Sunday, May 14, 2023

New York Government Attempts to Moot Second Amendment Case. Again.

The State of New York Office of the Attorney General has issued a letter to the Second Circuit Court of Appeals in an attempt to moot some of the challenges to the infringements on Second Amendment rights. Those challenges are now before the Second Circuit.

When the Supreme Court published the seminal Second Amendment case in Bruen, re-enforcing the Heller opinion from 2008, in 2022, some states rebelled and defied the Supreme Court. One of these was New York. In New York, Governor Hochel, convened a special emergency session to create new law to infringe on the rights protected by the Second Amendment. The new law made it nearly impossible for an ordinary person to carry a firearm for self defense in public.

The law was immediately challenged in several court cases. Judges issued injunctions against the enforcement of the new law, on the grounds that it causes immediate harm and was likely to be overturned by the courts. Those cases were consolidated before the Second Circuit, and the Second Circuit put a stay on the injunctions.  The stay allowed the law to be enforced while the case was being adjudicated.

On May 5, 2023, the State of New York Office of the Attorney General, lead by the infamous Letitia James, sent a letter to the Second Circuit Court of Appeals, claiming some of the claims before the court were now moot, because of last minute changes to the concealed carry law passed in emergency session in 2022. The changes were inserted into the state budget bill, which became law on May 3, and went into effect immediately. The case is known as Hardaway v. Nigrelli. From the Letter:

But, under the amended statute, Hardaway and Boyd—who, as their churches ’ leaders, both retain the authority to grant “permission to [themselves] to carry for purposes of keeping the peace in [their] church[es]” (J.A. 71-72)—are permitted to carry firearms at their church. Plaintiffs do not purport to raise Second Amendment claims on behalf of their congregants, and there is no authority for third-party standing in such circumstances. Thus, plaintiffs’ action challenging the place-of-worship provision is now moot.

Included in the changes were changes which allowed a person to carry on private property inside a public park, which applies  to another challenge of the law. The public park change was made in an amendment to the budget bill sometime after the S4005B version was proposed on March 14 of 2023. The budget bill was passed on May 1 2023, and signed into law on May 3, 2023. The prompt action by the State of New York Office of the Attorney General indicates this change was a priority.

In 2020, the State of New York applied nearly the same tactic to moot the New York Rifle & Pistol Association case then pending before the Supreme Court.  The Supreme Court accepted the tactic and mooted the case, only to deliver a delayed and improved decision in the Bruen case two years later.

The Supreme Court may not be as willing to accept this tactic as they were in 2020. The case is not before the Supreme Court. Hardaway v. Nigrelli is before the United State Court of Appeals for the Second Circuit. The Second Circuit has been notoriously lax in enforcing rights protected by the Second Amendment.


This is more lawfare practiced by the State of New York to delay and obstruct the ability to exercise rights protected by the Second Amendment as long as possible. The letter gives cover to the Judges on the Second Circuit to moot challenges to the unconstitutional law passed in emergency session. By placing the amendments in the budget bill, the Governor, Attorney General, and their allies in the legislature ensured there would be little or no debate on the measures.

If the Second Circuit moots the challenges to the New York Law, the decision will almost certainly be appealed to the Supreme Court, thus taking more time and delaying the exercise of Second Amendment rights even more.  Two justices of the Supreme Court recognize this delaying tactic and exhorted the Second Circuit to act in a reasonable amount of time.

©2023 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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