Appellate Court Update

Many people are asking how we made out in court on December 9th. While we probably won’t get a ruling in the case for several months, CCDL executive board member and fundraising coordinator Bob Ferguson wrote this piece on the day’s events.

On December 9th, oral arguments were heard at the U.S. 2nd Circuit Court of Appeals in our case, Shew v. Malloy. The NYSRP v. Cuomo case (SAFE Act) was also on the docket. Since both cases involved similar, though not identical arguments and both plaintiffs had the same legal team, The panel of judges had our lawyers make a combined argument for both cases and then each side (NY and CT) made their arguments, followed by a rebuttal from our attorneys.

David Thompson from the law firm of Cooper & Kirk, PLLC was the lead presenter for our legal team. He was joined at the plaintiff counsel’s table by Brian Stapleton (the lead attorney at the district level) and Stephen Halbrook (noted firearms attorney from the MacDonald v. Chicago case.) These are among the top firearms attorneys in the country. We were treated to a brilliant display by David Thompson that made it clear that our attorneys are in the major leagues, and the attorneys for NY and CT are in the minors. In the short presentation time allowed, David touched on a huge wealth of information that had been presented in previously submitted briefs.

This was the first opportunity that any of us have had to hear our legal team present oral arguments since the arguments were cancelled at the Federal District court level. Many of the CCDL executive board were in the courtroom along with several CCDL members to see first-hand the stellar legal representation that ongoing contributions to the litigation fund have been paying for. The quality of the representation we have in this case is immeasurable.

We are asking all of our members to keep in mind that both sides had previously filed briefs and responses and the oral arguments are just the phase where the justices can ask questions. It may be that the minds of the justices minds are already made up, and they are just seeking to refine their opinions. However, it was abundantly clear by the end of the arguments that our legal team was best prepared with excellent responses to the justices’ questions.

David Thompson completely destroyed the testimony offered by Christopher Koper, the key expert witness for both NY and CT. By the end of the arguments, it was clear to the judges that Koper admitted that “There is little evidence that the AW ban will work or that bans of any ‘military features’ will have any effect.” Both lawyers for NY and CT scrambled to answer this apparent contradiction from their key expert witness with no effect. In fact, they were forced to resort to quoting the “Mother Jones” website as the only other ‘expert’ testimony that they could offer!

One key mistake that the NY and CT attorneys seemed to make was in arguing that the Heller case was strictly concerning handguns. In fact, the case made it clear that the type of firearms protected are “Those in common use for lawful purposes.” Our attorney made that point very clear and even quoted the dissenting Justice Stevens from the SCOTUS Heller case in agreeing that the Heller ruling was NOT only about handguns. It’s not a very good fact pattern for the defense when the Supreme Court Justice on their side actually agrees with OUR assessment of the case.

In short, our legal team clearly came out on top in this phase of the case. That does not mean that we will get a favorable decision however. Intellectual honesty on the part of the panel of judges is key at this point in order to win at this level.

Our attorneys expect a decision to be rendered in 3-6 months, after which, the losing side will no doubt appeal to the SCOTUS. The justices could remand the case back to the lower court for an incorrect ruling or they could affirm the district court’s decision. Regardless, we know this will likely be a long, drawn out legal process. Many thanks to all of you who have contributed to our litigation fund during this process. This truly has been a monumental effort to this point from all of you. Please keep those donations coming. DONATE HERE. A CD Disc of the arguments is being ordered, and we will make sure it is posted for all to listen to when we have it.

CCDL also wishes to thank the National Rifle Association for their continued tactical support in this effort. They have been a tremendous part of this effort to help restore our 2nd Amendment rights to the fullest.

Please join us at our January members meeting as lead attorney David Thompson comes up from Washington D.C. to address our members, and we provide a Q&A session with him. If you have questions about timelines, or other aspects of this case, this will be the time and place for it.

10 thoughts on “Appellate Court Update

  1. Pingback: CCDL lawsuit update

  2. Intellectual honesty……Does anyone believe that the only thing that matters is not the wishes of the judges? The debt that is owed to the powers that placed them in their jobs and a signal for attention from those that may grant them a promotion. We were told that we had the only judge that was not biased against our position and he didn’t even get a hearing. You loose, move on. Then the judge’s beloved bar association wishes to file a friend of the court brief in favor of the ban. That didn’t get filed after a few harshly opposed it. The fact is, in the interest of impartiality they never should have considered it.

  3. Your Donation page would not allow me to enter an amount. Examine and, if need be fix!

  4. I am looking forward to hearing oral arguments when they become available. Interested to hear how the common use argument was received by the judges. I read that they may have been persuaded that “assault rifles” though numbering in the millions were only a small percentage of the type of guns most common in int States (compared to handguns).

    The banned semi-autos made up only 3 percent (I believe I read) of all guns owned by Americans, so therefore they were not necessarily in common use. I pray they don’t buy that bogus argument as it could easily be exploited by the gun confiscators.

    • I don’t believe the judges are convinced by anything. I believe they will do what they want to do and are just looking for a path to justify their position.

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