POST-BRUEN—WHAT IT ALL MEANS AND WHAT ITS IMPACT IS BOTH FOR THOSE WHO SUPPORT AND CHERISH THE RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS AND THOSE WHO DO NOT; THOSE WHO SEEK TO UNDERMINE AND EVENTUALLY DESTROY THE EXERCISE OF THE RIGHT AND THOSE WHO SEEK TO PRESERVE AND STRENGTHEN THE RIGHT BOTH FOR THEMSELVES AND THEIR DESCENDANTS
NEW YORK GOVERNOR KATHY HOCHUL HAS HER HANDS FULL: THE U.S. DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK JUST THREW A WRENCH IN HER UNCONSTITUTIONAL AND UNCONSCIONABLE AMENDMENTS TO THE NEW YORK GUN LAW SUSPENDING ENFORCEMENT OF HER DRACONIAN CHANGES TO THE NEW YORK CONCEALED HANDGUN CARRY LICENSE REQUIREMENTS*
The ink wasn’t yet dry on Bruen when New York Governor Kathy Hochul, commanded the State Legislature to place the final touches on amendments to the New York Gun Law and to do so quickly.
Clearly, Hochul had substantial early warning of the decision and had made ample provision for it. She had, or so she thought, figured out an ingenious way around so that it would not waylay the ongoing agenda to strip New Yorkers of their natural law right to bear arms in their own defense against predators lurking all over the place.
Just as quickly as Hochul signed the amendments to New York’s unconstitutional and unconscionable Gun Law, an American citizen and resident of New York, Ivan Antonyuk, along with Gun Owners of America, Inc., and two sister organizations, filed their challenge to it.
The case is Antonyuk vs. Bruen, 2202 Lexis 15784 (N.D.N.Y. Aug. 31, 2022).
It is important to keep this case in mind, for the U.S. Supreme Court will deal with it. It will become Bruen II.
The TRO suspends the operation of the “Good Moral Character” requirement and the “Sensitive Location” requirement of the CCIA, effectively gutting it. But why did the District Court grant the TRO?
To understand why the Court did this, it helps to have a context for it. And, for context, it helps to have some understanding of the history of Antonyuk.
It behooves one to reflect on the fact that the District Court denied the Plaintiffs’ original Complaint and Motion for Preliminary Injunction and Hochul made much of that, gloating over it.
A TIMELINE OF STEPS LEADING UP TO THE DISTRICT COURT’S FIRST RULING IN ANTONYUK
On July 11, 2022, Plaintiff, Ivan Antonyuk, along with Gun Owners of America, filed their complaint, claiming that the CCIA (the collective name for the most recent package of amendments to New York’s Gun Law, the Sullivan Act) violates the First, Second, and Fourteenth Amendments of the U.S. Constitution, and 42 U.S.C. § 1983 of the Civil Rights Statute of 1871.
On July 20, 2022, the Plaintiffs filed their motion for a preliminary injunction, seeking to suspend the CCIA immediately, before trial on the substantive issues, which could take months. A long wait was unacceptable since the CCIA was due to become effective in early September 2022.
On August 15, 2022, Defendant, the New York Government, filed its opposition to the motion.
On September 1, 2022, the Court issued its ruling dismissing the complaint on the Court’s own motion and denying the Plaintiffs’ motion for preliminary injunction as moot.
Upon dismissal of the Complaint and denial of the Motion for a Preliminary Injunction, on September 1, 2022, Kathy Hochul triumphantly boasted——
“The court dismissed the case and denied the motion for a preliminary injunction. It is a just and right decision, and our smart, sensible gun laws will go into effect as planned tomorrow on September 1 to keep New Yorkers safe.” ~ See the Statement by New York Governor Kathy Hochul, posted on her website, on August 31, 2022, one day before the official release of the decision, having obviously received advance notice of the decision.
Hochul’s boast would come back to haunt her.
Hochul thought the Court’s dismissal of the Complaint and denial of the Motion signaled vindication for the CCIA.
