SAFE Act and NY pistol permit regime revealed to be house of cards built on tenuous ‘intermediate scrutiny’ legal standard. In turn, Assistant NYS Attorney General begs State Supreme Court to determine AR15s are dangerous and unusual weapons not covered by the Second Amendment.

March 6, 2019 | BUFFALO, N.Y. – Attorney Jim Ostrowski delivered two hard-hitting indictments of the unconstitutional New York State gun control regime in as many weeks. The most recent was issued on Feb. 28, 2019 as an oral argument to justices of the New York State Supreme Court, Appellate Division, Fourth Department (ORAL ARGUMENT VIDEO ABOVE).

Defending his challenge to the conviction handed down via The People of the State of New York v. Benjamin Wassell, Ostrowski persuasively argued that the SAFE Act and associated conviction of Benjamin Wassell should be overturned. Specifically, he noted that Wassell’s SAFE Act conviction is not supported by legally sufficient evidence, is the result of jury instruction error, and clearly violates the Second Amendment. The remainder of Ostrowski’s claims are outlined in the brief he submitted to the court, and include the following:

  • Lack of prosecutorial authority
  • Unconstitutional and void for vagueness
  • Due process violation
  • Lack of equal protection under the law

Eight minutes into his oral argument, Ostrowski directly attacked the intermediate scrutiny legal standard that acts as the cornerstone of New York State’s unconstitutional gun control regime, including imperial edicts like the SAFE Act, the pistol permitting system, and the newly-minted red flag law. Intermediate scrutiny allows New York courts to broadly define the state’s ever-expanding burdens on Second Amendment exercise as related in some way to the government’s interest in public safety, and therefore constitutional. Rarely is such a lax standard employed to determine the legality of burdens on a fundamental civil right, as the Second Amendment was declared to be in the U.S. Supreme Court case District of Columbia v. Heller. When the nation’s highest court reviews its first ever New York gun law case later in 2019 – NYSRPA v. NYC – it’s conservative majority is expected to declare that intermediate scrutiny is not the correct test to use when judging Second Amendment cases, and strict scrutiny is. Ostrowski pointed this out in his oral argument.

“We strongly believe that intermediate scrutiny is not the correct standard, and will not be upheld by the [U.S.] Supreme Court in October,” Ostrowski argued in New York State Supreme Court. “The problem with intermediate scrutiny is, you have this fundamental right declared by Heller, but nowhere in the intermediate scrutiny test is there any value at all given to the two primary values of the Second Amendment…which is, you have the right to protect yourself against a tyrannical government and, by the way, if you look at the headlines, Venezuela is now shooting unarmed protesters. So, it’s not like, oh, we have a democracy. What if the democracy falls apart, as it is? But also, whenever the government is not around to protect you, you have the right to protect yourself. And in the intermediate scrutiny test, there is absolutely no weight given to either of those values. So that test cannot stand.”

The court was receptive to Ostrowski’s contention that the U.S. Supreme Court is likely to shed light, later this year or early next, on the correct standard for judging Second Amendment cases, and that a move to strict scrutiny would impact the outcome of the Wassell case. However, there was resistance to the notion that a Second Amendment issue was squarely before the court.

“My reading of this case is that Judge D’Amico never ruled on the Second Amendment contention [in the original Wassell case],” Associate Justice Erin Peradotto said. “So, we don’t have any sort of Second Amendment decision before us to review.”

Prior to Peradotto’s attempt to sidestep Ostrowski’s demand that the court focus on Second Amendment violation as a component of the Wassell case, Associate Justice Stephen Lindley argued that Ostrowski’s claim that the state attorney general lacked the jurisdictional authority to prosecute Wassell in the first place could be a winner.

“You have what seems to be a winning argument,” Lindley said. “I don’t care if they [the New York State Attorney General’s Office] have a letter from the [state police] chief, and that they gave it to you, and it’s notarized. It wasn’t presented at the trial. It’s not on the record.”

