NEW YORK’S “SENSITIVE PLACE” RESTRICTION IS A TRAP FOR UNWARY HOLDERS OF CONCEALED HANDGUN CARRY LICENSES

In an article published in Ammoland Shooting Sports News, the NRA-ILA asserts,

“Since the District of Columbia v. Heller decision in 2008, gun control advocates have parsed every word of Justice Antonin Scalia’s opinion for ways in which to continue their campaign against the Second Amendment. Relying on creative interpretations of dicta, these activists try to twist the landmark gun rights ruling into an endorsement of their anti-gun policies.

An example of these efforts is on display in the NRA-supported case New York Rifle & Pistol Association v. Bruen. The case concerns the validity of New York’s discretionary carry licensing regime, where law enforcement is tasked with determining if an applicant has “proper cause” to carry a firearm for self-defense.”

That article came out on March 7, 2022, about four months before the U.S. Supreme Court came out with Bruen.

The NRA-ILA is correct. Anti-Second Amendment activists do twist legal opinions.

Heller held, “The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.”

Attempting to secure a loophole, the City of Chicago said the Heller ruling serves as a limitation on the Federal Government, not the States.

McDonald shot that idea down, holding “the Fourteenth Amendment incorporates the Second Amendment right recognized in Heller.”

Did Anti-Second Amendment zealots accept defeat? No. It just invigorated them, even enraged them.

They argued the right to armed self-defense in the home does not extend to the public arena, and energetically pushed that idea, frustrating Americans who sought to exercise their right to armed self-defense wherever they happened to be. Note: there is nothing in the Second Amendment that so much as suggests that the natural law right to armed self-defense is confined to one’s home or to some specific place. The natural law right to armed self-defense goes with the man wherever he happens to be. That is basic common sense.

The right of self-preservation is not meant to be applied to this or that place, but, rather, it applies to all places and at all times. The right to armed self-defense simply means that a person has the right to use the best, most effective means available to defend his life and that of his family when the need arises. And for the last several hundred years the most effective means available to defend one’s life is that provided by a firearm. No one can rationally dispute that. In fact, those activist groups, individuals, and governments that rail against civilian citizen armed self-defense implicitly acknowledge the efficacy of a firearm over any other implement. It works!

Compare a firearm to any other instrumentality: knife, bat, golf club, bow and arrow, bullwhip, pepper spray, mace, whistle, air horn, cowbell, arms and legs, stun guns, taser, baton, self-defense keychain, proficiency in martial arts, et cetera. Nothing else comes close in immediate effectiveness for the average person, trained in the use of a firearm for self-defense, and prepared to use it when the need arises.

Associate Justice Thomas, writing for the majority, made clear:

“The constitutional right to bear arms in public for self-defense is not ‘a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.’ We know of no other constitutional right that an individual may exercise only after demonstrating to government officers some special need. That is not how the First Amendment works when it comes to unpopular speech or the free exercise of religion. It is not how the Sixth Amendment works when it comes to a defendant’s right to confront the witnesses against him. And it is not how the Second Amendment works when it comes to public carry for self-defense.

New York’s proper-cause requirement violates the Fourteenth Amendment in that it prevents law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms.”

Looking for loopholes in High Court Second Amendment rulings and reasoning has become progressively more difficult for activist Democrat-Party-controlled Governments, true. But they are a creative, resourceful, and crafty bunch.

Like the Devil, they always attempt to outmaneuver and outwit the U.S. Supreme Court.

The result is a constant dizzying merry-go-round of government action infringing the core of the right.

And that, in turn, leads inevitably to challenges to the governmental action and to U.S. Supreme Court rulings striking down an unconstitutional action.

What follows is yet more governmental action, looking for loopholes in the Court rulings that might allow for constraints on the exercise of the natural law right, and on, and on, and on. . . .

In Bruen, the Hochul Government placed a ‘bug in the ear’ of the High Court.

In its Brief in support of the State’s “Proper Cause” requirement, the Hochul Government mentioned the need for “Sensitive-Place”   restrictions even though, at the time, curiously, the Consolidated Laws of New York never made mention of such “Sensitive-Place” restrictions.

Was this use of the expression ‘Sensitive-Place’ restriction, in the Government’s Brief, a “motif” for salvaging the State’s concealed handgun carrying regime in anticipation of a negative U.S. Supreme Court ruling?

If so, did the Court see through this and hope to get the upper hand on it, or did it fall into a stratagem devised by the Hochul Government that intended to use, and did make extensive use of, this ‘sensitive-place’ motif? It isn’t clear.

