—ECF 304 - Antonyuk v. Hochul, No. 22-2972 (2d Cir.)
Looking at FRAP 28(j) we find that there is a 350-word limit on FRAP 28(j) letters. The letter is under 350 words, but the attached appendix is many pages long.
“Uh—” Lazarus looked ungracious. “Okay. ‘Ten Words.’ Not eleven.”
Weatheral hesitated a split second, then counted on his fingers: “I learned your language to explain why we
“Ten by the Rule,” Lazarus admitted. “But meaning that you need fifty. Or five hundred. Or five thousand.”
—Robert A. Heinlein, Time enough for love: the lives of Lazarus Long; a novel (Putnam 1973)
A FRAP 28(j) letter is supposed to be a citation to some new authoritative source. Authoritative from the courts’ perspective. I am not allowed to publish a 60-page article on my website and then submit a FRAP 28(j) letter with a citation and link back to my own article. There are rules for what “authoritative sources” are.
This letter fails at word limit, authoritative source, and actual citations.
The purported letter should not be accepted for these the above reasons.
I still expect the Second Circuit to rule to accept the FRAP 28(j) letter.
What is Everytown Bringing to the attention of the court
The included Appendix, titled “Exhibit A” is in the form of a table where each row consists of an ordinal/sequence number, location, year, “citation”, Key Language, and link. All the links are tinyurls, you can’t tell where they are going to take you until you follow them.
Bruen made it clear that when Heller says history and tradition, they are speaking of regulations, actual laws.
Under that definition, a rule promulgated by the ATF might not be considered a “regulation.” The ATF exists from Congress’s delegation of power to create rules under the regulations that Congress passed and the President signs. Just because the ATF makes a rule, that does not make it a regulation under Heller
The infringers have brought up school rules as a history of regulation. Rules that a school makes do not have the force of law.
In the same way, the rules and policies of an HOA do not have the force of law. They are enforced by contract.
The first reference Everytown makes is to “Minutes of Proceedings of the Board of Commissioners of the Central Park” (1858 at 166).
“Be it ordained by the Commissioners of the Central Park:
All persons are forbidden
To enter or leave the Park except by the gateways.
To climb or walk upon the wall.
To turn cattle, horses, goats or swine into the Park.
To carry fire-arms or to throw stones or other missiles within it.
To cut, break, or in any way injure or deface the trees, shrubs, plants, turf, or any of the buildings, fences, bridges, or other constructions upon the Park;
Or to converse with, or in any way hinder those engaged in its construction.
—New York (N Y. ) Board of Commissioners of the Central Park, Minutes of Proceedings of the Board of Commissioners of the Central Park for the Year Ending April 30 ... 166 (Wm. C. Bryant & Company, printers 1858)
You really have to give them credit, they must have had people OCRing documents dating back as far as they could go to do keyword searches on them. From a technical aspect, it is an impressive job.
One of the things that Heller instructs the inferior courts in, was to look at the how and why of a regulation. This commission is forbidding 6 actions within Central Park. They have removed it as a “commons”. A common is a place for the common use of the people of the village. It was often grazed by different people.
They are forcing people to enter and leave via controlled access points. No going over the wall.
They tell people not to vandalize the vegetation nor the buildings within the Park, to include picking flowers.
They also don’t want people to delay the work being done.
Some of these things would have to be handled via laws. The following paragraphs suggest that there is the power of city law behind these ordinances.
The question that comes to mind is whether there was a fire-arms restriction in other parts of the city or other city parks?
The earliest reference they give is the one quoted above from 1858. The latest was from 1940. EVEN if the court were to accept the letter, they should discard all of the references because none of them reference regulations from the time of the founding.