Petition for Writ of Certiorari — Nadine Gazzola, et al., Petitioners v. Kathleen Hochul, Governor of New York, et al.

Supreme Court briefMar 7, 2024

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No. 23In the

Supreme Court of the United States

NADINE GAZZOLA, INDIVIDUALLY, AND AS COOWNER, PRESIDENT, AND AS BATFE FEDERAL

FIRE-ARMS LICENSEE RESPONSIBLE PERSON

FOR ZERO TOLERANCE MANUFACTURING, INC.,

et al.,

Petitioners,

KATHLEEN HOCHUL, IN HER OFFICIAL CAPACITY

AS GOVERNOR OF THE STATE OF NEW YORK, et al.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of A ppeals for the Second Circuit

PETITION FOR A WRIT OF CERTIORARI

Paloma A. Capanna, Esq.

Counsel of Record

106-B Professional Park Drive

Beaufort, North Carolina 28516

(585) 377-7260

pcapanna@yahoo.com

Counsel for Petitioners

327706

(800) 274-3321 • (800) 359-6859

QUESTIONS PRESENTED FOR REVIEW

As news broke that Dobbs would overturn Roe and

Bruen would strike down the Sullivan Act, NYS Gov.

Kathleen Hochul got “angry” and drove into law a firstin-class scheme targeting federally-licensed dealers in

firearms with dozens of mandates under threat of criminal

prosecution; along with an ammunition background check,

rifle licensing, and concealed carry license standardized

instruction and testing.

The Second Circuit followed Hochul through the back

door. It denied Petitioners’ individual standing but used

derivative claims to adopt pre-Bruen scrutiny tests. It

foreshadowed the status quo ante of 1,791 federallylicensed dealers in firearms in NY will be allowed to

free-fall under the new mandates to somewhere short of

“elimination.” Absent was an evaluation of Petitioners’

novel theory that “to keep” of “to keep and bear arms,”

tested by “constitutional regulatory overburden,” can

protect dealers on an equal constitutional basis as the

individual.

The questions presented are:

Did the Second Circuit err in the Winter analysis of

Petitioners’ request for preliminary injunctive relief under

Fed. R. Civ. P. 65, including (1.) when it adopted pre-Bruen

scrutiny testing for Second Amendment claims effecting

the core rights of individuals and of derivative claims on

behalf of individuals; and/or (2.) when it failed to evaluate

Petitioners’ likelihood of success in their novel theory

of “to keep” from “to keep and bear arms” as having

independent constitutional value to protect federallylicensed dealers in firearms as measured by the standard

of “constitutional regulatory overburden?”

PARTIES TO THE PROCEEDINGS

Petitioners are Nadine Gazzola, individually, and as

co-owner, President, and as BATFE Federal Firearms

Licensee Responsible Person for Zero Tolerance

Manufacturing, Inc.; Seth Gazzola, individually, and as coowner, Vice President, and as BATFE FFL Responsible

Person for Zero Tolerance Manufacturing, Inc.; John

A. Hanusik, individually, and as owner and as BATFE

FFL Responsible Person for d/b/a “AGA Sales”; Jim

Ingerick, individually, and as owner and as BATFE FFL

Responsible Person for Ingerick’s, LLC, d/b/a “Avon Gun

& Hunting Supply”; Christopher Martello, individually,

and as owner and as BATFE FFL Responsible Person

for Performance Paintball, Inc., d/b/a “Ikkin Arms”;

Michael Mastrogiovanni, individually, and as owner and

as BATFE FFL Responsible Person for “Spur Shooters

Supply”; Robert Owens, individually, and as owner and as

BATFE FFL Responsible Person for “Thousand Islands

Armory”; Craig Serafini, individually, and as owner and

as BATFE FFL Responsible Person for Upstate Guns

and Ammo, LLC; and, Nick Affronti, individually, and as

BATFE FFL Responsible Person for “East Side Traders

LLC”; and, Empire State Arms Collectors, Inc.

Respondents are Kathleen Hochul, in her Official

Capacity as Governor of the State of New York;

Steven G. James, in his Official Capacity as the Acting

Superintendent of the New York State Police; Rossana

Rosado, in her Official Capacity as the Commissioner of

the Department of Criminal Justice Services of the New

York State Police; and, Leticia James, in her Official

Capacity as the Attorney General of the State of New York.

iii

CORPORATE DISCLOSURE STATEMENT

(Sup. Ct. R. 29.6)

There is no parent or publicly held company owning

10% or more of any corporate party’s stock, including

Petitioners “Zero Tolerance Manufacturing, Inc.,”

“Ingerick’s, LLC,” “Performance Paintball, Inc.,” “Upstate

Guns and Ammo, LLC,” “East Side Traders LLC,” or

“Empire State Arms Collectors, Inc.” The following

Petitioners are unincorporated sole proprietorships,

including Petitioners John A. Hanusik d/b/a “AGA Sales,”

Michael Mastrogiovanni as “Spur Shooters Supply,” and

Robert Owens as “Thousand Islands Armory.”

STATEMENT OF RELATED PROCEEDINGS

(Sup. Ct. R. 14.1(b)(iii))

This case arises from the following proceedings:

• Gazzola v. Hochul, No. 1:22-cv-1134, U.S.

District Court for the Northern District of

New York. Judgment entered Dec. 7, 2022.

• Gazzola v. Hochul, No. 22-3068, U.S. Court

of Appeals for the Second Circuit. Judgment

entered Dec. 8, 2023.

There are no other proceedings in state or federal trial

or appellate courts, or in this Court, directly related to this

case within the meaning of this Court’s Rule 14.1(b)(iii).

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW . . . . . . . . . i

PARTIES TO THE PROCEEDINGS . . . . . . . . . . . . . . ii

CORPORATE DISCLOSURE STATEMENT

(Sup. Ct. R. 29.6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

STATEMENT OF RELATED PROCEEDINGS

(Sup. Ct. R. 14.1(b)(iii)) . . . . . . . . . . . . . . . . . . . . . . . . . iv

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . v

TABLE OF APPENDICES . . . . . . . . . . . . . . . . . . . . . . . x

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . xi

PETITION FOR A WRIT OF CERTIORARI . . . . . . . 1

OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

CONSTITUTIONAL & STATUTORY PROVISIONS . 1

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . 2

A. The Political Dynamic in New York,

Summer 2022 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Table of Contents

Page

B. NY Gen Bus §875 (2022), first to target

dealers in firearms . . . . . . . . . . . . . . . . . . . . . . . . 4

C. NY “CCIA” (2022), targets both individuals

and dealers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

D. Petitioners are more than “ordinary”

citizens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

REASONS FOR GRANTING THE PETITION . . . . 13

LAW GOVERNING THE MOTION FOR

PRELIMINARY INJUNCTION . . . . . . . . . . . 13

II. THE SECOND CIRCUIT ADOPTED

PRE-BRUEN SCRUTINY TESTING IN

ERROR FOR POST-BRUEN ANALYSIS

O F D E R I VA T I V E C L A I M S O F

INDIVIDUAL RIGHTS AT THE CORE

OF THE SECOND AMENDMENT . . . . . . . . 14

II.(A.) THE SECOND CIRCUIT RULING

BEGAN PROPERLY . . . . . . . . . . . . . . 15

II.(B.) THE SECOND CIRCUIT ERRED

W HEN IT A DOP TED PRE

BRUEN SCRUTINY TESTING . . . . . 16

II.(C.) PROPER BRUEN ANALYSIS

OF T HE A M M U NI TION

BACKGROUND CHECK . . . . . . . . . . . 17

vii

Table of Contents

Page

II.(D.) PROPER BRUEN ANALYSIS

OF T H E S A R LICENSE

REQUIREMENT . . . . . . . . . . . . . . . . . 19

II.(E.) PROPER BRUEN ANALYSIS

OF THE CONCEA LED

CA RRY

TR A INING

CURRICULUM AND TEST . . . . . . . . 21

III. THE SECOND CIRCUIT RULING

SIGNALS: IT IS TIME TO ACTIVATE

“ T O K EEP ” OF T H E SEC ON D

AMENDMENT . . . . . . . . . . . . . . . . . . . . . . . . . . 23

III.(A.) THE NOVEL THEORY OF “TO

K EEP” OF “ TO K EEP A ND

BE A R A R M S ” I S L I K ELY

TO SUCCEED ON THE MERITS . . . 23

III.(B.) GAZZOLA IS THE ORGANIC

E VOLU T ION OF HELLER MCDONALD-BRUEN . . . . . . . . . . . . . 24

III.(C.) T H E S E C O N D C I R C U I T

ANTITHESIS OF “CONSTITUTIONA L REGUL ATORY

OVERBURDEN” . . . . . . . . . . . . . . . . . . 27

viii

Table of Contents

Page

III.(C.)(1.)

III.(C.)(2.)

FIRST,

THE

SECOND CIRCUIT

ERROR OF A

S TA N DA R D OF

“SO RESTRICTIVE

T H A T

I T

THREATENS” . . . . . . . . 28

SECOND, THE

SECOND CIRCUIT

ERROR OF TOYING

WITH “A CRITICAL

MASS” . . . . . . . . . . . . . . . . 30

IV. “CONSTITUTIONAL REGULATORY

OV ER BU R DEN ” I S A CL E A R

A ND DURA BLE STA NDA RD FOR

CLAIMS UNDER “TO KEEP” . . . . . . . . . . . . 31

IV.(A.) FFLS ARE SUBJECT MATTER

EXPERTS . . . . . . . . . . . . . . . . . . . . . . . 33

IV.(B.) NEW LAWS ARE INCAPABLE

OF COMPLIANCE AND THE

PENALTIES ARE CRIMINAL . . . . . 34

IV.(C.) PETITIONER FFLS ARE MORE

SAFETY-CONSCIOUS THAN

THE GOVERNOR . . . . . . . . . . . . . . . . 36

Table of Contents

Page

FEDERAL FIREARMS COMPLIANCE

IS A FIELD WELL SETTLED . . . . . . . . . . . . 37

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

TABLE OF APPENDICES

Page

APPENDIX A — OPINION OF THE UNITED

STAT ES COU RT OF A PPEA LS FOR

T H E S E C O N D C I R C U I T, D A T E D

DECEMBER 8, 2023 . . . . . . . . . . . . . . . . . . . . . . . . . 1a

APPENDIX B — OPINION OF THE UNITED

STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF NEW YORK,

FILED DECEMBER 7, 2022 . . . . . . . . . . . . . . . . . 32a

APPENDIX C — RELEVANT CONSTITUTIONAL AND STATUTORY PROVISIONS . . . . 91a

TABLE OF CITED AUTHORITIES

Page

CASES:

Amoco Prod. Co. v. Village of Gambell,

480 U.S. 531 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

Brown v. Bd. of Educ.,

347 U.S. 483 (1954) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Carey, Gov. of New York v. Pop. Svcs., Int’l,

431 U.S. 678 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Carney v. Adams,

592 U.S. ___, 141 S.Ct. 493 (2020) . . . . . . . . . . . . . . .20

Dark Storm Ind. v. Cuomo,

471, F.Supp.3d 482 (N.D.N.Y. Jul. 8, 2020) . . . . . 29, 30

District of Columbia v. Heller,

554 U.S. 570 (2008) . . . . . . . . . . . . . 2, 10, 13, 14, 15, 16,

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 24, 25, 26, 32

Dobbs v. Jackson Women’s Health Org.,

597 U.S. 215, 142 S.Ct. 2228 (2022) . . . . . . . . . . . . . . . 2

Drummond v. Roinson Twp.,

9 F.4th 217 (3d Cir. 2021) . . . . . . . . . . . . . . . . . . . . . . 16

Ezell v. City of Chicago,

651 F.3d 684 (2011) . . . . . . . . . . . . . . . . . . . . . 16, 31, 39

xii

Cited Authorities

Page

Ezell v. City of Chicago,

846 F.3d 888 (7th Cir. 2017) . . . . . . . . . . . . . . . . . 22, 35

Haynes v. U.S.,

390 U.S. 85 (1968) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Heller v. Dist. of Columbia,

670 F.3rd 1244 (D.C. Cir. 2011) . . . . . . . . . . . . . . . . . 19

Maryland Shall Issue v. Hogan,

971 F.3d 199 (4th Cir. 2020) . . . . . . . . . . . . . . . . . . . . 16

Maryland Shall Issue v. Hogan,

566 F. Supp. 3d 404 (D. Md. 2021) . . . . . . . . . . . . . . . 16

McDonald v. Chicago,

561 U.S. 742 (2010) . . . . . . . . . . . . . . . . 2, 10, 13, 27, 37

Nken v. Holder,

556 U.S. 418 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

NYSRPA v. Bruen,

597 U.S. 1 (2022) . . . . . . . 2, 3, 10, 13, 14, 18, 21, 24, 27

Roe v. Wade,

410 U.S. 113 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Steelworkers v. U.S.,

361 U.S. 39 (1959) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

xiii

Cited Authorities

Page

Teamsters v. United States,

431 U.S. 324 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Teixeira v. County of Alameda,

873 F.3d 670 (9th Cir. 2017) . . . . . . . . . . . . . . . . . 16, 32

Trump v. Anderson,

601 U.S. ___ (2024) . . . . . . . . . . . . . . . . . . 13, 37, 38, 40

U.S. v. Miller,

307 U.S. 174 (1939) . . . . . . . . . . . . . . . . . . . . . . . . . . . .25

United States v. Texas,

599 U.S. 670 (2023) . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Whole Woman’s Health v. Jackson,

595 U.S. _____, 142 S.Ct. 522 (2021) . . . . . . . . . . 8, 27

Winter v. Nat’l Res. Def. Council,

555 U.S. 7 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 22

STATUTES AND OTHER AUTHORITIES:

U.S. Const., amend. II . . . . . . . . . . . . . . . . . . . . . . . . 23, 24

U.S. Const., amend. XIV, § 1 . . . . . . . . . . . . . . . . . . . 23, 24

U.S. Const., art. III, ¶ 2, cl. 1 . . . . . . . . . . . . . . . . . . . . . 13

18 U.S.C. § 921-922 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

xiv

Cited Authorities

Page

18 U.S.C. § 922(g)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

18 U.S.C. § 923 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

18 U.S.C. § 923(d)(1)(E) . . . . . . . . . . . . . . . . . . . . . . . . . . 12

18 U.S.C. § 923(d)(1)(F) . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

18 U.S.C. § 923(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

18 U.S.C. § 923(g)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . 39

18 U.S.C. § 923(g)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . 39

18 U.S.C. § 923(g)(1)(B)(iii) . . . . . . . . . . . . . . . . . . . . . . . 39

18 U.S.C. § 923(g)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

18 U.S.C. § 926 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

18 U.S.C. Ch. 44, § 921 . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

28 U.S.C. § 2101(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

27 CFR § 478.11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

27 CFR § 478.23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

27 CFR § 478.124 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

27 CFR § 478.125(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

Cited Authorities

Page

28 CFR § 25.6(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

28 CFR § 25.9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

28 CFR § 25.11(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

Fed. R. Civ. P. 65 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

NY Exec § 235(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 12

NY Exec § 837(23)(a) . . . . . . . . . . . . . . . . . . . . . . . . . 10, 22

NY Gen Bus § 875 . . . . . . . . . . . . . . . . 3, 4, 5, 8, 10, 23, 35

NY Gen Bus § 875(1)(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 38

NY Gen Bus § 875-a(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

NY Gen Bus § 875-b(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

NY Gen Bus § 875-b(1)(a) . . . . . . . . . . . . . . . . . . . . . . . . . 5

NY Gen Bus § 875-b(1)(b) . . . . . . . . . . . . . . . . . . . . . . . . . 5

NY Gen Bus § 875-b(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

NY Gen Bus § 875-e(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

NY Gen Bus § 875-f . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7, 38

NY Gen Bus § 875-f(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

xvi

Cited Authorities

Page

NY Gen Bus § 875-f(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

NY Gen Bus § 875-f(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

NY Gen Bus § 875-g(1)(b) . . . . . . . . . . . . . . . . . . . . . . . . . 7

NY Gen Bus § 875-g(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

NY Gen Bus § 875-h . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

NY Gen Bus § 875-i . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

NY Pen § 265.00(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

NY Pen § 265.01(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

NY Pen § 265.20(3-a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

NY Pen § 265.65 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

NY Pen § 265.66 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

NY Pen § 400.00(1) . . . . . . . . . . . . . . . . . . . . . . . . 10, 21, 22

NY Pen § 400.03(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

NY Pen § 400.00(1)(n) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

NY Pen § 400.00(11) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

NY Pen § 400.00(19) . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 22

xvii

Cited Authorities

Page

NY Pen § 400.00(19)(a)(x) . . . . . . . . . . . . . . . . . . . . . . . . 21

NY Pen § 400.00(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

NY Pen § 400.02(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

NY Pen § 400.3(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

NY Pen § 400.00(3)(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

NY Pen § 400.00(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

NY Pen § 400.00(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 20

NY Pen § 400.00(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

NY Pen § 400.00(9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

NY Pen § 400.00(19) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

NY Pen § 400.02(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 17

NY Pen § 400.03(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

NY Pen § 400.03(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

NY Pen § 70.00(1)-(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

NY Pen § 70.15(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

NY S.B. 4970-A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5

xviii

Cited Authorities

Page

NY S.B. 6266 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

NY S.B. 51001 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 8

1 Annals of Cong. 451 (1st Session, June 8,

1789) (Joseph Gales ed., 1834) . . . . . . . . . . . . . . . . . . 24

Ayres, Drummond, “Wal-Mart to End Sales of

Handguns in Stores,” The New York Times

(Dec. 23, 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Layne, Nathan, “Wal-Mart to stop selling AR-15,

ot her sem i- aut omat ic r i f les ,” Reut er s

(Aug. 27, 2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

NYS Dep’t of Motor Vehicles, https://w w w.

ejustice.ny.gov/LawEnforcement/docs/dmv/

DriverLic_ID_Permit_Security.pdf . . . . . . . . . . . . . 20

NYS Police official website, https://gunsafety.

ny.gov/ammunition-registration . . . . . . . . . . . . . . . . 17

NYS Police official website, https://troopers.ny.gov/

system/files/documents/2022/12/dealer-faq.pdf . . . 20

Penzenstadler, N., “Gun shops that sell the most guns

used in crime revealed in new list,” USA Today,

(Feb. 15, 2024); https://www.usatoday.com/story/

news/investigations/2024/02/15/shops-sellingmost-crime-guns-revealed-atf/72581120007/ . . . . . 36

xix

Cited Authorities

Page

Pub. L. 99-308 (Apr. 10, 1986) . . . . . . . . . . . . . . . . . . . . . 11

Pub. L. 90-618 (Oct. 22, 1968) . . . . . . . . . . . . . . . . . . . . . 11

Pub. L. 103-159 (Nov. 30, 1993) . . . . . . . . . . . . . . . . . . . . 11

“The Man Who Knew Infinity.” Directed by Matt

Brown for Pressman Film. (2015) . . . . . . . . . . . . . . . 35

U.S. Bureau of Alcohol, Tobacco, Firearms, and

Explosives, https://w w w.atf.gov/firearms/

listing-federal-firearms-licensees . . . . . . . . . . . . . . . 29

U. S . C e n s u s , h t t p s : // w w w. c e n s u s . g o v/

quickfacts/fact/table/NY/PST045223 . . . . . . . . . . . . 29

U.S. Dep’t Homeland Sec., “Advisory Memo. on Ident.

of Essential Critical Infrastructure Workers

During COVID-19 Response (Mar. 28, 2020) . . . . . 30

U.S. Supreme Court, Roberts, J., C.J., “2022

Year-End Report on the Federal Judiciary” . . . . . . 14

W i k ip ed i a , N Y cou nt ie s by p op. (2 0 2 2),

ht t p s: //en .w i k ip e d i a .or g / w i k i / L i st _ of _

counties_in_New_York#List_of_counties . . . . . . . . 30

W i l l i a m s , E . , WA M U A m e r. U. R a d i o ,

Apr. 20, 2020 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

PETITION FOR A WRIT OF CERTIORARI

Petitioners request of this Court a writ of certiorari

to review the per curiam ruling of the Second Circuit

denying their request for preliminary injunctive relief.