Justice Thomas made much of it, opining, on behalf of the Court’s majority,

“Although we have no occasion to comprehensively define ‘sensitive places’ in this case, we do think respondents err in their attempt to characterize New York’s proper-cause requirement as a ‘sensitive place’ law. In their view, ‘sensitive places’ where the government may lawfully disarm law-abiding citizens include all ‘places where people typically congregate and where law-enforcement and other public-safety professionals are presumptively available.’ It is true that people sometimes congregate in ‘sensitive places,’ and it is likewise true that law enforcement professionals are usually presumptively available in those locations. But expanding the category of ‘sensitive places’ simply to all places of public congregation that are not isolated from law enforcement defines the category of ‘sensitive places’ far too broadly. Respondents’ argument would in effect exempt cities from the Second Amendment and would eviscerate the general right to publicly carry arms for self-defense that we discuss in detail below. Put simply, there is no historical basis for New York to effectively declare the island of Manhattan a ‘sensitive place’ simply because it is crowded and protected generally by the New York City Police Department.”

This did not stop the Hochul Government. On the contrary, the Government included it in the CCIA.

“Sensitive-Place” restrictions, along with a bolstered “Good Moral Character” requirement (that the Court did not address), are a mainstay of the “Concealed Handgun Improvement Act” (“CCIA”), amending the State’s Handgun Law.

It would seem the Hochul Government, predicting a challenge to the CCIA, intends to reiterate the need for “Sensitive-Place” restrictions.

Further, the Government plans on arguing that the CCIA’s “Sensitive-Place” prohibition complies with the U.S. Supreme Court’s concerns. But does it?

One thing is clear: The Hochul Government would expect to see a sharp increase in filings for a State concealed handgun carry license, and the “Sensitive-Place” restriction provision is meant to lessen the impact of issuing a substantial number of concealed handgun carry licenses—unheard of prior to Bruen—thereby weakening the State’s Handgun Licensing regime.

In fact, as of August 2022, just two months after the Bruen decision came down, The New York Times reported a 54% increase in applications for concealed handgun carry licenses.

New Yorkers desirous of obtaining a concealed handgun carry license do feel they are much more likely to have their applications approved after the Bruen decision than at any time prior to Bruen.

In theory that’s true, assuming they can contend with the bolstered “Good Moral Character” requirement the Court did not address, and assuming they don’t mind waiving their right under the Fourth Amendment’s freedom from unreasonable searches and seizures clause.

Do applicants really believe that the acquisition of a concealed handgun carry license is a godsend? Likely they do. But is it, really?

There’s a catch. There’s always a catch, and the catch now rests on this notion of ‘Sensitive-Place’ restrictions.

The licensing of concealed handgun carry goes to the heart of New York’s licensing regime—going all the way back to the Sullivan Act of 1911 that started the thing.

The New York Government has no intention of allowing the defeat of the machinery of handgun licensing that’s been in place for well over a century—much less being itself the agent of the New York licensing regime’s own destruction.

The agenda of the New York Government is to make the acquisition of concealed handgun carry licenses increasingly more difficult and onerous, as time goes on, not less so. The U.S. Supreme Court rulings fly in the face of that effort.

The Hochul Government zealots will not allow the U.S. Supreme Court to waylay the State’s singular campaign against—and, in fact, obsession directed to thwarting—civilian citizen exercise of the natural law right to armed self-defense, in New York. That explains the Hochul Government’s brazen defiance of the U.S. Supreme Court along with its visible contempt for the Court’s conservative majority.

New Yorkers who think they now see a new golden era emerging in New York gun law matters with the publication of the Bruen decision, may be sadly mistaken.

They should be a little less cheerful and gullible, and a little more watchful and reflective, regarding their expectations. 

In their exuberance to acquire a concealed handgun carry license, first-time applicants don’t see potential problems. But they will unless the ‘Sensitive-Place’ provision in the CCIA is struck down.

At the moment the CCIA is active, and that includes the ‘Sensitive-Place’ provision.

But for a couple of minor ‘Sensitive-Place’ suspensions, the CCIA is enforceable, and the Hochul Government IS enforcing it.

Acquisition of a concealed handgun carry license may leave much to be desired. License holders may find that a seemingly unrestricted concealed handgun carry license is very much restricted, offering much less than what was anticipated and what was sought, and leaving the licensee vulnerable to arrest if he isn’t very, very careful and mindful of where he happens to be carrying a handgun while out in public. And he must be extraordinarily careful of displaying it, always asking himself if, one, a threat to life is genuine and imminent and, two, if he is presenting a gun in a designated, non-sensitive place. 