The remainder of the court’s justices appeared to agree with and support Lindley’s view, but shied away from Ostrowski’s pronouncements on the Second Amendment. Should the court rule in favor of Ostrowski’s “lack of prosecutorial authority” argument, the indictment against Wassell would be dismissed. This would no doubt be an excellent outcome for Benjamin Wassell and for Second Amendment supporters across New York State. However, it would also allow the court to avoid addressing the persuasive Second Amendment violation arguments Ostrowski leveled at its presiding justices. In so doing, the court would be able to sidestep the significant research effort and public controversy associated with wading into legal arguments directly associated with Second Amendment protections. This appeared to be the direction the court would prefer to take in deciding the Wassell case, as it proceeded to hammer Assistant New York State Attorney General Matthew Keller on the prosecutorial authority issue once he stood to rebut Ostrowski.

“Ya got a problem here,” Associate Justice Nancy Smith said, referencing a potential lack of prosecutorial authority on the part of the state as Keller prepared to deliver his comments.

Keller strenuously argued to the contrary, but was rebuffed several times by the court. Seemingly conceding defeat, he moved on to address Ostrowski’s claims regarding poor jury instruction, claiming this issue actually benefited Wassell, and then closed by addressing Ostrowski’s Second Amendment argument. At this point, Keller was forced to address the two elephants in the room: The NYSRPA v. NYC case and the very real potential that the U.S. Supreme Court will overturn intermediate scrutiny and install strict scrutiny as the standard for judging Second Amendment cases.

Because the nullification of intermediate scrutiny would destroy the foundation of Keller’s arguments supporting Wassell’s conviction – as well as the state’s rationale for the SAFE Act, the pistol permitting system, the red flag law, and the remainder of its unconstitutional gun control regime in total – Keller began to frantically grasp at straws. He asserted that, should NYSRPA v. NYC result in a decision favorable to Benjamin Wassell, the state would simply argue that the outcome of the NYSRPA case does not apply to the Wassell conviction because the latter involves “military-style assault weapons,” and that intermediate scrutiny is still the correct standard for the Wassell case. It would be quite difficult for the state to argue this in a manner that would be persuasive to any state or federal court in the wake of a freshly-inked U.S. Supreme Court decision clearly indicating strict scrutiny is the appropriate standard for all Second Amendment cases. However, Keller did not end his verbal flailing there. He took it a step further with his final claim, devoid of logic and dripping with fear of the beatdown awaiting New York gun control in the halls of America’s highest court.

“Before you get to the level of scrutiny you have to ask the question, are assault weapons even covered by the Second Amendment?” Keller said. “Now, the courts in New York, state and federal, that have addressed this issue have sort of gone around that question and gone right to the level of scrutiny. But this court has plenty of strong, persuasive authority that these dangerous and unusual weapons are not even covered by the Second Amendment.”

It is clear that Keller, and by extension, Imperial Criminal Cuomo and his minions occupying the imperial palace in Albany, are terrified at the prospect of the U.S. Supreme Court overturning the intermediate scrutiny standard as applied to Second Amendment cases. Such an action on the part of the court would signal the death knell for New York gun control, and the state has real reason to worry that their fear will make the jump to reality.

For confirmation of this, the state need look no further than the comments made by U.S. Court of Appeals, Second Circuit Judges John Walker, Jr. and Dennis Jacobs in reply to Ostrowki’s Feb. 20, 2019 oral argument in Libertarian Party of Erie County v. Cuomo, which seeks to overturn the New York State pistol permit requirement on constitutional grounds, and is just one step away from U.S. Supreme Court review (ORAL ARGUMENT AUDIO BELOW).

“My clients believe that, if the [U.S.] Supreme Court, under Heller and McDonald, [holds] that the right to bear arms is a fundamental right, the first question is, how can you license a fundamental right?” Ostrowski argued before the U.S. Court of Appeals. “We have a right here that, if it’s taken away, unlike the First Amendment, you can be killed. We said in the complaint that there’s several hundred innocent Americans killed by police officers. There’s certainly thousands of Americans who are murdered on the street. So, I think you have to look at the nature of the right when it comes to standing and the type of challenge to the [pistol permit] statute. This is a fundamental right. It’s a preexisting right. That’s why it says THE right to bear arms. It goes back to ancient England, and it’s a right that’s really the foundation of a country that was born in a revolution, that threw off a gun control mission.”

