Letitia James’s SCOTUS Petition in Concealed Carry Case

A “Gun Free Zone” sign posted at 41st Street and 6th Avenue on August 31, 2022 in New York City. (Photo by Michael M. Santiago/Getty Images)

New York State Attorney General Letitia James (D) asked the Supreme Court on Tuesday to uphold the new Concealed Carry Improvement Act (CCIA) while a lawsuit continues in the courts. The emergency filing marks the justices’ first chance to decide a major Second Amendment dispute since they decided last summer in New York State Rifle v. Bruen.

The 2022 statute was the result of an emergency session of the state legislature that immediately followed the Supreme Court’s decision in Bruen. The case had been a successful challenge to New York’s century-old handgun licensing regime. Justice Clarence Thomas wrote in the Court’s opinion that the statute was an unconstitutional violation of the Second Amendment that unreasonably interfered with New Yorkers’ “special self-defense needs.”

Thomas also noted in his opinion that gun laws should be “consistent with this Nation’s historic tradition of regulating firearms.”

New York’s legislative response to Bruen’s ruling made it a crime to possess a gun in “sensitive areas” — such as museums, stadiums, public transit systems, parks, Times Square and houses of worship — as well as “restricted areas.” , for example. as private property. The CCIA also added training requirements for concealed carry permits, as well as a mandatory written exam, background check and a review of social media accounts to ensure the licensee’s “good moral character” before licensing.

Once approved, the CCIA was immediately attacked by gun activists in numerous lawsuits.

In one such case, U.S. District Judge Glenn T. Suddaby, a George W. Bush appointee, temporarily blocked the “sensitive sites” and “good moral character” of the law on the grounds that analogous regulations did not exist on 18 and 19th Century. James successfully appealed that decision.

A three-judge panel of the U.S. Court of Appeals for the Second Circuit then unanimously decided to stay Suddaby’s order pending the outcome of New York’s appeal and ordered an expedited hearing of the case with a deadline for more briefs. January 9, 2023.

The panel, which consisted of Circuit Judges Robert D. Sack, a Bill Clinton appointee; Richard C. Wesley, an appointee of George W. Bush; and Joseph F. Bianco, an appointee of Donald Trump, is the same trio that stayed another district court order in a separate challenge to the CCIA in December.

Gun owners responded with an emergency petition to the Supreme Court on December 21, 2022, in which they asked the justices to uphold the district court’s decision while the underlying challenge to the CCIA works its way through appeals.

In a responsive 43-page brief, James urges the justices to refrain from taking the “extraordinary step” of vacating a circuit court order. In particular, James noted the timing of the question before the high court.

“This Court ordinarily awaits the penetration of legal issues in the lower courts before granting review and would benefit from such penetration here,” the AG’s brief said.

Arguing that the CCIA was created with Justice Bruen’s decision in mind, James cited Justice Brett Kavanaugh’s concurrence in support of Empire State’s position.

“Bruen cautioned that his standard was not intended to be a ‘regulatory straightjacket,'” James reminded the justices, quoting Kavanaugh. On the issue of the now oft-cited Thomas standard, “this nation’s historic tradition of regulation of firearms,” ​​James again raised Kavanaugh’s comments: “governments were not required to identify the ‘historical twin[s]’ or ‘dead ringer[s]To support modern regulations.”

The argument pits Thomas’ claims from the Court’s majority opinion against Kavanaugh’s assurances in his settlement. Potentially, the justices could use the case to highlight nuances in the Court’s Second Amendment jurisprudence. Perhaps more likely, however, the potential for conflict may be a factor preventing the justices from reviewing the Second Circuit’s decision at all.

James’s brief also called Suddaby’s underlying analysis “deeply flawed,” particularly on the issue of standing. James argued that the district judge was wrong to allow a person who had never applied for a carry license to challenge the carry licensing law and to allow a church drug counselor to challenge gun bans at drug treatment clinics.

Additionally, New York argues, Suddaby misrepresented history by relying on “invented metrics of plaintiffs’ relevance and representativeness, speculative hypotheticals, and an inappropriate requirement that respondents identify examples of historical regulations that are numerous and identical with the impugned provisions of the CCIA.”

In addition to substantive error, New York’s petition also makes several procedural arguments against a Supreme Court reversal of the Second Circuit’s holding. He argues that it is the wrong time for the judges to get involved as the case is still at an intermediate stage. Moreover, he says, Suddaby’s holding “was necessary to prevent the regulatory chaos and public confusion” that was created by multiple legal challenges to the same statute proceeding at the same time.

The Supreme Court ruled 6-3 in the Bruen case with Chief Justice John Roberts and Justices Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett all joining Thomas’ opinion. Roberts also joined Kavanaugh’s reconciliation. In dissent were Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan. As the judge assigned to the Second Circuit, Sotomayor is the judge before whom the emergency application will proceed; the justice may decide or reject the case unilaterally, or may refer it to the full Court.

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