At the end of the day, the licensee may be left asking himself——

“What’s the point of acquiring a license to carry a concealed handgun if I face severe constraints on where I can lawfully carry it for use in self-defense, as the need arises, and if the need is real enough to satisfy a Court of law.”

In a State plagued by a high incidence of random violent assaults—especially in New York City—the need for an effective means of self-defense, a handgun is acute. See the March 27, 2023 article in the New York Post. But, when residing and/or working in a jurisdiction that abhors firearms and that maintains a jaundiced view of the armed civilian citizen, Courts will demonstrate leniency toward the depraved criminal, and throw the book at the average, responsible, rational, law-abiding citizen. Such is life and justice in New York’s major cities. That explains the reason for escalating violence and the irony. The criminal remains undeterred, even encouraged to commit violence. And the innocent victim of random, violent crime, is often resigned to his fate—hoping the odds play in his favor, that someone other than him will be the victim of random violence—or trusts that his concealed carry license, if he does acquire it, will provide him, at last, the ability to avoid being the victim. But the Hochul Government is doing the licensee no favors.

The New York Government may issue more concealed handgun carry licenses, sure, but licensees are now severely hampered in where they can carry it and, therefore, where they can lawfully use it if the need should arise.

This means that the era of issuance of true New York “unrestricted” concealed handgun carry licenses is, at this moment in time, at an end, for all civilian citizens whether applying for a new license or for the renewal of an existing license.

The impact of the issuance of more licenses serves only to dilute their utility.

There is no “grandfathering in” of issuance of true unrestricted carry licenses for those holders of licenses acquired under the old “Proper Cause” standard. Every licensee is in the same boat.

The holder of a freshly minted State concealed handgun carry license, under the CCIA, would do well to talk to those individuals who have heretofore held valid “unrestricted” concealed handgun carry licenses under the “Proper Cause” standard. Those days are over as long as the CCIA remains in effect. 

And it remains to be seen how the U.S. Court of Appeals for the Second Circuit will decide Antonyuk vs. Nigrelli, which involves a major challenge to the CCIA. 

New York has become, under the CCIA, a massive patchwork quilt of designated restrictive ‘Sensitive-Places.’ A licensee will need to carry a map, demarcating all those areas in New York where he can and cannot lawfully carry a handgun.

Worse, “Sensitive-Place” restrictions are subject to amendment which means “subject to constant expansion.”

This is more than problematic. It’s potentially unnerving for law-abiding New Yorkers who have newly minted concealed handgun carry licenses—especially for those New Yorkers residing and/or working in New York City. See the article in the world population review. New York City’s 2023 population stands at 20,448,194, hardly an insignificant number.

“Nearly 43% of New York state’s population live in the 305 square miles that comprise New York City. The next largest city in the state of New York is Buffalo, with just over 250,000 residents. This means New York City is over 33 times larger than the second largest city in New York.” 

RURAL COUNTY SHERIFFS ARE NO LESS IN A BIND THAN MUNICIPAL POLICE IN COPING WITH THE CCIA

The U.S. Court of Appeals for the Second Circuit is presently reviewing a challenge to the constitutionality of “Sensitive-Place” restrictions and other provisions of the CCIA, in the parent post-Bruen New York case, Antonyuk vs. Nigrelli, and related cases.

The U.S. Supreme Court, having lifted the stay on enforcement of the CCIA that the lower U.S. District Court for the Northern District of New York had granted, has allowed enforcement of the CCIA during the Second Circuit Court’s review of the merits of the case.

The Second Circuit had reversed the District Court’s stay of enforcement.

The High Court agreed to the lifting of the stay, not because it thought the District Court was wrong in having issued it, but out of deference to the Second Circuit, as the High Court acknowledged in its Order.*

Major portions of the CCIA are unconstitutional: in particular, the “Good Moral Character” requirement and the “Sensitive-Place” restriction designations. There’s no doubt about any of this. The District Court made a convincing argument for this. That was the basis for the Court’s issuance of a preliminary injunction—which is no easy thing for a party to obtain given the requirements for convincing a Court to grant one.

If the Second Circuit, on review, fails to strike down those unconstitutional provisions, the Plaintiffs will appeal that negative ruling to the High Court. And the High Court will take that appeal up, as it must since the CCIA not only infringes the core of the Second Amendment, but it is a blatant affront to, and contemptuous of, the Bruen rulings.

