Any hope that New Yorkers will get quick relief from the long delays and false denials that have become a regular part of going through a state-run background check when purchasing ammunition were dashed on Tuesday when the Supreme Court denied without comment an emergency appeal from a group of gun store owners in the state who were seeking an emergency restraining order halting the new process.

The Court took up Gazzola v. Hochul in conference last week, less than a month after the New York State Police began running background checks on all ammunition purchases in the state, and amidst widespread reports of lengthy delays and denials to lawful gun owners. The plaintiffs contend that the new system violates federal law and should be halted while their case proceeds to trial, but apparently were unable to persuade five justices to issue a TRO on an emergency basis.

Justice Sonia Sotomayor was the first to turn away the plaintiffs, but attorney Paloma Capanna refiled her application and submitted it to Justice Clarence Thomas for a second opinion. Thomas, in turn, referred Capanna’s request to the full Court for its conference last Thursday, where the nine justices had the opportunity to examine her arguments.

NYSP employees are manually entering individual ammunition background check data from their new system, by hand, into the federal FBI-NICS system in violation of 28 CFR §25.11. Attached is the Declaration of Elijah Falkner, who is a Columbia County Sheriff’s Department Corrections Officer, concerning his attempted purchase of ammunition on September 14, 2023 and his subsequent telephone conversations with employees at the NYS Police about the “delay” notification. The officer at NYSP who provided the information to Mr. Falkner is one of the employees engaging in this illegal use of FBI-NICS.

28 CFR §25.11(b)(2) prohibits a state, expressly, from misuse of the FBI-NICS system for any purpose outside the federally-mandated firearms background check. The new (2022) statutes complained of includes express language of the state’s intention to attempt to use the FBI-NICS system for this illegal purpose. NY EXE §228(3). Our record is replete with arguments against this intended abuse of the FBI-NICS system by the state.

It is common knowledge in our industry such an input would be illegal if committed by the FFL. 28 CFR §25.6(a). Now, the NYSP is creating a situation where the federally-licensed dealer logs in to the new state NYSP system and refers to the “User Guide” without knowledge or notification that the NYSP is going to man-handle the data by manual entry into the FBI-NICS system. No federally-licensed dealer in New York, nor any individual customer, has given their consent for the data misuse, nor been made aware it is happening.

Today’s decision is disappointing but not surprising, and it’s hardly evidence that SCOTUS doesn’t care about the Second Amendment, as I saw one X/Twitter user maintain after the decision was released. I think gun owners are right to be concerned about whether the 6-3 majority in Bruen will stick together when issues like “gun-free zones”, “assault weapon” bans, and other issues like prohibited persons come before the Court, but refusing to grant emergency relief in Gazzola likely has more to do with justices wanting to let these issues play out in lower courts first rather than wading in with a decision at the first opportunity.

The Gazzola case is still proceeding to trial in U.S. District Court, but the ammunition background check process is also coming under fire from Republican lawmakers. State Assemblyman Joseph Angelino recently introduced A.8085, which would exempt those with hunting licenses and concealed carry permits from having to go through a background check every time they purchase ammunition. Angelino argues that those folks have already been pre-screened by the state and proven to be lawful gun owners, so another check every time they buy ammo is duplicative and a waste of time and money. Some papers outside the Big Apple have already endorsed the proposal, but it will still face an uphill climb in the Democrat-dominated legislature. Gov. Hochul and her allies aren’t going to want to admit that their gun control laws have failed in any respect, so even a reform rather than an outright repeal is going to run into partisan resistance.

While today’s inaction by the Court wasn’t exactly shocking, it’s still bad news for gun store owners in the Empire State, especially those operating close to the borders of states like Pennsylvania and Vermont. Some gun stores are already reporting that customers are choosing to drive to border states to buy ammo rather than subject themselves to the pointless delays and, in some cases, false denials, that are happening on a regular basis, and that trend is likely to accelerate going forward now that the Supreme Court has signaled it won’t be stepping in to set things right anytime soon.

I get that the justices don’t want to get involved in each and every case at the earliest opportunity, but their inaction still has consequences and undoubtedly benefits the forces of gun control. The Court may very well ultimately decide that the ammo background checks imposed by New York violate federal statute or fail the Bruen test, but how many gun stores will be forced to shut down before the justices decide the time is right for them to weigh in?