ANTONYUK VS. NIGRELLI (ANTONYUK II): IS THIS CASE DESTINED TO BE THE FOURTH SEMINAL U.S. SUPREME COURT PRONOUNCEMENT ON THE SECOND AMENDMENT OF THE BILL OF RIGHTS?
IMPORTANT NOTE TO OUR READERS: THE ARTICLE POSTED YESTERDAY UNDER THE TITLE, “THE MEANING OF THE SECOND AMENDMENT IS CLEAR, AND THE U.S. SUPREME COURT HAS SPOKEN, BUT THE BIDEN ADMINISTRATION AND NEW YORK GOVERNOR HOCHUL HAVE OTHER PLANS,” HAS UNDERGONE A SUBSTANTIAL REWRITE, TO SUCH AN EXTENT, THAT WE FELT IT BEST TO POST THIS NEW ONE AS A DISTINCT ARTICLE, AND WITH AND UNDER A NEW BANNER. WE HAVE KEPT THE ORIGINAL ARTICLE, AS POSTED, TO BE FAIR TO ALL OUR READERS. YOU MAY WISH TO COMPARE THE TWO. BUT, IF YOU FIND DISCREPANCIES IN POINTS MADE, BE ADVISED THAT THIS INSTANT ARTICLE CONTROLS. IT REPRESENTS OUR SOLE POSITION AND PERSPECTIVE ON THE MATTERS DISCUSSED. THANK YOU.
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
SUBPART ONE OF PART TWENTY
THE MEANING OF THE SECOND AMENDMENT IS CLEAR, AND THE U.S. SUPREME COURT HAS SPOKEN, BUT THE BIDEN ADMINISTRATION AND NEW YORK GOVERNOR HOCHUL HAVE OTHER PLANS
“The Constitution shall never be construed to prevent the people of the United States who are peaceable citizens from keeping their arms.” ~Samuel Adams, American Statesman and Founding Father
The importance of Heller, McDonald, and Bruen cannot be overstated. These cases, together, establish the Court’s recognition of, one, the immutable, eternal right of the people to keep and bear arms, two, that this right shall not be infringed, and, three, that the armed citizenry is necessary to the security of a free State.
The existence of and maintenance of a free Constitutional Republic is impossible without a well-armed citizenry.
To understand where we are, at the start of a new year, we must retrace our steps back to 2020.
Biden and the Democrat Party will up the ante in their attack on the Second Amendment. That is indisputable.
In 2022, this assault on the right to armed self-defense against the predatory beast, predatory man, and, worst of all, predatory Government, became manifest.
In early February 2021, we pointed out, in our article, titled, “The Biden Plan for the Political and Social Remaking of the American Landscape,” that——
“During his first two weeks in Office, Joe Biden signed over 40 executive orders or similar executive edicts. And he isn’t done. A few days into February and we can expect to see 50 or more Presidential executive orders and other edicts.” This is unheard of.
For comparison, we pointed to a news report published in February 2021, positing that,
“President Donald Trump signed four in his first week in 2017; President Barack Obama signed five in 2009; President George W. Bush signed none in his first week in 2001; and President Bill Clinton signed one in 1993.”
Apparently, Biden and the puppet masters who control him would waste no time reversing the gains Trump had made in setting the Nation back on course, consistent with the aims of the founders of our Nation: To maintain a strong and independent, sovereign Nation-State, and free Constitutional Republic.
The Neoliberal Globalists have reverted to their agenda, set in motion by George Bush and Barack Obama, aimed at dismantling a free Republic and eliminating the exercise of Americans’ natural law rights through which the citizenry maintains its lawful sovereign authority over the Nation and Federal Government, and over its own destiny.
Also, in that February 2021 article, the reporter pointed out that——
“The twin issues of ‘guns’ and ‘gun violence’ will be much discussed in the weeks and months ahead. That much is certain.
Will Biden sign an executive order banning assault weapons’ and will he sign a flurry of other antigun laws as well, not bothering to wait for Congressional enactments?
Don’t think this is improbable. In fact, with all the banter of gun-toting ‘white supremacists’ and right-wing ‘domestic terrorists’ and with thousands of National Guard troops camped out in the U.S. Capital, and with the constant denigration of and growing suppression of conservative dissent, something is definitely afoot. In fact, the Democrat Party propaganda machine is in overdrive. The propagandist newspaper, NY Times, for one, has laid the groundwork for an assault on ‘guns.’”
Our remarks and those in the news article were prescient.
In June 2022, due to Congressional Democrats and scurrilous Congressional Republicans, Biden “signed into law into law the first major federal gun reform in three decades, days after a decision he condemned by the Supreme Court expanding firearm owners’ rights.” See the article in Reuters.
Dutifully, compliantly obeying the orders of his Administrative nursemaids and caretakers, who themselves take orders from shadowy, sinister forces from on high, the Biden puppet also took aim at the millions of civilian citizens who own and possess semiautomatic weaponry and components of the weapons.