OPINIONS BELOW

The circuit court opinion appealed from is reported at

Gazzola v. Hochul, 88 F.4th 186, 2023 U.S. App. LEXIS

32547, 2023 WL 8494188 (2d Cir. Dec. 8, 2023) and is

reproduced at Appendix (“App.”) 1a-31a. The district

court’s opinion is at 645 F.Supp.3d 37, 2022 U.S. Dist.

LEXIS 220168, 2022 WL 17485810 (N.D.N.Y. 2022). It is

reproduced at App. 32a-90a.

JURISDICTION

The Second Circuit issued its ruling on December 8,

2023. App. 1a. This Court has jurisdiction over the timely

filed petition under 28 U.S.C. §2101(c).

CONSTITUTIONAL & STATUTORY PROVISIONS

Relevant constitutional and statutory provisions are

reprinted at App. 91a-128a.

INTRODUCTION

At first glance, the Second Circuit appeared gracious

in its denial of a preliminary injunction, below. A slower

reading, however, revealed the Second Circuit’s defiance

of this Court’s 2022 ruling of NYSRPA v. Bruen, through

its adoption and praise of multiple pre-Bruen circuit court

opinions that employed a hodge-podge of scrutinies. The

Second Circuit signaled a willingness to send federallylicensed dealers in firearms into a free-fall somewhere

north of “elimination.” If left unchecked by little more

than “cert. denied,” the Second Circuit’s post-Bruen use

of pre-Bruen standards will undermine fundamental civil

rights under the Second Amendment as guaranteed to

state citizens through the Fourteenth Amendment under

Heller, McDonald, and Bruen. U.S. Const., amend II and

XIV, §1, App. 91a-92a.

A proper Fed. R. Civ. P. 65 analysis under Winter,

using a Bruen standard of review, from this Court will

make a national course correction for derivative claims

filed by licensed dealers and relevant businesses on behalf

of individual customers, for core Second Amendment

functions like ammunition sales, long gun licensing,

and firearms training. A proper ruling will also awaken

“to keep” of “to keep and bear arms” to thwart new

infringement strategies that target licensed dealers to

replace defunct outright bans against individuals.

STATEMENT OF THE CASE

A. The Political Dynamic in New York, Summer 2022

As news broke on May 3, 2022 that Dobbs1 would

overturn Roe2 and Bruen3 would strike down the Sullivan

Act, an “angry” New York State Gov. Kathleen Hochul

went on the attack against the U.S. Supreme Court

1. Dobbs v. Jackson Women’s Health Org., 597 U.S. 215, 142

S.Ct. 2228 (2022).

2. Roe v. Wade, 410 U.S. 113 (1973).

3. NYSRPA v. Bruen, 597 U.S. 1 (2022).

and the Rule of Law. 22A591, Appl. Reply (p. 1-2). Once

NYSRPA v. Bruen was released on June 23, 2022,

Hochul’s machination intensified. C.A.App. 48-62.4 Before

even she finished reading Bruen, Hochul, herself an

attorney, was out in front of the cameras, touting legal

misrepresentations like “You can’t yell fire in a crowded

theater, but somehow there’s no restrictions allowed on

the second amendment.” C.A.App.-50. She brandished

fear in the populace with assertions like: “The Supreme

Court’s reckless and reprehensible decision to strike down

New York’s century-old concealed carry law puts lives at

risk here in New York.” C.A.App.-53. And, she portrayed

herself as a state governor at war with this nation’s high

court through taunts like “And I thank the State Police

for being so aggressive in their approach in making sure

that we protect citizens, but then you have the Supreme

Court of the United States of America that think that they

have more power than a governor does when it comes to

protecting the citizens of our state.” Id.

Hochul summoned third party “experts” to bolster

her attack. C.A.App.-49, 52, 55, 56. Without notice, markup, or committee hearing, the massive and complex text

of NY Gen Bus §875 was shoved into a stale, skinny bill

and passed within minutes on June 2, 2022. C.A.App.

146-150. Then, on June 29, 2022, nine additional bills

emerged, among them S.B. 51001, the “Concealed Carry

Improvements Act” (“CCIA”). Hochul twice signed

“Proclamations” to convene an “extraordinary session”

of the legislature to consider laws “I will submit,” as she

Tweeted “We refuse to stand idly by while the Supreme

Court attacks the rights of New Yorkers.” Two days later,

4. “C.A.App.” for Circuit Court of Appeals Appendix, volume

I unless so noted as “II.”

Hochul emerged triumphant. C.A.App. 52-56; 22A591

Appl. Reply 1-4.

Hochul’s manner of speaking harkened back to one

Gov. Orval Faubus in the era of the 1950s Dixie Democrats,

foreshadowing his infamous anti-integration showdown in

Little Rock over Brown v. Bd. of Educ. 5 Hochul stood,

equally defiant against the Fourteenth Amendment: “…I

refuse, as I’ve said from day one, I refuse to surrender

my right as Governor to protect New Yorkers from gun

violence or any other form of harm. We’re not going

backwards.” C.A.App.-56.

Those working for Hochul breathed her ire. On the

eve of the September 1, 2022 effective date of the CCIA,

during a joint press conference with Hochul, the acting

state police superintendent threatened: “I don’t have to

spell it out more than this – we’ll have zero tolerance. If

you violate this law, you will be arrested. Simple as that.”

C.A.App.-57.

B. NY Gen Bus §875 (2022), first to target dealers in

firearms

NY Gen Bus §875 is a first-in-form government

attack against businesses with state licenses as “dealers

in firearms,” such as Petitioners. NY Gen Bus §875-a(1).

(NY S.B. 4970-A at C.A.App. 144-150.)

By August 2023, the NYSP “Joint Terrorism Task

Force” began on-site inspections, carrying a 31-point

“Checklist” while questioning dealers like Petitioner Craig

Serafini and others. 23A230, Appl. App. C, D.

5. Brown v. Bd. of Educ., 347 U.S. 483 (1954).

This is an over-simplified list of new compliance

mandates under NY Gen Bus §875, and which are on the

NYSP-JTTF “Checklist.” All mandates apply equally to

all Petitioners, and other FFLs with business premises

in NY and a NY dealer’s license:

[1.] individual shipping protocols (§875-b(1), App. 98a);

[2.] a “security plan,” including secure storage for all

firearms in a fireproof safe or vault or other secured and

locked area on site at the close of each retail day (§875b(1)(a), id.);

[3.] storage of ammunition separate of firearms and

out of reach of customers (§875-b(1)(b), id.);

[4.] a security alarm system installed and maintained

by a state-licensed security alarm operator to statutory

“regulation” “established by the superintendent,”6 inter

alia, “capable of being monitored by a central station”

(§875-b(2), App. 98a-99a);

[5.] installation of “a video recording device at each

point of sale and each entrance and exit to the premises,

which shall be recorded from both the indoor and outdoor

vantage point;” (§875-b(2), sent. 5, App. 99a);

6. Yet unpublished. C.A.App.II 521-526. Respondent agencies

have failed to perform 32 of the 34 administrative responsibilities

under the new laws – a 94% failure rate. NY S.4970-A bill §5 deadline

for completion of these agency mandates was on or about Mar. 5,

2023. C.A.App.-150.

[6.] 2-years of video storage (§875-b(2), sent. 5, App.

99a);

[7.] exclusion of persons under eighteen years of

age from firearms and ammunition sales area unless

accompanied by a parent or guardian (§875-c, App. 100a);

[8.] NYS Police supplied employee training (§875-e,

App. 101a-102a);

[9.] maintenance of records of employee training in

accordance with “regulations” 7 (§875-e(3), App. 102a);

[10.] prohibition against employees under the age of

twenty-one years (§875-e(3), App. 102a);

[11.] shadow books of the federally-required “Book

of Acquisition & Disposition” of every firearm taken into

inventory and its disposal “in such form and for such

period as the superintendent shall require”8 (§875-f, App.

103a-104a);

[12.] said shadow books to be reconciled monthly

(§875-f(2), id.);

[13.] said shadow books to be monthly placed in a

“secure container” or “at the close of each business day”

electronically stored to “external server” or the “internet”

(§875-f(1), id.);

7. Yet unpublished. Id.

8. Yet unpublished. Id.

[14.] said shadow book data, including “identity of

purchasers” and “serial numbers of firearms” with dates

of transactions “shall be maintained and made available

at any time to government law enforcement agencies

and to the manufacturer of the weapon or its designee”

(§875-f(3), id.);

[15.] submission of copies of said shadow books of

acquisitions and dispositions to the NYS Police “every

April and October” ((§875-f), id.);

[16.] submission of an annual certification of compliance

in a “form and content” regulated by the superintendent9

(§875-g(1)(b), App. 105a);

[17.] “superintendent shall promulgate regulations

requiring periodic inspections of not less than one

inspection of every dealer every three years”10 (§875-g(2)

(a), App. 105a); and,

[18.] “such additional rules and regulations11 as the

superintendent shall deem necessary to prevent firearms,

rifles, and shotguns from being diverted from the legal

stream of commerce.” (§875-h, App. 106a).

These mandates were passed as a group. C.A.App.

144-50. None were in effect upon the filing of the motion.

App. 44a. As of September 13, 2023, all mandates became

effective against dealers, generally, and Petitioners,

specifically. 23A230, Appl., p. 8-9.

9. Yet unpublished. Id.

10. Yet unpublished. Id.

11. Yet unpublished. Id.

NY Gen Bus §875 vastly outstrips the regulatory

corpus of federal firearms compliance law. Any “knowing

violation” of §875 mandate is chargeable as a class

A misdemeanor. NY Gen Bus §875-i, App. 107a. The

corresponding term of imprisonment shall not exceed 364days. NY Pen §70.15(1), App. 113a. A violation may also

result in revocation or suspension of the dealer license. NY

Pen §400.00(11), App. 108a. A failure of state compliance

is “uniquely punitive.” Whole Woman’s Health v. Jackson,

595 U.S. _____, 142 S.Ct. 522, 546 (2021).

Criminal prosecution of any dealer, such as a

Petitioner, becomes a catastrophic legal cascade. A loss

of the state dealer license would result in the loss of

all federal FFL licenses. 18 U.S.C. §923(e), read with

§923(d)(1)(F). A criminal conviction would result in

revocation of the state individual concealed carry permit.

NY Pen §400.00(11), App. 108a. A conviction for a NY class

E felony would result in the loss of Second Amendment

firearm rights in all states and U.S. territories for

becoming a “disqualified person.” 18 U.S.C. §922(g)(1).

C. NY “CCIA” (2022), targets both individuals and

dealers

Out of the CCIA, Petitioners challenge three

infringements that impact them on both sides of their

retail counters.12 (NY S.B. 51001 at C.A.App. 151-171.)

First, Petitioners, as individuals and as dealers,

fall under the ammunition background check mandate,

12. These provisions are distinct from those pending in

Antonyuk v. James, No. 23-910.

prohibiting purchase or sale of ammunition without

identity verification and transmission of customer and

ammunition particulars to the NYSP plus an approval to

proceed. NY Pen §400.02(2)13 [sent. 6 with subparts “a” –

“c”], App. 125-6a; read with dealer manual recordkeeping

requirements14 at §400.03(2), App. 127a.

Second from the CCIA, Petitioners, as individuals

and as dealers, are bound by semi-automatic rifle license

(“SAR license”) requirements. Theoretically, an individual

would obtain it through a process akin to obtaining a

concealed carry permit. The license is to be presented to

and verified by the dealer at the point-of-sale, in addition

to federal and state firearms purchase background check

requirements. NY Pen §400.00(1)(n); §400.00(2); §400.00(3)

(a); §400.00(6); §400.00(7)15; §400.00(8); §400.00(9), App.

116a-122a. Criminal penalty for individual violations is

a class A misdemeanor (first offense) and class E felony

(subsequent offenses). NY Pen §265.65, App. 109a. The

class A misdemeanor term of incarceration shall not

exceed 364-days. NY Pen §70.15(1), App. 113a. The class E

felony prison term is one to four years. NY Pen §70.00(1)(4), App. 114a. For the dealer, penalties begin with a class

E felony. NY Pen §265.66, App. 110a.

Third, from the CCIA, effecting Petitioners as

individuals, instructors, and business owners, is the

mandatory, standardized, classroom training and “written

test for the curriculum.” Successful course completion

13. Yet uncertified as operational

14. Yet unpublished. Id.

15. Yet, unpublished. Id.

must be certified in writing by the instructor.16 NY Pen

§400.001(1)(n) (App. 116a) and §400.00(19). Respondents

NYS Police and Div. Criminal Justice Services (“DCJS”)

are required to approve the “curriculum” and the

test. NY Pen §400.00(19); reads with NY Exec §235(1)

(“standardization of firearms safety training required”

under foregoing section, including “approval of course

materials”), and NY Exec §837(23)(a) (identical language

to §235(1)). This is also required the first time an individual

renews said license. NY Pen §400.00(19) [sent. 1]. It is

illegal in NY to own a handgun in the absence of a valid

state license. NY Pen §265.00(3), §265.01(1).

As with NY Gen Bus §875, any violation of the CCIA,

triggers a cascade of losses, including all licenses and

rights under the Second and Fourteenth Amendments.

D. Petitioners are more than “ordinary” citizens

The plaintiffs of Heller – McDonald – Bruen were

“ordinary, law-abiding adult citizens.” Bruen, 597 U.S.

at 31 and 15-16; McDonald, 561 U.S. at 750; District of

Columbia v. Heller, 554 U.S. 570, 575 (2008). Petitioners

are that – and more. They are multi-dimensional

plaintiffs who reflect the Second Amendment like facets

of a diamond. Petitioners’ credentials are not disputed.

C.A.App. 184-335. Summarily:

16. The additional element of live-fire training and testing is

not challenged, herein.

1. Petitioners are dealers in firearms by profession. 17,18

Petitioners are Federal Firearms Licensees (“FFLs” 19),

licensed first and foremost by the U.S. Bureau of Alcohol,

Tobacco, Firearms, and Explosives (“BATFE”). 18 U.S.C.

§923; C.A.App.II 439-446 (ATF Form 7, new); C.A. 223068, Doc. 39, Ex. A (ATF Form 8, renewal (Nadine

Gazzola)). Petitioners are BATFE “Responsible Persons”20

for the businesses they own and operate. They are eight

of the 1,782 FFL-01s and one of the nine FFL-02s with

business premises in NY. C.A.App.II-402. Petitioners

operate under federal firearms compliance laws, arising

out of the 1968 Gun Control Act (“GCA”) 21, the 1986

Firearm Owners Protection Act (“FOPA”)22 , the 1994

Brady Act 23, and associated ATF regulations. New York

requires a concurrent state license as a “dealer” (allowed,

17. Herein, use of industry terms of “firearms” is from federal

law at 27 CFR §478.11. Under NY Pen §265.00(3), the word “firearm,”

oddly, means, inter alia, “pistol or revolver.” 23A230, Appl. 11-14.

18. N.B.: A federal license is not required to sell ammunition,

nor is there a federal background check for it.

19. Herein, both the federally-licensed “dealer” (FFL Type 01)

and the “pawnbroker” (FFL Type 02) are referenced as “FFLs.”

Distinctions at federal law are not relevant to the case.

20. The BATFE “Responsible Person” definition can be found

at C.A.App. 444.

21. Gun Control Act, Pub. L. No. 90-618 (Oct. 22, 1968), 18

U.S.C. Ch. 44, §921, et seq.

22. Firearm Owners’ Protection Act, Pub. L. 99-308 (Apr. 10,

1986), 18 U.S.C. §921, et seq.

23. Brady Handgun Violence Prevention Act, Pub. L. 103-159

(Nov. 30, 1993), 18 U.S.C. §§921-922, §925A.

but not required, by federal law, 18 U.S.C. §923(d)(1)(E)).

Petitioners obtained and renew their dealer licenses every

three years.

2. Petitioners are business owners who work for their

businesses.

3. Petitioners have unrestricted NYS concealed carry

licenses.

4. Petitioners Nadine and Seth Gazzola are paid

firearms instructors. Petitioners, as business owners,

benefit from new and renewing handgun licensee business

connected to their own training courses and/or those of

their affiliates.

5. Petitioners, as individuals, are customers of and

continuously purchase firearms and ammunition at their

own stores and in the broader state and inter-state

marketplace. Petitioners, as individuals, own firearms and

ammunition. Their businesses own distinct inventories.

As detailed in Petitioners’ affidavits, as of December 5,

2022 (new dealer mandates began taking effect),

Petitioners were compliant with all federal, state,

and local laws governing their professional licenses.

Petitioners remain in compliance with all federal laws

and regulations governing their federal and state licenses

not otherwise specifically indicated in each Petitioner’s

affidavit. Petitioners remain at on-going risk of arrest.

Petitioners are anchored to fixed business premises, in

plain view during regular business hours open to the

public. 23A230, Appl. p. 31. Among their valued customers

are law enforcement officers, including of the NYS Police.

C.A.App.-197 (Nadine Gazzola) and C.A.App.II-319

(Owens).

REASONS FOR GRANTING THE PETITION

L AW G OV E R N I N G T H E M O T I O N F O R

PRELIMINARY INJUNCTION

Simply put, Petitioners motion for preliminary

injunctive relief. Fed. R. C. P. 65. The motion is assessed

using Winter v. Nat’l Res. Def. Council, 555 U.S. 7, 22

(2008) for claims made under the Fourteenth Amendment,

involving the Second Amendment. U.S. Const. amend. II

and XIV, §1 (91a-92a); Bruen, 597 U.S. at 37. Standing is a

question inherent to the assessment. U.S. Const., art. III,

¶2, cl. 1. Second Amendment claims necessarily involve

Heller, 554 U.S. 570 (2008), McDonald v. Chicago, 561

U.S. 742 (2010), and NYSRPA v. Bruen, 597 U.S. 1 (2022).

The State has not identified any historical law or

antecedent to support the new laws. “Such a lack of

historical precedent is generally a “telling indication”

of a “severe constitutional problem” with the asserted

power. Trump v. Anderson, 601 U.S. ___, p. 9 (2024) (per

curiam), quoting United States v. Texas, 599 U.S. 670, 677

(2023) (quotation omitted).

II. THE SECOND CIRCUIT ADOPTED PRE-BRUEN

SCRUTINY TESTING IN ERROR FOR POSTBRUEN ANALYSIS OF DERIVATIVE CLAIMS

OF INDIVIDUAL RIGHTS AT THE CORE OF

THE SECOND AMENDMENT

The Second Circuit committed its first major error

below when it adopted pre-Bruen scrutiny testing to

analyze Petitioners’ request for preliminary injunctive

relief against the new CCIA mandates for (1.) the

ammunition background check, (2.) the SAR license, and

(3.) the concealed carry statewide training curriculum and

test. App. 10a-11a, 13a, 15a. The Second Circuit could have

ingratiated itself by “faithfully” applying Bruen (142 S.Ct.

at 2033, n.7). Instead, the Second Circuit perpetuated the

“one step too many” rejected by Bruen. Id. at 2127. “In

an organized society, there can be nothing but ultimate

confusion and chaos if court decrees are flaunted.” 24

It is an easy and necessary course correction for

this Court to reverse the Second Circuit in order to

set a uniform standard of Bruen both to claims by an

individual and by third parties on behalf of individual

customers. This clarification would not disrupt lower

courts definitions since Heller of core functions relating

to the Second Amendment. It would also avoid timeconsuming and costly judicial resources occasioned in

Rhode v. Bonta (remand for a second trial consistent with

Bruen) from happening to Gazzola v. Hochul because the

proper standard of review is set out en avance.

24. U.S. Supreme Court, Roberts, J., C.J., “2022 Year-End

Report on the Federal Judiciary,” p. 2.

II.(A.) THE SECOND CIRCUIT RULING BEGAN

PROPERLY

The ruling below, started out, at least, by recognizing

the importance of the federally-licensed dealer in firearms

(“FFL”). “It follows that commercial regulations on

firearms dealers, whose services are necessary to a

citizen’s effective exercise of Second Amendment rights,

cannot have the effect of eliminating the ability of lawabiding, responsible citizens to acquire firearms.” App.

13a-14a.