But what happens when law enforcement sees the CCIA colliding with the Bill of Rights, during the pendency of the Antonyuk case?

That may not concern the State Police and major city police officers, but it does present a problem for New York’s County Sheriffs, like Fulton County Sheriff Richard Giardino. See the Arbalest Quarrel article posted on our website on March 15, 2023, and reposted in Ammoland Shooting Sports News, on March 20, 2023, we explored how Sheriff Giardino contends with a conundrum.

After all, the CCIA may be “THE LAW OF THE STATE” since 2022, but the “BILL OF RIGHTS” is “THE LAW OF THE LAND and it has been so since 1791.

The CCIA must take a backseat to the stricture of natural law, as codified in the Bill of Rights.

Where there is a conflict, Sheriff Giardino will always follow the dictates of the Bill of Rights of the Constitution, not State law. But doing so amounts to chancing to incur the wrath of the Governor. What can she do against perceived recalcitrant Sheriffs?

Governor Hochul has no authority to remove rural Sheriffs, at will. For they are elected by and are therefore beholding to the people of the County that elected them.

But Hochul may, pursuant to the consolidated laws of New York, bring a civil suit against a Sheriff who refuses to comply with the CCIA, claiming malfeasance in office. Such an action will bring to bear a clash between a Sheriff’s duty to uphold the U.S. Constitution versus a duty to uphold State law as ordained by the Governor.

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THE “SENSITIVE PLACE” PROVISION OF NEW YORK’S CCIA IS A TRAP FOR HOLDERS OF CONCEALED HANDGUN CARRY LICENSES

CONTINUATION OF INTERVIEW OF NEW YORK FULTON COUNTY SHERIFF RICHARD GIARDINO

PART TWO

Sheriff Giardino has repeatedly and pointedly asserted that when or if State law conflicts with the United States Constitution, his duty, as Sheriff, is to uphold the Constitution, which he has taken an oath to faithfully serve.

He has not taken an oath to serve the interests of the State’s Governor, and there is no implicit requirement that he do so either.

But then, is a given “Sensitive-Place” prohibition on lawful carry, inconsistent with the U.S. Constitution? How can a law enforcement officer know? That places the law enforcement officer in a quandary. And that is but one puzzling question to be resolved.

The Sensitive-Place prohibition on the carrying of a concealed handgun raises another more obscure question.

There are nuances and fuzzy areas connected with “Sensitive-Place” restrictions.

In some cases what may at first blush seem to be a place where a holder of a valid concealed handgun carry license may lawfully carry his handgun turns out, on analysis, to be a “Sensitive-Place,” where a person cannot lawfully carry a handgun, after all.

This places County Sheriffs in a quandary and under considerable strain.

No less so it places the holder of a license in a precarious situation.

That person is in danger of being cited for carrying a handgun in a “Sensitive-Place” even if this occurred innocently, and inadvertently.

He then faces revocation of his license. He must surrender his handgun and any other firearms, rifles, or shotguns he may happen to possess. And he faces a serious misdemeanor charge.

Sheriff Giardino’s observation provides an apt example of the problem.

Although he wouldn’t take such drastic action against a person for engaging in an inadvertent slip-up, a person facing scrutiny in New York City would likely not be so fortunate.

Sheriff Giardino says,

“We’re not going to just arrest someone who carries concealed into a barbershop he has been going to his entire life. We’ll inform the person what the law now says and then we’ll focus our resources on actual criminals.”

About carrying a handgun into a barbershop, Sheriff Giardino isn’t jesting.

The ubiquity and ambiguity of New York’s Handgun Law carries over into the operation of other New York laws—creating entanglements that the average licensee wouldn’t be aware of. And many law enforcement officers may not be aware of the intricacies of the laws, either.

