July 24, 2020

On March 30, 2020 a firearms retailer based in Long Island, New York, Dark Storm Industries LLC, filed a lawsuit in the United States District Court for the Northern District of New York naming New York Governor Andrew Cuomo and the Empire State Development Corporation (“ESD”) as defendants. The lawsuit alleged that Governor Cuomo’s Executive Order No. 202.6, issued in response to the COVID-19 pandemic, violated its Second Amendment rights and the rights of its customers when the ESD (responsible for determining which business entities are deemed “essential”) determined that Dark Storm Industries’ retail business of selling firearms and ammunition to the public was not “essential” and therefore must be suspended. The parties filed cross-motions for summary judgment and on July 8, 2020 Judge Lawrence E. Kahn issued a Decision and Order granting Defendants’ motion. While Plaintiffs argued that the Executive Order goes “even further than the ban at issue in Heller[by making] any and all legal acquisition of firearms and ammunition impossible” Judge Kahn determined that “intermediate scrutiny” of the Executive Order would be applied. Judge Kahn reasoned that as there was no dispute that alternatives for acquiring firearms elsewhere existed, including in multiple Wal-Mart stores that remained open, “the burden on Plaintiffs’ Second Amendment rights [was] insubstantial. . .” and thus strict scrutiny was “not triggered.” The Court further found that given the spread of COVID-19, the Executive Order in dispute, seeking to reduce face-to-face interactions, “fit tightly with the State’s goal of slowing the spread of the disease, and thus survive[d] intermediate scrutiny.” The Complaint filed by Dark Storm Industries LLC is available here and the Court’s Decision and Order on the motions for summary judgment is available here.

For additional information on state laws and regulations applicable to the sale of firearms, please contact John F. Renzulli or Christopher Renzulli.