NYPD Denies FFL 01s Business Licenses

[Aguila Blanca]

mrreynolds -

I just clicked the link in your signature, which I assume leads to your web site. On the home page I see a reference to the language of the Second Amendment, but it's listed as New York statute, § 4. Right to keep and bear arms.

That's not a complete enough citation for me to look up the statute, so I'd like to know where to find it. I ask because it happens that just a few days ago I researched the right to keep and bear arms in states' constitutions, and what I found is that New York State does not have any constitutional provision guaranteeing the RKBA.

https://gun-control.procon.org/state...o-bear-arms-2/

32. New York No constitutional provision to bear arms n/a n/a

[JohnKSa]

This issue does not exist in any other state so there will be no other case.

The fact that you are citing two other different cases about different issues because you believe they are relevant means that you understand that a specific issue doesn't have to exist somewhere else for there to be case with a ruling that is relevant.

Your frustration is natural. It's hard to get excited about the long-term, big picture when you're stuck with a narrow focus and in the short term. The problem is that if you're going to deal with SAF, you have to understand that the long-term, big picture is their exclusive focus.

[mrreynolds]

My case is a commerce case I applied for licenses to conduct business. And it's not in the state constitution.

The Laws Of New York Consolidated Laws Civil Rights Article 2: Bill Of Rights

https://www.nysenate.gov/legislation/laws/CVR/4

[raimius]

The idea is to get more favorable courts to set precedent that NY courts will be bound to follow. That is when your situation becomes tenable. We aren't there yet. We have Heller and McDonald, but not a standard of review. SCOTUS dodged the issue on NYSRPA because NYC and NY played post-cert games. We need a good vehicle for a standard of review to be set, and your case probably isn't it.

[mrreynolds]

I appreciate all the responses but I think the misinterpretation is that this is not an RKBA case it's a commerce case. Interstate commerce is not up for debate it's pretty much set in stone the police cannot lawfully stop it. The licenses they withhold affect my ability to engage in commerce intrastate and/or interstate. Federally it's a done deal.

Also, the standard of review for violations of interstate commerce is already set its "strict scrutiny." They don't want to accept it. Therefore the Greeks are not the only ones who can use a Trojan Horse tactic you should always study and apply military science. That's what I did in my case.

[Aguila Blanca]

But the interstate commerce clause is in the federal constitution. I'm not a lawyer, but it would seem to me that the proper venue for a case based on violations of the federal constitution would be in federal court, not the New York state courts. New York state courts have no jurisdiction over interstate commerce. They have jurisdiction over intrastate commerce.

And, since the focus of the Second Amendment Foundation is the Second Amendment, if your case is a pure commerce clause case it should hardly be a surprise that the Second Amendment Foundation doesn't want to get involved.

[mrreynolds]

The first step is an Article 78 you have to exhaust the basic judicial administrative remedies first. Then you move forward as the case progresses. The commodity is "firearms in commerce" hence the Second Amendment comes into it. The SAF does not have to get involved that's not a deal-breaker. Read the case.

Under the “Equal Protection Clause” all “FFL 01’s” can engage in “Lawful Commerce in Arms.” Which is a “constitutionally-protected activity” i.e., “law-abiding” citizens purchasing firearms for “self-defense” in “commerce” which is at the core of the Second Amendment right. To possess you must acquire you stop FFLs from selling you stop possession.

Not only is purchasing a firearm in “commerce” from “FFL 01s” “intrastate” at a “gun show” or “interstate” via “e-commerce” lawful, it is constitutionally protected. District of Columbia v. Heller, 554 U.S. 570, 635 (2008).

[HiBC]

Hmmmm. I'm not going to burn a lot of braincells wordsmithing this.

In your own words:

"Utilizing that logic what case is going to come along that will allow FFL 01s in the city of New York to engage in "Lawful Commerce in Arms?" No disrespect intended but it's funny when the case before you is that case you're always told it's someone else's fight. I am Spartacus although he died. I could be Leonidas I of Sparta but damn he died too. Hell Han Solo died, Luke Skywalker he's dead too. I guess there are no hero's left, lol."

There is something flawed about envisioning yourself a hero . Heroism is made of something else.

Try this : "Discretion is the better part of valor" or "Choose your battles wisely"

I know a brilliant person who was driven by the idea he would not submit to the Federal Government coercing money from him. He believed Federal income tax unconstitutional,and he set about proving it in court.
To his credit,he did it accepting the consequences.
As a result,he spent a number of years in a federal penitentiary.
Was he a hero?
This guy really was near genius,I wonder if he mis-applied his life? I guess thats up to him to decide.

You make your choices. Montana,Wyoming,Texas...There are states friendly to the gun biz. But are you really about the gun biz?
Some folks thrive on conflict and intensity.They argue just to argue Your posts here might be a clue. Its tiresome. Most folks don't want what you are selling.

