No, the Supreme Court Did Not Just Rule Against Gun Rights

Much has been made of the decision of the Supreme Court to reject a request for an injunction of a New York law limiting gun rights.  New York Attorney General Letitia James went public to celebrate the “decision” while saying that the “gun safety laws help save lives, and keep our state safer.” In reality, there is less than meets the eye in this action . . . far less. There are ample reasons for the Court to deny in motion even if the majority views the underlying law as likely unconstitutional. The celebrations, therefore, may be a tad premature.

I have written a series of columns criticizing the new law passed after the Court’s ruling in June 2022 in New York State Rifle & Pistol Association, Inc. v. Bruen.

Lower courts have struck down the new provisions.

The challengers may have hoped that prior interactions with the Court might have prompted more aggressive action from the justices. The state has been openly gaming litigation to the irritation of individual justices.

After each loss, the same politicians circle the firing squad again and pass the next round of questionable gun limits. New York Democratic Gov. Kathy Hochul promised such legislation within an hour of the release of Bruen.  It passed with the help of a special session in the resumption of this inexorable cycle and has already resulted in court losses.

The request was denied in a one-line order and some were alarmed by the fact there was not a single dissenting vote or statement from the justices. Paloma Capanna, the lead attorney for the New York gun retailers, stated “we are disappointed that not one of the nine justices saw fit to grant the plaintiffs some stay of enforcement of the new laws against them.”

However, the question before the Court was not the merits, but the process.  It should not have come as much of a surprise a week after the justices rejected a prior motion to block the Concealed Carry Improvement Act.

In that earlier order, Justices Clarence Thomas and Samuel Alito joined with a statement that the court’s denial was not “expressing any view on the merits of the case.” The Court yielded to the procedures of the United States Court of Appeals for the Second Circuit while noting that the law “presents novel and serious questions under both the First and the Second Amendments.”

In light of that earlier positions, it would have been strange for the Court to do anything other than summarily reject this second motion.


48 thoughts on “No, the Supreme Court Did Not Just Rule Against Gun Rights”

  1. Of course, the courts were always all too quick to enjoin an abortion law because of the potential infringement of a constitutional right not even enumerated in the Constitution. The 2nd Amendment, on the other hand, never seems to get its due.

  2. They govt has been “taught” by the courts discipline how to skirt the rule of law. If you make a criminal law no one can enjoin it.pre prosecution. Unless it’s a fundamental right like speech. Or abortion. Few other fundamental rights can enjoin prosecution! Even if you have all the elements for a tro or prelim or injunction. If what you are notching about is criminal law.their will not be a declaratory action or equitable relief . So e defendant has to rot in jail first to be able to challenge it in this case it will take a seller willing to be criminally charged. That’s their scheme nowadays and it’s all over. Equity is dead.

    1. Remember what it took to undo the cdc eviction rules during covid? Every one sheepishly complied while notching. . They acted like hundred million criminal penalty! And that would still be the rules thing is they never charged any when it was finally challenged the court wasn’t like rule of law they – instead they were like “shot major questions doctrine not fundamental” we knew then died was dead the rule of law! The govt has been taught by the courts how to skirt the rule of law? it’s sad to witness – I married into general blood and guts but I’ll keep fighting

      1. Some of us are tired of getting beat down and waiting for the Calvary to show up . But they never do .

  3. Pretty obvious it was a very narrow ruling if you read the actual text. Leftists are simply so desperate for a “win” they had to hyperventilate over it.

  4. Anonymous,

    Your NYP article cited one unnamed aide who claimed Republicans knew about Santos’ lies. That’s not verified, and what lies were claimed to have been known, and when was each inaccuracy discovered? New allegations keep cropping up all the time with this guy.

    Again, why do you not hold Biden to the same standard? Why did the media let him slide on so many lies for years, before finally beginning to call him out on a few? If a Republican had written the letter Biden did, complaining he didn’t want his kids to attend a desegregated, “racial jungle” school, no amount of intervening years would have wiped that slate clean. There would have been riots.