It didn’t, not by a long shot!
Governor Kathy Hochul failed to mention in her remarks to New Yorkers that the Federal Court dismissed the Complaint and denied the Motion for Preliminary Judgment, “without prejudice.”
This is important. It means the Plaintiffs were free to refile their case. Apparently, Hochul didn’t consider that possibility and what it might portend.
In dismissing the case without prejudice the District Court did not merely permit the refiling of the case, the Court, in this instance, avidly encouraged the continuation of the case.
And, the Plaintiffs did just that.
One should not, then, view the U.S. District Court decision on September 1, 2022, as merely a perfunctory dismissal of a lawsuit challenging the CCIA. It was much more than that.
The opinion was 101 pages long and highly detailed. It was a roadmap designed for the Plaintiffs.
And the Plaintiffs followed that roadmap to the letter.
In the September 1 opinion, the District Court lacerated Hochul’s CCIA. She made no mention of the content of the opinion, nor did she even allude to it in her remarks.
The Court showed its outrage not only for the breadth and depth of the New York Government’s defiance toward the U.S. Supreme Court’s Bruen rulings—no less so than for its contemptuous attitude toward the Court itself—but also at the insouciance with which Governor Hochul and the New York Legislature in Albany had acted to undercut the High Court’s rulings and attempted now to extend that heedlessness and callousness toward the U.S. District Court.
The amendments to New York’s Gun Law make getting a New York concealed handgun carry license more difficult, not less so than prior to the enactment of the CCIA. And for those few individuals willing to sacrifice a severe invasion of their privacy, as the bitter price to pay for a New York State concealed handgun carry license, they will find it affords them little practical benefit for all the trouble it took them to gain it.
The U.S. District Court saw right through Hochul’s charade and would not suffer it: not for the American people, nor for itself, as a component of the Third Branch of Government, the U.S. Supreme Court.
But, one cannot fully appreciate the District Court’s justified anger toward Hochul and toward the New York Legislature in Albany unless one reviews the original District Court opinion.
AQ is doing the analysis and will provide the results to our readers and will forward our analysis to the publisher of Ammoland Shooting Sports News for consideration, for Ammoland’s readers. Those articles are being prepared now for publication soon.
A TIMELINE OF THE ANTONYUK CASE IMMEDIATELY AFTER THE DISMISSAL OF BOTH THE ORIGINAL COMPLAINT AND MOTION FOR PRELIMINARY INJUNCTION
On September 22, 2022, Ivan Antonyuk, the original Party Plaintiff, and five additional individuals filed their Motion for a Temporary Restraining Order and Motion for a Preliminary Injunction. Gun Owners of America and its sister organizations dropped out as Party Defendants to the new action for a TRO because the District Court had determined in the earlier case, Antonyuk vs. Bruen, that Gun Owners of America lacked legal standing and could not overcome the standing issue.
The Defendants in the TRO action now included a slew of State and various County Government officials. And the first-named principal Defendant was now none other than the New York Governor Kathy Hochul, herself, in her Official Capacity, as Governor.
Kevin Bruen still appears as a Party Defendant, in his Official Capacity as Superintendent of the New York Police, but is now relegated to second-named Defendant. However, Bruen remains a fixture in the Antonyuk and he was, of course, the principal Defendant in the “Granddaddy” U.S. Supreme Court case, NYSRPA vs. Bruen.
Hochul, though, is now raised to the status of principal ignominious antagonist in the epic tragedy she had orchestrated and which she has inflicted on herself and on all New Yorkers. She has no one to blame for the mess but herself.
On September 28, 2022, the State Defendants and the Oswego County Defendants submitted their briefs in opposition to the Plaintiffs’ motion for a Temporary Restraining Order.
On September 29, 2022, the Court conducted an oral argument. At the end of the oral argument, the Court reserved the decision and stated that its decision would follow.
On October 6, 2022, the Court decided the TRO, granting it in part and denying it in part.