But what is especially important here is a remark Biden conveyed to the Press, as reported by Reuters, in that same June 2022 article.
“‘The Supreme Court has made some terrible decisions.’”
The demented fool probably didn’t know what specific U.S. Supreme Court cases his caretakers ordered him to refer to. No matter. All Americans should know. And America’s Patriots do know.
One was Dobbs vs. Jackson Women’s Health. The other was NYSRPA vs. Bruen. Both decisions are important. But, of the two, the latter is much more important. The latter case pertains directly to the security of a free State. The former does not.
NYSRPA vs. Bruen is the latest in a Supreme Court jurisprudential “trilogy” of seminal Second Amendment cases. Yet, the Biden Administration and some State Governments have openly defied the U.S. Supreme Court, and, worse, have openly demonstrated visible contempt for the High Court.
At both the Federal Level and State Levels, powerful malevolent and malignant forces have directed their assault on America’s Second Amendment. Biden and New York Governor Kathy Hochul are the public faces behind shadowy orchestrators, passing along orders surreptitiously to their puppets.
Our Free Constitutional Republic is in dire jeopardy.
New York State Government and actions of other States since Bruen demonstrate all the fervor, ferocity, and audacity of those State governments to go their own way, blatantly disregarding Bruen as they disregarded Heller and McDonald. This has resulted in a plethora of new litigation against the States by Americans who desire only to exercise their natural law right to armed self-defense.
The number of cases filed and progression of post-Bruen case law decisions in New York, alone, point to Americans’ adoration of the natural law right to armed self-defense and to the extraordinary lengths they will go to compel rogue States to adhere to both the plain meaning of the Second Amendment and to those U.S. Supreme Court rulings cementing the Second Amendment in the American psyche.
This points to a tremendous disconnect between the Country Americans know and love, and an alien, monstrous non-nation the Biden Administration and many States, in league with the Biden Administration, wish to thrust on Americans, against their will.
A TREMENDOUS CLASH IS AT HAND BETWEEN THE U.S. SUPREME COURT RULINGS IN BRUEN AND THE NEW YORK GOVERNMENT’S REPUDIATION OF BRUEN
“It is the greatest absurdity to suppose it in the power of one, or of any number of men, at the entering into society to renounce their essential natural rights.” ~ Samuel Adams, American Statesman, and Founding Father
Once the U.S. Supreme Court published the Bruen decision, the Hochul Government, anticipating the decision, was prepared for it. It had been prepared for the Bruen decision for months.
The State Senate in Albany quickly enacted amendments to its Gun Law, designed to operate in defiance of the rulings and to further constrain the exercise of the right of the people to keep and bear arms, and Governor Hochul immediately signed the amendments into law.
Holders of valid New York concealed handgun carry licensees reviewed the amendments as quickly as Hochul had signed them into law. They were not amused. And they were the first out of the gate, in any jurisdiction, to challenge the constitutionality of those lengthy amendments to the New York Gun Law, which, as a body, were referred to as the “Concealed Carry Improvement Act” (“CCIA”).
The Bruen decision came down on June 23, 2022. Hochul signed the CCIA into law on July 1, 2022. And Plaintiffs filed their case, Antonyuk vs. Bruen (Antonyuk I) on July 11, 2022.
Since then, both Antonyuk I and a plethora of other cases wended their way through New York’s Federal Courts. But none are more important than that first case, as it is the first one to make its way to the U.S. Court of Appeals for the Second Circuit, and the first one to receive a response from the U.S. Supreme Court since its rulings in NYSRPA vs. Bruen.
After the U.S. District Court for the Northern District of New York dismissed Antonyuk I, without prejudice, Plaintiff Ivan Antonyuk and other holders of valid New York handgun carry licenses filed a new case, on September 20, 2022 (Antonyuk II). That case was recaptioned Antonyuk vs. Hochul. And, after the Court dismissed Hochul out as a Party Defendant, and, after a new Superintendent of the New York State Police, Steven Nigrelli, took over from the previous Superintendent of the New York State Police, Kevin Bruen, the Plaintiffs’ recaptioned the case, Antonyuk vs. Nigrelli.
The U.S. District Court for the Northern District of New York granted the Plaintiffs’ Preliminary Injunction, staying the execution of Hochul’s CCIA on November 7, 2022.
One day later, coincidentally, the date of the Midterm Elections, November 8, 2022, the New York Government filed its Motion to the U.S. Court of Appeals, seeking relief from the PI, and the Second Circuit granted the relief the Government sought, on November 15, 2022, staying the PI, allowing execution of the CCIA during the pendency of the merits of the PI. Four days later, the Plaintiffs, NY concealed handgun carry licensees filed their own response to the lifting of the Stay.
After the Second Circuit issued its ruling reversing the District’s granting of the Plaintiffs’ Preliminary Injunction. The Second Circuit modified its order minimally. The PI remained, stayed. See the Arbalest Quarrel article, posted on December 14, 2022, for details.
