Opinion
New York – -(AmmoLand.com)-
“When Hitler came for the Jews. . . I was not a Jew, therefore, I was not concerned. And when Hitler attacked the Catholics, I was not a Catholic, and therefore, I was not concerned. And when Hitler attacked the unions and the industrialists, I was not a member of the unions, and I was not concerned. Then, Hitler attacked me and the Protestant church — and there was nobody left to be concerned.” ~ quote best ascribed to Martin Niemoller, German Theologian and Lutheran Pastor.
The Goldstein vs. Hochul Case
With dozens of cases filed challenging New York’s reprehensible “Concealed Carry Improvement Act” (CCIA), that the Democrat Party controlled legislature passed on July 1, 2022 and that Governor Kathy Hochul signed into law the same day, coming on the heels of the U.S. Supreme Court’s Bruen decision, published just one week earlier, on June 23, 2022, one obscure case is worth mentioning. It is Goldstein vs. Hochul, 2023 U.S. Dist. LEXIS 111124 (S.D.N.Y, June 23, 2023).
The facts of the Complaint as presented by the Court are as follows:
“Goldstein ‘is a U.S. citizen who resides in Kings County in the State of New York.’ Goldstein [and other similarly situated Plaintiffs] have carried handguns for self-defense at shul [Jewish Temple] prior to the enactment of the CCIA. They allege that after the enactment of the CCIA, they have (1) decreased their attendance at shul due to their inability to carry a firearm, ‘significantly curtail[ed]’ their religious practice, Plaintiffs further allege that the prohibition of concealed carry within places of worship and religious observation ‘acts as a deterrent for law-abiding people to enter’ and makes religious locations more dangerous. On the same day, Goldstein individually and on behalf of the Congregation, and Ornstein filed a motion for TRO and PI enjoining Defendants Governor Hochul, Attorney General James, Commissioner Sewell, Sheriff Falco, District Attorney Gonzalez, and District Attorney Walsh from enforcing the Sensitive Locations restriction, the provision in CCIA designating ‘any place of worship or religious observation’ as a Sensitive Location. Plaintiffs claim that the Sensitive Locations restriction of the CCIA violates their rights under the First, Second, and Fourteenth Amendments. Plaintiffs seek to enjoin Defendants from enforcing the places of worship and religious observation exclusion, alleging that they would suffer immediate and irreparable harm without immediate injunctive relief.” [document citations omitted]
The lawsuit is directed to the unconstitutional “Sensitive Place” (variously called “Sensitive Location”) restrictions the Hochul Government has imposed on all holders of valid New York State concealed handgun carry licenses.
The essence of Plaintiffs’ claim is that the meaning of ‘House of Worship’ is vague and that the Government’s prohibition on the carrying of a handgun violates the First, Second, and Fourteenth Amendments. The Court found that Plaintiffs had not met the stringent standards required for a Preliminary Injunction and that Plaintiffs’ Constitutional Arguments did not outweigh the Government’s claim (from a Press Release) that the Governor has a duty to “‘protect New Yorkers,’ and that ‘keeping the people of New York State safe’ was their greatest priority.’”
Apparently, the state of NY thinks armed Congregants in a House of Worship setting” is a present danger to “keeping the people of New York State safe.”
This is mere platitude and a trite, vacuous banality, and, worst of all, a bald-faced lie.
Hochul has jabbered about “Public Safety” well before the Bruen rulings came down, and, with publication of Bruen, the public hears this constantly without reprieve. See the article in the Gothamist, posted on March 25, 2022, and note the “props” on the stage.
Whether a person wishes to accept the cliché or not, the fact remains that the right to armed self-defense and the responsibility for it rests, as it always did, with the individual, not the State. See January 19, 2020 article posted on Ammoland Shooting Sports News.
The Plaintiffs in Goldstein filed a Notice of Appeal of the adverse decision of the Court, on July 5, 2023. On July 6, 2023, Arbalest Quarrel had an opportunity to talk to a spokesman for the Temple who is knowledgeable about the lawsuit.
We pointed out the Arbalest Quarrel cannot and does not give legal advice, but we do provide non-legal, well-researched information about the Second Amendment, for educational purposes.
