Alito and Thomas encourage opponents of gun control laws to keep pressure on the courts

CNN  — 

Supreme Court Justices Samuel Alito and Clarence Thomas sent a strong signal Wednesday that they are very carefully watching to ensure federal courts do not thumb their noses at the high court’s landmark decision that expanded gun rights nationwide.

Last June’s decision in New York State Rifle & Pistol v. Bruen inspired supporters of gun rights across the country to file fresh challenges to an array of firearms regulations. Now, that ripple effect is taking hold, emboldening gun rights activists who have seen early success, while alarming some judges and supporters of gun restrictions.

“Lower courts applying Bruen have invalidated laws including federal gun regulations for domestic-violence offenders and those under felony indictment, restrictions on the possession of guns with removed or obliterated serial numbers, and state laws restricting guns on certain forms of public transportation,” said Andrew Willinger of the Duke University School of Law.

While the court on Wednesday let a New York handgun restriction stand pending further legal action, Alito essentially said the challengers should remain vigilant and keep the pressure on the courts.

“Applicants should not be deterred by today’s order from again seeking relief” if the appeals court doesn’t move swiftly or explain its actions, Alito wrote, joined by Thomas, in a statement issued with the Supreme Court’s order.

The Supreme Court is bracing for an onslaught of new applications as lawyers, judges and advocates on both sides of the issue sort out the new landscape of gun rights. All sides wonder if the justices will weigh in substantively any time soon, or allow, as it has before, the issue to percolate in the lower courts.

The views of conservative Justices Alito and Thomas are clear. Chief Justice John Roberts and Justices Brett Kavanaugh and Amy Coney Barrett – who have sometimes slowed the conservative momentum in some areas – will be watched to see if they are eager to weigh in again soon, or whether they stay out for now as the cases travel through the lower courts.

In Bruen, the court struck down New York’s prior concealed carry gun law. A 6-3 majority said the law prevented law-abiding citizens with “ordinary self-defense needs” from exercising their Second Amendment right to keep and bear arms for self-defense.

But Thomas, the opinion’s author, also laid out a new framework for courts to use when analyzing other gun restrictions. He said that going forward the government “may not simply posit that the regulation promotes an important interest.” Instead, he wrote, judges must look to text and history when deciding whether a law passes muster.

Wednesday’s case concerned a request from gun owners who argue that the law that New York passed after Bruen, was in “defiance” of the Supreme Court’s decision. They asked the justices on an emergency basis to step in and allow a district court order that struck significant provisions of the law to go into effect.

The Supreme Court denied the request Wednesday without explaining its reasoning or vote count.

But Alito, joined by Thomas in a statement, wrote that the new law presents “novel and serious questions” about the Second Amendment. He explained he had denied the gun owners’ emergency request because the case had not worked its way through the normal appellate process. He made clear that his vote did not express “any view on the merits of the law.”

Alito’s was an unusually strong statement that also urged the 2nd US Circuit Court of Appeals, which he said has issued “unreasoned” stays in parallel cases, to act with dispatch.

He may have been inspired to include such language because before the Bruen decision came down, the Supreme Court declined for years to take up a major Second Amendment case. At one point, Thomas lamented that “the Second Amendment is a disfavored right in this court.”

“Justice Alito’s language may reflect his concern that lower courts will flagrantly defy Supreme Court precedent on the right to arms, as they did for over a decade following the 2010 decision in McDonald v. Chicago which held that state and local governments must obey the Second Amendment just as they must obey other provisions of the bill of rights,” said David Kopel, a law professor at the University of Denver who is a supporter of Bruen and gun rights in general.

“The Bruen decision made it clear that the Supreme Court meant what it said in previous decisions: that the Second Amendment is not a second class right and therefore Second Amendment supporters have been challenging a wide variety of prohibitions on the exercise of the right to keep and bear arms,” he added.

As things stand, New York can continue to enforce its law and the district court opinion that invalidated some provisions including those that dealt with “sensitive places” such as certain health care settings, churches and parks, will remain frozen.

New York Attorney General Letitia James praised the Supreme Court’s order. “We have a right to enact commonsense measures to protect our communities,” she said in a statement.

Other challenges across the country peppered with references to Bruen have popped up.

This week a federal judge issued a temporary restraining order that blocked enforcement of portions of a New Jersey gun law that restricted concealed carry in certain places. That law was also signed in response to Bruen.

In November, another federal judge blasted the Supreme Court for the Bruen decision and its requirement to look to history and tradition. Judge Carlton Reeves, who was considering a case concerning a federal statute prohibiting felons form possessing firearms, questioned whether he needed to appoint an historian to help him decipher the landmark opinion.

“Justices of the Supreme Court, as distinguished as they may be, are not trained historians,” wrote Reeves, a Barack Obama appointee who sits on the US District Court for the Southern District of Mississippi.

“And we are not experts in what white, wealthy and male property owners thought about firearms regulation in 1791,” Reeves added.

The fact that courts might struggle to understand the scope of Bruen was not lost on the liberals who dissented at the time. Justice Stephen Breyer, joined by Justices Elena Kagan and Sonia Sotomayor, wrote that judges are “far less accustomed to resolving difficult historical questions.”

“Courts,” Breyer wrote, are “staffed by lawyers, not historians.”

Breyer has since retired, replaced by his former clerk, Justice Ketanji Brown Jackson.

Last week, Sotomayor discussed the number of cases the liberals lost last term including the Second Amendment case.

“Sometimes, I was shell shocked, other times I was just deeply, deeply sad,” she told an audience at the Association of American Law Schools. “And many times, I did have a sense of despair about the direction my court was going.”