We’ve been following a couple of cases in NY state regarding their CCIA law(s) where the state immediately post Bruen created a set of requirements that turned NYS from “May Issue” to “Shall Issue, but you can’t carry anywhere”.

This case was first heard by United States District Judge Glenn T. Suddaby. Judge Suddaby said that the CCIA looked bad to him but that the people suing in the lawsuit did not have standing.

GOA et all went back and got more plaintiffs to join in the suit and refiled. The state attempted to have the case assigned to a different judge. Judge Suddaby said “NO”. Took the case back.

The plaintiffs requested a temporary injunction to block the CCIA. Judge Suddaby granted the temporary injunction but held it for three days for the state to appeal. The second circuit court vacated the temporary injunction.

A short time later Judge Suddaby granted an injunction blocking parts of the CCIA. This time he did NOT hold it to allow the state to appeal.

An injunction is granted when the judge feels that the case will win on the merits. I.e. there is no evidence that needs to be presented in order for the person requesting the injunction to win.

The state, as expected, appealed to the second circuit which again overturned Judge Suddaby’s injunction.

At this point no more progress can be made on the case until the second circuit court hears the appeal. This could be next week or it could be next year or it could be years from now. It is a good bet that the second circuit would love to push it out as far as possible.

At this point the GOA threw a monkey wrench into the shinagagins of the second circuit and the state of New York.

TO THE HONORABLE SONIA SOTOMAYOR, ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES AND CIRCUIT JUSTICE FOR THE SECOND CIRCUIT:

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.

his 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.

First, without providing any analysis of the factors for determining whether a stay is warranted, the panel nakedly asserted that it had “weighed the applicable factors … and … upon due consideration … conclude[d] that a stay pending appeal is warranted.” App.002a. Tellingly, the Second Circuit did not take issue with a single factual finding or legal conclusion from the district court’s well-reasoned 184-page opinion. Nor did the Second Circuit claim that the district court had abused its discretion or otherwise erred in any part of its opinion granting Applicants preliminary relief. The Second Circuit’s unexplained and unsupported order deprives Applicants of the “careful review and a meaningful decision” to which they are “entitle[d].” Nken v. Holder, 556 U.S. 418, 427 (2009).

The CCIA stands in direct defiance to Bruen’s central holding that governments cannot keep “ordinary, law-abiding citizen[s]” with “ordinary self-defense needs from carrying arms in public for that purpose.” Bruen at 2150. The Second Circuit’s stay of the district court’s preliminary injunction allows New York’s novel, anti-Bruen law to strip New Yorkers of their right to keep and bear arms in a sweeping and unprecedented way, along with the collateral damage of violating multiple other constitutional provisions. Applicants, along with countless others like them, are being irreparably harmed each day this patently unconstitutional law remains in place, eviscerating the right of ordinary, law-abiding New Yorkers to carry firearms in public for self-defense. Additionally, this case presents issues of national importance with respect to states that enact laws in explicit defiance of this Court’s decisions.

Nor does the district court’s opinion represent an outlier, as its decision is not the only one striking down portions of the CCIA as unconstitutional. Rather, there have been a total of three opinions issued by district courts in New York concluding that various aspects of the CCIA are unconstitutional. Yet as in this case, the Second Circuit has granted stays pending appeal in those other cases as well – again, without providing any reasoning or analysis. See Christian, et al. v. Nigrelli, et al. (2d Cir. 22-2987, Document 40); Hardaway, et al. v. Nigrelli, et al. (2d Cir. 22-2933, Document 53). One might think that the Second Circuit – being the circuit whose opinion was recently reversed by this Court in Bruen (N.Y. State Rifle & Pistol Ass’n v. Beach, 818 Fed. Appx. 99 (2d Cir. 2020)) – might find it appropriate to at least provide some basis for its decision to stay multiple lower court decisions which have faithfully applied the Bruen framework. But one would be wrong.

This Court should vacate the Second Circuit’s unreasoned, knee-jerk order granting a stay pending appeal.

This is addressed to Justice Sotomayor because she is the judge assigned to oversee the second circuit court. This will not be seen by just her but by all of the justices.

The second circuit court issuing a “stay pending appeal” is what got them in trouble. I believe that this renders any decision by Judge Suddaby moot pending that appeal being heard by the second circuit. Because the Supreme Court has ruled on multiple occasions that “a right delayed is a right denied” this appeal to SCOTUS is likely to be noticed and acted upon.

Of interest, there is no need for oral arguments or anything else on this sort of appeal. The Supreme Court can issue their decision on this request at anytime. Like tomorrow, if they want to.

Related proceedings are:

  • Antonyuk v. Hochul, No. 1:22-CV-0986 (GTS/CFH), 2022 U.S. Dist. LEXIS 201944 (N.D.N.Y. Nov. 7, 2022) (order granting preliminary injunction).
  • Antonyuk v. Hochul, No. 22-2908 (2d Cir. Dec. 7, 2022) (order staying preliminary injunction).

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

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By awa

2 thoughts on “NY CCIA challenge at SCOTUS”
  1. Interesting. NYS’s actions are getting uncomfortably close to outright defiance of the SCOTUS.
    .
    As I recall the last time this happened was desegregation … and both the executive and legislative branches sided with SCOTUS; the states were brought to heel, basically, by force. This time around, Congress would deadlock but the executive would likely side with the state. And what happens then, I wonder.

    1. Notice Hochul’s arguing the states have the “right” to violate the Bill of Rights? “States Rights” are an old, familiar Democrat hobby horse, and they always ride it to strip people of their liberty.

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