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By Sarah May on
 January 18, 2023

Justice Alito, Thomas warn of 'serious' constitutional issues with New York gun law

Despite last week's U.S. Supreme Court decision to – at least for now – allow enforcement of strict new gun laws in New York, Justices Samuel Alito and Clarence Thomas warned that its provisions raise “serious” constitutional questions that may merit later review, as the Washington Examiner reports.

At issue is a recent rewriting of handgun laws in the Empire State, undertaken on the heels of last summer's Supreme Court ruling that invalidated the jurisdiction's previous rules for granting handgun carry permits, as the Associated Press noted.

Following the SCOTUS decision in NYSRPA v. Bruen, which found unconstitutional New York's prior requirement of a "proper cause" showing before a carry permit could be issued, the Democrat-controlled legislature passed what it called the “Concealed Carry Improvement Act,” which banned guns in places including medical facilities, churches, parks, entertainment venues, and more.

According to the high court, New York State may continue to enforce that new statutory scheme banning firearms from the aforementioned “sensitive places” pending resolution of ongoing litigation over the law, rejecting an emergency request from gun owners in the state to overturn a lower court's refusal to halt its implementation.

The decision was not entirely unexpected, given that the 2nd Circuit Court of Appeals is still in the midst of its review of the matter, and it is customary for the Supreme Court not to intervene at such a juncture, but that is not to say that the panel would always decline to seize the opportunity weigh in on the case.

Indeed, based on a letter attached to the high court's order and signed by Justices Alito and Thomas, there is a decent chance that the law could indeed be subject to Supreme Court review at some point, given the “novel and serious questions” under the First and Second Amendments that the two believe the New York law to pose.

In addition, the duo noted that the decision by the court not to involve itself at this point was not indicative of the panel “expressing any views on the merits” of the matter but was instead rendered in order to “reflect respect for the 2nd Circuit's procedures in managing its own docket.”

Furthermore, the pair suggested that those who sought to temporarily block enforcement of the law “should not be deterred by today's order from again seeking relief,” if the lower courts do not adjudicate the matter promptly or provide an explanation for undue delay.

According to South Texas College of Law professor Josh Blackman, the decision to let the appeals court continue on its path for the time being was perhaps an acknowledgment of the recent nature of the Bruen precedent, and he added, “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 further opined 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.”

New York Democrat Gov. Kathy Hochul lauded the high court's restraint thus far, saying, as the AP noted, “I'm pleased that this Supreme Court order will allow us to continue enforcing the gun laws we put in place to do just that.”

“We believe that these thoughtful, sensible regulations will help to prevent gun violence,” Hochul added.

New York is not the only Democrat-led state to attempt legislative workarounds in the wake of Bruen, with New Jersey Gov. Phil Murphy (D) having signed into law late last year provisions designed to transform the way concealed carry permits would be granted in the state, to require those carrying handguns to purchase liability insurance and to prohibit citizens from carrying firearms in a host of public places, including libraries, museums, bars, and more.

Earlier this month, as The Hill reported, U.S. District Judge Renee Marie Bumb halted enforcement of certain parts of New Jersey's law, declaring it highly unlikely that they would withstand constitutional scrutiny, particularly in light of Bruner, but whether the 2nd Circuit Court of Appeals will ultimately act in similar fashion regarding New York's law, only time will tell.

Written By:
Sarah May

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