To get there, the Second Circuit quoted Heller and

Bruen. App. 12a-13a. (“A State cannot circumvent those

holdings by banning outright the sale or transfer of

common-use weapons and necessary ammunition.”); and,

Andrews v. State. App. 13a. (“The right to keep arms,

necessarily involves the right to purchase them, to keep

them in a state of efficiency for use, and to purchase and

provide ammunition suitable for such arms, and to keep

them in repair.”)

The ruling found Petitioners had derivative standing:

“We have no trouble concluding that Appellants have

standing to bring such a derivative claim.” App. 10a.

Repeating: “We therefore hold that Appellants have

derivative standing to pursue Second Amendment claims

on behalf of their customer base.” App. 11a. And: “We

conclude that there is a sufficient basis for that theory…”

Id.

II.(B.) THE SECOND CIRCUIT ERRED WHEN

IT ADOPTED PRE-BRUEN SCRUTINY

TESTING

The Second Circuit erred when it adopted and

praised – at length – scrutiny tests. App. 10a-16a. It is

easily shown the cases cited used overturned scrutiny

tests. See, Ezell v. City of Chicago, 651 F.3d 684, 701

(2011) (“Ezell I”) (“For our purposes, however, we know

that Heller’s reference to “any standard of scrutiny”

means any heightened standard of scrutiny; the Court

specifically excluded rational-basis review.” (emphasis in

original)); and, Teixeira v. County of Alameda, 873 F.3d

670, 679, n.10 (9th Cir. 2017) (“Teixeira II”) (“In Heller,

the Supreme Court did not specify what level of scrutiny

courts must apply…”); Drummond v. Roinson Twp., 9

F.4th 217, 229 (3d Cir. 2021) (“Roinson II”) (“First we

decide whether to apply strict or intermediate scrutiny.”);

and, Maryland Shall Issue v. Hogan, 566 F. Supp. 3d 404,

425 (D. Md. 2021) (“Thus, the applicable level of scrutiny

is determined by...”). 25

A Second Amendment derivative claim can and should

be measured by Bruen. (When “…the plain text of the

Second Amendment covers an individual’s conduct, the

Constitution presumptively protects that conduct.” Bruen,

142 S.Ct. at 2126 and 2129-30. The government must then

“…demonstrate the regulation is consistent with this

Nation’s historical tradition of firearm regulation.” Id.) A

derivative claimant stands in the shoes of its customers

25. N.B.: The Second Circuit cited to the earlier ruling

of Maryland Shall Issue v. Hogan, 971 F.3d 199 (4th Cir. 2020)

(“Maryland Shall Issue I”). The 2021 case cited herein provides a

deeper discussion of the standard applied.

over the rights infringed by the government. See, e.g.,

Carey, Gov. of New York v. Pop. Svcs., Int’l, 431 U.S. 678,

683-4 (1977).

II.(C.)

PROPER BRUEN A NA LYSIS OF THE

AMMUNITION BACKGROUND CHECK

The ammunition backg round check went live

September 13, 2023. 23A230, Appl. Ex. B. Recapping from

Statement of the Case, ante at “C,” the dealer must now

collect customer personal information to transmit with

ammunition data to the NYS Police, then manage police

response, and interface that outcome with customers, and

enforce any denial of purchase. The risk of prosecution

effects Petitioners as individuals and as dealers with

customers who want to purchase ammunition.

The Second Circuit denied in error Petitioners’

standing as individuals; it misread Petitioners as exempt

from an ammunition background check if purchasing

ammunition from their own businesses. App. 29a. NY

Pen §400.02(2) [sent. 6] is aimed at wholesale or other

transactions between state-permitted sellers. 2 6 It

facilitates commerce between dealers (NY Pen §400.03(1)

[sent.2]) and “sellers of ammunition” and “organizational

keepers of ammunition” (NY Pen §400.03(2)). App.

126a-127a.

Petitioners’ individual and/or derivative claims against

the ammunition background check requirement should

26. Petitioners’ reading concurs with the published position

of the NYS Police on point. NYS Police official website: https://

gunsafety.ny.gov/ammunition-registration.

go through the same Bruen analysis as Rhode II, which

permanently enjoined a comparable CA requirement.

Rhode v. Bonta, Case 3:18-cv-802, ECF-105 at 3 (S.D.

Cal. Jan. 30, 2024), stayed pending appeal (Case 24-542,

dkt. 8.1 (Feb. 5, 2024)) (“Rhode II”). That district court

defined ammunition as a core Second Amendment right:

“…without bullets, the right to bear arms would be

meaningless” Id. (citations omitted). The state list of “148

laws covering 535 years” was found by judicial analysis

to contain “no historical twins and no dead ringers.” Id.

at 18-19. Specifically:

“The Attorney General has not identified a

single historical law that required a citizen to

pass a background check in order to purchase

ammunition. Citizens were free in every state

to buy ammunition at any time and without

qualification.” Id., at 19 (emphasis added).

Herein, the State filed only four historical laws (see

III.B., herein), none being an historical analogue, either

“well-established” or “representative” (Bruen, 142 S.Ct.

at 2133) of a mandatory ammunition background check.

In modern history in NY in 2015, NY Gov. Cuomo, with

legislative support, signed off via “Memorandum of

Understanding” (“MOU”) an indefinite suspension of a

first-of-its-kind, identical ammunition background check

statute from the “SAFE Act.” C.A.App.II 427-8. “Public

safety” was not served by Hochul’s 2022 TV camera

announcement of “shredding” the MOU. C.A.App. 98-99,

257 (Mastrogiovanni).

The Winter factors are satisfied and a preliminary

injunction should immediately issue against the ammunition

background check.

II.(D.) PROPER BRUEN ANALYSIS OF THE SAR

LICENSE REQUIREMENT

The SAR license requirement became effective

September 1, 2022. Recapping from the Statement of the

Case, ante at “C,” Petitioners and Petitioners’ customers,

alike, are required to obtain the new SAR license prior to

purchase; to present it at the time of purchase; to make

amendments to it; and, to carry it on their person. App.

118a-22a.

To obtain an SAR license is akin to the process to

obtain a concealed carry permit. See, e.g., Heller v. Dist.

of Columbia (“Heller III”), 670 F.3rd 1244, 1256 (D.C.

Cir. 2011) (“Certain portions of the law that are more

akin to licensing the gun owner than to registering the

gun…” and thus “impinge” upon the “core lawful purpose”

protected by the Second Amendment, citing Heller I, 554

U.S. at 630.)

The SAR license requirements restrict the purchase

(and sale) of an entire class of firearms.

The State failed to offer any historical law or analogue

to meet its burden with respect to its new SAR license

law. The State has never required an individual license

for the purchase (or sale) of a long gun in common use.

Functionally, the NYS Police continue to abuse the

new SAR license to, in effect, obstruct all purchases

and sales of such rifles by continuously failing to design,

approve, and publish the format of the new license, as they

are required to do under NY Pen §400.00(7). App. 120a. 27,28

Petitioners also made a sufficient showing that

applying for an SAR license would be a “futile gesture”

where NYS Police have failed to issue the statewide

license. The Second Circuit erred when it said the county

clerk is a necessary defendant. App. 28a. The county clerk

is not responsible for publishing the state license; they

are the local administrators. The problem is traceable to

the NYSP failing to perform a statutory responsibility.

Carney v. Adams, 592 U.S. ___, 141 S.Ct. 493, 503 (2020)

quoting Teamsters v. United States, 431 U.S. 324, 365366 (1977).

Petitioners, as dealers, are correct to not sell SARs

to customers without the NYS Police issuance of the

SAR license format. C.A.App. 197-198. This situation –

so bizarre that both lower courts were confused (App.

28a-29a and 83a) – is, by definition, counter to public

safety.

The Winter test is satisfied and a preliminary

injunction should immediately issue against the NYS SAR

licensing scheme.

27. Petitioners’ reading coincides with NYS Police dealer

FAQ memorandum (Dec. 6, 2022, p. 3): a concealed carry license

is insufficient. NYS Police at https://troopers.ny.gov/system/files/

documents/2022/12/dealer-faq.pdf.

28. Compare what is missing to the NYS DMV 1-page guide to

authenticating a state-issued driver’s license at: https://www.ejustice.

ny.gov/LawEnforcement/docs/dmv/DriverLic_ID_Permit_Security.

pdf.

II.(E.) PROPER BRUEN A NA LYSIS OF THE

C ONC E A L ED CA R RY T R A I N I NG

CURRICULUM AND TEST

The concealed carry amendments, including training,

became effective September 1, 2022. Recapping from the

Statement of the Case, ante at “C,” individuals desiring a

concealed carry license must successfully complete a 16hour in-classroom course with a corresponding test and

obtain a certificate to attach to the application. NY Pen

§400.00(1) and (19); App. 116a.

Petitioners are concealed carry licensees. Petitioners

Nadine and Seth Gazzola are also paid instructors in

firearms, who were forced to stop offering training

because the NYS Police and DCJS failed to publish the

16-hour “standardized” training curriculum and related

test. C.A.App. 193-197 (Nadine); C.A.App. 211-214 (Seth).

The NYSP has only uploaded a barebones memo,

including less than two pages of “Minimum Standards for

Classroom Training Curriculum.” C.A.App. 347-349. It is

little more than words copied from part of the statute. For

example, for the required topic of “suicide prevention” at

NY Pen §400.00(19)(a)(x), the NYSP added precisely this

many words and no more: “including recognizing signs of

suicide risk and resources to obtain assistance (e.g., 988

Suicide and Crisis Lifeline).” Id. at 348, #11. No “test”

has published, at all.

Petitioners are right not to make up content when

the statute objective is standardized, statewide course

materials and testing from NYSP and DCJS. This follows

the NYS Dep’t. of Environmental Conservation process to

obtain a “hunter education card” to apply for the hunting

permit, including that certification is offered in person or

on-line (approximately 3-4 hours) with a course book and

a standardized written test in either setting. See, on-line:

https://www.hunter-ed.com/newyork/.

Firearms training, particularly as a prerequisite to

an initial application, is an impact upon a core function.

Ezell v. City of Chicago, 846 F.3d 888, 893 (7th Cir. 2017).

(“Ezell II”)

The Second Circuit denial of Petitioners’ individual

standing because of its reading of “renew” failed to

reconcile the undefined statutory words “renew” and

“recertify.” 29 App. 30a. See, NY Pen §400.00(1) and (19),

read with NY Exec §837(23)(a) and NY Pen §265.20(3-a).

That the training is a prerequisite to the next renewal

of Petitioners’ licenses would confer individual standing.

The Second Circuit failed, altogether, to evaluate

Petitioners’ standing as firearms instructors and,

derivatively, on behalf of students, or to consider the

impact upon Petitioners’ businesses. The Second Circuit

also failed to weigh the dysfunction, statewide, of an

effective block of the concealed carry licensing process.

Winter is satisfied and a preliminary injunction

against the new training and testing requirements should

immediately issue.

29. This is one point of law disputed between Counsel,

throughout.

III. THE SECOND CIRCUIT RULING SIGNALS: IT

IS TIME TO ACTIVATE “TO KEEP” OF THE

SECOND AMENDMENT

The second major error committed by the Second

Circuit was their flights of fancy of alternatives to

Petitioners’ novel theory. 12a-17a. Petitioners’ novel theory

is that “to keep” has independent constitutional value

that can be measured through “constitutional regulatory

overburden.” The Second Circuit said nothing directly

about Petitioners’ core argument against NY Gen Bus

§875. The manner of Second Circuit silent treatment of

“to keep” signals it is time to activate “to keep” of the

Second Amendment.

III.(A.) THE NOVEL THEORY OF “TO KEEP” OF

“TO KEEP AND BEAR ARMS” IS LIKELY

TO SUCCEED ON THE MERITS

This is a case of first impression. Petitioners ask the

Court to interpret the last undefined word of the Bill of

Rights: the word “to keep” of “to keep and bear Arms”

from the Second Amendment. U.S. Const. amend. II;

C.A.App. 28-38. The Second Amendment is the only civil

right that requires an individual to own, possess, or use

an object to exercise a right. Gazzola v. Hochul empowers

this Court to elevate the word “to keep” to the standing

of “to bear.” It appropriately places the firearms dealer

on an equal constitutional footing as the individual. The

two are inextricably intertwined as a matter of theory

and practice. To achieve the apex of liberties within the

Second Amendment and extend to state citizens these

same liberties through the Fourteenth Amendment, the

individual and the federally-licensed dealer in firearms

must accord equal standing and responsibility. U.S. Const.

amend. II and XIV, §1 (91a-92a); C.A.App. 28-38.

III.(B.) GAZZOLA IS THE ORGANIC EVOLUTION

OF HELLER-MCDONALD-BRUEN

This case is the organic evolution of Heller-McDonaldBruen. The operative clause of the Second Amendment

contains two verbs joined since the first draft of the

text introduced by James Madison to the U.S. House of

Representatives in 1789. 30

The word “to bear” was defined in Bruen, as

something of a lone sentry. This Court defined “to bear”

as an individual’s right to “wear, bear, or carry…upon

the person or in the clothing or in a pocket…” Bruen, 142

S.Ct. at 2135, citing Heller, 554 U.S. at 584.

This Court found “to bear” to “naturally encompasses

public carry” because “[t]o confine the right to “bear” arms

to the home would nullify half of the Second Amendment’s

operative protections.” Bruen, 142 S.Ct. at 2134-35. Yet,

is it not true that the “halves” of the whole are “to bear”

plus “to keep?”

Limiting “to keep and bear arms” to the in-and-out

the front door of an individual’s home leaves the back

door wide open for precisely the scheme of infringement

targeting federally-licensed dealers presented by this

case.

30. 1 Annals of Cong. 451 (1st Session, June 8, 1789) (Joseph

Gales ed., 1834).

“To bear” already shares an historic security context

with “to keep,” finding “ordinarily when called for service

men were expected to appear bearing arms supplied by

themselves.” Heller, 554 U.S. at 624 (citing to U.S. v.

Miller, 307 U.S. 174, 179 (1939)) and 627. “To keep” is the

from whence the individual militiamen – as required by

government to so do – came into possession of a firearm

or ammunition.

In the vast record below, Respondents submitted a

total of four (4) laws. The laws read in opposition to their

state burden under Bruen. These historical laws required:

“That every person so enrolled, and notified,

shall within twenty days thereafter, furnish

and provide himself, at his own expense, with

a good musket or firelock…” and “…not less

than sixteen cartridges, suited to the bore of

the musket or firelock…”

Gazzola v. Hochul, Case 1:22-cv-1134, ECF 29-2 (Laws

of NY, Ch. 55, p. 238 (3rd Sess., Mar. 11, 1780) and ECF

29-4 (1782); ECF 29-3 (Act of May 8, 1792, 1 Stat. 27131);

and, ECF 29-5 (Laws of NJ, Ch. 187 (2nd Sitting, Mar.

11, 1806).

The Second Amendment has no historical context

or modern exercise without sellers of firearms and

ammunition, like Petitioners. Few hands know the

forging of the firearm from iron ore. Petitioner Mike

Mastrogiovanni is a competition shooter who regularly

reloads and trains how to reload ammunition. C.A.App.

31. Heller, 554 U.S. at 596, 672, and 716.

250-51. Bob Owens is a Veteran who was trained and can

construct firearms from component parts. C.A.App. 314315, 326. Seth Gazzola designs firearm parts that his CNC

machine mills from billet blocks of metal under his federal

FFL-07/SOT-2. C.A.App. 208-9. Even these highly skilled

Petitioners do not make their own arms from metals and

forge or mix their own black powder. The modern exercise

of the Second Amendment is largely dependent upon the

skill of the individual to use a credit card at a retail dealer

in firearms.

Which is why, as Heller-McDonald-Bruen emerged as

a bulwark against outright bans of core functions, those

“joined at the hip” with Hochul32 ran around to the wideopen back door and came in through the summer kitchen.

C.A.App. 46-62.

Since the 1968 Gun Control Act, the FFL, including

Petitioners, has served as the legally-sanctioned facilitator

of sales of firearms to law-abiding citizens seeking

to exercise their individual rights under the Second

Amendment. No government office or agency is a routine

conduit for an individual seeking to purchase a firearm or

ammunition to exercise their Second Amendment rights. 33

32. C.A.App.-47 n54, quote by Hochul (Aug. 31, 2022) to named

attorneys from “Every Town for Gun Safety” and “Giffords Law

Center.”

33. In one known exception, in 2020, Washington, D.C.

residents suffered a gap in any FFL-01 or FFL-02 within the

jurisdiction, putting D.C. Metro Police in the role of interstate

transfers of firearms for district residents. Williams, E., WAMU

Amer. U. Radio, Apr. 20, 2020.

A case like this may face “serious challenges but also

present some opportunities.” Whole Woman’s Health v.

Jackson, 142 S.Ct. at 539. Opportunities, including for a

novel remedy as a direct result of the novelty of the scheme

by a state to deprive individuals of their civil rights. Id.

at 545, Roberts, C.J., dissenting.

III.(C.) THE SECOND CIRCUIT A NTITHESIS

OF “CONSTITUTIONAL REGULATORY

OVERBURDEN”

The Second Circuit said in a footnote it had “…no

present occasion to set out specific guidance as to how

a trial court must assess evidence that a commercial

regulation is stifling the individual right of access to

firearms…” App. 14a, n.6. But, the judges wrote pages,

just to stir things up. App. 10a-17a. Into the bouillabaisse,

they measured a count-up from zero of how few dealers

in firearms would constitute a bare minimum. À la

gumbo, they poured out a count-down free-fall from the

status quo ante of 1,791 federally-licensed dealers with

business premises statewide to some unquantified low.

App. 14a-16a; C.A.App.II-404.

The Fourteenth Amendment incorporation of “to

keep and bear arms” “restricts experimentation and

local variations” and “the enshrinement of constitutional

rights necessarily takes certain policy choices off the

table.” McDonald, 561 U.S. at 790, citing Heller, 554 U.S.

at 636. This Court already rejected a computational role

for courts, “especially given their “lack [of] expertise” in

the field.” Bruen, 142 S.Ct. at 2130, citing McDonald, 561

U.S. at 790-791.

III.(C.)(1.) FIRST, THE SECOND CIRCUIT ERROR

OF A STANDARD OF “SO RESTRICTIVE

THAT IT THREATENS”

As evidenced by their language, the Second Circuit

wanted to cook up something – anything – to skirt

their assignment to evaluate Petitioners’ novel theory

of “to keep” measured by “constitutional regulatory

overburden.” The Second Circuit squirreled around with:

• “A State cannot circumvent those holdings by

banning outright the sale or transfer of commonuse weapons and necessary ammunition.” 12a-13a.

• “cannot have the effect of eliminating the ability

of law-abiding, responsible citizens to acquire

firearms.” 13a.

• “Still, Appellants have not shown that the New

York law is so restrictive that it threatens a

citizen’s right to acquire firearms.” 14a.

• “…there is no evidence that those regulations

will impose such burdensome requirements on

firearms dealers that they restrict protections

conferred by the Second Amendment.” 16a.

• “…there is no evidence that New Yorkers currently

lack, or will lack under the challenged statutes,

relatively easy access to sellers of firearms.” 17a.

The cautionary tale from Petitioners’ Brief was lost

on the Second Circuit. C.A. Br. 43-44. The lesson they

misunderstood derives from Dark Storm Ind. v. Cuomo,

471, F.Supp.3d 482, 498 (N.D.N.Y. Jul. 8, 2020), where a

pandemic-era district court concluded “Wal-Mart and

Runnings” were “adequate” to fulfill state citizens Second

Amendment needs.

That faulty premise should have been rejected on

its face. Moreoever, analysis of faulty state data should

have started with the BATFE database of current FFLs,

updated monthly on its website. As of November 30, 2022,

Wal-Mart had forty-four (44) BATFE FFL-01 licenses

across New York. 34 A federal license is permissive to

types of firearms lawful be sold; it does not mandate sales.

Wal-Mart, nationwide, already stopped in-store sales

of handguns based on “its marketing surveys” (1993)35

and stopped selling modern sporting rifles, including

the AR-15 platform, “…solely…on customer demand...”

(2015)36 This commonly-known industry history reduced

to only one company (Runnings) with ten locations in New

York with FFL-01 licenses for roughly 15.7 million New

Yorkers over the age of 18 years, or, 1.6 million persons

per store. 37, 38 Runnings store locations are west and north

34. The BATFE license page requires user input to select date

and state. The page cite is a constant. https://www.atf.gov/firearms/

listing-federal-firearms-licensees.