The Plaintiffs appealed the Second Circuit’s ruling, requesting relief from the U.S. Supreme Court.
As pointed out by John Crump, in an article posted on Ammoland on December 28, 2022, the U.S. Supreme Court, on December 27, 2022, demanded a response from the Second Circuit.
Justice Sotomayor issued a short “request.” Note: the term ‘request’ means the High Court isn’t ordering Hochul’s Government to respond to the Plaintiff’s Application for Relief, but a “request,” having been made, obviously encourages the Government to respond.
Sotomayor’s directive reads:
“Response to application (22A557) requested by Justice Sotomayor, due by 4 p.m. (EST), Tuesday, January 3, 2023.”
Sotomayor’s Order is in reference to the Plaintiffs’ filing of December 21, 2022, titled,
“Emergency Application For Immediate Administrative Relief And To Vacate Stay Of Preliminary Injunction Issued By The United States Court Of Appeals For The Second Circuit.”
In their filing, the Plaintiffs assert,
“Without providing any analysis or explanation, the Second Circuit has stayed a preliminary injunction issued by a federal district court in New York that was carefully designed to limit New York’s enforcement of a sweeping gun control statute, enacted as retaliation against New York gun owners for having prevailed in this Court’s decision in N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111 (2022). The district court’s injunction was supported by a detailed 184-page opinion, meticulously tailored to follow this Court’s framework established in Bruen. In contrast, the Second Circuit’s stay pending appeal was issued based only on a single conclusory assertion, yet with the effect of indefinitely suspending the protections afforded New Yorkers by the Second Amendment and affirmed by this Court in Bruen. The Second Circuit’s stay should be vacated in order to uphold the right of New Yorkers to keep and bear arms, as well as to vindicate the authority of this Court over the circuit courts.
This Court’s Opinion in Bruen was issued on June 23, 2022. Only hours later, New York Governor Hochul promised to ‘fight back’:
We just received some disturbing news . . . the Supreme Court . . . has stripped away the State of New York’s right and responsibility to protect its citizens . . . with a decision . . . which is frightful in its scope of how they are setting back this nation. . . . This decision is not just reckless, it’s reprehensible. It’s not what New Yorkers want, and we should have the right of . . . what we want to do in terms of gun laws in our state. . . . [O]ur governor has a moral responsibility to do what we can . . . because of what is going on, the insanity of the gun culture that has now possessed everyone up to the Supreme Court. . . . We’ve been ready for this . . . We’ve been working with a team of legal experts . . . I’m prepared to call the legislature back into session. . . . We are not going to cede our rights that easily, despite the best efforts of the politicized Supreme Court. . . . No longer can we strike the balance. . . Shocking. They have taken away our rights. . . . This is New York. We don’t back down. We fight back. . . . I’m prepared to go back to muskets. . . . We’re just getting started here.
Just eight days later on July 1, 2022, the New York Legislature responded to Governor Hochul’s call to defy this Court’s authority and resist Bruen’s protection of Second Amendment rights, enacting the Concealed Carry Improvement Act (“CCIA”). After extensive briefing, a hearing, and oral argument, the district court enjoined portions of the CCIA in a 184-page opinion. Shortly thereafter the Second Circuit, without providing any reasoning or analysis, granted New York’s request first for a temporary administrative stay, and then a stay pending appeal, allowing New York’s repudiation of Bruen back into effect without so much as a brief explanation.”
The key to the Plaintiffs’ argument supporting relief from the Second Circuit’s perfunctory decision is the lack of reasoning of the Second Circuit for overriding the District Court’s analysis of the“Four-Factor” test, and the High Court is requesting the Government, and, obliquely, the Second Circuit itself, for an explanation of its reasoning behind the lifting of the PI stay of execution of the CCIA.
In its comprehensive Opinion, the District Court determined the Plaintiff New York Concealed Handgun Carry Licensees proved that awarding the PI is warranted.
The U.S. Supreme Court is of course well versed in the District Court’s comprehensive rulings, supporting its granting of Plaintiffs’ PI. And the High Court is well aware of the Second Circuit’s curt reversal of the lower Court’s decision.
The U.S. Supreme Court’s unusual “request,” directed to the New York Government, is also aimed at the Second Circuit. The High Court is asking the Government, essentially a surrogate for the Second Circuit, here, to explain why the District Court’s comprehensive, logical, rational opinion, supporting its granting of the Preliminary Injunction, should be considered erroneous.
Since the Second Circuit’s reversal of the District Court’s well-reasoned opinion granting the PI, is cryptic or, otherwise, meaningless, the U.S. Supreme Court has asked the Government to step in and explain why the U.S. District Court’s granting of the PI, staying enforcement of the CCIA should not be reinstated.
This request mirrors the Plaintiffs’ Application to the Second Circuit, requesting an explanation for its curt reversal of the District Court’s granting of the Plaintiffs’ PI, sans any reason for lifting the Stay of the CCIA, imposed by the District Court.
