Lawsuits Aren’t All About Right and Wrong: Sometimes Strategy is a key factor.  by Tom Reynolds

Many SCOPE members – and 2A defenders in general – are confused by the number of lawsuits and rulings that are occurring.  There are some legal strategy decisions to be made which have nothing to do with right or wrong.  SCOPE would like to try to simplify some very complex behind-the-scenes issues and give you some insight into the decisions that must be made.

On December 12th, we wrote an email to members about the 2nd Circuit Court’s decisions on several lawsuits brought against N Y State.  S.C.O.P.E. Shooters Committee On Political Education - 2nd Circuit Decision (scopeny2a.org)  The decisions now faced in those lawsuits are typical of those faced by all 2A lawsuits, so let’s use it as an example.

Under this ruling, the following provisions on New York’s law are stopped by temporary injunction (enjoined):

• Requiring applicants to disclose social media accounts for review.

• The restrictions on carrying on private property that is accessible to the public, as well as the restriction on carrying in houses of worship.

• The “good moral character requirement” in place for those seeking a concealed carry permit. 

• The prohibition on concealed carry in so-called sensitive locations, a category that includes government buildings, airports, public playgrounds, schools, theaters, establishments that serve alcohol and Times Square.

Under this ruling, the following provisions of New York’s law are not enjoined and remain in effect for now:

2A advocates may look at the 2nd Circuit’s decisions and say those decisions that were not enjoined were wrong and let’s keep suing them.  But there are other considerations.

First, the recent decisions only dealt with temporary injunctions to stop enforcement of the ‘Concealed Carry Improvement Act’ (CCIA) while the court cases are being decided.  They did not decide the cases, themselves.  The ruling by the appeals court was at an early stage of the legal battle, which is seen as likely to wind up before the Supreme Court, again. 

Some other considerations:

NY and other blue states pass unconstitutional laws and basically say, ‘If you don’t like it, sue me.  I – the state – am going to run up your legal bill in an attempt to bankrupt your effort while I – the state – will operate on the bottomless taxpayer dime.’   

There is a business principle called “Opportunity Cost.”  Basically, if you use your resources (time, energy, money) on one thing, those resources are gone and will not be available for other things.  Each of these lawsuits will cost 2A advocates hundreds of thousands of dollars – approaching or exceeding a million dollars if they go to the Supreme Court.  What’s the best use of the limited financial resources available under the ‘Opportunity Cost’ principle? 

There are other factors.

Do the 2A litigants in these cases want to keep fighting for the injunctions or accept what victories and defeats we have and concentrate their efforts on winning the actual cases?  It’s been a year and a half just to get to this point and gun owners are still subject to much of CCIA’s unconstitutional laws.  (It was twelve years between the Heller decision and the Bruen decision.) 

The 2nd Circuit decision was made by a three judge panel, not the full 2nd Circuit court.  Do the 2A litigants want to appeal for a hearing on the injunctions before the full court or, if possible, go straight to the Supreme Court on the injunctions?  More time and more money, either way. 

Or do they stop fighting for injunctions and switch to fighting for the meat of the cases?

Until there is a final decision, we continue to be subject to these unconstitutional laws.  This is particularly acute in the Gazzola case which centers around retail stores. (Federal Firearms Licensees - FFL’s.) 

FFL’s are being attacked at both the federal and state level.  Federally by Biden’s  Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) which is revoking FFL licenses at an unprecedented rate, many for minor technical violations.  Under NY State’s CCIA, NY State is driving FFL’s out of business.  (GOA-NY reports that we have lost seventy-three 2A businesses in NY State this year.)  Those are businesses that will never come back in a state that is generally unfriendly to all businesses and hates 2nd Amendment businesses, in particular.  The longer this drags out, the more FFL’s that will close.

Finally, as a general rule, the Supreme Court avoids making a ruling on a constitutional issue until it has “percolated”through the lower courts. Under “percolation,” the Supreme Court normally let’s stand a lower court ruling or injunction until multiple lower courts have weighed in on a legal question that the Court is bound to decide. 

Certainly, there are other issues and each case has its own peculiar circumstances.

SCOPE hopes that this has given you some insight into the behind-the-scenes decisions that must be made.  Few want to make these decisions and it would be nice if all decisions were limited to right-or-wrong, but they cannot be avoided.