WHAT THE U.S. SUPREME COURT’S  ORDER TO THE HOCHUL GOVERNMENT IN ANTONYUK VERSUS NIGRELLI REALLY MEANS

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

MULTI SERIES

PART TWENTY-TWO

The Arbalest Quarrel anticipated the U.S. Supreme would respond quickly to the New York State concealed handgun carry license holders’ Application for Relief from the Second Circuit’s lifting of the Stay on the Plaintiffs’ Preliminary Injunction (“PI”).

This was evident from the odd “request” issued by Associate Justice Sonia Sotomayor, on December 27, 2022, giving the Hochul Government four days to respond to the Plaintiffs’ “Application for Relief.”

Realizing that the Court expected a response, the Government complied, filing its Response on January 5, 2023.

The Plaintiffs filed their reply to the Government’s Response, on January 11, 2023.

The High Court issued a terse order on January 11, 2023, denying Plaintiffs’ Application to vacate the stay on the Plaintiffs’ PI.

This Order allows the Hochul Government to enforce the Concealed Carry Improvement Act (CCIA) while the Second Circuit reviews the substantive merits of the Plaintiffs’ challenge.

As pointed out by Duncan Johnson in an Ammoland article, posted on January 11, 2022, Justice Samuel Alito made clear to both the Government and the Second Circuit that the Court is not to dawdle.

Justice Clarence Thomas joined Alito on this, so we should understand that Alito’s remarks are those also of Thomas.

Alito and Thomas understood that the High Court’s refusal to lift the stay on the Plaintiffs’ PI gives Hochul and the Legislature in Albany breathing space. The Government can enforce the CCIA while the Second Circuit reviews the substantive merits of the Plaintiffs’ handgun licensees’ challenge.

Time is on their side and the Government has everything to gain from drawing this case out for months if it can. And the Second Circuit would make sure this happens, as it is sympathetic to the Hochul Government’s desire to constrain the exercise of the right to armed self-defense outside the confines of one’s home or place of business. That is the salient purpose of Hochul’s CCIA.

Justices Alito and Thomas know this too and will have none of it.

Moreover, the Government’s response to the Plaintiffs’ action for relief is so flawed we were surprised that the High Court didn’t reverse the Second Circuit. That it didn’t do so but kept the stay of the PI in place should be construed as nothing more than a sop, an unwarranted gift given to the Second Circuit from the U.S. Supreme Court. 

Because of those obvious flaws, both Alito and Thomas want the Second Circuit and the Nation to know they would have handled this matter differently.

These Justices would have reversed the Second Circuit, lifting the stay of the PI, and thereby suspending the operation of the CCIA, during the pendency of the Second Circuit’s review of the merits of the case.

In our next article, we look closely at those flaws because they will crop up again in the Government’s later Briefs filed with the Second Circuit.

But, in this article, we unpack the meaning of the Associate Justice’s remarks.

Justice Alito chose his words carefully. Justice Thomas, having joined him, is in complete agreement with those remarks:

“I understand the Court’s denial today to reflect respect for the Second Circuit’s procedures in managing its own docket, rather than expressing any view on the merits of the case. Applicants should not be deterred by this Order from again seeking relief if the Second Circuit does not, within a reasonable time, provide an explanation for its stay order or expedite consideration of the appeal.”

This is a warning, and in no uncertain terms, delivered to the Hochul Government and to the Second Circuit.

Alito gave this warning twice—the second time asserting:

“In parallel cases presenting related issues, the Second Circuit has likewise issued unreasoned summary stay orders, but in those cases it has ordered expedited briefing.”

This is a not-so-subtle message meant to coax the Second Circuit into handling Antonyuk II as it has handled “parallel cases,” that is to say, do it quickly.

But that isn’t all. Justice Alito also said this:

“The New York law at issue in this application presents novel and serious questions under both the First and the Second Amendments. The District Court found, in a thorough opinion, that the applicants were likely to succeed on a number of their claims, and it issued a preliminary injunction as to twelve provisions of the challenged law. . . .”

By affirming the Second Circuit’s decision, lifting the stay on the PI, and thereby allowing Hochul to enforce the CCIA, except for a couple of provisions, Justice Alito has subtly conveyed how this case is fated to turn out.

As the Second Circuit reviews the substantive merits of the case, it matters not how the Second Court ultimately rules, because regardless of how it rules, the Hochul Government will lose.

The CCIA will be struck down. For, if the Second Circuit doesn’t strike down this blatantly unconstitutional, illegal Government Anti-Second Amendment measure, the U.S. Supreme Court will do so.

Thus, the U.S. Court of Appeals for the Second Circuit faces a classic dilemma, a Hobbesian Trap from which it cannot extricate itself.

There are two Scenarios.

SCENARIO ONE

The Second Circuit ultimately rules in favor of the Government. The Court strikes down the PI and dismisses Antonyuk vs. Nigrelli (Antonyuk II) with prejudice.

Plaintiffs will immediately file their appeal to the U.S. Supreme Court. That is a dead certainty.

And the High Court will take the case up for review. That, too,  is a dead certainty. The Court must accept the Writ of Certiorari. Why is that?

If the U.S. Supreme Court demurs from hearing the case, it defeats the Second Amendment and weakens its prior holdings, Heller, McDonald, and Bruen. It makes a mockery of itself—slits its own throat and undermines the authority of the High Court, this Third Branch of Government. Obviously, it won’t do that.

The CCIA is legally and logically inconsistent with the Second Amendment and an insult to the High Court’s rulings in Heller, McDonald, and Bruen.