  5. “New York Attorney General Letitia James went public to celebrate the “decision” while saying that the “gun safety laws help save lives, and keep our state safer. (…) In that earlier order, Justices Clarence Thomas and Samuel Alito joined with a statement that the court’s denial was not ‘expressing any view on the merits of the case.’”
    Seems General Letitia and No-Account “Papa” have a lot in common like “never was much on thinking.”

    1. I routinely see conservative web sites having a fit every time the Court rules on similar motions. Turley is right – All this hubub is incredibly stupid and needless. It is all about clicks. People at lots of web sites, on a slow news day, pretends these preliminary, procedural rulings are super important when they are not important at all. This ruling is NOT THE COURT DECIDING THE CASE, All that has happened here is the court decided to let the law stand UNTIL THEY ACTUALLY HEAR THE CASE. They have not even heard the case yet. There is a complex set of legal rules that govern courts as to whether to let such laws stand until the case is heard, or to tell the state officials they cannot enforce the law in the period between accepting the case for argument and making the final decision. . Deciding how the parties can act until the case is heard is far different from deciding the case. And, making that preliminary decision is governed by entirely different rules of law, so nothing decided here has ANY bearing on what the court will do when it finally hears the case.
      Too many conservatives act just like liberals in these instances, insisting that Justice so and so rule the political way they want. Much of what you read about Justices on the internet is totally bogus, made up and 100 percent wrong. People have to learn that the websites are playing them like fiddles.


        Why are judges and justices allowing and doing what their powers do not authorize, and what their powers forbid?

        Judges and Justices have no power to legislate or amend the Constitution, or to legislate or amend through “interpretation.”

        There is no case. There is never a case.

        People may KEEP and BEAR arms, anywhere, anytime; no locus is denied.

        No entity or governmental level may violate that right, by any means or methods or to any degree, and no legislation that violates that right is constitutional.

        No case may be brought against any possession of arms and all cases must be immediately dismissed with extreme prejudice.

        How in the world does the judicial branch not comprehend and execute its sworn-oath duty to support the Constitution, emphasis on the 2nd Amendment?

        The Constitution provides Congress the power of impeachment and the Senate the power to convict; why haven’t they?

        Homicide and bodily injury are illegal.

        2nd Amendment

        A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

        “…courts…must…declare all acts contrary to the manifest tenor of the Constitution void.”

        “…men…do…what their powers do not authorize, [and] what they forbid.”

        “[A] limited Constitution … can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing … To deny this would be to affirm … that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid.”

        – Alexander Hamilton

        1. Agreed. No matter what level of court a judges duty and only duty is to determine whether the existing law as written applies or doesn’t apply. No more no less. Their job is not to interpret law but to apply it.

  6. Mr. Turley explained this very well.

    However, I can’t help but see similarities in the approach pro gun-control lawmaker are taking with the approach anti-abortion legislators did before Roe v Wade was overturned – legislation aimed at poking around existing law or interpretation of the constitution.
    Just as states tried numerous versions of laws that made it difficult to obtain an abortion possible to overturn it Roe v Wade, 50 years after that judgement, these attempts at laws on gun-control may lead to DC v Heller being overturned in the future.

    I wonder if we the citizens should re-open the constitution and look for common sense amendments to these contentious rights?

  7. On another note, serial liar George Santos now stands accused of defrauding a disabled, homeless veteran of approximately $3,000 in GoFundMe donations, which were supposed to be used for life-saving surgery for his service dog, Sapphire. Santos claimed to run a pet charity when he set it up, but absconded with the money. It also turns out the charity is not a registered 501c3. These are just allegations until proven, but his track record makes it rather likely.

    I was shocked to learn that there is no federal recall law, and that some states lack recall laws. The Nassau County Republican Committee has demanded he step down, but he’s refused. It is my understanding that SCOTUS ruled that Congress may not refuse to seat a duly elected member who meets the Constitutional qualifications for office, as well as that term limits were unconstitutional without amending the Constitution. Unless he committed a crime, he could not be impeached. Perhaps this latest accusation will rise to the occasion.