First, we mentioned that, as the United States District Court for the Southern District of New York and others have ruled that Governor Kathy Hochul is not a proper party defendant for a lawsuit involving the CCIA, any case naming her principal party Defendant will be dismissed for lack of standing since she is not the person actively implementing and enforcing the CCIA. The principal and proper Party Defendant is the NYPD Police Commissioner.
The present interim New York City Police Commissioner, Edward Caban, recently appointed by Mayor Eric Adams, is the proper and principal Party Defendant in the Goldstein case. This is a ministerial problem that is easily corrected. See NY Times article published on June 20, 2023.
Second, and much more concerning, is the Court’s opinion that fails to mention the ruling of the U.S. Court of Appeals for the Second Circuit in Hardaway v. Nigrelli, U.S. Dist. LESIX 200813 (W.D.N.Y. November 3, 2021).
The Court stated,
“Appellants request a stay pending appeal of the district court’s order dated November 3 2022 (W.D.N.Y. 22-cv-771, doc. 52), enjoining Appellants from enforcing a provision of New York’s Concealed Carry Improvement Act criminalizing possession of a firearm in a place of worship or religious observation. See N.Y. Penal Law § 265.01-e(2)(c). Having weighed the applicable factors, see In re World Trade Ctr. Disaster Site Litig., 503 F.3d 167, 170 (2d Cir. 2007), we conclude that a stay pending appeal is warranted. Accordingly, upon due consideration, it is hereby ORDERED that the motion for a stay pending appeal is GRANTED and the district court’s November 3 order is STAYED pending the resolution of this appeal. To the extent that the district court’s order bars enforcement of § 265.01-e(2)(c) as it pertains to persons who have been tasked with the duty to keep the peace at places of worship, such category is EXCEPTED from this order.”
The failure of the Court in Goldstein to even mention the Hardaway Opinion is concerning. But, on a new appeal to the Second Circuit, the Second Circuit should see through the flaw in the District Court’s Goldstein opinion. The Court should find that consistent with its earlier Opinion in the Hardaway case, people who have a lawful license to carry a handgun in New York must be allowed to carry a handgun in a House of Worship precisely because that “Sensitive Place” Restriction is now EXCEPTED from Government enforcement.
A decision of the Second Circuit involving one U.S. District Court applies to all the lower U.S. District Courts in New York. Apparently, the Southern District of New York, where the Goldstein case was brought, doesn’t see this. That might explain why the Court doesn’t mention the Hardaway opinion.
The tricky wicket here involves the meaning of “with the duty to keep the peace.” If that phrase implies that anyone who carries a handgun in a “House of Worship” is, ipso facto, presumed to be carrying “with the duty to keep the peace,” which is a reasonable conclusion to be drawn, then any person who desires to carry a handgun in a House of Worship for the Constitutionally protected purpose of armed self-defense, and who holds a valid New York State concealed handgun license to carry has, then, complied with the CCIA.
However, if the phrase means that only armed security guards are those individuals who are considered as having “the duty to keep the peace” (apart from Police Officers, Peace Officers and others exempted from “Sensitive Location” restrictions), then a person who wishes to carry a handgun into a House of Worship must comply with stringent and onerous requirements to obtain a special license to carry. See, e.g., article on the New York Government’s Division of Criminal Justice website.
But the State Statute doesn’t explicitly refer to armed security guards in the context of “House of Worship” in the Penal Code.
It may well be that the phrase “with the duty to keep the peace” was intentionally meant to be vague. And, if so, that explains why the Legislature in Albany would add that phrase as a trap for the unwary. In effect, it would mean that carrying a handgun into a House of Worship remains a “Sensitive Place” where one cannot lawfully carry a handgun for self-defense after all.
If this is true, and it may be an argument the Government would henceforth make, it would be in keeping with the State’s agenda to continually constrain the exercise of the right to armed self-defense.
The New York Government’s end goal seems to be to make the entire State into one all-encompassing “Gun-Free Zone” and the common people, and the U.S. Supreme Court be damned if they don’t agree to that.
About The Arbalest Quarrel:
Arbalest Group created `The Arbalest Quarrel’ website for a special purpose. That purpose is to educate the American public about recent Federal and State firearms control legislation. No other website, to our knowledge, provides as deep an analysis or as thorough an analysis. Arbalest Group offers this information free.
For more information, visit: www.arbalestquarrel.com.
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