And the New York U.S. District Courts know this—all of them. And, the U.S. Court of Appeals for the Second Circuit surely knows this. And the Hochul Government knows this too, but the Government won’t acknowledge this because Hochul has an agenda, one promulgated by her shadowy benefactors. And that agenda doesn’t cohere with the Bill of Rights of the United States Constitution.

Understand, Bruen is an extension of Heller and McDonald. It isn’t sui generis.

An adverse decision on Antonyuk vs. Nigrelli (Antonyuk II) weakens the two prior seminal Second Amendment cases.

So, the High Court must take the case up on appeal and must find in favor of the Plaintiffs.

It is also important to keep in mind that Antonyuk vs. Nigrelli is the first major Second Amendment case to come before the Court since NYSRPA vs. Bruen. 

The High Court will overturn the CCIA in full or in substantial part. That, also, is a dead certainty, and the High Court may make inroads into bringing down the entire structure of New York’s licensing of firearms. More on that later.

The High Court’s rulings will strengthen the three prior seminal Second Amendment cases, adding a fourth seminal case. The Biden Administration, and those States in league with New York, will be apoplectic with rage. So, let them flail about.

SCENARIO TWO

The Second Circuit decides to rule in favor of the Plaintiffs, finding the CCIA in conflict with the Second Amendment and with U.S. Supreme Court precedent. What happens then? What will the Hochul Government do? In a word, ‘Nothing!’ Certainly nothing that would salvage the CCIA.

The Hochul Government cannot obtain relief unless it seeks relief from the High Court. But Hochul won’t do that. She won’t appeal an adverse ruling of the Second Circuit. The Court would never give her the relief she seeks. It would give her the opposite of what she wants.

Thus, she won’t appeal an adverse decision here because she can’t, for the reasons above cited.

But, if for some illogical reason, Hochul filed an appeal anyway, the danger to Kathy Hochul isn’t that the Court wouldn’t agree to review the case, but that the Court would take the case up for review. And, if it did so, Hochul would lose. That’s a dead certainty. And the impact of a major loss at the level of the U.S. Supreme Court would extend beyond the confines of New York.

So, then, whether an adverse final ruling emanates from the Second Circuit or from the U.S. Supreme Court, the CCIA will, in substantial part at least, eventually be struck down.

Hochul will rant and rave and fume and lash out in rage. She will roll out a flurry of Press Releases and give endless Press Briefings, and will resort to bad-mouthing both the High Court and “Gun Lovers.” And she will go on about “Gun Violence,” and “Assault Weapons,” and “Large Capacity Magazines.”

And she will share her grief and grievances with news anchors and commentators on CNN and MSNBC and will do an OP-ED, perhaps, with The New York Times, or The Washington Post.

But, Hochul understands full well that she cannot do anything concrete other than comply with Court orders and rulings or go rogue.

Hochul failed to comply once and it stirred up a hornet’s nest. It was one that reached all the way up to the U.S. Supreme Court, via an interlocutory review. If she fails a second time to comply with Federal Court rulings, she admits the tyranny of the New York Government and invites an uprising.

Hochul might make an “appeal” to the Biden Administration. But what can Biden do? Nothing—at least nothing that would be legal.

But, as we know, neither the dictates of Congressional Statute, nor the Constitution, nor even simple common sense has stopped the Biden Administration in the past.

The list of the Biden Administration’s illegal acts, these last couple of years, is legion and horrific, and analysis would fill many volumes of a textbook.

For her troubles, Hochul hasn’t strengthened the New York State handgun licensing edifice. Thinking that she would make New York’s Licensing regime impregnable, and a model for the rest of the Country—her predecessor’s pipedream—she instead has severely weakened the entire edifice. She has created a fault line that cannot be closed, one that threatens to topple the State’s 113-year-old Sullivan Act.

Neither New York nor other jurisdictions sharing the same abhorrence of the natural law right to armed self-defense will be pleased with Hochul. Indeed, Hochul, through her arrogance, may have unwittingly set in motion events that will lead to a fourth Seminal Second Amendment case.

The best the Hochul Government can hope for here is simply to buy time. And it can’t do that either. Alito and Thomas have that base covered as well.

Hochul has no one to blame here but herself. She shouldn’t have been such a smart-ass.

But, there is one thing Americans do have to worry about:

Will the High Court retain its independence, long enough at least, to prevent harm that would fracture Heller, McDonald, and Bruen?

Antonyuk vs. Nigrelli (Antonyuk II) can become the fourth seminal U.S. Supreme Court Second Amendment case, or it can, ironically, unwind Heller, McDonald, and Bruen. What do we mean by that?

Consider: If Biden has an opportunity to make even one more nomination for a seat on the High Court, that nominee will be confirmed.

Republicans won’t be able to stop that from happening this time. And we would bet dollars to donuts whom that nominee would be.

Our guess is the nominee would be none other than the present Attorney General: Merrick Garland.

Garland has been waiting in the wings for years for the opportunity. The Destroyers of our Nation are anxious to seat him up there. And, we all know what that portends.

As Biden’s Attorney General, Americans have more than a hint of the disaster Garland is capable of unleashing on this Country. He is a man without moral scruples, and his political and social philosophy is alien to that of the founders of our Republic.

What we have seen of Garland’s ignoble and unlawful actions thus far as the head of the DOJ would pale in comparison to his rulings as Associate Justice of the U.S. Supreme Court. 

Garland would be a major and negative influence on the Chief Justice, and his rulings would be written in stone. The Bill of Rights would be undone. No question about any of this.

____________________________________

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