We know. We delved into this. This is what we found——

The notion of ‘Sensitive-Place’ as a legal restriction means the holder of a valid concealed handgun carry license cannot lawfully carry his handgun in a “Sensitive-Place” under the Handgun Law, codified in NY CLS Penal § 400.00 (19):

“Prior to the issuance or renewal of a license under paragraph (f) of subdivision two of this section, issued or renewed on or after the effective date of this subdivision, an applicant shall complete an in-person live firearms safety course conducted by a duly authorized instructor with curriculum approved by the division of criminal justice services and the superintendent of state police, and meeting the following requirements: (a) a minimum of sixteen hours of in-person live curriculum approved by the division of criminal justice services and the superintendent of state police, conducted by a duly authorized instructor approved by the division of criminal justice services, and shall include but not be limited to the following topics: (i) general firearm safety; (ii) safe storage requirements and general secure storage best practices; (iii) state and federal gun laws; (iv) situational awareness; (v) conflict de-escalation; (vi) best practices when encountering law enforcement; (vii) the statutorily defined sensitive places in subdivision two of section 265.01-e of this chapter and the restrictions on possession on restricted places under section 265.01-d of this chapter; (viii) conflict management; (ix) use of deadly force; (x) suicide prevention; and (xi) the basic principles of marksmanship; and (b) a minimum of two hours of a live-fire range training course.”

The expression, ‘Sensitive-Place’  as mentioned in NY CLS Penal § 400.00 (19)(vii), is defined in a new section of the Penal Code: CLS Penal § 265.01-e.

The expression, ‘Sensitive-Place’  is a legal term of art, not previously defined in New York law.

Subsection CLS Penal § 265.01-e (2(b)) says, “any location providing health, behavioral health, or chemical dependance care or services” is a “Sensitive-Place.”

Proceeding with our inquiry, further, we ask,

“Is a barbershop considered a place “providing health” services?” If so, then it comes under New York’s public health code, NY CLS Pub Health § 225.

The Health Code section, NY CLS Pub Health § 225, includes all places subject to the Sanitary Code, and the Sanitary Code IS part of the Health Code.

Subsection 5(A) of the Sanitary Code says, “The sanitary code may: (a) deal with any matters affecting the security of life or health or the preservation and improvement of public health in the state of New York, and with any matters as to which the jurisdiction is conferred upon the public health and health planning council. . . .”

We must now determine whether New York barbershops are subject to the “Sanitary code.” They are.

NY CLS Gen Bus § 436, governing barbershops exclusively, says,

“All barber shops shall be maintained and operated in accordance with the provisions of the state sanitary code, except in the city of New York where the city health code shall apply, and all licensees or persons employed or engaged therein or in connection therewith shall comply with the provisions of such rules.”

So, then, Sheriff Giardino is correct in his supposition/inference.

Under New York law, the holder of a valid New York State concealed handgun carry license cannot lawfully carry his handgun into a barbershop. Carrying a handgun, or any firearm, rifle, or shotgun into a barbershop falls within the purview of the CCIA, even if the expression “barbershop” isn’t specifically mentioned in CLS Penal § 265.01-e (2(b)). Application of other New York State Code sections makes categorically and conclusively clear the prohibition on carrying a concealed handgun into a barbershop, notwithstanding that a person holds a valid concealed handgun carry license. A barbershop falls into the category of a restricted “Sensitive-Place.”

A holder of a valid license carrying a handgun in a barbershop in Fulton County need not be concerned about an arrest, but what if that person is carrying a handgun into a barbershop in New York City, and an NYPD officer notices that? How many other little traps exist—a preponderance of “Sensitive-Places” that a holder of a valid concealed handgun carry license is unaware of and that many law enforcement officers may not be immediately aware of, also?

These little snares can get a licensee in a whole heap of trouble.

Sheriff Giardino knows this full well and these problems trouble him. Complex Gun laws are vexing. Often, problem areas aren’t perceptible until after these laws take effect. And, if they work against the individual who wishes to exercise his natural law right to armed self-defense, the activist Government finds that a pleasant surprise, and is perfectly content with it.

The expression, ‘Sensitive Place,’ never appeared in the Consolidated Laws of New York, prior to the enactment of the CCIA. And now that it has become a fixture in the law—possibly, hopefully, subject to remedial Court action—it is something that becomes, for the Hochul Government, a useful instrument for defeating the benefit that having a valid concealed handgun license was intended to provide holder.

Prior to the CCIA, holders of “unrestricted” concealed handgun carry licenses could carry their handguns in “Times Square,” but no longer because “Times Square” is now a “Sensitive-Place.”

But how large is this area colloquially referred to as “Times Square?” What does the area encompass? The expression itself is now a legal term of art.

NY CLS Penal § 265.01-e (2)(t) says this:

“For the purposes of this section, a sensitive location shall mean: the area commonly known as Times Square, as such area is determined and identified by the city of New York; provided such area shall be clearly and conspicuously identified with signage.”

So, Mayor Eric Adams and the City Government determine the size of the area—expanding it or reducing it at will, like an accordion.

The CCIA is designed to keep the holder of a valid concealed handgun carry license off-balance.

