The Supreme Court has already declined to intervene on an emergency basis Antonyuk v. James on a couple of previous occasions, but Second Amendment advocates are hoping they'll have better luck with their latest request for intervention, and they're getting support from sheriffs in New York and California this time around. 

The state of New York doesn't have to respond to the cert petition until early May, but the amicus briefs in support of the cert request are already starting to come in. The NRA, Project 21, California Rifle & Pistol Association, Gun Owners of California, and Operation Blazing Sword-Pink Pistols are among those urging the Court to take up the appeal now instead of waiting for the Second Circuit to issue a full decision in Antonyuk,, alongside the New York State Sheriffs Association, the California State Sheriffs Association, and the California Association of Highway Patrolmen.

The New York sheriffs argue in their brief that the Second Circuit was wrong to deny an injunction against the use of the state's "good moral character" clause for concealed carry applicants, calling it an "anamorphous standard that seems little different from the “proper cause” standard that was found to be unconstitutional in Bruen." The sheriffs also take issue with the Second Circuit upholding many of the state's post-Bruen "gun-free zones" by pointing to laws and ordinances that were adopted long after the Second Amendment was ratified in 1791. Ultimately, they argue, the Second Circuit's track record on Second Amendment cases is abysmal, and the Court should take the case now rather than wait to overturn the appellate court in the future.  

  The Second Circuit has a history of “getting it wrong” when it comes to Second Amendment issues. First, in Kachalsky v. County of Westchester, 701 F.3d81 (2nd Cir. 2012), the Second Circuit sustained NewYork’s “proper cause” standard for issuing a conceal carry license, holding that the requirement was “substantially related to the achievement of an important governmental interest.” Id. at 96. 

The Second Circuit again failed to properly uphold the Second Amendment in New York State Rifle& Pistol Ass’n v. City of New York, 883 F.3d 45 (2nd Cir.2018). There, in the District Court, petitioners challenged a New York City rule regarding the transport of firearms. Petitioners claimed that the rule violated the Second Amendment. Petitioners sought declaratory and injunctive relief against enforcement of the rule insofar as the rule prevented their transport of firearms to a second home or shooting range outside of the city. The District Court and the Court of Appeals rejected petitioners’ claim. See 883 F. 3d 45 (CA2 2018).The judgment of the Court of Appeals was vacated,and the case remanded for such proceedings as are appropriate in N.Y. State Rifle & Pistol Ass’n v. Cityof New York, 140 S. Ct. 1525 (2020).

This Court, in 2022, overturned the Second Circuit again in Bruen after the Second Circuit again upheld the “proper cause” standard. Bruen not only overturned the Second Circuit in that Second Amendment case but also overturned the Second Circuit opinion in Kachalsky v. County of Westchester. 

The Second Circuit has now been incorrect in 3 out of 3 Second Amendment cases so far. Based on the Second Circuit’s track record on gun rights, this Court should not be persuaded by its latest pronouncement on Second Amendment rights. And based on the Second Circuit’s failure to properly follow this Court’s clear instructions in Bruen only two years ago on analyzing Second Amendment issues, the Second Circuit’s stay decision in Antonyuk should be vacated.

The brief from California law enforcement, which was also filed on behalf of the Crime Prevention Research Center and the Peace Officers Research Association of California, takes a slightly different approach. The petitioners primarily take aim at the number of new "sensitive places" created by New York in response to the Bruen decision, arguing that both California and New York have defied the Supreme Court by expanding  "longstanding sensitive place definitions to encompass nearly their entire states, other than some streets and sidewalks."

Not only do these laws violate individuals’ Second Amendment rights, they also do not address lawmakers’ purported public safety concerns. CCW permit holders are some of the most highly vetted, trained, responsible and law-abiding citizens, who do not jeopardize public safety. PORAC President Brian Marvel explained, “[v]iolent criminals don’t bother with CCW permits and simply carry illegally.” Thus, it is no surprise that crime data demonstrates that permissive right to carry laws actually reduce violent crime, especially murder and rape. 

... Laws such as SB 2 and CCIA encourage gun violence by constricting self-defense options and reducing the risks to criminals. Rather than encumber the nation’s already overburdened peace offcers with enforcing feel-good legislation designating most public places as sensitive areas, scarce law enforcement resources should focus on suppressing and prosecuting violent firearm related crimes to the fullest extent of the law. This Court’s intervention is necessary to correct the Second Circuit’s error in overly broadly defining the categories of acceptable analogues, thereby eviscerating any meaningful right to bear arms. See Antonyuk v.Chiumento, 89 F.4th 271, 341 (2d Cir. 2023) (citing the potential presence of “vulnerable populations”). Although purportedly intended to protect vulnerable people,these laws actually subject them to greater risks of gun violence.

Both briefs make excellent arguments in favor of the Court's intervention. Tomorrow we'll be taking a closer look at some of the other amicus briefs that have been filed in support of the Antonyuk plaintiffs, but if you've got a few minutes to spare click the links above and read the law enforcement briefs in their entirety. They lay out a strong case for the Supreme Court to step in now and correct the Second Circuit's misreading of the Bruen decision, and the longer the Court delays, the more likely it is that other anti-gun states are going to follow New York's lead in defying the majority opinion in the right to carry case.