SROUR 2ND CIRCUIT ANJRPC
Very recently in Srour v. New York City, ___ F.4th ___ (No. 23-cv-7549) (2d Cir. September 9, 2024) (“Srour II”), the Second Circuit Court of Appeals, the same tribunal reversed by the U.S. Supreme Court in N.Y.S.R.P.A. v. Bruen, 597 U.S. ___ (2022), abolished a lower court injunction barring New York City authorities from exercising broad discretion when considering applications for firearms licenses. While procedurally sound, this holding might very well embolden New York and likeminded authorities to perpetuate licensing rules inimical to the Right to Keep and Bear Arms, procedures which Bruen already decreed violate the Second Amendment.
Not long ago in this space, see Sabino, “New York Federal Court Upholds Second Amendment, Overrules NYC Licensing Rules,” News & Briefs (March/April 2024), we analyzed District Judge John P. Cronan’s finding that certain City firearms licensing regulations had to be enjoined for reason that they “fail[ed] to pass constitutional muster.” While appealing that holding, New York made a remarkable about face; it granted Mr. Srour his firearms licenses, and then argued that the case should be dismissed as moot, and the injunction along with it.
The Second Circuit agreed. Characterizing the case at bar as presenting an “easy question,” Circuit Judge Eunice C. Lee accurately noted that the federal courts may only decide “live” cases and controversies. By granting Mr. Srour his licenses, there was nothing left for the courts to adjudicate. The proceeding was therefore dismissed in its entirety, and the injunction wiped off the books.
Notably, the panel rejected out of hand Mr. Srour’s vigorous contentions that the City’s “voluntary cessation” was a mere artifice, and that, once the authorities were no longer enjoined, they would revert to the same practices which the trial court had declared unconstitutional.
We concede that Srour II is arguably correct on procedural grounds, but nonetheless respectfully contend that the panel misunderstood F.B.I. v. Fikre, 601 U.S. 234 (2024). There a unanimous Supreme Court robustly proclaimed that constitutional rights are determined by substance, not strategies. Accordingly, “[a] case does not automatically become moot when a defendant suspends its challenged conduct.” Ruling therein against the government and for the citizen, the high Court articulated a “formidable burden” to dismissal on grounds of mootness. Indeed, Justice Gorsuch not only opined that a matter is not resolved simply because a defendant voluntarily reverses its course, he convincingly pointed out the following danger: government could unilaterally cease its transgressions, obtain a dismissal, “and later pick up where it left off.”
We are gravely concerned that Srour II illuminates a clear pathway towards continued evasion of Bruen, and that localities with animus towards the Second Amendment shall emulate the City’s tactics, specifically, reject applicants until an adverse judicial decision looms, then grant the license, and thereafter argue mootness, all the while preserving a firearms licensing regime defying Bruen’s admonitions.
We can only hope that Srour II or a case very much like it shall provide the catalyst for further Supreme Court intervention in defense of the Second Amendment.