See our article titled, “New York’s Gun Law: A History Of & Present Status Of The Antonyuk Case,” posted on Ammoland Shooting Sports News, posted on December 28, 2022.
The U.S. District Court for the Northern District of New York issued a Preliminary Injunction against enforcement of the CCIA because,
- The Plaintiff New York State Concealed Handgun Carry Licensees are likely to succeed on the merits.
- The Plaintiffs will suffer irreparable injury absent a stay of the
- The Government is unlikely to incur substantial injury through a stay of enforcement of the CCIA during the review of the merits of the Plaintiffs’ case against the New York Government.
- The public interest is so great and so grave that enforcement of the Government’s CCIA should be stayed pending the resolution of the Plaintiffs’ Preliminary Injunction.
That the Second Circuit lifted the stay not only allows enforcement of the CCIA, before the merits of the case are decided but disturbingly suggests the Second Circuit will ultimately find for the Government. This means, at first glance, at least, that the Second Circuit won’t issue a permanent injunction against enforcement of the CCIA but will find the CCIA Constitutional when it isn’t. But this is unlikely. We explain why in a subsequent article.
One thing is clear. The New York Government, and, by extension, the Second Circuit—one through weak argument, and the second through a lame judicial order—have admitted they detest the Second Amendment, and are contemptuous of both the rulings in Bruen. And, further, that Governor Hochul, to her everlasting shame, expressed her personal disdain for the Court Majority that issued the rulings, thereby exhibiting her defiance of the U.S. Constitution, her contempt for the Nation, as an independent sovereign Nation-State and free Constitutional Republic, and her loathing of the people who happen to cherish their God-Given fundamental, unalienable, immutable, illimitable, unmodifiable, and eternal, and absolute right to armed self-defense.
But let Hochul rant and rave. The New York State Government and the Second Circuit are behind the eight-ball, now.
The U.S. Supreme Court knows there is no logical and legal reason to allow for the enforcement of an unconstitutional Gun Law. And the High Court is nudging the Government to admit that fact.
The Government need not respond to Justice Sotomayor’s unusual directive, as it is a “request,” not an order. But, obviously, Justice Sotomayor has encouraged the Government to respond, as failure to respond serves as a silent affirmation of the unconstitutionality of the CCIA.
We consider in our next article the options open to the Government and the ramifications of their action, or non-action. The New York Government’s response—if there is one—must be filed by late afternoon, Tuesday, January 3, 2023.
THE NEW YORK STATE GOVERNMENT MUST EXPLAIN ITSELF TO THE U.S. SUPREME COURT: THE FATE OF MILLIONS OF NEW YORK GUN OWNERS HANGS IN THE BALANCE, AND THE CLOCK IS TICKING
“A general dissolution of principles and manners will more surely overthrow liberties of America than the whole force of the common enemy. While the people are virtuous, they cannot be subdued; but when once they lose virtue then will be ready to surrender their liberties to first external or internal invader.”~ Samuel Adams, American Statesman, and Founding Father
The Plaintiff holders of New York handgun carry licenses requested clarification of the Second Circuit’s terse and vacuous, perfunctory order that overturned the U.S. District Court’s granting of their Preliminary Injunction, staying enforcement of the Government’s Concealed Carry License Improvement Act (CCIA).
Concerned with an unsatisfactory order lacking any decipherable explanation for its decision staying the Preliminary Injunction, allowing enforcement of Hochul’s amendments to New York’s Gun Law during the pendency of Antonyuk vs. Nigrelli, the Plaintiffs brought their grievance to the U.S. Supreme Court.
The High Court accepted the Plaintiffs’ Application for Relief. The Government has precious little time to offer a response, although it need not do so. But, the Second Circuit has provided the New York Government until 4.00 PM, Tuesday, January 3, 2023, to issue its response if it wishes to do so.
The procedural tool the Plaintiffs used to secure U.S. Supreme Court intervention here is called the “All Writs Act,” codified in 28 USCS § 1291. And the application of it is often a tortuous mess. The High Court didn’t rule on its efficacy of it here, but it served its purpose.
As one legal writer said of the “All Writs Act,”
“The prevailing doctrinal landscape is principally a product of two mid-twentieth-century judicial innovations: (1) the collateral order doctrine, which expands the meaning of the term ‘final decision’ for purposes of 28 U.S.C. § 1291; and (2) appellate mandamus, which allows the federal courts of appeals to review interlocutory orders by issuing writs of mandamus under the All Writs Act, The current system has been subject to much criticism: ‘hopelessly complicated,’ ‘legal gymnastics,’ ‘dazzling in its complexity,’ ‘unconscionable intricacy’ with ‘overlapping exceptions, each less lucid than the next,’ ‘an unacceptable morass,’ ‘dizzying,’ ‘tortured,’ ‘a jurisprudence of unbelievable impenetrability,’ ‘helter-skelter,’ ‘a crazy quilt, ‘a near-chaotic state of affairs,’ a ‘Serbonian Bog,’ and ‘sorely in need of limiting principles.’
