Squarely Upon His Shoulders

Justice Sotomayor penned the word “denied,” but without writing one word in support of either the legal position, the statutes, or the performance of the state of New York or defendant Governor Kathleen Hochul.  Sotomayor could have done so, but she did not.  Sotomayor could have opened the application to the review of the full court, but she did not.  She waited a mere 24-hours, denied, and gave us the opportunity to take another step – if we knew how and had the grit to do so.  Ninety minutes later, we did.

By 6:00 p.m. on Tuesday, September 12, 2023, we filed and served a renewal request under U.S. Supreme Court Rule 22.4.  We filed it to the Hon. Justice Clarence Thomas.  By that court rule, we had the choice of which justice to which to direct the renew request.  The Hon. Justice Samuel Alito penned the dissent statement (which Justice Thomas joined) this January 2023 in Antonyuk II v. Nigrelli.  Justice Thomas wrote the 2022 majority opinion in NYSRPA v. Bruen.

The way Sup.Ct.R. 22.4 works, Justice Thomas has now the same authority that Justice Sotomayor held:  he may deny the application on his own, without requirement to consult with any other member of the court; he may consult with others, but rule in his sole name; he may open the application to the court as a matter of public record.

In early January 2023, Antonyuk II v. Nigrelli filed an emergency motion to Justice Sotomayor, as did we in Gazzola v. Hochul.  Our respective applications were required to be filed to the attention of the Honorable Justice.  She is assigned to applications arising from cases passing through the Second Circuit Court of Appeals.  Both Antonyuk and Gazzola, along with three additional cases, are in the same pattern.  Indeed, all cases suing New York that originate in a New York District Court have the same road map.

For both Antonyuk II and Gazzola, the SCOTUS docket page says that Justice Sotomayor opened the applications to the full court and, approximately ten days later, each application was denied.  That was a terminal ruling on the applications.

On Tuesday, September 12, 2023, when Justice Sotomayor denied our current emergency application, she did so without prejudice and without comment.  She quietly allowed us to present our application to Justice Thomas.

This is my first Sup.Ct.R. 22.4 renewed application to an individual justice.  It is a process that I am not aware to exist in any other court.  The norm, in the modern Supreme Court is the opening of applications to the full court in the name of efficiency and transparency.

It is now Saturday afternoon, and I’m trying to relax over a steaming hot mug of English tea with bergamot tones.  I made sure this morning, after going to the Post Office, to stop at a favorite small shop (Cedar Run, in Keene, in case you find yourself in the neighborhood) and slowly study food offerings and baked goods and more than fifty teas.  It was the first time I have been out in eleven days of full-out litigation.  I was trying to look normal, while wanting to tell everyone in town I know; my words are on the desk of Justice Thomas, having arrived there after being on the desk of Justice Sotomayor. 

For years too many to count, I’ve walked around with the word “to keep.”  Prior to the 2008 Heller decision, I simply assumed that the words “to keep” and “to bear” were equal.  James Madison has been my hero since a certain 10-year old took her first trip to Washington, D.C. and purchased a “Declaration of Independence” and a “Bill of Rights” from the gift shop, a la National Treasure.  Both hung over my French provincial style desk from Sears until the point my childhood home was sold.  Every one of the few words had power, independent of and in concert with the others.

Here we are, now, with the simplest proposition:  the word “to keep” of “to keep and bear arms” deserves equal standing and equal protection because if you don’t have a protected supply chain you don’t have a functional Second Amendment for the purpose of “self-defense.”  Heller, MacDonald, and NYSRPA v. Bruen are the trilogy that established “to bear” as a fundamental, first class right. Now, we need Gazzola v. Hochul to take its place as its companion, just as was penned by Madison.

The timing and the horrific scope of infringement of the 2022 laws by Hochul literally opened the lane for “to keep” to earn its place.

The plaintiffs and I have never worked harder, nor closer, than we have in the past ten days.  The year leading up to this moment has been largely isolated, as the “CCIA” became the symbol of the resistance.  I’ve articulated in oral arguments and written in submissions and stated to reporters and blogged that our case is the final word of the Bill of Rights that will be interpreted and is creating an entirely new lane for constitutional law.

Then, the Hochul-Nigrelli take-over of firearms and ammunition background checks hit, on Wednesday, September 13, 2023.  Statewide.  And I realized, as communication came in from federally-licensed dealers in firearms with shops around the state, doing their level best to cope with the insane software application and deficient “User Guide,” just how many dealers in firearms and individuals were hitting “refresh,” looking towards Justice Thomas with hope.  “Hope,” that emotion that dares creep in, catching you off guard, just as you’re trying to be your best lawyer self.  I found myself writing the words “This week, I feel more like a war correspondent than a lawyer.”  I found myself writing to the one judge who I trust to evaluate our submission in its best light.  And I needed him to know that for all the data reporting, citations, and evidence of our application, my clients and FFLs across this state are doing their best, but it’s not going to be enough to carry them across the river, without his help.

Even though he’s not literally in the room with us right now, for that matter, neither am I and we are experiencing a shared belief in the Constitution and in Justice.  Allow your heart to believe that all things are possible, because right now they are.  And if Justice Thomas’ words come back otherwise, we will simply have to find a way – but Lord do I pray his shoulders are big enough and that his convictions will align with the exercise of his authority for the good of this nation.