35. Ayres, Drummond, “Wal-Mart to End Sales of Handguns

in Stores,” The New York Times (Dec. 23, 1993).

36. Layne, Nathan, “Wal-Mart to stop selling AR-15, other

semi-automatic rifles,” Reuters (Aug. 27, 2015).

37. BATFE license database, supra.

38. U.S. Census, on-line at https://www.census.gov/quickfacts/

fact/table/NY/PST045223.

of Albany, meaning none in the five boroughs of NYC,

on Long Island, or in the highly-populated counties of

Nassau, Suffolk, Westchester Counties. 39,40 One does not

“quantify” a fundamental right in this manner or this near

to its elimination.

The Dark Storm Ind. decision must not foreshadow

the fate of the Second and Fourteenth Amendments

in New York. The decision does not reflect awareness,

FFLs and ranges were classified as “essential services”

on Mar. 28, 2020 by the U.S. Dep’t of Homeland Security

classified FFLs and ranges as “essential services.”41

Steelworkers v. U.S. echoes from our wartime past: “But

a court is not qualified to devise schemes for the conduct

of an industry so as to assure the securing of necessary

defense materials.” 361 U.S. 39, 50-51 (1959).

III.(C.)(2.) SECON D, T H E SECON D CI RC U I T

ERROR OF TOYING WITH “A CRITICAL

MASS”

The Second Circuit went even further afield with their

next idea. “It follows that Appellants, whose declarations

(again) focused only on their anticipated costs, failed to

present sufficient evidence that any New York firearms

dealers – let alone a critical mass of the more than

1,700 such dealers – may close due to the challenged

39. Runnings website, store locator, on-line at https://www.

runnings.com/storelocator.

40. Wikipedia, NY counties by pop. (2022), on-line at https://

en.wikipedia.org/wiki/List_of_counties_in_New_York#List_of_

counties.

41. U.S. Dep’t Homeland Sec., “Advisory Memo. on Ident.

of Essential Critical Infrastructure Workers During COVID-19

Response (Mar. 28, 2020).

regulations.” App. 17a. First, Petitioners are eight of

the “any” dealers that “may close due to the challenged

regulations” and one (Robert Owens) did close out with

the ATF November 2023. Second, “critical mass” is not a

standard for any civil right in America, where one person,

alone, can defeat government infringement.

Since this case started, more than 150 FFL-01

federally-licensed dealers across the state of New

York either did not renew their license or prematurely

terminated their 3-year license.42 This is a loss statewide

of 8.5% of federally-licensed dealers. Petitioner Owens is

included in this figure.

And what if the Second Circuit idea of “constitutionallyacceptable collateral damage” should catch on? If 5% or

10% or 15% of persons of faith be shuttered from their

houses of worship? If 20% or 30% of those inside the

beltway be herded off sidewalks by law enforcement

into no-Wi-Fi buildings when a President is scheduled

to speak? Or if 40% - or maybe what if 51% - of cupcake

shops are exempt from rainbow sprinkles? “That sort of

argument should be no less unimaginable in the Second

Amendment context.” Ezell I, 651 F.3d at 697.

IV. “ C O N S T I T U T I O N A L R E G U L A T O R Y

OVERBURDEN” IS A CLEAR AND DURABLE

STANDARD FOR CLAIMS UNDER “TO KEEP”

Petitioners propose the measure of infringement of

“to keep” be “constitutional regulatory overburden.” They

seek approval in the form of a “likelihood” designation

so that, pendente lite, they can advance their case to a

42. BATFE website, supra, selecting monthly reports for

periods ending Nov. 30, 2022 through Jan. 31, 2024.

merits decision without being arrested, prosecuted, or

otherwise caught up in a cascade of losses while defending

civil rights.

FFL claims are not easily measured under Bruen

because the legislative history of the federally-licensed

dealer begins in 1968. A non-FFL individual can’t carry

the weight of a case like Gazzola v. Hochul because a

customer doesn’t have the requisite industry knowledge

and experience. Further, an individual-centric outcome

analysis would require demonstration of supply chain

interruption, which, by the time it is noticeable to the

customer would be unnecessarily downstream of the

original infringement.

The FFL is that early warning system for “to keep.”

Like any other civil rights case, it will only take one FFL

to bring the “to keep” case because it is a highly-regulated

and specialized industry.43 Using the FFL as the entrée to

the claim would afford a simple, national standard. Another

case may be as big as Gazzola and NY Gen Bus §875 or

it could be a single, nefarious provision. The cases will

involve objective calculations that initially (preliminary

injunction) are small data sets with projections based

upon metrics and those will (permanent injunction) bear

out just as in any other §1983 or §1985(3) case.

43. By contrast, a case such as Teixeira on a zoning issue

would lead with claims of real estate, business, or derivative for

customers using the updated post-Bruen discussed above – because

that type of issue is not directly related to the function and purpose

of a federal license.

IV.(A.) FFLS ARE SUBJECT MATTER EXPERTS

The Second Circuit committed unnecessary error

when it reduced Petitioners’ credentials to a single

sentence and dissed their work product as “say-so” and

“some estimates” and “speculative.” App. 16a, 31a. The

court afforded no weight to Petitioners’ credentials,

operations experience, federal firearms compliance

experience, detailed computations, and BATFE and FBI

track records. Petitioners, as federally-licensed dealers,

collectively, have more years of experience than this

country has years. C.A.App. 184-335.

Petitioners’ affidavits set out their education, military

experience, industry training, multiple license applications

and renewals including associated background checks,

record-keeping responsibilities, formal firearms inventory

reconciliation, store security, employee training,

customer interface, ATF and FBI interface, local law

enforcement interface, participation in crime-prevention

responsibilities such as conducting background checks

and denying sales of firearms to disqualified persons,

participation in crime solving such as responding to

trace requests within 24-hours, and study of the laws and

regulations effecting their profession. C.A.App. 184-335;

read with C.A.App. 102-122.

Petitioners’ computations spelled out all things

quantifiable, such as number of labor hours, labor rates,

materials costs, material specifications, materials use

limitations, and quality of output. Id. The declarations

of Petitioners amount to an industry economic impact

analysis.

The work product of Petitioners demonstrates a

likelihood of success. “Actual success” is not the standard.

Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 546

n.12 (1987). Petitioners certainly have shown that the

chance of success on the merits is “better than negligible.”

Nken v. Holder, 556 U.S. 418, 434 (2009).

Petitioners “…add to a sincere zeal for the happiness

of their country [with] a temper favourable to a just

estimate of the means of promoting it.” The Federalist No.

37, p. 195 (J. Gideon ed. 1818, reprinted 2006) (J. Madison).

When federally-licensed dealers in firearms are standing

at that back door, in earnest defense of their rights and

those of their community and customers, they can hear

on the wind: “He has called together legislative bodies

at places unusual, uncomfortable, and distant from the

depository of their public Records, for the sole purpose of

fatiguing them into compliance with his measures.” U.S.

Declaration of Independence, Para. 6 (1776).

IV.(B.) N E W L AW S A R E I N C A PA B L E O F

COMPLIANCE AND THE PENALTIES ARE

CRIMINAL

The Second Circuit erred by not taking seriously the

acute threat standing across the check-out counter, faceto-face with Petitioners as dealers. That is the imminent

threat level facing, particularly, Craig Serafini and

witness Rich Sehlmeyer (23A230, App. App. C, D) and

now also Petitioner Jim Ingerick. In the room stands the

NYSP “Joint Terrorism Task Force” for inspections and

questions with that 31-point “Checklist,” covering the

same mandates challenged in this case. Id.

The mandates “an essentially noncriminal and

regulatory area of inquiry” into “an area permeated with

criminal statutes.” Haynes v. U.S. 390 U.S. 85, 99 (1968). It

only takes one (1) out of the thirty-one items on the NYSP

“Checklist” to trigger criminal charges and a catastrophic

cascade of damages. The entire list complained of must be

analyzed as “a single regulatory package for purposes of

Second Amendment scrutiny.” Ezell II, 846 F.3d at 894.

That’s how the NYSP-JTTF officers do it, as well.

The individual mathematical proofs are laid out in the

record with the painstaking care of “The Man Who Knew

Infinity.”44 C.A. App. 102-122, 184-335. It is tempting

to look at any one mandate, discount it, and deny the

claim. But, so long as even one mandate remains that is

unconstitutional or incapable of compliance, Petitioners

cannot rest. NY Gen Bus §875 is not a regulatory exercise

that can be sussed out, one-at-a-time through fines as a

cost of doing business, administrative hearings, or county

court license appeal proceedings.

This first-of-its-kind scheme was initiated December

5, 2022. There is now another state pushing through

a comparable bill, number SB 6266, targeting FFLs.

On February 27, 2024, a comparable bill passed the

Washington state legislature. This Petition is the final

opportunity to close the back door fast against the

impending storm.

44. “The Man Who Knew Infinity.” Directed by Matt Brown

for Pressman Film. (2015).

IV.(C.) PETITIONER FFLS ARE MORE SAFETYCONSCIOUS THAN THE GOVERNOR

To enjoin state mandates changes nothing about the

pre-existing, well-settled federal firearms compliance

mandates governing Petitioners and other FFLs.

FFLs in New York, including Petitioners, are

particularly safety-minded as evidenced by data on FFLs,

released by the ATF on February 14, 2024 which showed

no (zero) NY-based FFL was in the “Demand 2” program45

in 2022 or 2023. (This is the first time since 2003 this data

has been released.) NY is one of only three states with a

perfect record. 46

Resp. Gov. Hochul actively interferes with the

primary functions of federally-licensed dealers, including

Petitioners, which is the NICS background check at the

point-of-sale. Hochul adamantly refuses to report stateconvicted felons and other disqualified persons into the

federal FBI NICS system. A missing disqualifying record

results in a false ‘proceed’ to purchase, which can have

fatal consequences. C.A.App. 92-94 (FBI NICS reported

records, by state); C.A.App. 388 (list of disqualifying

factors); C.A.App. 258 (Mastrogiovanni); C.A.App. 278

(Martello).

45. Program criteria includes 25 or more firearms trace

requests for an FFL in a year.

46. Penzenstadler, N., “Gun shops that sell the most guns used

in crime revealed in new list,” USA Today, (Feb. 15, 2024); https://

www.usatoday.com/story/news/investigations/2024/02/15/shopsselling-most-crime-guns-revealed-atf/72581120007/.

Not even the Resp. NYS Police has a positive

relationship with FFLs who are state dealers. The division

has full contact information for Petitioners. C.A.App.

325 (Owens). Petitioners receive no direct notification of

new laws. C.A.App.-192 (Nadine Gazzola), C.A.App.-238

(Serafini), C.A.App.-325 (Owens). Petitioners were

rebuffed with “I don’t know,” when they called the NYSP for

compliance instruction. C.A.App.-255 (Mastrogiovanni).

As Hanusik wrote: “I spent a couple weeks at the NYS

Police in August [2022] and they told me I know more

about what’s going on than they do; they have no idea

what’s going on.” C.A.App.-331 (Hanusik).

V. FEDERAL FIREARMS COMPLIANCE IS A

FIELD WELL SETTLED

The Second Circuit ruling below, if allowed to stand,

will encourage state governors, like Hochul, “to undermine

the National Government.” Trump v. Anderson, 601 U.S.

___ (2024) (Sotomayor, Kaga, and Jackson, JJ., concurring

in jdg., p. 2). The Second Circuit overtly treated Petitioners

like second-class citizens seeking “second-class rights.”

McDonald, 561 U.S. at 780.

The Second Circuit failed to appreciate Petitioners’

federal pre-emption arguments. Until 2022, the State had

no role in the field known as “federal firearms compliance

law.” To recap, the GCA was 1968, the ATF launched

1972, and four major acts of Congress plus year-over-year

ATF regulations exclusively dominated the well-settled

field. The industry has not been in court in these more

than fifty years because of the solid, day-to-day working

relationship between BATFE/FBI and the industry

through the NICS Division background checks and the

agency beat personnel who are known by name, including

with Petitioners. See, e.g., C.A.App. 191-192 (Nadine

Gazzola); C.A.App. 238-239 (Serafini); C.A. App. 255-256,

259 (Mastrogiovanni); C.A. App. 297, 308 (Affronti). There

has been a “settled understanding” (Trump v. Anderson,

23-719, Feb. 8, 2024 TR: 87-88 (Kavanaugh, J.)).

Multiple of the new state mandates are poorly-written

efforts to steal, duplicate, or get around federal firearms

compliance records rooted in federal law and regulation.

Such records are created by FFLs on ATF-designed

and supplied forms and are completed during FFL

interface with customers and the ATF/FBI NICS federal

background check system, and in accord with federal law,

regulation, and guidance documents. 18 U.S.C. §923(g)(2);

18 U.S.C. §926; 28 CFR §25.6(a); 27 CFR §478.125(e); 27

CFR §478.124; and, 28 CFR §25.11(b).

The most valuable of these records is the ATF Form

4473 (C.A.App. 429-434) and the Book of Acquisitions &

Dispositions (“A&D Book”). 27 CFR §478.125(e); 28 CFR

§25.9.

The Petitioners will neither wholesale, nor periodically,

transfer copies of their federal firearms compliance

records to the NYS Police under NY Gen Bus §875-f. Nor

will Petitioners create duplicitous (shadow) books to help

Respondents avoid federal pre-emption court orders and/

or federal penalty under NY Gen Bus §875-f. Petitioners

are thus unable to sign annual compliance statements

at NY Gen Bus §875(1)(b). Declarations, passim; see,

e.g., C.A.App.-191 (Nadine Gazzola); C.A.App.-210 (Seth

Gazzola); C.A.App. 233-234 (Serafini); C.A.App. 254-255

(Mastrogiovanni); C.A.App.-278 (Martello); C.A.App.II303 (Affronti); C.A.App.II-316 (Owens).

Hochul et cie. demand what even the U.S. Attorney

General cannot have. NY Gen Bus §875-f(3) awarded an

unparalleled breadth of police power over dealers “at any

time,” including with third parties, to access all dealer

records. App. 103a-104a. The provision is “wholly out of

proportion to the public interests the [State] claims it

serves.” Ezell I, 851 F.3d at 710. By comparison, the U.S.

AG or an ATF officer may only access the ATF Form

4473 and the A&D Book in two specific circumstances:

(1.) pursuant to a warrant in a criminal investigation of

a person other than the licensee; and, (2.) upon visual

inspection during a routine inventory reconciliation

compliance check, where if any pages be copied by

BATFE, the pages must also be furnished to the FFL

for their records. 18 U.S.C. §923(g)(1)(B) and 27 CFR

§478.23. See, also, 18 U.S.C. §923(g)(1)(A) and 27 CFR

§478.23; and, 18 U.S.C. §923(g)(1)(B)(iii).

The state creation of a firearm owners’ registry, or the

transfer of federal records that would enable state creation

of such a registry, is antithetical to the compromises made

in Congress over the decades it took to develop the entire

unified field of federal firearms compliance law, including

with FFL testimony and other input. The esprit des corps

is embodied in FOPA (1986), Sec. 101:

“No such rule or regulation prescribed after the

date of the enactment of the Firearm Owners’

Protection Act may require that records

required to be maintained under this chapter or

any portion of the contents of such records, be

recorded at or transferred to a facility owned,

managed, or controlled by the United States or

any State or any political subdivision thereof…”

C.A.App. 64-65.

CONCLUSION

During oral arguments of Trump v. Anderson (No.

23-719), a simple truth reverberated: “I mean, the whole

point of the Fourteenth Amendment was to restrict state

power, right?” – Mr. Chief Justice Roberts. (Id., TR:70.)

Because of the 2022 laws, Petitioners are caught in an

“interim disuniformity” (Justice Jackson, id., TR:96), now

exacerbated by the Second Circuit adoption of over-turned

scrutiny tests and tacit endorsement of a state governor’s

power grab in opposition to public safety.

Petitioners are in the business of compliance. They

cannot and will not conform to this new scheme designed

to evade judicial review that targets them as federallylicensed dealers in firearms in order to trample the rights

of individuals. “Then what do we do?” – Justice Alito

(Id., TR:99) This Court will find help from Petitioners

and their multitude of credentials in the protection of

fundamental rights guaranteed to all citizens under the

Second Amendment and equally through the Fourteenth

Amendment. Petitioners are the “to keep” of “to keep

and bear arms” and seek the opportunity to join Heller,

McDonald, Bruen through the novel theory of their case.

Petitioners ask this Court grant a writ of certiorari

with all due speed.

Respectfully submitted this 7th day of March 2024.

Paloma A. Capanna, Esq.

Counsel of Record

106-B Professional Park Drive

Beaufort, North Carolina 28516

(585) 377-7260

pcapanna@yahoo.com

Counsel for Petitioners

APPENDIX

TABLE OF APPENDICES

Page

APPENDIX A — OPINION OF THE UNITED

STAT ES COU RT OF A PPEA LS FOR

T H E S E C ON D C I R C U I T, DA T E D

DECEMBER 8, 2023 . . . . . . . . . . . . . . . . . . . . . . . . . 1a

APPENDIX B — OPINION OF THE UNITED

STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF NEW YORK,

FILED DECEMBER 7, 2022 . . . . . . . . . . . . . . . . . 32a

APPENDIX C — RELEVANT CONSTITUTIONAL AND STATUTORY PROVISIONS . . . . 91a

APPENDIX A — Appendix

OPINIONAOF THE UNITED

STATES COURT OF APPEALS FOR THE SECOND

CIRCUIT, DATED DECEMBER 8, 2023

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

August Term, 2022

March 20, 2023, Argued;

December 8, 2023, Decided

Docket No. 22-3068-cv

NADINE GAZZOLA, INDIVIDUALLY, AND AS COOWNER, PRESIDENT, AND AS BATFE FEDERAL

FIREARMS LICENSEE RESPONSIBLE PERSON

FOR ZERO TOLERANCE MANUFACTURING,

INC., SETH GAZZOLA, INDIVIDUALLY, AND

AS CO-OWNER, VICE PRESIDENT, AND AS

BATFE FFL RESPONSIBLE PERSON FOR

ZERO TOLERANCE MANUFACTURING, INC.,

JOHN A. HANUSIK, INDIVIDUALLY, AND AS

OWNER AND AS BATFE FFL RESPONSIBLE

PERSON FOR D/B/A AGA SALES, JIM INGERICK,

INDIVIDUALLY, AND AS OWNER AND AS BATFE

FFL RESPONSIBLE PERSON FOR INGERICK’S

LLC D/B/A AVON GUN & HUNTING SUPPLY,

CHRISTOPHER MARTELLO, INDIVIDUALLY,

AND AS OWNER AND AS BATFE FFL

RESPONSIBLE PERSON FOR PERFORMANCE

PAINTBALL, INC. D/B/A IKKIN ARMS, MICHAEL

MASTROGIOVANNI, INDIVIDUALLY, AND AS

OWNER AND AS BATFE FFL RESPONSIBLE

Appendix A

PERSON FOR SPUR SHOOTERS SUPPLY,

ROBERT OWENS, INDIVIDUALLY, AND AS

OWNER AND AS BATFE FFL RESPONSIBLE

PERSON FOR THOUSAND ISLANDS ARMORY,

CRAIG SERAFINI, INDIVIDUALLY, AND AS

OWNER AND AS BATFE FFL RESPONSIBLE

PERSON FOR UPSTATE GUNS AND AMMO, LLC,

NICK AFFRONTI, INDIVIDUALLY, AND AS

BATFE FFL RESPONSIBLE PERSON FOR EAST

SIDE TRADERS LLC, EMPIRE STATE ARMS

COLLECTORS ASSOCIATION, INC.

