Not Seeking Cert in NYSRPA Case

Members and Supporters:

After three years of continued movement through the Judicial System the death of Justice Antonin Scalia accomplished a feat the anti-gunners were unable to do; it stopped our lawsuit. Below please find a statement Jay Porter a Constitutional Lawyer very much involved in NYSRPA V Cuomo and many other Constitutional issues prepared the statement below. If you have any questions please forward them to Mr. Porter at jporter@babc.com

Ten or so days ago, all those who cherish the freedoms guaranteed by the Second Amendment suffered a tremendous loss with the passing of Justice Antonin Scalia. Justice Scalia was the author of the Heller decision and was a staunch defender of the right to keep and bear arms. Unfortunately, with his passing, it is likely that there are, at most, only four justices committed to a proper understanding of the Second Amendment. Given what we know or believe about the current makeup of the Supreme Court, the best case scenario would be a 4-4 decision, which would result in the Second Circuit’s decision being affirmed. Accordingly, at present, there is no chance of reversing the Second Circuit’s decision upholding New York’s gun ban on safety enhancing features and life-saving standard capacity magazines. There is, however, a very great risk that, in the absence of Justice Scalia’s influence, a majority could in fact vote to affirm the Second Circuit case, which would result in binding Supreme Court precedent and create a potentially insurmountable obstacle to the practice and enjoyment of those rights elucidated in the Heller decision.

In light of this stark reality, after reaching and prolonged consultation with trusted legal counsel, we have made the difficult, but necessary, decision not to seek Supreme Court review of the Second Circuit’s decision. The Second Circuit’s decision is not defensible, and our resolve to relegate this law to the dustbin of history has not been shaken. But make no mistake about it: we are retiring from this particular battle so that we can win the war, and we will reignite this fight the moment we have a realistic chance of success. In fact, there are cases pending throughout the United States with an opportunity to ultimately win (for example, the Fourth Circuit recently held that similar restrictions in Maryland must be subjected to strict scrutiny – the highest level of scrutiny applied by the courts). As advocates of the Second Amendment, we have no choice but to sacrifice review of the Second Circuit’s decision (a no-win situation on its face) so that these other cases cannot be stopped short by those who would strip us of our rights. As men and women of good conscience, we cannot allow this to happen.

Merely losing this issue in the Supreme Court, as bad as that would be, is not the worst that could happen if we were to seek Supreme Court review now. The dissents in McDonald make clear that certain members of the Court do not accept Heller as settled precedent. And if President Obama is able to appoint another justice, that justice undoubtedly will be hostile to the Second Amendment. If this case were to get to the Supreme Court, then, it is possible that it could result in a decision undermining, or even reversing, Heller and holding that law-abiding citizens do not have an individual right to own firearms at all, much less the firearms and magazines at issue in this case.

This, of course, is an outcome that we must avoid at all costs. That is why we are no longer seeking Supreme Court review. But this does not mean that all hope is lost. There is still hope that the Senate will not confirm any justice nominated by President Obama, and there is still hope that the American people will elect a President who will appoint a justice who respects both the individual right to keep and bear arms enshrined in the Second Amendment, and the stare decisis of Heller and McDonald. If and when that happens, you can be sure that we will do everything in our power to get this issue before the Supreme Court, and to have the Supreme Court confirm that it meant what it said in Heller and McDonald: that law-abiding citizens have an inviolable right to possess and use common arms, a category that includes the incredibly popular firearms and ammunition magazines banned by New York.

We are eager and ready to reengage in this fight. And we will do so at the first opportune moment. We are appreciative of your continued support of these efforts.