In the face of such criticism, the prevailing doctrine on appellate jurisdiction has proven to be surprisingly immune from reform.” “Reinventing Appellate Jurisdiction,” 48 B.C. L. Rev. 1237, November 2007, by Adam N. Steinman, Professor of Law, University of Cincinnati, College of Law, J.D. Yale Law School.”
The High Court didn’t rule on the applicability of the “All Writs Act,” thereby tacitly accepting jurisdiction to handle the matter set forth in the Plaintiffs’ Application for Relief.
And the High Court sent a clear message to the New York Government and, by extension, a silent message to the U.S. Court of Appeals for the Second Circuit as well.
The stakes are high, for everyone, Plaintiff New York Concealed Handgun Carry Licensees and Defendant New York Government Officials and Officers, and the matters involved impact the entire Nation, both the American People and other State Governments, and the Federal Government, too. You can bet that Justice Sotomayor’s Order placed a damper on New York Governor Kathy Hochul’s New Year’s Eve and New Year’s Day Holiday festivities. And Hochul’s Attorney General, Letitia James, and her staff of lawyers could not have been any happier.
Although, as we pointed out, supra, the Defendant New Y0rk Government need not respond to Justice Sotomayor’s directive as it is only a “request” for a response, not an “order” demanding a response, unusual as this “request” is, it would be remiss of the Government to ignore this request. The issuance of even a seemingly benign request, any item coming from the U.S. Supreme Court is to be taken seriously, and in some cases, as here, cause for alarm. And Hochul’s Government would be wise to respond to it, even if it isn’t required to do so, as the New York Handgun license scheme licensing in place for well over one hundred years is on the line even if it doesn’t appear at the moment to be in jeopardy. It most definitely is.
Whether the Government responds or not, however, various scenarios play out. We start with these three observations:
First, the U.S. District Court for the Northern District of New York realized the CCIA was not only blatantly unconstitutional but, as it is the Government’s response to the NYSRPA vs. Bruen, the CCIA operates as a blatant slap in the face to the High Court.
Second, Hochul and the Democrat Party-controlled Legislature in Albany basically told the U.S. Supreme Court to go to Hell. And while the District Court had no intention of playing that game of kowtowing to the New York Government any longer, the Second Circuit did so, lifting the PI Stay, but with an inadequate explanation because, obviously, there isn’t one to be made.
Third, The persistent problem for both the New York Government and the Second Circuit, is that the District Court’s findings were not wrong, which is why the District Court granted the PI. That fact also explains why the Second Circuit issued a perfunctory order, not dealing directly with the District Court’s findings. The Second Circuit could not rationally explain how the District Court’s application of the “Four-Factor” test was erroneous, but it didn’t want to rule against the Government. So, it issued a lame order.
The Government and the Second Circuit might have expected the Plaintiffs would appeal the adverse action of the Second Circuit to the U.S. Supreme Court, but it probably felt the High Court would not accept the Plaintiffs’ application, inferring that there is no tenable basis for the High Court to entertain an interlocutory order here. Indeed, the Plaintiffs probably struggled to find a jurisdictional basis. The best thing, apparently the only thing, the Plaintiffs could come up with was the “All Writs Act” which is a wild stab at getting the U.S. Supreme Court’s attention. But it worked. The High Court wasn’t going to stand on ceremony here. And, some credible basis could be made, if the High Court wished to deal with the applicability of the “All Writs Act,” jurisprudentially and jurisdictionally, as the application of it has expanded exponentially through time (so why not here?), the issues are so compelling that the High Court cut to the chase. The implication of the importance of Antonyuk vs. Nigrelli is clear from the fact that the U.S. Supreme Court issued an order qua “request” at all, on an interim, interlocutory matter.
The New York Government and the Second Circuit felt smug. They both knew or would have, at least, surmised that the Plaintiffs would file their Application for Relief from the Second Circuit’s Order, but both apparently, believed, erroneously, that the High Court would reject the Plaintiffs’ Application out of hand. They were wrong if they held such notions.
The U.S. Supreme Court didn’t rule on the application of the All Writs Act. It did an end run around it, simply “requesting,”—inviting, but not demanding—the New York Government to respond to the Plaintiffs’ Application for Relief from the Second Circuit’s stay of the Preliminary Injunction. That the High Court has at least invited the Government to respond is bad enough for the Government.
What will Hochul’s Government do?
The Government need not do anything. The High Court isn’t demanding a response from the Government. It only “requests” a response.
Suppose the Government refrains from responding to Justice Sotomayor’s “request,” and takes its chances, relying on the decision of the Second Circuit that reversed the District Court, allowing enforcement of the CCIA during pendency —essentially doubling down on the Second Circuit’s weak Order.
