Gun Owners of America (GOA) filed a reply brief with the United States Supreme Court in Antonyuk v. James (Antonyuk v. Hochul).
The brief reads: “The same state whose ‘proper-cause’ standard Bruen repudiated once again urges this Court to postpone review of its ‘Bruen response bill.’ While Respondents admit their prior standard was “exceptional,” to accept that their latest enactment is ‘wholly unexceptional’ would allow foxes to guard the henhouse. Indeed, Respondents neither walk back Governor Hochul’s denigration of this Court nor deny her legislative scheme to contravene Bruen.”
Shortly after SCOTUS issued its opinion in Bruen, New York passed the Concealed Carry Improvement Act (CCIA). The CCIA put massive restrictions on carrying a firearm concealed in the Empire State. New York Governor Kathy Hochul said the new law was in response to the Bruen decision. The law included making most of the state a “sensitive area.”
GOA won at the District Court level, but the Second Circuit Court of Appeals stayed the lower court’s decision. The Second Circuit would hear the case and uphold most of the law. GOA filed a writ of certiorari, a petition to the Supreme Court to hear the case. Shortly after the writ was filed, SCOTUS issued its Rahimi opinion. The high court would grant cert, vacate the Second Circuit’s ruling, and remand the case back to the inferior court—a process known as a GVR.
The Second Circuit reconsidered the case. But instead of using the more widely accepted ratification date of the Second Amendment as the founding era, the court used the ratification date of the Fourteenth Amendment, which was 1868, during the Reconstruction Era. This choice is significant because after the Civil War, states passed strict gun laws to prevent formerly enslaved people from getting firearms. Many say the history of gun control is rooted in racism, and the laws that New York cited in its case give credence to this saying.
“The Second Circuit upheld the CCIA based almost exclusively on Reconstruction-era (and later) sources,” GOA wrote. “And the few Founding-era statutes the court did identify were previously rejected in Bruen. Meanwhile, the court ignored the contrary Founding Era tradition. In other words, the Second Circuit purported to determine the Second Amendment’s original meaning with virtually no reference to the time period when it was ratified.”
GOA highlights that the Second Circuit using 1868 as the Founding Era instead of 1791 has caused a circuit split. Other circuit courts, such as the Fifth Circuit Court of Appeals, have chosen the earlier date as the Founding Era. If the Second Circuit used the same period as the Fifth, the CCIA would be struck down.
Cases with circuit splits have a much higher probability of being granted cert than those that do not have a circuit split. That is probably why New York State has vigorously argued that there is no circuit split. This case could finally put the rest to the period the court should use for the Founding Era.
The Plaintiffs state that a SCOTUS review isn’t needed because the Second Circuit got it right. GOA claims that the Second Circuit’s reasoning was contrary to the Bruen decision, and it goes much further than just using the wrong time period for the Founding Era. The “good moral character” clause of the CCIA is especially problematic since it gives New York State a subjective way to deny a permit, which Bruen and Rahimi strictly prohibit. Rahimi did state that a person who is a danger to themselves or others could be disarmed, but only temporarily. The CCIA disarmed many people who were not dangerous to themselves or others.
The New York case could be doomed if cert is granted, which could be why the Empire State is pulling out all the stops to try to prevent cert from being granted.
About John Crump
Mr. Crump is an NRA instructor and a constitutional activist. John has written about firearms, interviewed people from all walks of life, and on the Constitution. John lives in Northern Virginia with his wife and sons, follow him on X at @crumpyss, or at www.crumpy.com.