Following Ostrowki’s comments, all built on several other compelling contentions relative to the unconstitutional and arbitrary nature of the state pistol permit requirement as outlined in his court brief, U.S. Circuit Judge John Walker, Jr. proactively raised the clear and present threat that NYSRPA v. NYC poses to the intermediate scrutiny standard, which is squarely before the court in the case of Libertarian Party of Erie County v. Cuomo.

“We might be bound by another case [NYSRPA v. NYC] that’s pending in the [U.S.] Supreme Court at some point,” Judge Walker said. “I don’t know if you [Jim Ostrowski] have read the cert petition and response to that in that case. It seems to me that there’s going to be some overlap between that case and this case.”

In response, Ostrowski made the point that intermediate scrutiny gives zero weight to the right of citizens to defend themselves against a tyrannical government and private crime.

“It [intermediate scrutiny] is a formula that’s predetermined to find that any particular law based on some loose and so-called empirical studies will be valid, so I think that’s our problem with intermediate scrutiny,” Ostrowski said. “It’s not consistent with Heller.”

When the lawyer representing the New York State Attorney General’s Office rose to rebut Ostrowski’s argument, Judge Walker immediately pressed her to likewise comment on the overlap between NYSRPA v. NYC and Libertarian Party of Erie County v. Cuomo regarding the intermediate scrutiny standard as applied to the Second Amendment.

“At some point, could you just mention the case of the New York State Rifle and Pistol Association against New York City that’s before the [U.S.] Supreme Court, and the extent to which there’s overlap of the [intermediate scrutiny] issues?” Judge Walker said.

The state’s attorney attempted to make the argument that, because the remaining plaintiff featured in Ostrowski’s court challenge was involved in prior brushes with law enforcement resulting from instances of civil disobedience, said plaintiff is not law-abiding and, therefore, the Heller, McDonald, and upcoming NYSRPA rulings do not apply to him because he is “not law-abiding and responsible.”

“Your adversary points out this [Ostrowski’s client] is a person who has never committed a felony,” Judge Jacobs said, pushing back against the argument made by the state. “It’s not as though this person treads a straight and narrow path, but there’s no felony. And Heller is speaking in terms of felonies.”

The state’s attorney tried to sidestep Judge Jacobs’ insightful criticism of her argument. She attempted to construe the definition of a non-law-abiding citizen, described in Heller as an individual convicted of a felony, as simply an example of unlawful behavior. The state’s attorney encouraged the court to take a more expansive view of what constitutes a non-law-abiding citizen than what Heller really allows. Alas, she was not granted a reprieve from further incredulity. Judge Walker piled on more.

“Don’t you think that the current case [NYSRPA v. NYC] that’s pending in the [U.S] Supreme Court, which bears upon the licensing system in New York or, it’s actually, in that case, I guess, it’s the city, the decision in that case would flesh out Heller and McDonald in terms of the extent to which states can regulate in this area, and that that is important to our decision?” Walker said in response to the state.

The state’s attorney, somewhat frustrated, responded that the case before the court should be viewed as a simple issue to solve via immediate dismissal, and that the court should not be concerned with construing some aspects of the Second Amendment right or elements of the methodology for evaluating Second Amendment claims.

“This is now and easy case with Mr. Murtari [Ostrowski’s client] because the kinds of restrictions that operated against him, the fact that his circumstances showed good cause for a denial [of pistol permit issuance], that’s entirely consistent with the way that Heller itself defined the scope of the Second Amendment right,” the state’s attorney said. “And it also clearly advances, substantially advances, the interest in public safety.”

Once again, the state’s argument failed to land, and Judge Walker pushed back.