This would not bode well for the Government. The High Court could have remained aloof. It could have rebuffed the Plaintiffs’ application for relief from the Second Circuit’s Order. In that event, the High Court would have denied the Application outright. The CCIA would remain in force, and the PI stayed during the pendency. But the High Court didn’t do that.
In requesting a response from the Government, the High Court had, in a non-positive way, manifested an interest in the Plaintiffs’ arguments, suggesting that the Plaintiffs’ arguments, supporting its Application for relief from the Second Circuit’s decision staying the PI, have merit. So the Government is obliged to respond.
But then, why didn’t the High Court formally take the case up and issue an interlocutory order reversing the Second Circuit’s decision, sua sponte, i.e., on its own motion, affirming the District’s decision, and granting the PI? In that event, enforcement of the CCIA would be stayed, pending resolution of the merits, after which the losing party, having in hand a final order, could appeal a final decision to the U.S. Supreme Court for a full hearing of the Antonyuk vs. Nigrelli case, on the merits. Perhaps, the U.S. Supreme Court, at the moment, at least, wishes to be tactful, and diplomatic.
And, so, the Government is tactically compelled to respond. It must take the High Court’s “request” as at least a tacit demand for a response, and for good reason.
For, if the Government fails to respond, the High Court will likely, ipso facto, reverse the Second Circuit’s decision. The Government is, then, just asking for trouble by cavalierly failing to respond to the “request.”
The Government, from years of experience, would have reason to expect the Second Circuit would kowtow to it, rubber-stamping the most outrageous Government actions, even as the lower Federal District Court made clear it was no longer going to play that game. This came as a surprise to Hochul. And she continually misconstrues the District Court’s intent, refusing to acknowledge that the Court’s orders mean what they say. This became blatantly clear in Hochul’s remarks to the public after the U.S. District Court for the Northern District of New York dismissed Antonyuk vs. Bruen (Antonyuk I), inferring, wrongly, that the dismissal of the case, without prejudice, constituted an outright win for the Government.
Hochul apparently failed to peruse, or, otherwise, she dismissed the reasoning of the Court.
The Court made abundantly clear that the major, substantive portions of the CCIA are patently illegal, inconsistent with the plain meaning of the Second Amendment to the U.S. Constitution, and inconsistent with the rulings of the U.S. Supreme Court in NYSRPA vs. Bruen. No matter. The District Court dismissed the case. And for Kathy Hochul that is ALL THAT MATTERED to Hochul.
Had she spent a little time reflecting on the content of the Opinion, she would know the Court had dismissed the case due to a standing issue of one of the Party Plaintiffs, and that matter could be rectified by simply filing a new case setting out the same allegations.
Thus, the District Court tacitly encouraged the Plaintiff, Ivan Antonyuk, in the Plaintiffs’ capacity as an injured individual, to file a new case against the New York Government. And Ivan Antonyuk did just that. That case, Antonyuk vs. Nigrelli (Antonyuk II), has come to bite Hochul, like an angry tiger, on her behind, and that tiger is not letting go.
It is one thing for Governor Hochul to expect the New York Courts to kowtow to the New York Government on Second Amendment matters, as it has consistently done through the many years and decades. And the Second Circuit has done so, and the District Court has not, even if Hochul wishes to delude herself to think otherwise OR otherwise expect, as, at the moment, has panned out, that the higher U.S. Court of Appeals for the Second Circuit will override the lower U.S. District Court’s rulings. But, it is quite another thing entirely to expect the U.S. Supreme Court to do the same, to kowtow to the Government, knowing that Justice Sotomayor, along with a couple of other Associate Justices, is a diehard liberal-wing Justice, sharing the same ideology, abhorring the Second Amendment no less so than the New York State Government and the Second Circuit, and will therefore keep the High Court Conservative wing in check. No! Where, as here, the institution of the U.S. Supreme Court is threatened, the Justices will band together to preserve the sanctity of the High Court. That was true up to the present time. But with Biden’s nominee to the High Court, now confirmed and sitting on the High Court, Ketanju Brown Jackson, it may very well be that a long-standing venerable institution is in danger of losing its integrity upon which it has heretofore remained a truly independent Branch of Government.
Therefore, as for the matter at hand, Justice Sotomayor is not about to take action in a manner blatantly inconsistent with the U.S. Supreme Court Bruen rulings, even if she, along with a few other Justices, tends, ideologically, to be sympathetic to the Government’s position on the Second Amendment.
Thus, the Parties to the action here will be placed in the same position they were in before the Second Circuit’s action.
The Second Circuit will be compelled to review the merits of the PI with enforcement of the CCIA stayed during the pendency of a decision on the merits of the case.
Nonetheless, the New York Government ought to respond and, it is our prediction, will respond to Justice Sotomayor’s “request.” It must respond or incur the wrath of the U.S. Supreme Court that will take a non-response as yet one more personal slight, adding to a plethora of previous indignities that the miscreant, Kathy Hochul, showered on the Court.
