0 to 60
Society places quite a lot of emphasis on speed, especially in this “Information Age.” The faster the CPU performance results, the further away people accelerate from thinkers. Speed rewards reactors (notice the word “actor,” embedded in that opinion-driven term). An analyst and somedays philosopher like me can get left behind, even though I’m in that less than 1% at the front curve. And, the judicial system, by design and by history, can appear “unresponsive.”
We’ve now passed the 60-day mark since five attorneys for NY-based plaintiffs gave oral arguments at the Second Circuit Court of Appeals on March 20, 2023. Four of the cases (Antonyuk, Christian, Spencer, Hardaway) predominantly concern rights of concealed carry holders and property owners. My case, Gazzola v. Hochul, primarily concerns the role of the firearms dealer to be open and available to fulfill individual rights of ownership under the word “to keep” of “to keep and bear arms” of the Second Amendment.
We are all – perhaps most of all the plaintiffs – awaiting the decisions.
About a month after oral arguments, Governor Hochul and the supra-Dem majority in the NYS Legislature passed a budget that appended “technical amendments,” some of which impacted individual concealed carry rights. Lawyers for both sides submitted letters to the Second Circuit in May.
There was no response to those letters, yet, either.
This is great. I’ve been holding my breath since March 20 and now I can exhale. My reading of these tea leaves is that the CCIA rulings on Antonyuk, Spencer, Christian, and Hardaway will restore a good part of preliminary injunctive relief against the 2022 laws complained of. Why? Because (a.) the SCOTUS said in Antonyuk that it’s watching closely for the decision; (b.) multiple, additional District and Circuit Courts around the country are awaiting this decision, even as challenges and appeals wage over near photocopy versions of the same restrictions; and, (c.) when you get down to it, a Circuit Court is more likely to apply a US Supreme Court ruling than reverse it because it would require the Circuit Court to design an alternative, and it’s much harder to come up with Supreme Court decisions than people want to give credit for.
So what and when?
I’m not normally a betting gal, unless you put me, literally, in an Atlantic City or a Vegas casino with a cup of $50 in quarters and slots. (I can make that cup last a day, and once won $400 at the Trump Casino!)
But I did make a bet with one of the attorneys that the Second Circuit would issue its decision in the four CCIA cases before the kiddos get out for summer recess, so, in about 2-3 weeks. I bet a Texas long-horn steak dinner to be collected in Galveston on it. I called him last week to say I already won because his 30-days to decision was now further in the wrong than my 75-90 was right. If I was right about timing, why wouldn’t I be right about content, and my on-the-record guess is that 65%-80% of what plaintiffs’ attorneys are requesting be upheld by way of District Court preliminary injunctions gets restored. (Recap: four District Court preliminary injunctions against the new laws are on hold, pending these decisions.)
What I’m trying to stay calm about is my gut feeling that the Second Circuit is going to split my case off from the other four and hold us over until the fall for a decision. I could be wrong. But, I think our case is such a huge lift and is the only such state law of its kind in the country and the District Court judge gave them nothing to work with in her mistake-riddled opinion. They have not only to start from scratch, they will have to comment on the errors. That’s a tough spot to be in. It’s their job (I hear you), but I’m sympathetic that it’s a tough spot to be in.
Time is not the enemy at the moment. NYS Police Acting Superintendent Nigrelli testified before a NYS budget committee in late February and reported that no arrests had been made under the new laws. Even without the preliminary injunctions in any case, no arrests plus some gains through technical amendments. NYS is a living détente. The State doesn’t want to give us “better plaintiffs” with a higher standing by arresting anyone.
So I’ll take day 62. Grab an Old Mountain coffee. And seriously get down to the business of my next White Paper to provide you with a quick guide on the CCIA to keep in your car and camper as you tootle off to state and federal parks to get outdoors and breathe clean air.
That decision is going to be here before you know it, and the more time Judges Lynch, Lee, and Jacobs put into it the better it is likely to be. Either by way of positive gains or by way of negative grist from which to file our next round of applications to SCOTUS. Who knows? We may even see a split decision in Gazzola.
Either way, I can tell you, the lawyers are using the time to sharpen their swords.
In the meanwhile, please sign up for e-blasts and please, if you would, kindly pass the hat.