“I think you’re maybe jumping the gun a little bit because your adversary is attacking the entire [pistol permit] regulatory system as I understand it,” Walker said. “And you’re assuming that the system can be valid in many instances, and that it’s easy to deal with this particular plaintiff under those circumstances. But, in a way, because of the argument he’s making, don’t we have to listen to what the [U.S.] Supreme Court says? And also, does intermediate scrutiny apply? That’s going to be a question that is before them.”

Stunned that Judge Walker pulled away the current and completely arbitrary New York State pistol permit issuance guidelines and the intermediate scrutiny standard as key supports for her argument, the state’s attorney was left flailing. Awash in her moment of disbelief, she fell back on her previously-detailed and overly broad ‘non-law-abiding citizen’ argument, and conceded that awaiting the U.S. Supreme Court’s guidance by way of NYSRPA v. NYC on the intermediate scrutiny issue may be a viable approach.

“Even if we just look at the scope of the historical right that Heller focused on, it was focused on law-abiding and responsible people,” the state’s attorney said. “I mean, if this court has any concerns that the NYSRPA case may provide helpful guidance, the defendants would not object to the court holding the case and, if this case is still pending by the time that NYSRPA case is decided then, we’d appreciate the opportunity to submit supplemental briefs. But on the current posture, this case simply consists of a non-law-abiding and responsible person’s challenge to New York’s requirement to possess a license in order to possess a firearm and New York’s requirement that no license be issued to a person as to whom there’s good cause for a denial. Mr. Murtari doesn’t even have standing to challenge the good moral character or proper cause for public carrying aspects of New York’s regulatory scheme, because those were not the reasons why he was denied a license, and enjoining those aspect of the scheme would not result in him getting a license.”

The common thread between the NYSRPA, Libertarian Party, and Wassell cases is intermediate scrutiny. Once again, this is the legal standard that acts as the cornerstone of New York State’s unconstitutional gun control regime, allowing courts staffed by progressives to broadly define the state’s ever-expanding burdens on Second Amendment exercise as related in some way to the government’s interest in public safety, and therefore constitutional. As noted earlier, rarely is such a lax standard employed to determine the legality of burdens on a fundamental civil right, as the Second Amendment was declared to be in Heller.

Based on the feedback provided by the judges who heard Feb. 2019 oral arguments in Libertarian Party of Erie County v. Cuomo and The People of the State of New York v. Benjamin Wassell respectively, it is clear that both the U.S. Court of Appeals and the New York State Supreme Court believe the intermediate scrutiny standard will be addressed by the U.S. Supreme Court in NYSRPA v. NYC later this year into early next. The New York State Supreme Court, Fourth Department plans to decide the Wassell case on either March 15 or 22 of this year, and appears poised to sidestep the Second Amendment issue by simply accepting Ostrowski’s “lack of prosecutorial authority” argument as detailed earlier, and voiding the indictment against Wassell. The U.S. Court of Appeals, Second Circuit will likely take several months to decide the Libertarian Party case, and appears content to await the guidance likely to be offered by the U.S. Supreme Court on the intermediate scrutiny standard so that they can rule in a manner consistent with America’s highest court.

Given prior remarks and decisions on the Second Amendment provided by the conservative majority of the U.S. Supreme Court, it is likely that the intermediate scrutiny standard will be replaced in 2020 with strict scrutiny as the proper lens for deciding Second Amendment cases via the anticipated NYSRPA decision. This would result in the destruction of imperial edicts like the SAFE Act, the pistol permitting system, and the newly-minted red flag law, as this is the legal foundation upon which these unconstitutional schemes are able to stand. Based on the verbal flailing demonstrated by New York States’ attorneys during the Libertarian Party and Wassell oral arguments, this prospect clearly terrifies the imperial criminals that run New York State, as well as their progressive allies. And, for all the reasons outlined above, their fears are well-founded. The composition of the U.S. Supreme Court in concert with the New York-specific Second Amendment cases still active in lower courts have set the stage for the death of New York gun control.

This is truly a defining moment for Second Amendment civil rights in New York State, and beyond.

To learn more about any of the above, please contact Steve Felano at (518) 852-1863 or [email protected].

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