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Supreme Court's Alito and Thomas warn new gun control law raises 'serious' 2A questions

Washington Examiner logo Washington Examiner 1/16/2023 Kaelan Deese

Two of the Supreme Court's most conservative justices warned this week that New York's concealed carry restrictions law raises "serious" constitutional questions ahead of arguments in four Second Amendment-related challenges at the federal appeals court level.

In a short unsigned order Wednesday, the high court deferred to the U.S. Court of Appeals for the 2nd Circuit, which in December eliminated a pause on several portions of the law after a federal district court judge struck down most of the law's provisions on Nov. 7.

Justices Samuel Alito and Clarence Thomas said in a letter attached to the order that the law "presents novel and serious questions under both the First and the Second Amendments." The pair also made clear that the court's denial was in no way "expressing any views on the merits" of the challenges brought by firearms proponents; instead, it was to "reflect respect for the 2nd Circuit’s procedures in managing its own docket."


The 2nd Circuit, which holds a 7-6 Democratic-led majority, announced Friday it would hear arguments in four challenges against several provisions in New York's Concealed Carry Improvement Act on March 20.

The court’s Wednesday order marked the first Second Amendment case to reach the high court since the major June 2022 NYSRPA v. Bruen decision, authored by Thomas, which held New York's old concealed carry law that required a proper cause for a permit was unconstitutional. A 6-3 majority said the law prevented law-abiding citizens with "ordinary self-defense needs" from exercising their Second Amendment right to keep and bear arms for self-defense.

In response to the Bruen decision, the Democratic-led state legislature passed the Concealed Carry Improvement Act last summer, which took effect in September, bringing with it measures that banned firearms in a range of “sensitive locations,” such as parks, entertainment venues, medical facilities, houses of worship, and other places where people congregate in public.

The lawsuits now slated to be heard by the 2nd Circuit in March were brought by Ivan Antonyuk and five other plaintiffs who argued they have a right to carry firearms outside the home. They challenged other measures of the act, including its provisions requiring applicants to show character references and contact information of family members, as well as information about their social media accounts.

U.S. District Court Judge Glenn Suddaby wrote a lengthy decision in November explaining why the Concealed Carry Improvement Act measures are unconstitutional in light of Bruen, and the 2nd Circuit decided one month later to place his ruling on hold without explanation, vowing to consider the lower court decision more fully in 2023.

Josh Blackman, a professor at the South Texas College of Law, told the Washington Examiner that the high court's decision not to take up the appeal from the 2nd Circuit was unsurprising given the Bruen precedent isn't even six months old.

"So I think what Alito was saying is, yes, this will take some time to work its way through the system. But the 2nd Circuit should be very mindful that they can't just sort of ignore Bruen; they have to sort of grapple with its decision," Blackman said.

Meanwhile, neighboring states, including New Jersey, that maintain similar strict gun control laws are seeing major impacts to their rules in light of Bruen. On Jan. 9, U.S. District Judge Renee Marie Bumb also pumped the brakes on the Garden State's gun law that prohibited guns in "sensitive locations," similar to measures from the Concealed Carry Improvement Act.


Supreme Court Justice Clarence Thomas speaks at the memorial service for Supreme Court Justice Antonin Scalia, Tuesday, March 1, 2016. Susan Walsh/AP © Provided by Washington Examiner Supreme Court Justice Clarence Thomas speaks at the memorial service for Supreme Court Justice Antonin Scalia, Tuesday, March 1, 2016. Susan Walsh/AP

Blackman said a symptom of new Second Amendment precedents is that lower federal courts often try to read them narrowly, saying he doesn't think "lower courts are going to like Bruen, especially in places like New York and New Jersey." He noted that other decisions, such as the late Justice Antonin Scalia's 2008 ruling in DC v. Heller, which found a constitutional right to own a gun in one's own home, were narrowly read "for the better part of a decade."

"What's new is that if the 2nd Circuit completely botches Bruen, the Supreme Court may intervene early. So I think there's an incentive for the 2nd Circuit to take very carefully what's in Bruen and not just sort of rely on old precedents," Blackman added.


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Tags: Supreme Court, New York, Second Amendment, Firearms, Clarence Thomas, Samuel Alito

Original Author: Kaelan Deese

Original Location: Supreme Court's Alito and Thomas warn new gun control law raises 'serious' 2A questions


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