Back in January 2024, Judge Suddaby slapped New York State around. At issue was a requirement that people who were living in public subsidized housing were required to enter into a contract that forbid firearms on housing grounds.

The contract was a complete ban on keeping or bearing arms within the housing properties.

Because Judge Suddaby’s court is inferior to the Second Circuit court, he is required to follow their opinions. This is a true mess because of the Second Circuit’s laughable opinion in Antonyuk II.

Third, the absence of a distinctly similar historical regulation in the presented record, though undoubtedly relevant, can only prove so much. Legislatures past and present have not generally legislated to their constitutional limits. Reasoning from historical silence is thus risky; it is not necessarily the case that, if no positive legislation from a particular place is in the record, it must be because the legislators there deemed such a regulation inconsistent with the right to bear arms. There are many reasons why the historical record may not evince statutory prohibitions on a given practice. For example, lawmakers are not moved to forbid behavior that is governed by custom, universal practice, or private warning. No legislation is needed to forbid zoo patrons from entering the lion’s enclosure; similarly, a town with only a single daycare facility that privately bans firearms from its premises has no need to pass a regulation prohibiting guns in daycare centers. Thus, “[t]he paucity of eighteenth century gun control laws might have reflected a lack of political demand rather than constitutional limitations.” Binderup v. Att’y Gen. United States of Am., 836 F.3d 336, 369 (3d Cir. 2016) (en banc) (Hardiman, J., concurring in part and concurring in the judgments) (quoting Nelson Lund, The Second Amendment, Heller, and Originalist Jurisprudence, 56 UCLA L. REV. 1343, 1354 (2009)). Stated differently, “novelty does not mean unconstitutionality.” Id. at 368. That is so even if the problems faced by past generations could be described, at a high level of generality, as similar to the problems we face today.
ECF 320 - Antonyuk v. Hochul, No. 22-2972, slip op. at 48–49 (2d Cir. Dec. 8, 2023)
Today, we decline to adopt that two-part approach. In keeping with Heller, we hold that when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. 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.” Königsberg v. State Bar of Cal., 366 U. S. 36, 50, n. 10 (1961).
New York State Rifle & Pistol Assn., Inc. V. Bruen, 142 S.Ct. 2111 (U.S. 2022)

Bluntly, the Second Circuit court is not acting in a serious manner. They are making a joke out of your rights and mine. They would rather play word games in direct rebuttal of the clear guidance from the Supreme Court, their superiors.

When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct.

Is the individual a member of The People? Yes. Do they wish to keep or bear arms? Yes. Then the plain text of the Second Amendment clearly covers the conduct.

The plaintiffs, having met their burden, need only refute the state when the state presents regulation that is consistent with this Nation’s historical tradition of firearm regulation.

In short, the state has the burden to prove that historical tradition of firearm regulation.

The state may not simply posit what the founding fathers could have done, they have to show what the founding fathers actually did. It has to be a regulation. That regulation must be a part of our Nation’s historical tradition of firearm regulation.

The Second Circuit got it wrong. Even the state doesn’t like citing the hot mess of the Second’s opinion.

Regardless, the Second Circuit got it right when they said Reasoning from historical silence is thus risky. Which they then proceeded to do. They claim that they know that legislatures would have created regulations that match the current infringements if the legislatures had found a need. So obviously, this is an acceptable infringement, today.

That doesn’t seem to match government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.

This is the baggage that Judge Suddaby is laboring under.

Even so, he granted the plaintiffs (good guys) motion for a TRO and preliminary injunction against the state.

When the court writes:

Second, Plaintiffs argue, they will suffer irreparable harm absent injunctive relief for each of two independent reasons: (a) it is well settled that the existence of a constitutional violation constitutes irreparable harm, without any further evidentiary showing; and (b) in any event, the continuation of the irreparable harm is inevitable absent Court intervention, as evidenced by Defendants’ appalling and explicitly-stated open disregard for the law in defense counsel’s email of May 1, 2023, to Plaintiff Hunter (acknowledging the “[u]nconstitutional lease provision regarding firearms,” but stating that “[w]e will not be changing our stated position or lease provision on this matter”). (Id. at 13-15 [attaching pages “9” through “11”].)
ECF 320 - Antonyuk v. Hochul, No. 22-2972, slip op. at 5

It doesn’t matter whether those words are from the plaintiff or from the court. The court is outright saying that the behavior of the defense (state/bad guys) is appalling.