For a Court to grant a TRO is no mean accomplishment. Getting a Court to grant a TRO is even more difficult than getting a Court to grant a Motion for Preliminary Injunction, which is itself difficult.
For a Court to grant a TRO, a plaintiff must, show: one, that the case presents a “sufficiently serious question,” two, a likelihood of success on the merits, and, three, that the public interest would not be “dis-served” by proffering the relief requested. The Court determined that all those factors were met.
For the Hochul Government, an award of a TRO immediately throws a wrench into both the operation of the CCIA and the Government’s broad agenda to eviscerate the exercise of Americans’ natural law right of armed self-defense.
The Hochul Government is climbing a wall in rage. And, Hochul herself must be no less happy at the prospect of appearing as a jackass for having claimed complete vindication after the District Court had dismissed the Complaint and denied the Preliminary Injunction back on September 1, 2o22.
Hochul was too quick on the draw, her exaltation at the dismissal of the case in September was premature. Did she even bother herself to read the District Court’s decision? Did she honestly think the Plaintiffs wouldn’t continue to seek redress and that they would not likely prevail on a subsequent Court filing, especially when the Court had encouraged the Plaintiffs to refile and went further, explaining how Plaintiffs can overcome the procedural problem of “standing” that had flawed the original Complaint and Motion for Preliminary Injunction?
Had Hochul taken a more cautious stance and reasoned tone in her remarks on September 1, 2022, she would not now come across as a complete buffoon. But, she couldn’t help herself. And her image makers did her no service.
The one constant and ineradicable character flaw of all social and political Progressives, Neo-Marxists, and Neoliberal Globalists both here in the United States and in the world at large is their unbelievable, irrepressible arrogance.
The question at the moment is: “what will Hochul and her Government do now?”
The Hochul Government will almost certainly file an appeal with the U.S. Court of Appeals for the Second Circuit, seeking a reversal of the U.S. District Court decision. But that appeal will probably fail.
And the appeal will probably fail for this reason:
“Because a TRO is interlocutory and is not technically an injunction, it is ordinarily not appealable.” Romer v. Green Point Sav. Bank, 27 F.3d 12, 15 (2d Cir. 1994).
Hochul cannot weasel her way around the TRO. This means that the case will go to trial, and that takes time. And, with the TRO in place, time is no longer on her side, but on the side of those New Yorkers who cherish the right of the people to keep and bear arms. The granting of the TRO means that the Bruen rulings stay in place.
Hochul cannot weasel her way around the TRO. This means that the case will go to trial, and that takes time. And, with the TRO in place, time is no longer on her side, but, rather, on the side of those New Yorkers who cherish the right of the people to keep and bear arms.
This also means, one, the Bruen rulings stay in place, and, two, the Hochul Government cannot lawfully make use of a fortified and bloated “Good Moral Character” requirement along with the imbecilic “sensitive location” requirement to defy the High Court and curtail the right of armed self-defense. The principal provisions in the CCIA are suspended!
Kathy Hochul’s Government must adhere to the High Court’s Bruen rulings! The Antonyuk case will proceed to trial, and that will take time!
Hochul cannot defy the High Court. And she cannot, by legerdemain, curtail the right of armed self-defense.
Kathy Hochul’s Government must adhere to the High Court’s Bruen rulings! The Antonyuk case will proceed to trial and that will take time.
This is a definite win-win outcome for New Yorkers. But, for Hochul and her Government, this is a no-win situation and it could not come at a worse time.
Perhaps Hochul will ignore the District Court’s order outright just as she defied the High Court. We wouldn’t put it past her.
But, with the Midterm Elections fast approaching and her Governorship on the line, would Hochul dare to defy “the rule of law” that Democrats make so much of in their oratory and yet care so little about as evidenced in their actions and policies? How will Hochul’s political consultants and image makers play this? It will be interesting to see.
* This is an important update to the previous version of this article. AQ has corrected the recitation of the named Party Plaintiffs and the named Party Defendants.
Copyright © 2022 Roger J. Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.