And, once again, an activist government’s unconscionable, unconstitutional Anti-Secondment action is headed for the U.S. Supreme Court.

A fourth seminal Second Amendment case is in the making with Antonyuk vs. Nigrelli, and it is not likely to be the last.

If the High Court is going to get a handle on this gamesmanship of activist Governments—Federal, State, or local—it must end or severely constrain government licensing. This won’t, of course, stop further attempts by Anti-Second Amendment zealots to constrain the natural law right to armed self-defense. But it’s a good start.

The Court has heretofore been hesitant to take on handgun licensing schemes directly and aggressively.

In Bruen, the Court began to look at New York’s unconstitutional handgun licensing regime by striking down the “Proper Cause” requirement. But that at best was merely a half-hearted attempt, likely attributable to the actions of Chief Justice John Roberts, and with the urging or connivance of the Court’s liberal wing.

The Court’s conservative wing must now exert its will.

Antonyuk vs. Nigrelli is likely to come before it after the Second Circuit issues its final, appealable order.

Associate Justices Thomas and Alito must exert maximum pressure on John Roberts, if the opportunity presents itself, to review New York’s Handgun licensing regime straightforwardly, unswervingly, and aggressively.

The Court cannot just tinker around the edges as it has done in Bruen. That only emboldens activist Governments as we have seen.

The fundamental, unalienable right to armed self-defense is not subject to negotiation. The U.S. Supreme Court has a duty to give effect to the Bill of Rights as the framers of the Constitution intended.

We are at a pivotal juncture in our Nation’s history. The Biden Administration has made inroads into the High Court’s independence by seating Neo-Marxist Ketanji Brown-Jackson on the Court.

Her aim is that of her sponsors: to eliminate the exercise of our natural law rights. It is not to strengthen them.

Do we really want to see Merrick Garland joining her on the Bench at some point—and others like those two? That could happen.

What then becomes of our sacred rights and liberties in this seemingly “free Constitutional Republic.”

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*FURTHER BACKGROUND OF PARENT CASE, ANTONYUK VERSUS NIGRELLI, ON APPEAL TO THE U.S. COURT OF APPEALS FOR THE SECOND CIRCUIT

Major portions of the CCIA are unconstitutional: in particular, the “Good Moral Character” requirement and the “Sensitive-Place” restriction designations. There’s no doubt about any of this. The U.S. District Court for the Northern District of New York, made a convincing argument for this in Antonyuk vs. Nigrelli, which the Hochul Government appealed to the U.S. Court of Appeals for the Second Circuit. The appeal concerned the District Court’s issuance of a preliminary injunction, staying enforcement of the CCIA, pending resolution of the case on the merits. It is is no easy task for a party to obtain a preliminary judgment under any circumstances, given the rigorous requirements that must be met before a Court will grant a preliminary injunction. The fact that Plaintiffs, present holders of valid New York concealed handgun carry licenses, were able to convince the District Court of the necessity for a stay on enforcement of the CCIA, attests to the strength of Plaintiffs’ suit against the Hochul Government and the likelihood of success on the merits.

The Second Circuit reversed the District Court, that had stayed the preliminary injunction, thereby allowing the Hochul Government to continue to enforce the CCIA during the Second Circuit’s review of the case. Plaintiffs appealed the adverse decision of the Second Circuit to the U.S. Supreme Court. As an interlocutory (non-final) decision of a Federal Circuit Court, it is rare for the High Court to consider a matter. But it did so here. In its issuance of an unusual non-order “request,” the High Court inquired whether the New York State Government would like to respond to Plaintiff concealed handgun carry licensees opposition to the lifting of the stay of enforcement of the CCIA. Realizing the necessity to respond, the Attorney General for the Government, Letitia James, filed a formal response, contra Plaintiffs’ opposition to the lifting of the stay. The arguments were weak, but any response, apparently, was all that the High Court needed to see. In its order, drafted by Associate Justice Alito, the U.S. Supreme Court allowed the stay of the preliminary injunction to continue, asserting that this was done in deference to the Second Circuit, notwithstanding the merits of the lower District Court’s granting of the preliminary injunction in the first instance. But, the High Court cautioned the Government not to dawdle, as it would be inclined to do. The Government knows full well that the CCIA is inconsistent with the Bruen rulings and is likely to be struck down by the High Court if the Second Circuit finds for the Government, prompting the Plaintiffs to appeal a final adverse decision of the Second Circuit.

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Copyright © 2023 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.