    Republicans in the House found themselves in a pickle. Their majority is so razor thin that they are loathe to alienate a single Republican vote. As long as Santos remained in the House, they couldn’t afford to freeze him out, as he could just become a swing vote and scuttle their agenda. They likely fear that if the Ethics Committee recommends expulsion, and 2/3 of Congress expels Santos, the special election will go to Democrats, who have been pushing defund police movements, racist CRT, and for minor children to have the right to change their gender, and agree to sex reassignment surgery at 16. That’s a lot at stake. This is the hill you die on, however. He should not have been assigned to any committees to placate him. He needs to go.

    While I agree he should be removed from Congress, I also think that Democrats need to take a good, hard look at the serious list of lies by Joe Biden. Biden, too, lied about his degree. He didn’t graduate with 3 degrees, was at the top half of his class, get arrested with Nelson Mandela, instead of marching with the Civil Rights Movement he wrote a letter saying he didn’t want his boys attending a “racial jungle” desegregated school, he didn’t visit a Naval officer in Afghanistan, and on the list goes. Democrats cannot turn a blind eye to Joe Biden lying about his resume while condemning Santos for lying about his resume. The rules have to be the same for all.

        1. Anonymous, Democrats have known for years about Joe Biden lying about his resume, that he was never arrested with Nelson Mandela, didn’t get 3 degrees, didn’t graduate in the top half of his class, did speak to Hunter about his business, etc.

          Yet, here he is, President of the United States. Whatever standard you have needs to go both ways.

          There’s not much anyone could have done about Santos just before the election. There was no time to run a new candidate, and I don’t think there was a way to stop him. Democrats would have preferred Republicans simply forfeit, but that’s not based on any equal standard (see Joe Biden), and wouldn’t be possible in any case.

    1. Karen S.
      Not just Biden, but Adam Schiff too.
      Heck, they all need a audit, both sides of the isle.
      As an Independent, would like to see a third party emerge. I know it is rigged to keep our current system in place.
      One can dream.

    2. How can you be shocked that there’s no recall? Have you seriously never read the US constitution?!

      It would be shocking if recall were available, since it’s a weird modern idea that nobody in 1788 ever heard of. It’s a relic of the goo-goo era in the early 20th century.

  8. @mistressadams: A tort action against lawmakers that abuse their position by knowingly violating citizens’ constitutional rights is a possibility.

    1. @DoubleDutch…

      They have qualified immunity.
      That is to say, they are immune from lawsuits in this area.

      I checked… IL passed a clearly unconstitutional ‘AWB’ that won’t survive a 2A challenge.
      They even said with straight faces that they thought it would survive a 2A challenge.
      (ILRA is suing the state, and I hope Turley checks in on it.)

      I wonder if while immune from legal repercussions, if you couldn’t file a complaint with the state bar assoc?
      Professional Misconduct?


      1. Not qualified immunity. That’s for policemen and other state actors, and was invented by the courts. Congressional immunity is in the constitution.

  9. Democrats have very few “safe spaces” when it comes to defending their policies. After decimating and demoralizing police across the nation, they now have to deal (aka: spin) the rise in crime due to their foolish ideological policies. Gun control is their go-to “safe space” because they’ve managed to con their base into thinking that guns, not criminals, are the problem. Democrats will never seriously address crime and criminals. The entire Democratic base is dependent on the black vote, and Dems will never do anything to jeopardize that vote. This is just another arena where Democrats refuse to “follow the science.”

    1. I am not concerned with spin. I know we live in an empire of lies. I am concerned with the idea that the exercise of constitutional rights can wait for the legal procedures to work their way through the courts. Every day of delay is a violation of the rights of millions of citizens. Over 5 years ago, in 2017, a federal judge in Duncan v. Becerra ruled that California’s confiscatory ban on standard capacity magazines that hold more than 10 rounds violated the Second Amendment. There was a short window when CA residence could buy these magazines (just like other citizens all across the country) but then a stay was entered allowing the law to remain in effect while the issue worked its way through the courts. Over five years later and the law is still in effect. The case was even remanded back to the trial court after Bruen. So, the case is effectively at square one. The law will be struck down again, the ninth circuit will do its thing (up hold the law), then the SCOTUS will or will not pick this issue up again. How many years from now will that be? 3? 4? This legal battle may approach a decade long. How many citizens have died and will die during that time being deprived of their rights? Think about the events that have transpired during the stay already — a totalitarian lockdown, wide spread racial strife and riots, questionable elections and a purported “insurrection” — and all through that California residents have been deprived of their Constitutional right to own a magazine that holds more than 10 rounds, all because of a stay on enforcement while the issue works its way through the courts.