As this article goes to posting, at the end of the business day, January 3, 2023, the New York Government has filed its response to Justice Sotomayor’s “request,” pulled up from the U.S. Supreme Court docket. The filing is viewable as a PDF.
AQ will study it shortly. Given the short time that the Government had available to it, to respond to Justice Sotomayor’s, “request,” the Government has probably reiterated the points made in its original response to the District Court’s decision, granting the PI, staying enforcement of the Government’s CCIA, and will hope for the best. What happens now?
We consider the possibilities in depth, in the next article.
NEW YORK GOVERNOR HOCHUL IS CAUGHT BETWEEN A ROCK AND HARD PLACE AND SHE HAS NO ONE TO BLAME FOR THIS BUT HERSELF
“The liberties of our country, the freedoms of our civil Constitution are worth defending at all hazards; it is our duty to defend them against all attacks. We have received them as a fair inheritance from our worthy ancestors.” ~ Samuel Adams, American Statesman, and Founding Father
Now that New York Governor Kathy Hochul has responded to Justice Sotomayor’s “Response to application (22A557) requested by Justice Sotomayor, due by 4 p.m. (EST), Tuesday, January 3, 2023,” which has just been filed, viewable on the SCOTUS docket, the question is, what happens now? What will the U.S. Supreme Court do?
This much we surmise:
Justice Sotomayor will act, but she won’t act on her own. Likely, she can’t act on her own. The entire Court must resolve the matter, and it will resolve the matter.
The High Court will review and analyze both the Plaintiffs’ Application for Relief, previously filed, and titled, “Emergency Application For Immediate Administrative Relief And To Vacate Stay Of Preliminary Injunction Issued By The United States Court Of Appeals For The Second Circuit”, and the Defendant New York Government’s Response to the Plaintffs’ Application for Relief, titled, “Brief For Respondents In Opposition To Emergency Application For Immediate Administrative Relief And To Vacate Stay Of Preliminary Injunction Issued By The U.S. Court Of Appeals For The Second Circuit.”
In rendering its decision, the High Court will likely utilize New York’s own “Four-Factor” standard, devised by the New York Federal Courts to ascertain if a Preliminary Injunction (PI) is warranted or not.
Applying New York’s own test, the High Court will determine whether to lift the stay or retain the stay on enforcement of the CCIA during the pendency of a final decision on the PI.
The case will then be returned to the Second Circuit for the ultimate resolution of the PI.
AQ anticipates that the High Court will waste little time on this, and will render a decision within the next few days or within a week or two at the latest.
Likely the High Court will find the District Court’s ruling, granting the Plaintiffs’ PI, warranted and will order the Second Circuit to stay execution of the CCIA while the Second Circuit hashes out the substantive merits of the case.
One might think the Second Circuit would find against the Plaintiffs, on the merits, given the Court’s animosity toward the Second Amendment as illustrated in its decision on the District Court’s granting of the Preliminary Injunction. But will it do this? Suppose it does. What then? Plaintiffs will immediately appeal the adverse decision to the U.S. Supreme Court. And the U.S. Supreme Court would take the case up. There is no doubt about that.
The U.S. Supreme Court would take the case up because Antonyuk vs. Nigrelli directly affects the High Court’s earlier decision in NYSRPA vs. Bruen. That is something neither the New York Hochul Government, nor the Second Circuit would want. For, the High Court would find that the CCIA, either in full or in substantial part, does not comply with the High Court’sBruen rulings. The High Court would thereupon strike the CCIA down.
This would place Hochul Government in a much worse position than it was in when theBruen rulings first came down on June 23, 2022.
Hochul should not have toyed with the High Court, pretending to comply with the Court’s Bruen rulings, all the while machinating to further constrain and constrict the exercise of the citizen’s right to armed self-defense. But Hochul thought she knew better. She didn’t. Instead, she stuck her foot well down her throat, and there it remains.
And, once the High Court finds theCCIA unconstitutional, it could go one step further, finding the entire New York concealed handgun carry licensing structure unconstitutional. This is something it avoided in NYSRPA vs. Bruen. But, given Hochul’s contemptuous attitude toward the High Court, the gloves are off. The Court could and will take the Hochul Government to task.
Strategically, then, to assist the Government, the Second Circuit would do well to find for the Plaintiffs, issuing a Permanent Injunction against enforcement of theCCIA. The Hochul Government wouldn’t dare appeal a seemingly adverse decision. That would be disastrous not only for New York, but for many other jurisdictions around the Country, including New Jersey, Illinois, California, Oregon, and Washington State, among others.
Ultimately New York will have to revert to the original Gun Law, in substantial part, albeit without the “Proper Cause” requirement and without the other mischief it devised in constructing the CCIA.
The Government will be compelled to issue a lot more concealed handgun carry licenses. It would be a bitter pill for the Government to swallow. But, at least, the Hochul Government will be able to keep intact some semblance of the State handgun licensing scheme, which it desires to preserve at all costs.
