In the introductory pages of John le Carré’s, The Night Manager, a lawyer is about to be executed.
He is trying to process the enormity and finality of the moment and becomes fixated on the instrument of his demise, specifically the gun being pointed at him.
He does not reflect on the circumstances that led him to this inauspicious end. Rather, he begins an intellectual exercise attempting to negate the very existence of the gun itself. Relying on foggy memories of law school, he remembers the logic game he played with a professor where they debated the physical existence of a gun. He now employs that same faulty logic to give himself some degree of solace that the barrel he is looking down is, in fact, not a firearm.
He is then summarily shot.
I bring this up because it does tend to be a problem within our legal community. “How many angels can dance on the head of a pin?” might be academically interesting, but, in the end, it does not really yield much, other than the academic exercise itself.
Sometimes, though, this act of intellectual gymnastics is used for more nefarious purposes; sometimes it becomes the work of tyrants and political sycophants who will point to the sun and declare, “Good Lord, how bright and goodly shines the moon!”
Such is the case with Goldstein v Hochul.
Mr. Goldstein and several others are congregants at a synagogue in New York. Most of them have concealed carry permits. (Ironically, many of them had permits pre-Bruen.) As such, and being the state of the world we live in, Mr. Goldstein and the other plaintiffs would regularly carry their guns to Shul.
Immediately after the Bruen decision was handed down, the antis in the New York legislature lost their minds. Sure… they had to rescind the Sullivan Act, which made obtaining a CCW virtually impossible… but they could restrict where you could carry a gun, thereby negating the value of having a CCW. At least this was, and continues to be, their theory… it is a flat-out violation of admonition in Bruen regarding what exactly a “sensitive” location actually is… but like California, the New York legislature feels little obligation to conform legislative activities to comport with the Constitution, especially when they know they have like-minded judges who will hold their water for them.
Enter U.S. District Court Judge Vernon S. Broderick.
After the New York legislature passed a law restricting houses of worship as “sensitive locations” (they are not), and thus depriving congregants of their Second Amendment rights while at a house of worship, the plaintiffs sued claiming the law violated the Second Amendment. (They actually also claim it violates the First, Fifth, and Fourteenth as well.)
Plaintiffs also moved for a preliminary injunction so the law could not be enforced as the challenge proceeded.
Judge Broderick has denied the injunction.
For a judge to issue an injunction in New York, he needs to show three things: 1) That the plaintiffs are likely to win on the merits at trial, 2) That the plaintiffs are going to suffer an irreparable harm if the law is enforced during the trial, and 3) And this part seems unique to NY, that the issuance of a preliminary injunction balances the needs of the state versus the moving party.
Judge Broderick, therefore, had to start by deciding if the plaintiffs were likely to prevail at trial, and he, not surprisingly, feels they will not. He starts out correctly deciding the Second Amendment has been implicated by the statute, so he then turns to decide whether the State can show the law banning the presence of a weapon in a house of worship is consistent with the nation’s history of firearms regulations as they existed at the time of the ratification.
In Bruen he was specifically admonished to limit the scope of his inquiry to the time around 1791. He ignored that completely. Not finding any regulations at the time of the ratification, he expanded his historical scope to the Middle Ages and the early twentieth century. He was going to find that analogous law, God damnit… even if he had to make it up!
He also bemoans the exercise. In a footnote he complains the judiciary is not made up of historians… and relying on historical analysis is uniquely dangerous.
The bench is full of historians. More specifically, all of us who are members of the bar are, to some extent, historians. We got into this gig in the first place because we have a love of history. More importantly though, we are analyzers of evidence… including historical evidence.
Judge Broderick feels history can be biased. In this he has a point… but all evidence is inherently biased. That is why we weigh it against other evidence and attribute evidentiary value to each individual nugget. If a treatise is drafted by an anti-gun academic and is contrary to written statements by the Framers themselves… guess what… the Framers win.
So… as of now Mr. Goldstein and his merry band of plaintiffs are left stripped of their Second Amendment rights (at least as it relates to the synagogue).
This case will, and must, be followed closely… and I can only hope a certain level of Divine Providence does indeed manifest as it moves to the appellate court, as it most surely will.