Alan Gura, an Alexandria, Va.-based lawyer who is representing the New Yorkers, as well as the challengers in several other states, said that by upholding such state laws, lower courts are undermining constitutional protections for gun owners.
Gura said the appeals court rulings on the New York and Maryland laws, “if left unchecked, will accelerate the lower courts’ resistance” to the Supreme Court’s endorsement of gun rights.
“The issue here is a large and obvious one that predated Newtown and it will continue to be a big issue going forward,” Gura said. He declined to speculate on whether the Newtown shootings might affect the Supreme Court’s decision.
But University of California at Los Angeles law professor Adam Winkler, an expert on the legal dispute over guns, said the time may not be right for the high court’s review. “The justices have to be cognizant of the politics of guns at this moment in time. Newtown makes it less likely the justices will want to wade into the gun issue,” he said.
Another factor that often influences the justices’ decision to take up a case is when lower courts come to different conclusions about the law’s meaning. Gura’s clients and New York Attorney General Eric Schneiderman, defending the law, disagree about whether there is a split among federal appeals courts.
In December, the Chicago-based 7th U.S. Circuit Court of Appeals struck down the only statewide ban on carrying concealed weapons, in Illinois. The court gave state lawmakers until June to adopt a law that takes account of the ruling. Illinois Attorney General Lisa Madigan has said she will wait to see what the state legislature does before deciding whether to appeal the ruling to the Supreme Court.
Gura said the Illinois ruling “brings this split into sharp relief at the federal appellate level.”
But Schneiderman said the decision in Illinois stressed the unique nature of the state law that was struck down and contrasted that law with the statutes in New York and elsewhere that give officials wide discretion in deciding whether to grant permits to carry guns in public.
The case is Kachalsky v. Cacace, 12-845.