrow expansion of its current policy through a lengthy bureaucratic process — the result of which, even if adopted, would still unduly infringe upon the fundamental, individual right to keep and bear arms under the Second Amendment. That is not how things work in the Supreme Court; the Court does not put its review on hold while the government embarks on a journey that at best might fix only a limited part of the constitutional defect. This is nothing more than a naked attempt by New York City to resist Supreme Court review of policies that even New York must recognize as inconsistent with the holdings in District of Columbia v. Heller and McDonald v. City of Chicago. The City of New York did not respect its citizens’ Second Amendment rights before the Supreme Court granted review in this case and it will not respect them going forward. We are confident that the Court will reject New York’s desperate attempt to avoid review of its blatantly unconstitutional laws.”

 I’m not sure the NRA is correct in being confident that the Supreme Court will reject New York City’s request to hold off on briefing the case. Given the chance to avoid the issue, I think the Supreme Court as led by Chief Justice Roberts may do just that. They have had many other opportunities to take another Second Amendment case and have punted.

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NY State Rife & Pistol Case Unnerves Brady Campaign

January 24, 2019 by 6 Comments

I had been waiting to see the response of the gun prohibitionists to the Supreme Court granting certiorari in NY State Rifle & Pistol v. City of New York. Jonathan Lowy, head of the Brady Campaign’s Legal Project, didn’t disappoint. A fundraising email was sent out yesterday under his signature yesterday afternoon.

He said, in part, that the stakes are high and it is a case of “life and death”.

The Supreme Court announced yesterday that, for the first time in almost a decade, it will hear a Second Amendment case – the first gun case to be decided by a Court with two Donald Trump-appointees. The case, New York State Rifle & Pistol Association Inc. v. City of New York, challenges a city ordinance governing transportation of firearms. Make no mistake: the stakes could not be higher. Commonsense gun safety laws across the country are at risk. We need your support to make sure that the voices of Americans who want stronger gun regulation are heard loudly in the Supreme Court.


The stakes for this case are nothing short of life and death. Whatever the Supreme Court says in its decision will help determine whether Americans maintain the right to enact the strong, commonsense public safety laws they want and need to protect loved ones and communities from gun violence, or if judges will take this right from us. But the Framers put “well-regulated” in the Second Amendment and “the right to life, liberty, and the pursuit of happiness” in the Declaration of Independence for good reason. We are committed to making sure the Supreme Court doesn’t write the gun industry’s guns-everywhere vision into our Constitution.

 He goes on to say that the Supreme Court never meant the Second Amendment to apply outside the home as evidenced by the Heller decision. In my opinion, he has misconstrued the late Justice Scalia’s decision.

What is interesting about all of this is that none of the gun prohibitionist organizations bothered to file amicus briefs against the Supreme Court granting cert in this case. The only amicus briefs were from a coalition including GOA, another organized by the Attorney General of Louisiana on behalf of a number of states, and another from the Western States Sheriffs Association and various law enforcement groups. These all were in favor of cert being granted. I don’t know whether it was hubris or ignorance that explains the casual approach of the gun control industry to this case but I am certain they will now be submitting amicus briefs fast and furiously in support of the position of New York City.