This case is still in an interlocutory state. There are things that have to happen first. Which is where the title of this article comes from.

At the start of a case, there are several motions filed asking the court to do things. There are motions for temporary restraining order, motions to dismiss, motions for preliminary injunctions, motions for summary judgment and a host of other motions/requests.

One of the things that happens during this process is discovery. This is when the parties ask questions of each other and request documents. This is also the time in which different people are disposed.

If a party refuses to provide answers or documents, they must have a reason. If that reason isn’t satisfactory, the parties take it to the court for resolution.

The questions asked, and the documents requested, are often revealing. Just as revealing are the questions that are not answered and the documents which are not produced.

Some questions and documents are known to be off limits. The scope of those limits changes over the course of the case. The scope changes when the parties bring certain facts into the court.

In this case, the state is arguing that public need allows them to ban arms in public housing. The plaintiffs argue that they need arms because dangerous people live in the housing units. The state countered that the plaintiffs don’t know that there are dangerous people in the housing units.

This opens the door for certain inquiries.

REQUEST FOR PRODUCTION NO. 16: All documents relating to security measures put in place or contemplated by CHA at CHA Property since 2005.

REQUEST FOR PRODUCTION NO. 17: All background checks of current or past CHA tenants which reveal criminal history of any kind, including arrests, convictions, youthful offender adjudications, deferred prosecutions, adjournments in contemplation of dismissal, or any other disposition.

REQUEST FOR PRODUCTION NO. 18: All documents relating to any background investigation into any CHA employees, including but not limited to criminal history and references.

REQUEST FOR PRODUCTION NO. 19: All documents relating to any licenses or permits to own, have, keep, bear, possess, or carry any firearms held by any employees of CHA.

The state is refusing to answer these requests. They claim that it would violate tenant privacy. The plaintiffs argue that the state opened themselves to these production requests because they claimed that the plaintiffs didn’t need arms to protect themselves.

This little battle, behind the scenes, goes on for many cases. How the judge rules will change how the parties advance.

An important thing to note, is that some suits have no expectation of winning the suit. The goal of the suit is to do discovery. To get behind closed doors.

The questions about permits by CHA employees suggests an attack vector. Why are you denying the plaintiffs arms when your employees have arms? Can you provide protection if none of your security team are armed? How many dangerous people live in the CHA?

All in all, it is an interesting game to observe.

Oh, none of this discovery is needed under Heller as affirmed by Bruen. Does the Second Amendment’s plain text cover the individuals’ conduct? If so, the state bears the burden of demonstrating that their modern infringement is consistent with this Nation’s historical tradition of firearm regulation.

There is no need for discovery outside of: “do you want to keep or bear arms?”, “Are you part of The People?” If both of those questions are answered in the affirmative, then the burden is upon the state to prove that the modern infringement is consistent.

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By awa

3 thoughts on “Cases are won and lost before they are heard”
  1. You stated that the judge is required to follow the rulings of higher courts. I see two problems with that blanket statement. First, there’s also the ruling of the Supreme Court. Second, the Constitution is a higher authority than any court, and if a judgement is in conflict with the plain meaning of the Constitution then it is every judge’s sworn duty to support the Constitution and not any conflicting judgment.

    1. What Paul said. Where the Circuits are in conflict with SCOTUS and/or the Constitution, why is a judge required to follow his/her Circuit instead of SCOTUS or the Constitution?
      IANAL, but it seems to me that in the interests of justice, adhering to the Constitution first, SCOTUS second, and the Circuits a distant third should get cases resolved faster and with fewer appeals.
      Note: “Should” does not equal “does”; plaintiffs and defendants will always be free to seek appeals when they lose, even if they lose for damn good reasons. But a judge issuing an incorrect ruling he/she knows will be appealed and probably overturned, or staying his/her own (correct) order pending appeal — simply because that’s what his/her Circuit says in defiance of the Constitution and SCOTUS — just draws out the case, increases costs of litigation, and delays justice. And that serves nobody well … except maybe the lawyers.

      1. I would take it further than that. Any judge who defers to a higher court judgment while knowing that the judgment is wrong and in defiance of the Constitution has violated his oath of office. So I would argue that it’s not simply an option to ignore such a decision, but a sworn duty.

Only one rule: Don't be a dick.

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