      1. I am concerned with the idea that the exercise of constitutional rights can wait for the legal procedures to work their way through the courts. Every day of delay is a violation of the rights of millions of citizens.

        Tommy, it’s beyond concerning for me; it’s appalling. The fundamental legitimate purpose for our government, and any government for that matter, is to secure these natural rights. It’s beyond question that our government will abuse the power they’ve been granted. That being said, if the process were reversed and any challenge to a law meant an automatic stay, then everything would grind to a halt. The only way I can see to confront this abuse of power is to impose consequences on lawmakers that vote in favor of a law that is subsequently ruled unconstitutional. Give them 3 strikes: 1st = lose 25% of their voting power. 2nd = lose 50% and no committee assignments. 3rd = not eligible for reelection or other positions of paid public service.

      2. Sorry, your comment is nonsense. The whole point is that the court must rule whether or not this is a constitutional violation. YOU deciding it is a constitutional violation does not matter. The court decides how things stand between the parties during the period from now until the case is actually heard. So, like everything else in life, both parties may have to wait until the matter is decided. So you have to wait for the case to be heard.
        2nd Amendment law is about to become very complicated, and it is VERY clear that at the founding, states had great leeway to regulate firearms in any manner they liked. The only concern in the Constitution at that time was that the FEDERAL government would not take away guns. The states were free to do so at that time, and everyone understood that.
        However, in 1868, when the 14th amendment was passed, that amendment prohibited states from infringing the constitutional rights of citizens. So suddenly, in 1868, we have a new regime, where state regulation of firearms suddenly could become suspect. Before 1868 all states knew they could regulate firearms however they liked.
        Since at the time of the adoption of the 2nd amendment, states had massive power to regulate firearms, there must still be some power left to the states to regulate firearms. As Heller, Bruen and McDonald all indicate, the states have some power to regulate firearms.
        Now the court will enter the tricky area of exactly how much power they have to regulate firearms.

        1. @Abe

          Lighten up Francis.
          You clearly haven’t been paying attention.

          Looking back at all of the decisions … starting w Heller, SCOTUS acknowledges states have rights and responsibilities when it comes to laws however they cannot usurp Federal laws or the Constitution.

          States can and will regulate firearms however they must be consistent w the constitution and prior SCOTUS decisions.

          With the passing of Bruen, you will see that states are handicapped in what some want. Restrictions on where one can carry … there’s some interesting issues here.

          Post Bruen, you’re going to see a lot of the AWBs in place go away.

          The new law in IL is a good example of why these politicians who are lawyers should be disbarred.


        2. I did not decide anything. The federal court decided the statute was unconstitutional, not me. My beef is with the stay on the ruling imposed by the judge pending appeal. If he thought the statute was unconstitutional, he should not have allowed the statute to be enforced for one day. He basically decided the State was violating its citizens’ rights but then agreed to allow the State to continue its violations for the next 5+ years. He should have left the ruling in place pending appeal. While these cases wind their way through the courts, preference should be given to constitutional rights or even alleged constitutional rights of the people. The right should be given the widest reasonable interpretation pending appeal. The State should have more than just a good faith argument before it should be permitted deprive its citizens of their constitutional rights. The right of the citizen should prevail over the right of the state in these situations. And yes, my opinion would be the same if the statute and decision involved the purported right to an abortion pre-Hobbs.

      3. @Tommy & @OLLY,

        That’s the law and that’s the Democrat’s way of causing death by a thousand cuts.
        They know that they can get their way while the lawsuit works its way through the courts.

        You should read the ILRA’s lawsuit against the state of IL to see a good argument.

        But what you also need to know is that you can get a TRO in place if the courts agree that your argument has merit and could or would likely win at trial.