Plaintiffs-Appellants,

– v. –

KATHLEEN HOCHUL, IN HER OFFICIAL

CAPACITY AS GOVERNOR OF THE STATE OF

NEW YORK, DOMINICK L. CHIUMENTO, IN

HIS OFFICIAL CAPACITY AS THE ACTING

SUPERINTENDENT OF THE NEW YORK

STATE POLICE, ROSSANA ROSADO, IN HER

OFFICIAL CAPACITY AS THE COMMISSIONER

OF THE DEPARTMENT OF CRIMINAL JUSTICE

SERVICES OF THE NEW YORK STATE POLICE,

LETICIA JAMES, IN HER OFFICIAL CAPACITY

AS THE ATTORNEY GENERAL OF THE STATE

OF NEW YORK,

Defendants-Appellees.*

* The Clerk of Court is respectfully directed to amend the

caption to conform to the above. Steven A. Nigrelli, formerly

Superintendent of the New York State Police, was sued in his official

Appendix A

Before: Jacobs, Lynch, and Lee, Circuit Judges.

Per Curiam:

Plaintiff-Appellants are eight firearms and ammunition

dealers, one firearms pawnbroker, and one business

organization. They appeal from an order of the United

States District Court for the Northern District of New

York (Brenda K. Sannes, C.J.) denying their motion for

preliminary injunctive relief. They argue that the district

court erroneously rejected their claims that New York’s

commercial regulations on the sale of firearms and

ammunition violate their customers’ Second Amendment

right to acquire firearms and ammunition, and that

several provisions of New York law conflict with, and

are thus preempted by, federal law. They also challenge

the district court’s conclusion that they lack standing to

challenge New York’s licensing scheme for semiautomatic

rifles, background-check requirement for ammunition

purchases, and firearms-training requirement for

concealed-carry licenses. Finding no merit to their

arguments, we AFFIRM.

BACKGROUND

Appellants are nine individual “responsible persons”

who operate businesses throughout the State of New

York that have federal firearms licenses (“FFLs”), and

one business organization that does not have an FFL but

capacity. By operation of Federal Rule of Appellate Procedure

43(c)(2), Dominic L. Chiumento was automatically substituted upon

assuming the office of Acting Superintendent of the New York State

Police on October 5, 2023, following Nigrelli’s retirement.

Appendix A

whose members do.1 An FFL is a license that is issued by

the Bureau of Alcohol, Tobacco, Firearms and Explosives

(“ATF”) to engage in the business of manufacturing,

importing, or dealing in firearms or ammunition. See

18 U.S.C. § 923(a). The individual Appellants are eight

licensed dealers in firearms and ammunition and one

licensed firearms pawnbroker.

On November 1, 2022, Appellants filed suit in the

Northern District of New York, naming several New York

defendants in their official capacities: Governor Kathleen

Hochul; Attorney General Leticia James; then Acting

Superintendent of the New York State Police Steven

A. Nigrelli; 2 and Commissioner of the Department of

Criminal Justice Services of the New York State Police

Rossana Rosado. A week later, Appellants moved for

preliminary injunctive relief, and, as recounted by the

1. The firearms and ammunition dealers are John A. Hanusik,

Jim Ingerick, Christopher Martello, Michael Mastrogiovanni,

Robert Owens, Craig Serafini, Nick Affronti, Nadine Gazzola, and

Seth Gazzola. They are associated, respectively, with AGA Sales,

Ingerick’s LLC d/b/a Avon Gun & Hunting Supply, Performance

Paintball, Inc. d/b/a Ikkin Arms, Spur Shooters Supply, Thousand

Islands Armory, Upstate Guns and Ammo, LLC, East Side Traders

LLC, and Zero Tolerance Manufacturing, Inc. (both Gazzolas). The

business organization is Empire State Arms Collectors Association,

Inc.

2. Defendant-Appellant Chiumento assumed the office of

Acting Superintendent of the New York State Police on October

5, 2023, while this appeal was pending. By operation of Federal

Rule of Appellate Procedure 43(c)(2), Chiumento was automatically

substituted as the Defendant-Appellant in place of the former Acting

Superintendent of the New York State Police, Nigrelli.

Appendix A

district court, their claims in that initial motion were

sprawling, purporting to challenge “thirty-one statutory

firearms provisions.” Gazzola v. Hochul, 645 F. Supp. 3d

37, 48 (N.D.N.Y. 2022). Their claims, however, have since

narrowed, and can be summarized as follows.

First, Appellants claim that New York’s commercial

laws regulating the sale and transfer of firearms are too

onerous and will thus “financially burden the Plaintiffs

to a point that they will be forced out of business.” J.

App’x 88, ¶ 180. That, they say, in turn threatens their

customers’ right to acquire firearms in violation of the

Second Amendment. The laws to which they object require

them to secure firearms “in a locked fireproof safe or

vault” outside of business hours, see N.Y. Gen. Bus. L.

§ 875-b(1)(a); install security alarm systems at each point

of exit, entrance, and sale, see id. § 875-b(2); provide

State Police-developed training to their employees, see

id. § 875-e(1); perform monthly inventory checks, see id.

§ 875-f(2); provide State Police with full access to their

premises during periodic onsite inspections, see id. § 875g(2)(a); prohibit minors from entering their stores without

a parent or guardian, see id. § 875-c; and hire employees

who are at least twenty-one years old, see id. § 875-e(3).

Second, they claim that New York law is preempted

by federal law in three ways: (1) by requiring all FFLs

to devise a plan for securing firearms, even while those

firearms are “in shipment,” see N.Y. Gen. Bus. L. § 875b(1); (2) by directing FFLs to maintain records of sale

and inventory information and submit those records to

the State Police on a semi-annual basis, see N.Y. Gen.

Appendix A

Bus. L. § 875-f; and (3) by setting up a backgroundcheck system that w ill result in a misuse of the

National Instant Criminal Background Check System

(“NICS”), principally by requiring background checks for

ammunition sales, see N.Y. Exec. L. § 228; N.Y. Pen. L.

§ 400.02. Appellants purport that federal law (1) relieves

an FFL of responsibility over the security of firearms

that are in shipment if the FFL is merely receiving, as

opposed to sending, firearms; (2) prohibits the Attorney

General, and by extension the States, from requiring

routine reporting of sale and inventory records; and (3)

prohibits using the NICS to conduct background checks

for ammunitions sales.

Third, Appellants claim that New York law violates

their Fifth Amendment right to be free from selfincrimination by requiring them to annually certify

their compliance with New York law. See N.Y. Gen. Bus.

L. § 875-g(1)(b). They claim that such certification is

impossible because if they were to comply with New

York law they would necessarily violate federal law. We

understand this claim to rest on their preemption theories.

Fourth, Appellants claim that New York law violates

their own Second Amendment rights as individuals by

requiring them to obtain a special license to possess

semiautomatic rifles, undergo background checks to

purchase ammunition, and undergo firearms training to

renew their concealed-carry licenses.

The district court denied Appellants’ motion for

preliminary injunctive relief on jurisdictional, merits,

Appendix A

and procedural grounds. Gazzola, 645 F. Supp. 3d 37. In

particular, the district court held that, while Appellants

had standing as firearms dealers to challenge New York’s

commercial laws, they lacked standing as individuals to

challenge New York’s laws regulating semiautomatic

rifles, ammunition sales, and concealed carry. Id. at 51-54.

The court also held that Governor Hochul and Attorney

General James were not proper defendants because they

lacked a sufficient connection to enforcing the challenged

provisions of New York law, and thus were entitled to

sovereign immunity. Id. at 58-59. Turning to the merits,

the court held that Appellants lacked Second Amendment

rights as commercial dealers in firearms, id. at 65, and that

they failed to offer a “basis” for their “novel” derivative

right-to-acquire claim, id. at 70-71. The court rejected

Appellants’ preemption claims because federal law

expressly did not occupy the field of firearms regulations,

id. at 59-60, citing 18 U.S.C. § 927, and because federal

and New York law were not in conflict, id. at 59-63. For

that same reason, the court found no merit to Appellants’

self-incrimination claim, which it understood, as we do, to

be premised on their preemption theories. Id. at 69-70.

Finally, the court found that Appellants would not suffer

irreparable harm in the absence of an injunction because

they failed to show that they would suffer a constitutional

deprivation or anything more than lost profits. Id. at 54-57.

Appellants timely appealed.

Appendix A

DISCUSSION

We have appellate jurisdiction over a denial of a motion

for preliminary injunctive relief pursuant to 28 U.S.C.

§ 1292(a)(1). “[W]e review a district court’s decision on a

motion for preliminary injunction for abuse of discretion.”

Zervos v. Verizon N.Y., Inc., 252 F.3d 163, 167 (2d Cir.

2001). A district court abuses — or more precisely, exceeds

— its discretion when its decision rests on an “error of

law” or a “clearly erroneous factual finding,” or “cannot

be located within the range of permissible decisions.” Id.

at 169. 3

“A preliminary injunction is an extraordinary remedy

never awarded as of right.” Winter v. Nat. Res. Def.

Council, Inc., 555 U.S. 7, 24, 129 S. Ct. 365, 172 L. Ed. 2d

249 (2008). “A plaintiff seeking a preliminary injunction

must establish that he is likely to succeed on the merits,

that he is likely to suffer irreparable harm in the absence

of preliminary relief, that the balance of equities tips in

his favor, and that an injunction is in the public interest.”

Id. at 20.4

3. As we have recounted several times, the word “abuse” is an

imprecise way to describe instances where, as will inevitably happen,

a district court commits an error of law, makes a clearly erroneous

finding of fact, or renders a decision outside the range of reasonable

ones. See, e.g., JTH Tax, LLC v. Agnant, 62 F.4th 658, 666 n.1 (2d

Cir. 2023) (collecting cases). None of those things involve “abuse” as

that term is understood in its ordinary sense; the word “exceeds”

is more accurate. Id.

4. Under our precedents, a plaintiff must satisfy a heightened

standard when seeking a so-called “mandatory injunction” - that is,

Appendix A

Appellants argue that the district court erred

in rejecting the merits of their derivative Second

Amendment claim, federal-preemption claim, and selfincrimination claim; in holding that they lacked standing

to assert Second Amendment claims as individuals; and

in rejecting their plea of irreparable harm in the absence

of an injunction. 5 Because we conclude that the district

an injunction that “alter[s] the status quo.” Tom Doherty Assocs., Inc.

v. Saban Ent., Inc., 60 F.3d 27, 34 (2d Cir. 1995). The district court

held that the heightened standard applied but concluded that it was

“immaterial” because Appellants failed under the “lesser,” ordinary

standard for preliminary injunctive relief. Gazzola, 645 F. Supp.

3d at 51. Because the district court did not exceed its discretion in

denying Appellants’ motion under the ordinary standard, we do not

address whether the court correctly determined that the heightened

standard should apply.

5. In the district court, Appellants also claimed that New York

law was unconstitutionally vague in violation of the Fourteenth

Amendment, and that New York law burdened their Second

Amendment right to sell firearms. The district court rejected those

claims, Gazzola, 645 F. Supp. 3d at 64-69, and Appellants do not press

any error on appeal. We therefore do not consider those claims. For

the first time on appeal, Appellants raise a discrimination claim, and

for the first time in their reply brief, they substantively challenge,

in more than a perfunctory manner, the district court’s conclusion

that Governor Hochul and Attorney General James are entitled to

sovereign immunity. Those arguments are forfeited. Presidential

Gardens Assocs. v. U.S. ex rel. Sec’y of Hous. & Urb. Dev., 175 F.3d

132, 140-41 (2d Cir. 1999) (arguments made for the first time in

reply are forfeited); Katel Liab. Co. v. AT & T Corp., 607 F.3d 60,

68 (2d Cir. 2010) (“An argument raised for the first time on appeal

is typically forfeited.”); In re Demetriades, 58 F.4th 37, 54 (2d Cir.

2023) (perfunctory arguments are forfeited). While we may consider

forfeited arguments in our discretion to avoid a risk of manifest

injustice, “there is no such risk here.” Katel Liab. Co., 607 F.3d at 68.

10a

Appendix A

court correctly assessed the merits and standing, we do

not reach the issue of irreparable harm.

Derivative Second Amendment Claim

Appellants first claim that New York law is so onerous

that it will put them and other firearms dealers out of

business, and thereby threaten their customers’ Second

Amendment right to acquire firearms.

We have no trouble concluding that Appellants have

standing to bring such a derivative claim. “[V]endors and

those in like positions have been uniformly permitted to

resist efforts at restricting their operations by acting as

advocates of the rights of third parties who seek access to

their market or function.” Teixeira v. County of Alameda,

873 F.3d 670, 678 (9th Cir. 2017) (en banc), quoting Craig

v. Boren, 429 U.S. 190, 195, 97 S. Ct. 451, 50 L. Ed. 2d

397 (1976); see also Carey v. Population Servs., Int’l,

431 U.S. 678, 683-84, 97 S. Ct. 2010, 52 L. Ed. 2d 675

(1977) (holding that a provider of contraceptives could

bring a derivative constitutional challenge on behalf of

potential customers). Several circuits have extended

that principle to purveyors of firearms and ammunition,

and we follow suit. See Teixeira, 873 F.3d at 678 (holding

that a “would-be operator of a gun store” had “derivative

standing to assert the subsidiary right to acquire arms

on behalf of his potential customers”); Maryland Shall

Issue, Inc. v. Hogan, 971 F.3d 199, 215-16 (4th Cir. 2020),

as amended (Aug. 31, 2020) (holding that a firearms

dealer had derivative standing to challenge restrictions

on potential customers’ right to acquire firearms); Ezell

11a

Appendix A

v. City of Chicago (“Ezell I”), 651 F.3d 684, 696 (7th Cir.

2011) (holding that a supplier of firing-range facilities had

standing to challenge a Chicago ordinance that burdened

its potential customers’ firearms training). We therefore

hold that Appellants have derivative standing to pursue

Second Amendment claims on behalf of their customer

base.

Without questioning Appellants’ derivative standing,

the district court held that there was “no basis for their

novel theory” that New York law violated their customers’

right to acquire firearms by imposing too many burdens

on them as commercial dealers. Gazzola, 645 F. Supp. 3d

at 71. We conclude that there is a sufficient basis for that

theory, but we hold that Appellants are not entitled to

preliminary injunctive relief. As the district court found

in its irreparable harm analysis (a finding that likewise

bears on the merits of Appellants’ derivative claim),

Appellants failed to show that they would suffer the type

of burden that is required for their derivative claim to

succeed. See NXIVM Corp. v. Ross Inst., 364 F.3d 471,

476 (2d Cir. 2004) (“We review the denial of a preliminary

injunction for an abuse of discretion. But we may affirm

on any ground supported by the record.” (internal citation

omitted)).

The Second Amendment provides: “A well regulated

Militia, being necessary to the security of a free State,

the right of the people to keep and bear Arms, shall not

be infringed.” U.S. CONST. amend. II. In District of

Columbia v. Heller, the Supreme Court held that the

Second Amendment codifies a preexisting individual

12a

Appendix A

right to keep and bear arms for self-defense in case of

confrontation — a right that is not limited to service in

an organized militia. 554 U.S. 570, 592, 595, 128 S. Ct.

2783, 171 L. Ed. 2d 637 (2008). In doing so, the Court

observed several limitations on the right. Importantly,

the Court made clear that “nothing in [its] opinion should

be taken to cast doubt on . . . laws imposing conditions

and qualifications on the commercial sale of arms.”

Id. at 626-27. The Court identified such “regulatory

measures,” and others, as “presumptively lawful.” Id. at

627 n.26. Two years later, when the Court held that the

Second Amendment is “fully applicable to the States,”

McDonald v. City of Chicago, 561 U.S. 742, 750, 130 S.

Ct. 3020, 177 L. Ed. 2d 894 (2010), the Court’s principal

opinion “repeat[ed]” Heller’s “assurance[]” concerning

the presumptive constitutionality of “‘laws imposing

conditions and qualifications on the commercial sale of

arms.’” Id. at 786 (plurality opinion), quoting Heller,

554 U.S. at 626-27. Nothing in the Court’s more recent

decision in New York State Rifle & Pistol Association v.

Bruen casts doubt on that understanding of the Second

Amendment’s scope. See 142 S. Ct. 2111, 2162, 213 L. Ed.

2d 387 (2022) (Kavanaugh, J., concurring).

Still, the presumption of legality can be overcome. The

Second Amendment, as interpreted by the Supreme Court,

forbids a State from banning the in-home possession of

common-use weapons by law-abiding, responsible citizens,

Heller, 554 U.S. at 635, and requiring them to show a

special need to carry such weapons outside the home,

Bruen, 142 S. Ct. at 2156. A State cannot circumvent

those holdings by banning outright the sale or transfer

13a

Appendix A

of common-use weapons and necessary ammunition.

As the Tennessee Supreme Court observed in 1871,

“[t]he right to keep arms, necessarily involves the right

to purchase them, to keep them in a state of efficiency for

use, and to purchase and provide ammunition suitable

for such arms, and to keep them in repair.” Andrews v.

State, 50 Tenn. (3 Heisk.) 165, 178 (1871). Our pre-Bruen

law recognized as much, observing, albeit in dicta, that

“restrictions that limit the ability of firearms owners

to acquire and maintain proficiency in the use of their

weapons” may violate the Second Amendment under

certain circumstances. New York State Rifle & Pistol

Ass’n, Inc. v. City of New York, 883 F.3d 45, 58 (2d Cir.

2018), vacated and remanded on other grounds, 140 S.

Ct. 1525, 206 L. Ed. 2d 798 (2020). Other circuits have

recognized that principle too. Ezell I, 651 F.3d at 704

(“The right to possess firearms for protection implies a

corresponding right to acquire and maintain proficiency in

their use . . . .”); Drummond v. Robinson Twp., 9 F.4th 217,

227 (3d Cir. 2021) (similar); Teixeira, 873 F.3d at 677-78

(similar); Jackson v. City & County of San Francisco, 746

F.3d 953, 967-68 (9th Cir. 2014) (similar); see also Heller,

554 U.S. at 617-18 (explaining that the right “to bear arms

implies something more than the mere keeping; it implies

the learning to handle and use them in a way that makes

those who keep them ready for their efficient use” (internal

quotation marks omitted)).

It follows that commercial regulations on firearms

dealers, whose services are necessary to a citizen’s

effective exercise of Second Amendment rights, cannot

have the effect of eliminating the ability of law-abiding,

14a

Appendix A

responsible citizens to acquire firearms.6 For example,

when the Supreme Court recognized a right to abortion,

it correspondingly recognized that a State could not

circumvent the Fourteenth Amendment’s prohibition

on abortion bans by imposing unnecessary special

regulations on abortion providers as a class that had “the

purpose or effect of presenting a substantial obstacle to

a woman seeking an abortion”; such would constitute “an

undue burden on the right.” Whole Woman’s Health v.

Hellerstedt, 579 U.S. 582, 136 S. Ct. 2292, 2309, 195 L. Ed.

2d 665 (2016), as revised (June 27, 2016) (internal quotation

marks omitted), abrogated by Dobbs v. Jackson Women’s

Health Org., 142 S. Ct. 2228, 213 L. Ed. 2d 545 (2022). It is

indeed a fundamental principle of constitutional law that

“what cannot be done directly cannot be done indirectly.

The Constitution deals with substance, not shadows.”

Cummings v. Missouri, 71 U.S. 277, 325, 18 L. Ed. 356

(1866); accord Trump v. Mazars USA, LLP, 140 S. Ct.

2019, 2035, 207 L. Ed. 2d 951 (2020) (explaining that

“separation of powers concerns are no less palpable . . .

simply because the subpoenas [for the President’s

information] were issued to third parties”).

Still, Appellants have not shown that the New York

law is so restrictive that it threatens a citizen’s right to

6. We have no present occasion to set out specific guidance as to

how a trial court must assess evidence that a commercial regulation is

stifling the individual right of access to firearms (assuming a plaintiff

one day produces it). But whatever the standard is, a State cannot

impose a regulation on commercial firearms dealers as a class that

has the effect of prohibiting law-abiding, responsible citizens from

possessing common-use weapons.

15a

Appendix A

acquire firearms. To that end, we find the Ninth Circuit’s

en banc decision in Teixeira persuasive. At issue in

Teixeira was an Alameda County zoning ordinance

that prohibited gun stores within “five hundred feet” of

“schools, day care centers, liquor stores or establishments

serving liquor, other gun stores, and residentially zoned

districts.” 873 F.3d at 674. Prospective vendors challenged

the law, claiming that it violated their potential customers’

right to acquire firearms and ammunition because the

ordinance made it impossible to open a new gun store in

Alameda County. Id. at 676. The district court dismissed

their complaint, and the Ninth Circuit affirmed. The

Ninth Circuit recognized, as we do today, “that the

Second Amendment protects ancillary rights necessary

to the realization of the core right to possess a firearm

for self-defense,” and explained that “the core Second

Amendment right to keep and bear arms for self-defense

‘wouldn’t mean much’ without the ability to acquire

arms.” Id. at 677, quoting Ezell I, 651 F.3d at 704. But,

“[w]hatever the scope” of the right to acquire firearms,

the prospective vendors failed to state a claim. Id. at 678.

