Gun Rights Advocates Seek Supreme Court Intervention to Block New York Restrictions

In an appeal to the Supreme Court, gun rights advocates write that a circuit court ruling has ‘the effect of indefinitely suspending the protections afforded New Yorkers by the Second Amendment.’

AP/Yuki Iwamura
A 'Gun Free Zone' sign at Times Square. AP/Yuki Iwamura

Second Amendment advocates are waiting for action by the Supreme Court amid an escalating dispute over New York’s gun laws in the federal courts.

In a request filed to Justice Sonia Sotomayor, lawyers in the case of Antonyuk v. Nigrelli are asking the justice to either unilaterally act to reverse an appellate court order that allows a New York gun law to take effect, or refer the matter to the full court. 

The case centers on the landmark decision in New York State Rifle & Pistol Association v. Bruen last term, when the Supreme Court struck down New York State’s strict permitting regime to carry a gun in public, saying that firearms are integral to the history of the United States and that the law violated New Yorkers’ Second Amendment rights.

In response to Bruen, New York implemented a new set of restrictions. On November 7th, District Court Judge Glenn Suddaby halted implementation of some of New York state’s new post-Bruen gun regulations. He wrote that the state’s requirements that applicants prove their “good moral character” and provide their social media history for review by officials, among other requirements, were unconstitutional. 

In response to Judge Suddaby’s ruling, the attorney general, Letitia James, asked the Second Circuit to stay the order while the appeals process plays out, which the circuit riders granted, allowing the Concealed Carry Improvement Act to take effect. Gun rights advocates are now asking Justice Sotomayor to vacate the stay. 

In their Supreme Court brief, the applicants wrote that the circuit riders’ actions have “the effect of indefinitely suspending the protections afforded New Yorkers by the Second Amendment and affirmed by this Court in Bruen.” The Court could act as soon as Tuesday. 

In a statement to the Sun, a member of the Gun Owners of America’s board of directors, Sam Paredes, said that the new regulation is a carbon copy of the one struck down by the Supreme Court. “The ‘good moral character’ test is nothing more than another name for the ‘proper cause’ test that was struck down,” Mr. Paredes said. He added that “if there is any subjectivity to the requirements for concealed carry weapons permits, the system is by definition, unconstitutional.”

A provision in New York’s Concealed Carry Improvement Act allowing the government to ban firearms from “sensitive” places — such as houses of worship, public transportation, and private property — was challenged in a separate lawsuit which has also made its way to the Second Circuit. 

In his decision striking down the “sensitive” places provision, a federal district court judge at Buffalo, John Sinatra, said that the law directly contradicts the Second Amendment and the Supreme Court’s jurisprudence. It was “inconsistent with the nation’s historical traditions, impermissibly infringing on the right to keep and bear arms in public for self-defense,” he wrote in the ruling in a case titled Hardaway v. Nigrelli

Judge Sinatra’s ruling was also stayed by the Second Circuit after an appeal by Ms. James. Plaintiffs’ briefs are due on December 29. 

Second Amendment advocates are cautiously optimistic about the coming appeal, saying that the riders of the Second Circuit are compelled to adhere to the Supreme Court’s ruling. A spokesman for the National Rifle Association, Lars Dalseide, told the Sun that “the lower courts follow the guidance of the higher courts.” 

Yet, Mr. Dalseide added, “the Second Circuit doesn’t have the best record when it comes to firearm-related cases.” The three circuit riders who are set to hear the two appeals in January allowed for implementation of the state law while the appeals process plays out. The three judges on the panel were appointed by Presidents Clinton, George W. Bush, and Trump. 

The president of the New York County Lawyers Association, Vincent Chang, told the Sun that the Second Circuit has a “laborious” task ahead of them during the appeals process. “My guess is that some of the provisions will be upheld by [the circuit riders] and some will not.” 

“The Supreme Court will almost certainly apply Bruen” should these cases reach them, Mr. Chang said. 

The litigation in New York could follow the pattern set in the aftermath of another landmark Second Amendment decision by the Supreme Court. In 2008, Justice Antonin Scalia wrote in his District of Columbia v. Heller decision that the District of Columbia’s prohibition of having handguns in the home violated the Second Amendment, clarifying that citizens do have the individual right to keep and bear arms. 

Yet he added that the case was more narrow in scope than some gun rights advocates would have liked. “Like most rights, the right secured by the Second Amendment is not unlimited,” he wrote for the majority. 

After Heller, lower court however, continue to restrict the right to bear arms in self-defense identified the landmark decision. In Kachalsky v. City of Westchester, three Second Circuit riders ruled that New York could deny firearms licenses to those who did not demonstrate a “special need for self-protection.”

In the wake of Heller, Mayor Bloomberg did not work to amend any of his city’s strict gun regulations, saying that “all of the laws on the books in New York State and New York City” comply with the decision. However, New York law at the time gave the state the ability to deny firearms permits for more ambiguous reasons, such as failure to demonstrate a need for a handgun.

Now, Mayor Adams and his fellow Democrats appear to be taking a similar approach — ignoring the plain meaning of judicial rulings. Following the Bruen decision, Mr. Adams and his legal team deemed the state’s “sensitive areas” regulation as being in accordance with the Supreme Court’s jurisprudence. Following city council action, he quickly moved to ban weapons from Times Square. 

“We will not allow [New Yorkers] to live in fear or distrust that someone is walking around with a gun ready to harm them,” Mr. Adams said at the bill signing ceremony. The Manhattan district attorney, Alvin Bragg, added that banning firearms from Times Square is just “good old common sense.”

As the Supreme Court assesses the emergency brief, it is increasingly likely that Second Amendment jurisprudence will take center stage in this term.

The New York Sun

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