        As Turley points out… the lack of SCOTUS involvement in that case is not a victory or a loss to either side.

        There’s not a lot of harm that can happen while the case is being worked thru the courts.
        Where things get dicey is when the state drops or changes the law just before it gets to SCOTUS. (e.g. NY gaming the system)

        In light of Bruen, lots of things will change.

        IL’s new AWB law will get overturned and then subsequent states like NM trying to do the same thing will also get their ban overturned.

  10. This is how you “nudge” a country towards a fundamental transformation. Pass unconstitutional laws designed to shift the Overton Window. By the time (years) it works its way through the courts, the damage is done.

    The fact they had a new law ready to go after SCOTUS struck down the previous law is proof of this strategy.

    If SCOTUS has to err on the side of lawmakers and allow laws to “potentially” abuse the rights of the citizens, then there should be consequences for lawmakers beyond the electoral process. Because the abuse moves the window and that effects the electoral process.

    1. @OLLY,
      You can sue for injunctive relief, but you can’t sue for damages.

      They know this.

      In IL the AWB ban signed by el Fatzo is clearly unconstitutional. Liberal Lawyers who are also pundits on liberal networks opined this too.
      While this goes thru the courts, unless there’s a TRO, gun stores in IL can go under because of this ban.
      Ironically, it would be proof of the popularity of semi-auto rifles.

      But they and the state can’t be sued for damages. The politicians have immunity.

      So they pass harassment laws.

      Just like Newsome in CA signing a law that lets people sue gun manufacturers which he knows violates a federal law.

      1. The politicians have immunity.

        Thank you Ian. They should lose immunity once they’ve had a law they voted in favor of ruled unconstitutional.

  11. I concur.

    Let us not forget that the same side who screamed, “defund the police”, who accused cops of hunting down and gunn ing down unarmed Black men, who accused the criminal juystice system of being systemically racist… the same side that pushes for stricter gun contriol laws to be enforced by these very same cops in this very same system.

  12. Orson Welles did a wine commercial years ago by saying “we shall serve no wine before its time.” I’m just grateful for Professor Turley’s blog for its power to diffuse knowledge about how SCOTUS actually reaches outcomes. Knowledge that serves We The People well.

    1. It’s particularly important today, when screaming, inaccurate websites repeat nonsensical lies and fail to give people the whole set of facts about most situations. The website owners are almost all trying to build an audience and the easiest way to do that is lie, lie, lie. They almost always fail to point out both sides of an issue. And they know there are rabid, totally political readers who do not want the truth. Those people want to be emotional. Like leftists, they want an easily identifiable evil person to rail against. Such a view is far from what the founders envisaged, where we would get all the facts, and then make a calm, reasoned decision. Too many people today have their pet causes, and do not want to take the trouble to learn all the facts and truth. They want to emote. This is the “babyfication” of America.

  13. Who is going to tell the criminals to not use illegal guns.
    Gun laws only restrict those whom obey the laws.

    1. If they can screw with the 2nd ammendment, what can they do with the rest of the constitution?

  14. Save me 20 minutes of Googling. I assume what happened is the lower courts ruled against NY but issued a stay to allow NY to appeal… and SCOTUS refused to overrule the stay. Is that what happened?

    1. That sounds like what happened. It would have been helpful for Turley to have explained the procedural posture in more detail.

      1. Also, according to the NYT, this case mainly involved procedural rules for dealers selling guns, such as no one under 18 allowed in the shop unaccompanied by a parent, no one under 21 hired as a salesman, and background checks for sales of ammunition. Maybe these are impermissible, but they are different from the rules about whether and where concealed carry is a matter of constitutional right.

  15. NY AG Letita James and her fellow radical Left Wing Social Justice warriors will spin and spin any item to a victory for them. Just like Biden spinning that the Supreme Court agreed with hom on Student Loans, once again a process, not a decesion or agreement. Left Wing DEM’s lie, cheat, and etc. Once the process is followed the Supreme Court will take the case and will deliver another BLOW to James and Biden and Left Wing Social Justice warriors, foooooools.

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