Can Hochul do anything else, if not juridically, then politically to constrain New Yorkers from exercising their Second Amendment right? She can rant and rave to the Press, of course, which she will do anyway, and she can take her complaint to the Grand Harlequin in Chief, Joe Biden.
But what the Hell can Biden do for her? Not a damn thing unless his Administration is prepared to declare martial law, arguing the U.S. Supreme Court and the Bill of Rights are now both defunct. This would lead to armed conflict throughout the Country. That is a dead certainty.
The Administrative State, although powerful, isn’t omnipotent even if it thinks it is and even if many of the brainwashed legions of Americans think so, too.
For, here, in our Country, unlike in the EU, in the Commonwealth Nations, or in CCP China, Americans are well-armed, tens of millions of Americans, and Americans have substantial ammunition to prevent a Neoliberal Globalist/Neo-Marxist Counterrevolution from overturning the American Revolution of 1776.
History, morality, and law would all be on the side of America’s Patriots to take up arms against forces intent on thrusting a Neoliberal Globalist/Neo-Marxist Counterrevolution on the Nation.
A declaration of martial law where no legitimate reason exists for invoking it—and there is none—irrefutably points to immoral and unlawful tyranny of Government.
The Biden Administration would be openly guilty of this: launching tyranny of Government in the form of an illegal oligarchic conspiratorial takeover of the Government against the American people.
Recall that Justin Trudeau declared martial law in Canada, for a short time. Canada has nothing remotely like a true Bill of Rights to secure freedom and liberty for common Canadians, but even that jackass was forced to back down, given a backlash in the Canadian Parliament. But he has learned from his earlier mistakes. He has since insinuated martial law in Canada incrementally, insidiously, beginning with a total ban on civilian possession of handguns. Further actions against liberty and freedom will be forthcoming. Wait and see.
So much for Canada. And lots of luck with that, you Canadians!
But for us, Americans, we should focus on Antonyuk vs. Nigrelli. Where is that case headed in the immediate future?
The High Court will issue its order, sending the case back to the Second Circuit, but likely reaffirming the District Court’s grant of the PI, staying enforcement of the CCIA during the pendency of the case. That is our prediction. And that benefits Plaintiffs from the get-go. Time is on their side. However long the Second Circuit takes, the CCIA will remain suspended.
We also predict as we stated, supra, that the Second Circuit will affirm the District Court’s findings on the Plaintiffs’ PI and convert it to a Permanent Injunction against enforcement of the CCIA, in full or in substantial part.
The Second Circuit will take that seemingly paradoxical action to salvage for the Hochul Government what it can of New York’s concealed handgun licensing structure. Otherwise, if the Second Circuit were to find against the Plaintiffs, overturning the PI, ruling the CCIA constitutional, that would serve as a final appealable order just begging for the High Court’s review of the case on the substantive merits with disastrous consequences for Hochul’s Government.
So, the Hochul Government is, ultimately, in a quagmire it cannot extricate itself from. And Hochul herself can’t do a damn thing about it except beat her chest, screech, and howl to the winds. And, she has only herself to blame for this. She should not have toyed with the Bruen rulings, nor should she have poured salt on an open wound, contemptuously deriding the Court for its rulings, in the process, as she openly defied the Court.
So, then, the Plaintiffs are in a strong position here to secure and strengthen the natural law right codified in the Second Amendment even if that isn’t immediately evident.
The Neoliberal Globalists and Neo-Marxists both here and abroad will also moan and thrash about in impotent rage as the Republic may yet survive. The question is: Will the Biden Administration dare impose martial law on the Country in the next couple of years? Not likely. Not that it wouldn’t love to do just that.
But, for all the myriad ways that the Biden Administration has deliberately weakened this Country, in the first two years of its reign, reversing Trump’s triumphs, as he has strengthened our Nation, and has secured it from threats posed by obvious foes and by dubious friends, the Biden Administration would be out of its mind to attempt confiscation of arms and ammunition on an industry-wide scale.
What argument could the Biden Administration rationally conjure up? Can it rationally claim national security concerns, demanding that stringent measures be taken against those gun-toting “MAGA” Americans, and claiming a desire to protect the public from this thing, “Gun Violence,” even as the Government allows, even encourages, psychopathic criminals and lunatics to run amok, preying at will on innocent Americans?
Spouting endless harangues against guns and the tens of millions of Americans who cherish their natural law right to keep and bear arms is one thing. Americans are inured to that. It is nothing more than water rolling off a duck’s back.
But, to demand that average Americans forsake their firearms or face the wrath of the Federal Government is something else again.
That is a recipe for civil war, the likes of which this Nation hasn’t seen since the War between the Blue and Gray. And it is the Federal Government itself that would bear sole responsibility for lighting that powder keg, unleashing a new horror on the Country for which History would forever justifiably excoriate.
Copyright © 2023 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.
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