Exhibits attached to their complaint “demonstrate[d] that

Alameda County residents may freely purchase firearms

within the County.” Id. at 679. Those exhibits showed

that “there were ten gun stores in Alameda County,”

including one located “approximately 600 feet away from

the [challengers’] proposed site.” Id. And “gun buyers have

no right to have a gun store in a particular location, at least

as long as their access is not meaningfully constrained.”

Id. at 680. Nor do they have a right to “travel” only short

“distances” or receive “a certain type of retail experience.”

Id. at 679-80 & n.13.

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Appendix A

There is even less evidence here than in Teixeira

that New York citizens will be meaningfully constrained

— or, for that matter, constrained at all — in acquiring

firearms and ammunition. Appellants claim that New

York law will put them and other FFLs out of business by

requiring them to secure firearms “in a locked fireproof

safe or vault” outside of business hours, see N.Y. Gen. Bus.

L. § 875-b(1)(a); install security alarm systems at each

point of exit, entrance, and sale, see id. § 875-b(2); provide

State Police-developed training to their employees, see

id. § 875-e(1); perform monthly inventory checks, see

id. § 875-f(2); provide State Police with full access to

their premises during periodic onsite inspections, see

id. § 875-g(2)(a); prohibit minors from entering their

stores without a parent or guardian, see id. § 875-c; and

hire employees who are at least twenty-one years old,

see id. § 875-e(3). But, besides Appellants’ say-so, there

is no evidence that those regulations will impose such

burdensome requirements on firearms dealers that they

restrict protections conferred by the Second Amendment.

Urging otherwise, Appellants estimate that the

challenged laws could impose more than $1 billion dollars

in compliance costs on all FFLs in the State. That figure,

however, finds no support in record evidence. Appellants

rely principally on their unverified, unsworn complaint.

While a few of Appellants’ sworn declarations contain some

estimates of the financial impact of New York’s commercial

regulations, their declarations are speculative, focus only

on their businesses, and offer no documentary evidence

in support. The district court thus did not err, let alone

clearly err, in holding that Appellants failed to “present

17a

Appendix A

sufficient evidence to demonstrate” that “their businesses

may close absent injunctive relief.” Gazzola, 645 F. Supp.

3d at 56-57. It follows that Appellants, whose declarations

(again) focused only on their anticipated costs, failed to

present sufficient evidence that any New York firearms

dealers — let alone a critical mass of the more than

1,700 such dealers — may close due to the challenged

regulations. It bears repeating that “gun buyers have no

right to have a gun store in a particular location,” nor a

right to “travel” no more than short “distances” to the

most convenient gun store that provides what they deem

a satisfactory “retail experience.” Teixeira, 873 F.3d at

679-80 & n.13. On the record before us in this case, there

is no evidence that New Yorkers currently lack, or will

lack under the challenged statutes, relatively easy access

to sellers of firearms.

Accordingly, the district court did not exceed its

discretion in denying Appellants’ motion for preliminary

injunctive relief on their derivative Second Amendment

claim.

II. Preemption

Appellants claim that several provisions of New

York law are preempted by federal law and thus violate

the Supremacy Clause. The district court thoroughly

examined and rejected each of Appellants’ theories of

preemption, and we perceive no error.

“In general, three types of preemption exist: (1)

express preemption, where Congress has expressly

18a

Appendix A

preempted local law; (2) field preemption, ‘where Congress

has legislated so comprehensively that federal law

occupies an entire field of regulation and leaves no room

for state law’; and (3) conflict preemption, where local law

conflicts with federal law such that it is impossible for a

party to comply with both or the local law is an obstacle

to the achievement of federal objectives.” New York SMSA

Ltd. P’ship v. Town of Clarkstown, 612 F.3d 97, 104 (2d

Cir. 2010), quoting Wachovia Bank, N.A. v. Burke, 414

F.3d 305, 313 (2d Cir. 2005). “The latter two are forms of

implied preemption.” Figueroa v. Foster, 864 F.3d 222,

228 (2d Cir. 2017).

In arguing that federal law preempts state law,

Appellants rely on 18 U.S.C. §§ 923 and 926 and regulations

promulgated pursuant to § 926. But they ignore that

Congress, in 18 U.S.C. § 927, expressly disclaimed field

preemption:

No provision of this chapter shall be construed

as indicating an intent on the part of the

Congress to occupy the field in which such

provision operates to the exclusion of the law

of any State on the same subject matter, unless

there is a direct and positive conflict between

such provision and the law of the State so that

the two cannot be reconciled or consistently

stand together.

18 U.S.C. § 927. Thus, because “[t]he key to the preemption

inquiry is the intent of Congress[,]” New York SMSA Ltd.

P’ship, 612 F.3d at 104, Appellants must rely on conflict

19a

Appendix A

preemption, demonstrating “a direct and positive conflict

between” federal and state law such “that the two cannot

be reconciled or consistently stand together,” 18 U.S.C.

§ 927. They fail to satisfy that burden.

New York General Business Law § 875-b

Appellants challenge New York General Business

Law § 875-b(1), which requires them to “implement a

security plan” satisfying certain minimum specifications

“for securing firearms, rifles and shotguns,” including

while those firearms are “in shipment.” N.Y. Gen. Bus.

L. § 875-b(1). Appellants assert that § 875-b(1) conflicts

with federal law because, when an FFL ships a firearm

to another FFL, § 875-b(1) makes both FFLs responsible

for maintaining a security plan while those firearms are

“in shipment,” id., whereas federal law makes only the

transferring FFL responsible for firearms that are in

shipment. In support of that theory, they cite 18 U.S.C.

§ 923(g)(6) and 27 C.F.R. § 478.39a. But neither supports

that theory.

Both provisions require FFLs to report firearms that

were lost or stolen from their “inventory” or “collection”

to the Attorney General and appropriate local authorities

within forty-eight hours, 18 U.S.C. § 923(g)(6); 27 C.F.R.

§ 478.39a(a)(1), and the federal regulation provides that,

“[w]hen a firearm is stolen or lost in transit on a common

or contract carrier (which for purposes of this paragraph

includes the U.S. Postal Service), it is considered stolen

or lost from the transferor/sender licensee’s inventory for

reporting purposes. Therefore, the transferor/sender of

20a

Appendix A

the stolen or lost firearm shall report the theft or loss of

the firearm within 48 hours after the transferor/sender

discovers the theft or loss.” 27 C.F.R. § 478.39a(a)(2)

(emphases added). In other words, under federal law, it

is the transferring FFL who must report a lost or stolen

firearm. Nothing about New York law alters that duty,

poses an obstacle to FFLs fulfilling that duty, or allocates

responsibility in a way that conflicts with federal law. To

the extent that New York law imposes additional duties

on the transferee FFL, there is no conflict between federal

and state law.

B. New York General Business Law § 875-f

Next, Appellants claim that New York General

Business Law § 875-f is preempted by 18 U.S.C. §§ 923(g)

and 926(a).

New York General Business Law § 875-f requires

firearms dealers to “establish and maintain a book” or

“electronic-based record of purchase, sale, inventory, and

other records at the dealer’s place of business in such form

and for such period as the superintendent shall require.”

N.Y. Gen. Bus. L § 875-f. Among other information, those

records must include, “at a minimum,” (1) “the make,

model, caliber or gauge, manufacturer’s name, and serial

number of all firearms, rifles and shotguns that are

acquired or disposed of not later than one business day

after their acquisition or disposition”; (2) an accounting,

by means of a monthly “inventory check,” of “all firearms,

rifles and shotguns acquired but not yet disposed of”;

(3) “firearm, rifle and shotgun disposition information,

21a

Appendix A

including the serial numbers of firearms, rifles and

shotguns sold, dates of sale, and identity of purchasers”;

and (4) “records of criminal firearm, rifle and shotgun

traces initiated by [ATF].” Id. § 875-f(1)-(4).

18 U.S.C. § 923(g)(1)(A) and its implementing

regulation require FFLs to maintain similar records. See

18 U.S.C. § 923(g)(1)(A); 27 C.F.R. § 478.125(e). However,

and central to Appellants’ theory of preemption, while

New York law requires firearms dealers to semi-annually

report their records to the State Police, N.Y. Gen. Bus.

L. § 875-f, federal law does not. Moreover, federal law

expressly prohibits the Attorney General from enacting

any “rule or regulation” requiring such reporting or

otherwise establishing a “system of registration of

firearms, firearms owners, or firearms transactions

or dispositions.” 18 U.S.C. § 926(a)(3). According to

Appellants, if the Attorney General cannot require

FFLs to semiannually report their disposition records or

establish a firearm registry, neither can New York.

But that conclusion does not logically follow. Again,

Congress expressly declined to “occupy the field,” and

instructed courts that state law is preempted only where

“there is a direct and positive conflict between” federal

and state law such “that the two cannot be reconciled or

consistently stand together.” 18 U.S.C. § 927. Nothing

in federal law expressly prohibits States from requiring

firearms dealers to routinely report their sale and

inventory records to State Police. And, simply put, a

limitation on the Attorney General’s regulatory authority

is not in direct and positive conflict with the power of New

22a

Appendix A

York to exercise broader regulatory authority. As the

district court observed, it “is a hallmark of federalism” that

a State may presumptively exercise regulatory authority

in areas over which the federal government may not or

does not. Gazzola, 645 F. Supp. 3d at 62, citing Gonzales

v. Raich, 545 U.S. 1, 74, 125 S. Ct. 2195, 162 L. Ed. 2d 1

(2005) (Thomas, J., dissenting) (“Our federalist system,

properly understood, allows . . . States to decide . . . how

to safeguard the health and welfare of their citizens.”).

New York Executive Law § 228 & New York

Penal Law § 400.02

Finally, Appellants challenge New York Executive

Law § 228 and New York Penal Law § 400.02 on the

ground that they will result in a misuse of the federal

background check system — the NICS — and are

therefore preempted.

Federal law prohibits certain classes of people, like

felons, drug addicts, and the mentally ill, from purchasing

or possessing firearms or ammunition. 18 U.S.C. § 922(g)

(1), (3)-(4). Concomitantly, federal law prohibits “any

person” from “sell[ing] or otherwise dispos[ing] of any

firearm or ammunition” to individuals whom they know or

have reasonable cause to believe fall within those classes

of people. Id. § 922(d). As a special check, federal law

requires FFLs to submit certain identifying information

of a buyer or transferee to the NICS, which is maintained

by the Federal Bureau of Investigation (“FBI”), which

in turn checks a database known as the NICS Index for

whether federal law prohibits the buyer or transferee from

23a

Appendix A

possessing a firearm. 18 U.S.C. § 922(t)(1)(A)-(B); see also

28 C.F.R. § 25.1, et seq.

While the FBI ordinarily conducts that check, see 28

C.F.R. § 25.6(b)-(c), a State may alternatively designate

a “law enforcement agency” as a point of contact (“POC”)

to “serv[e] as an intermediary between an FFL and

the federal databases checked by the NICS,” id. § 25.2;

see also id. § 25.6(d)-(h). In that scenario, the “POC

will receive NICS background check requests from

FFLs, check state or local record systems, perform

NICS inquiries, determine whether matching records

provide information demonstrating that an individual

is disqualified from possessing a firearm under Federal

or state law, and respond to FFLs with the results of a

NICS background check.” Id. § 25.2. When conducting “a

NICS background check, POCs may also conduct a search

of available files in state and local law enforcement and

other relevant record systems.” Id. § 25.6(e).

Importantly, a POC may not purposely use the

NICS for “unauthorized purposes,” id. § 25.11(b)(2), and

“[a]ccess to the NICS Index for purposes unrelated to

NICS background checks” is prohibited unless for:

(1) Providing information to Federal, state,

tribal, or local criminal justice agencies in

connection with the issuance of a firearmrelated or explosives-related permit or license,

including permits or licenses to possess,

acquire, or transfer a firearm, or to carry a

concealed firearm, or to import, manufacture,

deal in, or purchase explosives;

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Appendix A

(2) Responding to an inquiry from the Bureau

of Alcohol, Tobacco, Firearms, and Explosives

in connection with a civil or criminal law

enforcement activity relating to the Gun

Control Act (18 U.S.C. Chapter 44) or the

National Firearms Act (26 U.S.C. Chapter

53); or,

(3) Disposing of firearms in the possession of a

Federal, state, tribal, or local criminal justice

agency.

Id. § 25.6(j)(1)-(3).

Appellants claim that New York Executive Law § 228

and New York Penal Law § 400.02 will result in misuse

of the NICS. But they do not explain how. New York

Executive Law § 228 designates the State Police as a point

of contact for NICS background checks, N.Y. Exec. L.

§ 228(1)(a), as federal regulations expressly contemplate,

28 C.F.R. §§ 25.2, 25.6(d)-(h). New York Executive Law

§ 228 also directs the State Police to create a “statewide

firearms license and records database” containing records

provided by various other state-level agencies, including

“the division of criminal justice services, office of court

administration, New York state department of health, New

York state office of mental health, and other local entities.”

N.Y. Exec. L. § 228(3). The State Police are directed to

use that database when conducting NICS background

checks upon an FFL’s request, id., and its doing so, again,

is expressly authorized by federal regulations, see 28

C.F.R. § 25.6(e) (“Upon receiving a request for a NICS

25a

Appendix A

background check, POCs may also conduct a search of

available files in state and local law enforcement and other

relevant record systems . . . .”).

Appellants seem to take issue with New York law

directing FFLs to initiate background checks through

the State Police for ammunition sales. In particular,

Appellants speculate that, when conducting background

checks for ammunition sales, the State Police will use the

NICS Index, checks that are not expressly authorized by

federal law and thus, they claim, unlawful. But even if such

use would be unlawful, New York law authorizes no such

thing. New York law requires firearms and ammunition

dealers to initiate background checks for ammunition

sales through a “statewide license and record database”

maintained by the State Police — not through the NICS

Index — before transferring ammunition to a nondealer. N.Y. Pen. L. § 400.02(2)(a) (emphasis added); see

also id. § 400.02(2) (directing the State Police to create

and maintain a “statewide license and record database

specific for ammunition sales”); N.Y. Exec. L. § 228(3)

(directing the State Police to consult the “statewide

firearms license and records database” for purposes

of “firearm permit[]” certification and recertification,

“assault weapon registration,” and “ammunition sales”).

And Appellants cite nothing that prohibits a State from

conducting background checks for ammunition sales.

Again, Congress expressly chose not to occupy the field

of regulating firearms. See 18 U.S.C. § 927. So, the fact

that federal law does not require background checks for

ammunition sales does not mean that New York cannot

require such checks. New York’s residual authority to

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Appendix A

do so is, as the district court aptly put it, “a hallmark of

federalism.” Gazzola, 645 F. Supp. 3d at 62.7

In sum, Appellants’ preemption theories lack merit.

The district court therefore did not exceed its discretion

in denying their motion for preliminary injunctive relief

on those claims. 8

III.

Individual Claims

Appellants, proceeding now as individuals, claim

that New York law violates their Second Amendment

rights by requiring them to obtain a license to possess

semiautomatic rifles, N.Y. Pen. L. § 400.00(2); undergo

background checks to purchase ammunition, N.Y. Pen. L.

§ 400.02(2); and undergo firearms training to renew their

concealed-carry licenses, N.Y. Pen. L. § 400.00(1)(o)(iii).

7. We underst a nd Appel la nt s t o accuse New York of

“authoriz[ing] [itself] to hack NICS and steal FFL paper dealer

records,” Appellants’ Reply Br. 12, and of authorizing State Police

to retain NICS-related information in violation of 28 C.F.R. § 25.9,

which governs the destruction and retention of such information,

id. at 10. Those imputations, however, are not backed by any legal

or evidentiary support.

8. It follows that the district court appropriately rejected

Appellants’ self-incrimination claim. Appellants claim that New

York law violates their right to be free from self-incrimination by

compelling them to annually certify their compliance with New York

law. See N.Y. Gen. Bus. L. § 875-g(1)(b). That claim rests on their

predicate claim that New York law conflicts with federal law, such

that compliance with New York law would implicitly be a violation of

federal law. Because Appellants failed to show that predicate, their

self-incrimination claim necessarily fails.

27a

Appendix A

The district court held that Appellants lacked Article III

standing to challenge each law, Gazzola, 645 F. Supp. 3d

at 53-54, and we agree.

“To establish Article III standing, a plaintiff must

show (1) an ‘injury in fact,’ (2) a sufficient ‘causal connection

between the injury and the conduct complained of,’ and

(3) a ‘likelihood’ that the injury ‘will be redressed by a

favorable decision.’” Susan B. Anthony List v. Driehaus,

573 U.S. 149, 157-58, 134 S. Ct. 2334, 189 L. Ed. 2d 246

(2014) (alterations adopted), quoting Lujan v. Defs. of

Wildlife, 504 U.S. 555, 560-61, 112 S. Ct. 2130, 119 L. Ed.

2d 351 (1992). An Article III-sufficient injury, however,

must be “‘concrete and particularized’ and ‘actual or

imminent,’ not ‘conjectural’ or ‘hypothetical.’” Id. at 158,

quoting Lujan, 504 U.S. at 560.

“Pre-enforcement challenges to criminal statutes

are ‘cognizable under Article III.’” Picard v. Magliano,

42 F.4th 89, 97 (2d Cir. 2022), quoting Cayuga Nation v.

Tanner, 824 F.3d 321, 331 (2d Cir. 2016). “As the Supreme

Court has made clear, a plaintiff has suffered an injuryin-fact and has standing to bring a case when he is facing

the ‘threatened enforcement of a law’ that is ‘sufficiently

imminent.’” Id., quoting Susan B. Anthony List, 573 U.S.

at 158-59. “Specifically, a plaintiff satisfies the injuryin-fact requirement where he alleges an intention to

engage in a course of conduct arguably affected with a

constitutional interest, but proscribed by a statute, and

there exists a credible threat of prosecution thereunder.”

Id. (internal quotation marks omitted). “[S]tanding is not

dispensed in gross; rather, plaintiffs must demonstrate

28a

Appendix A

standing for each claim that they press and for each form

of relief that they seek (for example, injunctive relief and

damages).” TransUnion LLC v. Ramirez, 141 S. Ct. 2190,

2208, 210 L. Ed. 2d 568 (2021).

First, Appellants challenge New York Penal Law

§ 400.00(2), which requires an individual to have a license

“to purchase or take possession of . . . a semiautomatic

rifle when such transfer of ownership occurs.” N.Y. Pen.

L. § 400.00(2). Upon application, such a license “shall

be issued” by the appropriate licensing authority if the

applicant satisfies all relevant statutory criteria. Id.

That licensing requirement does not apply retroactively;

it applies only to future purchases or transfers of

semiautomatic rifles. Id.

Christopher Martello is the only party who plausibly

claims a desire to purchase a semiautomatic rifle, stating

in his sworn declaration: “I desire to purchase additional

semi-automatic rif les for personal self-defense and

sporting purposes.” J. App’x 271, ¶ 11. But his objection

to the licensing requirement is not that he must obtain

a license; instead, he complains that Livingston County,

where he resides, is not providing license applications.

As the district court pointed out, however, he fails to

show how the non-defendant county’s failure to provide

license applications is fairly traceable to the challenged

action of the named defendants - Governor Hochul,

Attorney General James, Superintendent Chiumento, and

Commissioner Rosado. See Gazzola, 645 F. Supp. 3d at 53,

citing Lexmark Int’l, Inc. v. Static Control Components,

Inc., 572 U.S. 118, 134 n.6, 134 S. Ct. 1377, 188 L. Ed. 2d

29a

Appendix A

392 (2014). “[N]o court may ‘enjoin the world at large,’ or

purport to enjoin challenged ‘laws themselves.’” Whole

Woman’s Health v. Jackson, 595 U.S. 30, 142 S. Ct. 522,

535, 211 L. Ed. 2d 316 (2021), first quoting Alemite Mfg.