Folks in Montana,Wyoming,Texas might find that annoying. Maybe New York suits you.
The failing of the geographic cure is"Wherever you go,there you are"

Look up the "Serenity Prayer"

Or how about "The cockroach who argues with a chicken is always wrong"

There are ways to quiet the head noise,breathe,and be at peace.

[JohnKSa]

I appreciate all the responses but I think the misinterpretation is that this is not an RKBA case it's a commerce case.

Then why did you contact SAF? They don't deal in commerce cases.

As I understand it, here's the issue.

To conduct certain types of firearm sales, NYC requires that you have two licenses beyond the federally required FFL 01. NYC will not issue those licenses to FFL 01's who don't have a brick and mortar store. You can not operate a brick and mortar store out of your house because of zoning restrictions.

Is it legal, under NYC law to conduct any firearm sales at all without the two licenses which you can't get?

If the answer is 'No', then there is no "discrimination against interstate commerce". Discrimination against interstate commerce would require allowing intrastate/local commerce but preventing/restricting the same type of commerce when it is interstate.

Local/state laws:

1. Must not discriminate against out-of-state actors or out-of-state competition, or have the effect of favoring in-state economic actors. If the law is discriminatory, then the state must show it has no other (reasonable) means of advancing a legitimate local (important, non-economic state interest, such as health of safety) purpose.

2. Must not be unduly burdensome. If the law only incidentally burdens interstate commerce, or if the law is nondiscriminatory, the court will balance whether the benefits of the state’s interest are outweighed by the burden on state commerce, by looking to the following: Are there less restrictive alternatives? Are there any conflicts with other states’ regulations?

The first doesn't apply if with-holding the licenses restricts both intrastate and interstate commerce equally.

The second is a factor, but only if the courts rule that the restriction is "unduly burdensome".

Assuming the answer about discrimination is 'No'.

They can certainly legally stop you from getting a business license if you don't meet the requirements for one--as long as the requirements are such that they can be reasonably satisfied. If the requirements were impossible to satisfy then there would be a case--but it still wouldn't hinge on discrimination against insterstate commerce because there's no discrimination--they're just saying you can't do business of any kind.

What they can't do is restrict your interstate commerce while allowing you to conduct the same kind of commerce at the intrastate level unless the courts agree that the burden imposed on interstate commerce is not clearly excessive.

I suspect that's what AG meant when he said "your approach would not work to solve it."

Without discrimination against interstate commerce being a factor, the case is reduced to challenging local zoning and licensing laws which are not going to be of interest to SAF.

Even if it were, I don't see a good basis for such a challenge. NYC is not saying you can't get the licenses, period, they're just saying you have to meet the requirements before you are eligible. I don't like it, you don't like it. It's obviously done as a gun control gambit, but there's nothing in federal laws that says a city/state/county can't regulate businesses by requiring licenses and by using zoning.

[Aguila Blanca]

Originally Posted by mrreynolds

The first step is an Article 78 you have to exhaust the basic judicial administrative remedies first. Then you move forward as the case progresses.

The interstate commerce clause is in the federal constitution. Your remedies for violations or infringements of the federal constitution lie in the federal courts. Aside from that, court is not an "administrative" remedy, it's a judicial remedy. An administrative remedy is jumping through all the hoops established by the applicable laws or regulations involved, including any appeals processes built into those laws or regulations. It is correct that you are supposed to have exhausted all available "administrative" remedies before resorting to the judicial process ... but the judicial process is not an administrative remedy.

The commodity is "firearms in commerce" hence the Second Amendment comes into it.

The Second Amendment guarantees a right to keep and bear arms. It does not address a right to sell arms in interstate commerce. If your case is about interstate commerce it is NOT a Second Amendment case, it's an interstate commerce case.

[Frank Ettin]

Originally Posted by mrreynolds

...Interstate commerce is not up for debate it's pretty much set in stone the police cannot lawfully stop it. The licenses they withhold affect my ability to engage in commerce intrastate and/or interstate. Federally it's a done deal.....

Ah, no. Article I, Section 8, of the Constitution, authorizes Congress to enact laws regulating interstate and international commerce. And Article I, Section 10, sets some limits on what States can do that might have an impact on interstate commerce (e. g., prohibiting imposts or duties).

Any general, constitutional protections of an individual's rights to engage in commerce derive from the Due Process (Fifth and Fourteenth Amendments) and Equal Protection (Article IV, Section 2 and the Fourteenth Amendment) clauses. There is no specific, broad constitutional protection of an individual right to engage in interstate commerce.

With regard specifically to firearms, the Gun Control Act of 1968 provides at 18 USC 927:

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.

It appears that there are a few holes in the OP's legal analysis and that the legal issues are more complex than can reasonably be productively discussed in this Forum. The OP os going to need qualified, professional legal help if he plans to pursue his claims.