Another Bruen win

On November 22, 2022 Judge John L Sinatra, Jr issued a preliminary injunction against NY State’s CCIA.

Another one of New York’s new restrictions imposed in the immediate aftermath of the Supreme Court’s Bruen decision is the private property exclusion.  That new provision makes it a felony for a license holder to possess a firearm on all private property, unless the relevant property holders actually permit such possession with a sign or by expressed consent.

The Supreme Court’s cases addressing the individual’s right to keep and bear arms — from Heller and McDonald to its June 2022 decision in Bruen — dictate that New York’s private property exclusion is equally unconstitutional.  Regulation in this area is permissible only if the government demonstrates that the current enactment is consistent with the Nation’s historical tradition of sufficiently analogous regulations.  As set forth below, New York fails that test.

This is the second injunction by Judge Sinatra, Jr finding parts of NY States CCIA unconstitutional.  He is teasing out these injunctions and more are expect.

In addition he told the state to pound sand when they requested a hold for 3 days in order for them to appeal.

Here, a stay pending appeal is not warranted. As discussed above, Plaintiff’s constitutional rights are being violated absent a preliminary injunction. The State has not established irreparable injury in the absence of a stay. The balance of hardships and public interest weigh in favor of Plaintiff, also as discussed above. Finally, it is Plaintiff who has demonstrated that he is likely to succeed on the merits. As in Hardaway, legislative enactments may not eviscerate the Bill of Rights. Every day they do is one to many.

It is highly likely that the state will appeal to the 2nd circuit court where it will be heard by a panel of three judges. Depending on the make up of that panel the injunction may or may not be stayed. A betting man will be on the 2nd circuit issuing a stay.

Judge Sinatra, Jr is referencing Judge Suddaby’s discussions in Antonyuk and Judge Suddaby references Judge Sinatra, Jr’s discussions.

These two judges are working toward the same ends. It would not be surprising to learn that they are actually talking to one another.

Next steps in this case:

The State will appeal. The 2nd circuit court will issue a stay. The case will move forward. The judge will find for the Plaintiffs. The State will appeal. The 2nd circuit court will empanel a three judge panel on an emergency basis which will find for the State. Christian, FPC and 2A Foundation will appeal to the en blanc (full 9 judge court) which will agree to hear the case on a non-emergency basis 6 to 12 months in the future. The Plaintiffs might appeal for a stay from the Supreme Court but that is unlikely to happen. A year or so will go by with the State delaying the entire time. Finally the 2nd circuit court will hear the case.

The optimist says that the full 2nd circuit finds the CCIA unconstitutional. If not, the second best would be that the 2nd Circuit finds for the state in full which is then appealed to the Supreme court. A worse case would be for the 2nd circuit to find for the Plaintiffs in some very very limited way, making it more difficult to appeal.

Christian et All v. Nigrelli and Flynn (CCIA) preliminary injunction. (PDF)