Corp. v. Staff, 42 F.2d 832, 832 (2d Cir. 1930) (Hand, J.),

and then quoting Whole Woman’s Health v. Jackson, 141

S. Ct. 2494, 2495, 210 L. Ed. 2d 1014 (2021) (on application

for injunctive relief).9

Second, Appellants challenge New York Penal Law

§ 400.02(2), which requires sellers of ammunition to run

background checks against a newly created statewide

records and license database before selling such

ammunition. N.Y. Pen. L. § 400.02(2)(a). In doing so, the

seller must provide the database with the transferee’s

identity and “the amount, caliber, manufacturer’s name

and serial number, if any, of such ammunition.” Id.

§ 400.02(2)(a).

9. Moreover, even if Martello had sued Livingston County, we

are skeptical that his bald claim — that he “desire[s] to purchase

additional semi-automatic rifles,” J. App’x 271, ¶ 11 - is sufficient to

state an actual or imminent injury within the meaning of Article

III. Ordinarily, “‘some day’ intentions — without any description of

concrete plans, or indeed even any specification of when the some

day will be — do not support a finding of the ‘actual or imminent’

injury that our cases require.” Lujan, 504 U.S. at 564; see also Colo.

Outfitters Ass’n v. Hickenlooper, 823 F.3d 537, 553 (10th Cir. 2016)

(“The mere possibility that ‘some day’ a member of Outdoor Buddies

might wish to obtain or retain a firearm before or after a hunt and

that he or she might then experience difficulties obtaining the

requisite background check is insufficient to establish an imminent

injury for purposes of Article III standing.”).

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Appendix A

Craig Serafini is the only party who complains about

that requirement in his individual capacity, claiming that

he has not purchased ammunition since the law went into

effect because, like others, he does not want to disclose

his personal information to the government. But Serafini

is a seller of ammunition, and the background-check

requirement applies only to “any other person who is not

a dealer in firearms . . . or a seller of ammunition.” Id.

§ 400.02(2) (emphases added). Thus, because New York

Penal Law § 400.02(2) does not require him to undergo

a background check when he purchases ammunition, he

does not have standing to challenge it.

Finally, Appellants challenge New York Penal Law

§ 400.00(1)(o)(iii), which requires an applicant for a

concealed-carry license to provide a licensing officer with a

certificate verifying his successful completion of firearms

training that satisfies certain specifications. N.Y. Pen.

L. § 400.00(1)(o)(iii); see also id. § 400.00(19) (outlining

the training requirements). That training requirement

applies also to an individual who “renew[s]” an existing

license. Id. § 400.00(1). But an individual who already has

a concealed-carry license, and who does not reside in New

York City or Nassau, Suffolk, or Westchester Counties,

need not renew the license. Id. § 400.00(10)(a). Instead,

the license remains “in force and effect” so long as it is

not “revoked or cancelled.” Id. That individual need only

“recertif[y]” the license by submitting the appropriate

recertification form with all necessary information before

the license expires. Id. § 400.00(10)(b).

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Appendix A

The individual Appellants lack standing to challenge

the training requirement because, simply put, it does not

apply to them. The record indicates that eight of them

have a concealed-carry license, and that none of those

eight resides in New York City or Nassau, Suffolk, or

Westchester Counties. Meanwhile, the record contains

no information about Jim Ingerick’s licensing situation.

But he bears the burden to show he has standing. He

therefore lacks standing to challenge the firearms training

requirement because he has failed to show that it applies

to him.

Accordingly, the district court correctly held that

Appellants lacked standing to bring their individual

Second Amendment claims.

CONCLUSION

We have considered Appellants’ remaining arguments

on appeal and find them to be without merit. Accordingly,

we AFFIRM the district court’s order denying their

motion for preliminary injunctive relief.

32a

Appendix

APPENDIX B

— OPINION

OF THE

UNITED STATES DISTRICT COURT FOR

THE NORTHERN DISTRICT OF NEW YORK,

FILED DECEMBER 7, 2022

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF NEW YORK

December 7, 2022, Decided;

December 7, 2022, Filed

1:22-cv-1134 (BKS/DJS)

NADINE GAZZOLA, INDIVIDUALLY, AND

AS CO-OWNER, PRESIDENT, AND BUREAU

OF ALCOHOL, TOBACCO, FIREARMS, AND

EXPLOSIVES FEDERAL FIREARMS LICENSEE

(“BATFE FFL”) RESPONSIBLE PERSON FOR

ZERO TOLERANCE MANUFACTURING, INC.,

SETH GAZZOLA, INDIVIDUALLY, AND AS COOWNER, VICE PRESIDENT, AND BATFE FFL

RESPONSIBLE PERSON FOR ZERO TOLERANCE

MANUFACTURING, INC., JOHN A. HANUSIK,

INDIVIDUALLY, AND AS OWNER AND BATFE

FFL RESPONSIBLE PERSON FOR AGA SALES,

JIM INGERICK, INDIVIDUALLY, AND AS

OWNER AND BATFE FFL RESPONSIBLE

PERSON FOR INGERICK’S, LLC, D/B/A AVON

GUN & HUNTING SUPPLY, CHRISTOPHER

MARTELLO, INDIVIDUALLY, AND AS OWNER

AND BATFE FFL RESPONSIBLE PERSON

FOR PERFORMANCE PAINTBALL, INC., D/B/A

IKKIN ARMS, MICHAEL MASTROGIOVANNI,

33a

Appendix B

INDIVIDUALLY, AND AS OWNER AND

BATFE FFL RESPONSIBLE PERSON FOR

SPUR SHOOTERS SUPPLY, ROBERT OWENS,

INDIVIDUALLY, AND AS OWNER AND

BATFE FFL RESPONSIBLE PERSON FOR

THOUSAND ISLANDS ARMORY, CRAIG

SERAFINI, INDIVIDUALLY, AND AS OWNER

AND BATFE FFL RESPONSIBLE PERSON

FOR UPSTATE GUNS AND AMMO, LLC, NICK

AFFRONTI, INDIVIDUALLY, AND AS BATFE

FFL RESPONSIBLE PERSON FOR EAST SIDE

TRADERS LLC, AND, EMPIRE STATE ARMS

COLLECTORS, INC.,

Plaintiffs,

KATHLEEN HOCHUL, IN HER OFFICIAL

CAPACITY AS GOVERNOR OF THE STATE

OF NEW YORK, STEVEN A. NIGRELLI, IN

HIS OFFICIAL CAPACITY AS THE ACTING

SUPERINTENDENT OF THE NEW YORK

STATE POLICE, ROSSANA ROSADO, IN HER

OFFICIAL CAPACITY AS THE COMMISSIONER

OF THE DEPARTMENT OF CRIMINAL JUSTICE

SERVICES OF THE NEW YORK STATE POLICE,

AND LETITIA JAMES, IN HER OFFICIAL

CAPACITY AS THE ATTORNEY GENERAL OF

THE STATE OF NEW YORK,

Defendants.

34a

Appendix B

Hon. Brenda K. Sannes, Chief United States District

Judge.

MEMORANDUM-DECISION AND ORDER

INTRODUCTION

On November 1, 2022, Plaintiffs initiated an action

under 42 U.S.C. §§ 1983, 1985 against Defendants

Kathleen Hochul, in her official capacity as Governor of the

State of New York, Steven Nigrelli, in his official capacity

as the Acting Superintendent of the New York State

Police, Rosanna Rosado, in her official capacity as the

Commissioner of the New York Department of Criminal

Justice Services,1 and Letitia James, in her official

capacity as the Attorney General of the State of New York,

alleging that certain provisions of New York firearms law

deprive them of civil rights secured by the Second, Fifth,

and Fourteenth Amendments. (Dkt. No. 1, ¶¶ 1, 306-25.)

Plaintiffs further allege that certain challenged provisions

are pre-empted by federal statutory and regulatory law,

(id. ¶¶ 326-35), certain challenged provisions run afoul

of the Second, Fifth, or Fourteenth Amendments, (id.

¶¶ 308-09, 322, 336-43), and certain challenged provisions

are unconstitutional under an apparently novel theory of

“constitutional-regulatory overburden,” (id. ¶¶ 344-51). On

November 8, 2022, Plaintiffs filed a motion for a temporary

restraining order and a preliminary injunction under Rule

1. Defendants note that Plaintiffs have incorrectly characterized

the Department of Criminal Justice Services as a division of the New

York State Police when it is in fact a separate state agency. (Dkt.

No. 29, at 7 n.1.)

35a

Appendix B

65 of the Federal Rules of Civil Procedure seeking an

order enjoining enforcement of the challenged provisions.

(Dkt. No. 13, at 2-5.) The motion is fully briefed, with an

opposition from Defendants and a reply by Plaintiffs. (Dkt.

Nos. 29, 33.) The Court held a hearing on December 1,

2022. After considering the parties’ submissions and oral

arguments, the Court orally denied Plaintiffs’ motion for

a temporary restraining order and preliminary injunction

and indicated that a written decision would follow. (Dkt.

No. 37.) This is that decision, including the Court’s findings

of fact and conclusions of law in accordance with Rule

52(a)(2).

36a

Appendix B

II. FACTS2

Plaintiffs

Plaintiffs are nine individuals and one business

organization. 3 At least eight 4 of the Plaintiffs are qualified

under federal law as “Responsible Persons,” (Dkt. No.

13-2, ¶ 11 n.1), associated with a federal firearms license

(“FFL”). (Id. ¶ 11; Dkt. No. 13-3, ¶ 14; Dkt. No. 13-4, ¶ 6;

2. The facts are taken from the affidavits and attached exhibits

submitted in connection with this motion. See J.S.G. ex rel. J.S.R.

v. Sessions, 330 F. Supp. 3d 731, 738 (D. Conn. 2018) (“In deciding a

motion for preliminary injunction, a court may consider the entire

record including affidavits and other hearsay evidence.”); Fisher

v. Goord, 981 F. Supp. 140, 173 n.38 (W.D.N.Y. 1997) (noting that a

“court has discretion on a preliminary injunction motion to consider

affidavits as well as live testimony, given the necessity of a prompt

decision”). The “findings are provisional in the sense that they are

not binding on a motion for summary judgment or at trial and are

subject to change as the litigation progresses.” trueEX, LLC v.

MarkitSERV Ltd., 266 F. Supp. 3d 705, 720 n.108 (S.D.N.Y. 2017); see

also Fair Hous. in Huntington Comm. Inc. v. Town of Huntington,

316 F.3d 357, 364 (2d Cir. 2003).

3. In the complaint, Plaintiffs initially suggest that the business

organizations owned by Plaintiffs are also Plaintiffs themselves.

(Dkt. No. 1, at 2.) However, the complaint lists only the individuals,

plus Empire State Arms Collectors, Inc., under the “Parties”

heading. (Id. ¶¶ 6-21.) Plaintiffs also describe this action as being

filed “on behalf of 10 Plaintiffs.” (Dkt. No. 33, at 5.) Accordingly, the

group of Plaintiffs consists only of the nine named individuals and

Empire State Arms Collectors, Inc.

4. Plaintiff Jim Ingerick is listed as a Responsible Person in

the case caption but did not submit an affidavit in connection with

Plaintiffs’ motion for a temporary restraining order and preliminary

injunction.

37a

Appendix B

Dkt. No. 13-5, ¶ 6; Dkt. No. 13-6, ¶ 13; Dkt. No. 13-7, ¶ 6;

Dkt. No. 13-8, ¶ 6; Dkt. No. 13-9, ¶ 6.) At least seven5

of the nine business organizations owned by Plaintiffs

possess federal firearms licenses that allow them to serve

as dealers in firearms. (Dkt. No. 13-2, ¶ 12; Dkt. No. 133, ¶ 13-14; Dkt. No. 13-4, ¶ 6; Dkt. No. 13-5, ¶ 6; Dkt. No.

13-6, ¶ 13; Dkt. No. 13-7, ¶ 6; Dkt. No. 13-8, ¶ 6; Dkt. No.

13-9, ¶ 6); see also 18 U.S.C. § 921(a)(11)(A). Two of these

business organizations possess federal firearms licenses

that allow them to serve as firearms manufacturers.

(Dkt. No. 13-2, ¶ 12; Dkt. No. 13-3, ¶ 14; Dkt. No. 13-6,

¶ 13); see also 18 U.S.C. § 921(a)(10). One of the business

organizations possesses a federal firearms license that

allows it to serve as a firearms pawnbroker. (Dkt. No. 137, ¶ 6); see also 18 U.S.C. § 921(a)(12). At least six6 of the

nine business organizations also hold firearms licenses

under New York law. (Dkt. No. 13-2, ¶ 15; Dkt. No. 13-4,

¶ 7; Dkt. No. 13-5, ¶ 6; Dkt. No. 13-6, ¶ 15; Dkt. No. 137, ¶ 7; Dkt. No. 13-9, ¶ 7.) Plaintiff Empire State Arms

Collectors, Inc., holds neither a federal nor a New York

firearms license. (Dkt. No. 1, ¶ 14.)7

5. There is no indication that the business organization

associated with Plaintiff Jim Ingerick, “Avon Gun & Hunting Supply,”

has a federal firearms license.

6. There is no indication that the business organization

associated with Plaintiff Jim Ingerick, “Avon Gun & Hunting Supply,”

has a New York firearms license. And although Plaintiff Robert

Owens submitted an affidavit in connection with Plaintiffs’ motion

for a temporary restraining order and preliminary injunction, there

is no indication that the business associated with him, “Thousand

Islands Armory,” has a New York firearms license. (Dkt. No. 13-8.)

7. According to the complaint, Plaintiff Jim Ingerick “serves as

the President” of Empire State Arms Collectors Association, Inc.,

38a

Appendix B

B. Challenged Laws

Plaintiffs claim to be challenging thirty-one statutory

firearms provisions. (Dkt. No. 1, ¶¶ 28, 32.) Their list of

challenged provisions, however, appears to contain only

twenty-four unique sections and subsections. (Id. ¶ 31.)8

Each provision challenged in the complaint is set forth in

the following table: 9

an organization whose “primary function” is hosting a gun show, and

Ingerick is “authorized to participate on its behalf for purposes of

this litigation.” (Id. ¶ 14.)

8. Plaintiffs’ memorandum of law in support of their motion for

a temporary restraining order and preliminary injunction appears

to add two other provisions: N.Y. Penal §§ 265.65, 265.66. (Dkt. No.

13, at 4.)

9. Plaintiffs incorrectly identify this provision as N.Y. Gen.

Bus. § 875-g(b)(1) throughout both the complaint and the motion

for a temporary restraining order and preliminary injunction, (Dkt.

Nos. 1, 13-11), with the exception of one correct reference in the

complaint, (Dkt. No. 1, ¶ 286). The Court notes that N.Y. Gen. Bus.

§ 875-g(b)(1) does not exist. It is clear from Plaintiffs’ description

of the provision, however, that they are referring to N.Y. Gen. Bus.

§ 875-g(1)(b). (Dkt. No. 13-11, at 13 (“N[.]Y[.] Gen[.] Bus[.] § 875-g(b)

(1) would require the Plaintiffs to sign an annual certification of their

compliance ‘with all of the requirements of this article.’” (quoting

N.Y. Gen. Bus. § 875-g(1)(b))).)

39a

Appendix B

New York

Penal Law

N.Y. Penal

§ 265.20(3-a)

N.Y. Penal

§ 270.22

N.Y. Penal

§ 400.00(1)

N.Y. Penal

§ 400.00(2)

N.Y. Penal

§ 400.00(3)

N.Y. Penal

§ 400.00(6)

N.Y. Penal

§ 400.00(7)

N.Y. Penal

§ 400.00(8)

N.Y. Penal

§ 400.00(9)

N.Y. Penal

§ 400.00(14)

N.Y. Penal

§ 400.00(19)

N.Y. Penal

§ 400.02(2)

N.Y. Penal

§ 400.03(2)

New York

General

Business Law

N.Y. Gen. Bus.

§ 875-b(1)

N.Y. Gen. Bus.

§ 875-b(2)

N.Y. Gen. Bus.

§ 875-c

N.Y. Gen. Bus.

§ 875-e

N.Y. Gen. Bus.

§ 875-f

N.Y. Gen. Bus.

§ 875-g(1)(b)9

N.Y. Gen. Bus.

§ 875-g(2)

N.Y. Gen. Bus.

§ 875-h

New York

Executive Law

N.Y. Exec.

§ 144-a

N.Y. Exec. § 228

N.Y. Exec.

§ 837(23)(a)

40a

Appendix B

(Id.) In their memorandum of law in support of their

motion for a temporary restraining order and preliminary

injunction, Plaintiffs separate these laws into three

groups10 and challenge each group under a different

theory,11 as set forth below: 12

10. N.Y. Gen. Bus. § 875-h is not included in any of Plaintiffs’

groups.

11. These groups are not fully consonant with the allegations

laid out in the complaint. In fact, each group differs from the lists

of provisions challenged under each theory in the complaint. For

instance, Plaintiffs include N.Y. Penal § 400.02(2) in Group A, (Dkt.

No. 13, at 3), but Plaintiffs did not allege in their complaint that N.Y.

Penal § 400.02(2) is pre-empted by federal law, (Dkt. No. 1). Group C

has similarly been added to and subtracted from as compared to the

portion of the complaint alleging Plaintiffs’ theory of “constitutional

regulatory overburden.” (Dkt. No. 13, at 4-5; Dkt. No. 1, ¶ 181.)

Plaintiffs also include N.Y. Penal §§ 265.65, 265.66 in Group B,

(Dkt. No. 13, at 4), but these provisions are not mentioned at all in

the complaint, (Dkt. No. 1). Nevertheless, the Court will “consider

the entire record” and examine each law that Plaintiffs cite either

in their complaint or in their memorandum of law in support of their

motion for a temporary restraining order and preliminary injunction.

See J.S.G. ex rel. J.S.R., 330 F. Supp. 3d at 738.

12. These provisions were not included in the list of challenged

provisions in the complaint. (Dkt. No. 1, ¶ 31.)

41a

Appendix B

Group A:

“pre-empted

by federal law”

(Dkt. No. 13,

at 3)

Group B:

Group C:

“unconstitutional “unconstitutional

under the

regulatory

Second, Fifth,

overburden in

and Fourteenth

violation of the

Amendments”

Second and

(Dkt. No. 13,

Fourteenth

at 4)

Amendments”

(Dkt. No. 13,

at 4-5)

N.Y. Gen. Bus.

§ 875-b(1)

§ 875-g(1)(b)

§ 875-b(1)

N.Y. Gen. Bus.

N.Y. Penal

N.Y. Gen. Bus.

§ 875-b(2)

§§ 400.00(1), (19)

§ 875-b(2)

N.Y. Gen. Bus.

N.Y. Exec.

N.Y. Gen. Bus.

§ 875-f

§ 837(23)(a)

§ 875-c

N.Y. Gen. Bus.

N.Y. Penal

N.Y. Gen. Bus.

§ 875-f(1)-(4)

§ 265.20(3-a)

§ 875-e

N.Y. Gen. Bus.

N.Y. Penal

N.Y. Gen. Bus.

§ 875-f(2)

§§ 400.00(2)-(3),

§ 875-e(3)

(6)-(9), (14)

N.Y. Gen. Bus.

N.Y. Penal

N.Y. Gen. Bus.

§ 875-f(3)

§ 265.65

§ 875-f(2)

N.Y. Gen. Bus.

N.Y. Penal

N.Y. Gen. Bus.

§ 875-g(1)(b)

§ 265.66

§ 875-g(2)

N.Y. Penal

§ 400.02(2)

§ 270.22

N.Y. Exec. § 228

N.Y. Exec.

§ 144-a

N.Y. Penal

§ 400.03(2)

42a

Appendix B

Plaintiffs have stated their opposition to compliance

with the New York laws. (Dkt. No. 13-2, ¶¶ 64, 66, 68, 69,

70; Dkt. No. 13-3, ¶ 22; Dkt. No. 13-4, ¶¶ 29, 66, 83; Dkt.

No. 13-5, ¶ 65; Dkt. No. 13-6, ¶¶ 40, 79, 87, 88, 92, 95; Dkt.

No. 13-7, ¶ 71; Dkt. No. 13-8, ¶ 30.) Plaintiffs have also

stated that the laws already in effect have had adverse

economic consequences, (Dkt. No. 13-2, ¶¶ 56-61; Dkt. No.

13-3, ¶ 42; Dkt. No. 13-4, ¶ 22; Dkt. No. 13-6, ¶¶ 53, 61, 69;

Dkt. No. 13-7, ¶ 37; Dkt. No. 13-8, ¶¶ 52, 59; Dkt. No. 13-9,

¶¶ 13-14), and that there will be economic consequences

when the remaining laws take effect, (Dkt. No. 13-4, ¶ 22;

Dkt. No. 13-5, ¶¶ 25, 68; Dkt. No. 13-8, ¶¶ 29, 58, 60).

Additionally, the Court notes that the knowing violation

of N.Y. Gen. Bus. art. 39-BB is a class A misdemeanor

and that violations of N.Y. Penal §§ 265.65, 265.66, 270.22,

400.00, 400.03 carry consequences under New York Penal

Law. See N.Y. Gen. Bus. § 875-i; N.Y. Penal §§ 265.65,

265.66, 270.22, 400.00(15), 400.03(8).

III.

STANDARD OF REVIEW

Rule 65 of the Federal Rules of Civil Procedure

governs temporary restraining orders and preliminary

injunctions. In the Second Circuit, the standard for the

issuance of a temporary restraining order is the same as

the standard for the issuance of a preliminary injunction.

Fairfield Cnty. Med. Ass’n v. United Healthcare of New

Eng., 985 F. Supp. 2d 262, 270 (D. Conn. 2013), aff’d, 557 F.

App’x 53 (2d Cir. 2014) (summary order); AFA Dispensing

Grp. B.V. v. Anheuser-Busch, Inc., 740 F. Supp. 2d 465, 471

(S.D.N.Y. 2010). To obtain a temporary restraining order

or preliminary injunction that “will affect government

43a

Appendix B

action taken in the public interest pursuant to a statute or

regulatory scheme,” the moving party must demonstrate:

(1) irreparable injury in the absence of an injunction; (2) a

likelihood of success on the merits; and (3) that the public

interest weighs in favor of and will not be disserved by

the injunction. See We The Patriots USA, Inc. v. Hochul,

17 F.4th 266, 279 (2d Cir. 2021), cert. denied sub nom. Dr.

A. v. Hochul, 142 S. Ct. 2569, 213 L. Ed. 2d 1126 (2022);

see also Benihana, Inc. v. Benihana of Tokyo, LLC, 784

F.3d 887, 895 (2d Cir. 2015); N. Am. Soccer League, LLC

v. U.S. Soccer Fed’n, Inc., 883 F.3d 32, 37 (2d Cir. 2018).

Generally, “[t]he movant must also show that the balance

of equities supports the issuance of an injunction.” See We

The Patriots USA, 17 F.4th at 280 (citing Yang v. Kosinski,

960 F.3d 119, 127 (2d Cir. 2020)). This factor merges into

the inquiry into the public interest when the government

is a party to the suit. Id. at 295 (citing New York v. U.S.

Dep’t of Homeland Sec., 969 F.3d 42, 58-59 (2d Cir. 2020)).

Injunctive relief can be mandatory or prohibitory. See

Citigroup Glob. Mkts., Inc. v. VCG Special Opportunities

Master Fund Ltd., 598 F.3d 30, 35 n.4 (2d Cir. 2010).

When the injunctive relief sought is “‘mandatory’ [in

that it would] ‘alter[] the status quo by commanding

some positive act,’ as opposed to [being] ‘prohibitory’ [by]

seeking only to maintain the status quo,” id. (quoting Tom

Doherty Assocs., Inc. v. Saban Ent., Inc., 60 F.3d 27, 34

(2d Cir. 1995)), the movant “must meet a heightened legal

standard by showing ‘a clear or substantial likelihood of

success on the merits.’” N. Am. Soccer League, 883 F.3d

at 37 (quoting N.Y. Civ. Liberties Union v. N.Y.C. Transit

Auth., 684 F.3d 286, 294 (2d Cir. 2012)). The “status quo . . .

44a

Appendix B

is[] ‘the last actual, peaceable uncontested status which

preceded the pending controversy.’” Id. (quoting Mastrio

v. Sebelius, 768 F.3d 116, 120 (2d Cir. 2014) (per curiam)).

Here, the injunctive relief Plaintiffs request with

regard to the laws not yet in effect would maintain “the

last actual, peaceable uncontested status which preceded

the pending controversy,” Hester ex rel. A.H. v. French,

985 F.3d 165, 177 (2d Cir. 2021) (quoting N. Am. Soccer

League, 883 F.3d at 37), by “stay[ing] ‘government action

taken in the public interest pursuant to a statutory or

regulatory scheme,’” Field Day, LLC v. Cnty. of Suffolk,

463 F.3d 167, 181 (2d Cir. 2006) (quoting Mastrovincenzo

v. City of New York, 435 F.3d 78, 88 (2d Cir. 2006)). Though

all of the laws at issue have been enacted, Plaintiffs allege,

and Defendants do not dispute, that certain challenged

provisions did not take effect until December 5, 2022.13

(Dkt. No. 13-2, ¶ 62; Dkt. No. 13-4, ¶ 49; Dkt. No. 13-5, ¶ 25.)

The requested injunctive relief would not have compelled

Defendants to take any action before that date and would

not have disrupted an established state program, so the

heightened mandatory injunction standard does not apply

to the challenges to these provisions. See Libertarian

Party of Conn. v. Lamont, 977 F.3d 173, 177 (2d Cir.

13. The Court notes that these provisions appear to have

taken effect on December 3, 2022, not December 5, 2022. See S.B.

S4970A, 2020 Sen., 2021-22 Reg. Sess. (N.Y. 2022). In any event, the

Court denied Plaintiffs’ motion for a temporary restraining order

and preliminary injunction on December 2, 2022. (Dkt. No. 37.) The

Court further notes that some of the provisions Plaintiffs challenge

had already taken effect (namely, N.Y. Penal §§ 270.22, 400.00(1)-(3),

(6)-(9), (14), (19), 400.02(2), 400.03(2)).

45a

Appendix B

2020); Hester, 985 F.3d at 177. But Plaintiffs concede that

some of the challenged provisions had already gone into

effect. (Dkt. No. 33, at 4.) The injunctive relief Plaintiffs

request with regard to these laws would not maintain

“the last actual, peaceable uncontested status which

preceded the pending controversy,” Hester, 985 F.3d at

177 (quoting N. Am. Soccer League, 883 F.3d at 37), but

would instead “alter the status quo by commanding some

positive act,” Citigroup, 598 F.3d at 35 n.4 (quoting Tom

Doherty Assocs., 60 F.3d at 34). Thus, for these provisions,

the Plaintiffs “must meet a heightened legal standard by

showing ‘a clear or substantial likelihood of success on the

merits.’” N. Am. Soccer League, 883 F.3d at 37 (quoting

N.Y. Civ. Liberties Union., 684 F.3d at 294).

However, this distinction is immaterial for the case at

hand because, as discussed below, Plaintiffs fail to meet

even the lesser “likelihood of success” standard for any of

their claims. Accordingly, the Court limits its discussion to

an examination of whether Plaintiffs have demonstrated

(1) irreparable injury in the absence of an injunction; (2)

a likelihood of success on the merits; and (3) whether

the balance of the equities supports the issuance of an

injunction. See We The Patriots USA, 17 F.4th at 279-80.

46a

Appendix B

IV. ANALYSIS

Standing

The parties did not fully raise the issue of standing.14

However, the Court “bears an independent obligation to

assure . . . that jurisdiction is proper before proceeding

to the merits.” Plains Com. Bank v. Long Fam. Land

& Cattle Co., 554 U.S. 316, 324, 128 S. Ct. 2709, 171 L.

Ed. 2d 457 (2008) (citing Steel Co. v. Citizens for a Better

Env’t, 523 U.S. 83, 94-95, 118 S. Ct. 1003, 140 L. Ed. 2d

210 (1998)). Therefore, the Court will consider whether

Plaintiffs have standing.

The jurisdiction of federal courts is limited to “Cases”

and “Controversies.” U.S. Const., art. III, § 2; see also

In re Clinton Nurseries, Inc., 53 F.4th 15, 22 (2d Cir.

2022). The doctrine of standing “gives meaning to these

constitutional limits by “identify[ing] those disputes which

are appropriately resolved through the judicial process.”

Susan B. Anthony List v. Driehaus, 573 U.S. 149, 157,

134 S. Ct. 2334, 189 L. Ed. 2d 246 (2014) (quoting Lujan

v. Defs. of Wildlife, 504 U.S. 555, 560, 112 S. Ct. 2130, 119

L. Ed. 2d 351 (1992)); see also Spokeo, Inc. v. Robins, 578

U.S. 330, 338, 136 S. Ct. 1540, 194 L. Ed. 2d 635 (2016). To

establish standing, “a plaintiff must show (1) an ‘injury in

fact,’ (2) a sufficient ‘causal connection between the injury

and the conduct complained of,’ and (3) ‘a likel[ihood]’ that

14. Neither party has fully briefed the issue of standing, and

Defendants do not dispute Plaintiffs’ standing except for limited

arguments involving Defendants Hochul and James, (Dkt. No. 29,

at 13-15).

47a

Appendix B

the injury ‘will be redressed by a favorable decision.’”

Susan B. Anthony List, 573 U.S. at 157-58 (quoting Lujan,

504 U.S. at 560-61). An injury must be “concrete and

particularized” and “actual or imminent,” not “conjectural

or hypothetical.” Id. at 158 (quoting Lujan, 504 U.S. at

560). “‘The party invoking federal jurisdiction bears the

burden of establishing’ standing,” id. at 158 (quoting

Amnesty Int’l USA, 568 U.S. at 411-12), and the party

must establish standing for each claim, Davis v. FEC, 554

U.S. 724, 734, 128 S. Ct. 2759, 171 L. Ed. 2d 737 (2008). “At

least one plaintiff must have standing to seek each form

of relief requested in the complaint.” Town of Chester v.

Laroe Ests., Inc., 581 U.S. 433, 137 S. Ct. 1645, 1651, 198

L. Ed. 2d 64 (2017).

Where a law not yet in effect is challenged, standing

can be satisfied by alleging “an intention to engage in a

course of conduct arguably affected with a constitutional

interest, but proscribed by a statute, and there exists

a credible threat of prosecution thereunder.” Susan B.

Anthony List, 573 U.S. at 159 (quoting Babbitt v. United

Farm Workers Nat’l Union, 442 U.S. 289, 298, 99 S. Ct.

2301, 60 L. Ed. 2d 895 (1979)). In such a circumstance, a

plaintiff need not show it is “subject to . . . an actual arrest,

prosecution, or other enforcement action,” nor does the

plaintiff need “to confess that [it] will in fact violate the

law.” Id. at 158, 163 (citing United Farm Workers Nat’l

Union, 442 U.S. at 301).

To establish standing for a preliminary injunction,

a party cannot rely on “mere allegations” but must

“‘set forth’ by affidavit or other evidence ‘specific facts’

48a

Appendix B

which for purposes of [the] motion will be taken as true.”

Cacchillo v. Insmed, Inc., 638 F.3d 401, 404 (2d Cir. 2011)

(quoting Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 907

n.8, 110 S. Ct. 3177, 111 L. Ed. 2d 695 (1990)).

Standing as Owners of FFL Businesses

The Court finds, for the purpose of ruling on the

motion for a temporary restraining order and preliminary

injunction, that at least one Plaintiff has satisfied the

standing requirements for each claim. Several Plaintiffs

have alleged existing economic injuries arising from the

challenged New York laws that are already in effect that

could plausibly be redressed by enjoining those laws.

(Dkt. No. 13-2, ¶¶ 56-61; Dkt. No. 13-3, ¶ 42; Dkt. No.

13-4, ¶ 22; Dkt. No. 13-6, ¶¶ 53, 61, 69; Dkt. No. 13-7, ¶ 37;

Dkt. No. 13-8, ¶¶ 52, 59; Dkt. No. 13-9, ¶¶ 13-14); see also

SM Kids, LLC v. Google LLC, 963 F.3d 206, 211 (2d Cir.

2020). Each of Plaintiffs’ claims involves at least one of

these laws that is already in effect. (Dkt. No. 13, at 3-5.)

Furthermore, several Plaintiffs allege an intention to

violate the remaining laws that have not yet taken effect.

(Dkt. No. 13-2, ¶¶ 64, 66, 68, 69, 70; Dkt. No. 13-3, ¶ 22;

Dkt. No. 13-4, ¶¶ 29, 66, 83; Dkt. No. 13-5, ¶ 65; Dkt. No.

13-6, ¶¶ 40, 79, 87, 88, 92, 95; Dkt. No. 13-7, ¶ 71; Dkt.

No. 13-8, ¶ 30.) Given that “courts are generally willing

to presume that the government will enforce the law as

long as the relevant statute is recent and not moribund,”

Picard v. Magliano, 42 F.4th 89, 98 (2d Cir. 2022) (internal

quotation marks omitted), this is sufficient to establish

an “intention to engage in a course of conduct arguably

affected with a constitutional interest, but proscribed

49a

Appendix B

by a statute, and [that] there exists a credible threat of

prosecution thereunder.” See Susan B. Anthony List, 573

U.S. at 159 (quoting Farm Workers Nat’l Union, 442 U.S.

at 298). Thus, taking these allegations to be true at this

stage, and considering the alleged existing injuries and

the intentions to violate the New York statutes together,

Plaintiffs have satisfied the standing requirements for

seeking a temporary restraining order and preliminary

injunction as owners of FFL businesses.

Individual Standing to Pursue a Second

Amendment Claim

While this action primarily concerns Plaintiffs as

owners of FFL businesses, Plaintiffs did assert, in a

cursory manner, that their individual rights under the

Second Amendment were violated. (Dkt. No. 1; Dkt. No.

13-11, at 4).15 Defendants argue that Plaintiffs “have no

Second Amendment injuries as individuals.” (Dkt. No. 29,

at 23). In reply, Plaintiffs argue that they “have standing

to assert infringement of their individual civil rights,

such as the renewal of the permit, access to instructors

to satisfy renewal requirements, the right to purchase

a semiautomatic rifle[,] . . . and the right to purchase

ammunition.” (Dkt. No. 33, at 7.) Plaintiffs reiterated

these claims at the December 1, 2022, hearing, arguing

that their inability to purchase semi-automatic rifles or

ammunition or renew existing concealed carry permits

satisfies the standing requirements for an individual

Second Amendment claim.

15. At the same time, Plaintiffs acknowledge that previously

filed lawsuits involving individual plaintiffs “are distinguished.”

(Dkt. No. 13-11, at 4 n.1.)

50a

Appendix B

Although Plaintiffs did not adequately raise these

arguments in their moving papers, the Court has

considered the isolated allegations of injury to individual

Second Amendment rights in the record and finds that no

Plaintiff has provided sufficient allegations to establish

individual standing to pursue a Second Amendment claim.

Plaintiff Christopher Martello alleges that he “desire[s]

to purchase additional semi-automatic rifles for personal

self-defense and sporting purposes . . . [and that he is]

unable to do so because Livingston County is not offering

a semiautomatic license, which is required to be presented

to an FFL to lawfully purchase such a rifle.” (Dkt. No. 136, ¶ 11.) But there is no allegation that he took any steps

to purchase a semiautomatic rifle. Thus, he has failed to

establish a “concrete and particularized” and “actual and

imminent” injury. Susan B. Anthony List, 573 U.S. at

158 (quoting Lujan, 504 U.S. at 560); see also Antonyuk

v. Bruen, No. 22-cv-0734, 2022 U.S. Dist. LEXIS 157874,

at *45, 2022 WL 3999791, at *15 (N.D.N.Y. Aug. 31, 2022)

(“‘[S]ome day’ intentions—without any description of

concrete plans, or indeed even any specification of when

the some day will be—do not support a finding of the

‘actual or imminent’ injury that our cases require.”

(quoting Lujan, 504 U.S. at 564)). Moreover, he has failed

to establish how the non-defendant county’s failure to

issue semiautomatic rifle licenses is “fairly traceable to

the challenged action.” See Lexmark Int’l, Inc. v. Static

Control Components, Inc., 572 U.S. 118, 134 n.6, 134 S.

Ct. 1377, 188 L. Ed. 2d 392 (2014); see also Simon v. E. Ky.

Welfare Rts. Org., 426 U.S. 26, 41-42, 96 S. Ct. 1917, 48 L.

Ed. 2d 450 (1976) (holding that, to establish standing, the

challenged action must have been taken by a defendant,

not “some third party not before the court”).

51a

Appendix B

Plaintiff Craig Serafini makes a similar assertion

with regard to ammunition, stating: “People don’t want

to give their name and personal information out every

time they buy [ammunition]. . . . I don’t blame them. I,

myself, haven’t purchased any ammunition since the new

law went into effect. I’m leading in this section in my role

as an FFL, but I also wish to remind the Court that my

individual rights are being violated, as well.” (Dkt. No. 134, ¶¶ 54-55). For the same reasons, these allegations are

insufficient to demonstrate a concrete and particularized

and actual and imminent injury.

Finally, with respect to the renewal of a concealed

carry permit, Plaintiff Seth Gazzola states: “I have a

concealed carry permit that I want to timely renew, which

will require a valid training course.” (Dkt. No. 13-3, ¶ 39.).16

As with the claims of Plaintiffs Martello and Serafini,

Plaintiffs fail to demonstrate how this single sentence,

evincing a desire to timely renew a permit, amounts to

16. Plaintiffs’ allegation regarding renewal appears to rely

on the premise that concealed carry permits cannot be renewed

without completing the training requirements of N.Y. Penal § 400.00

and that that law is unconstitutionally vague, rendering renewal

impossible. This appears to misconstrue the law. Defendants argue

that the relevant provisions do not require that concealed carry

permits issued “[e]lsewhere than in the city of New York and the

counties of Nassau, Suffolk and Westchester” be renewed. N.Y. Penal

§ 400.00(10). (Dkt. No. 29, at 25 n.10.) It appears that such permits

must be recertified, N.Y. Penal § 400.00(10)(d), which requires a

separate process that does not include the completion of the training

course, N.Y. Penal § 400.00(1), (10), (19). Plaintiffs have not indicated

how their interpretation of the statute is supported. Furthermore,

the Court has concluded that Plaintiffs have not

52a

Appendix B

an actual, imminent, concrete, and particularized injury.

See Susan B. Anthony List, 573 U.S. at 158. Accordingly,

the Court limits its finding of standing to Plaintiffs as

FFL businesses.

B. Injunctive Relief

Irreparable Harm

Plaintiffs contend that the New York laws create a

danger of imminent irreparable harm in the absence of

injunctive relief because the laws violate constitutional

rights and disrupt or force the closure of Plaintiffs’

businesses, causing economic and emotional harm. (Dkt.

No. 13-11, at 6-8, 26-27.) Defendants argue that Plaintiffs

have failed to convincingly show any constitutional

injury and failed to show that any injury is concrete and

imminent. (Dkt. No. 29, at 10-12.) Defendants also argue

that injunctive relief should be denied because the losses

alleged by Plaintiffs are monetary and quantifiable. (Id.

at 12.)17

17. Defendants further argue that, even assuming Plaintiffs

can establish irreparable harm, Plaintiffs’ delay in seeking an

injunction undermines any assertion of irreparable harm. (Id. at

10-11.) The challenged laws were passed between May 30, 2022, and

July 1, 2022. (Dkt. No. 1, ¶ 1.) “Preliminary injunctions are generally

granted under the theory that there is an urgent need for speedy

action to protect the plaintiffs’ rights. Delay in seeking enforcement

of those rights, however, tends to indicate at least a reduced need

for such drastic, speedy action.” Citibank N.A. v. Citytrust, 756

F.2d 273, 276 (2d Cir. 1985); see also Weight Watchers Int’l, Inc. v.

Luigino’s, Inc., 423 F.3d 137, 144-45 (2d Cir. 2005) (“We have found

delays of as little as ten weeks sufficient to defeat the presumption

53a

Appendix B

A showing of irreparable harm is “the single mos

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