As we previously covered in detail, on June 23 of last year the United States Supreme Court, in New York State Rifle and Pistol Association v. Bruen, struck down New York’s gun control statute, which almost completely prohibited concealed firearm carry. In the Court’s opinion, authored by Justice Clarence Thomas, New York’s requirement that a carry permit applicant “demonstrate a special need for self-protection distinguishable from that of the general community” violated the Second Amendment. The central holding of the case was clear: “We…now hold, consistent with Heller and McDonald, that the Second and Fourteenth Amendments protect an individual’s right to carry a handgun for self-defense outside the home.”
The usual suspects, as we reported, were not happy:
In fact, as we reported, blue states including New York, California, and others, whose gun control statutes were null and void, went to work to enact new statutes working around the Supreme Court’s opinion: Some Blue States Already Trying to Work Around SCOTUS 2nd Amendment Ruling.
In New York, Governor Kathy Hochul signed the “Concealed Carry Improvement Act” (“CCIA”) eight days after Bruen issued, which the Legislature had rushed through “before legislators, or the public, were able to review the text of the bill,” as we covered here: New York Democrats Undermine Supreme Court 2nd Amendment Ruling In New Legislation.
This new law, “intended to thwart the SCOTUS decision,” prohibits concealed carry in “sensitive places” such as “health care facilities; houses of worship; colleges and universities; places where children gather, such as schools, day care centers, playgrounds, parks and zoos; public transportation; places where alcohol or cannabis is consumed; and theaters, concerts, casinos and other entertainment venues.” It also prohibits concealed carry “in any business that does not post a sign saying it’s OK.”
Additionally, although “SCOTUS struck down the prior law as giving too much discretion to the state,…the new legislation has plenty of fuzzy, judgmental standards that reestablish discretion,” such as…add[ing] new requirements for New Yorkers to receive a concealed carry permit, including 16 hours of training on how to handle a handgun, two hours of firing range training, an in-person interview and a written exam, as well as a review of social media accounts.”
As we concluded when the new law was passed, these requirements, taken as a whole mean that “basically, you cannot actually carry. The entire scheme is a willful and knowing evasion of a constitutional right.”
Of course, litigation ensued, and in October, as we reported, “U.S. District Court Judge Glenn Suddaby found critical parts of New York’s gun law, the Concealed Carry Improvement Act (CCIA), unconstitutional.” Not only did Northern District of New York Judge Suddaby, in Antonyuk v. Hochul, strike down almost all of the “sensitive places” prohibitions in the law, he also “blocked the part where applicants must prove “good moral character” and allow authorities to review their social media profiles.” That 184-page court decision, on Plaintiffs’ motion for preliminary injunction, can be found here.
As expected, New York appealed, and oral argument for that appeal will be heard by the U.S. Court of Appeals for the Second Circuit on March 20, 2023. The court has also joined this case with several other appeals, after parallel litigation was brought by other plaintiffs in other courts fighting specific parts of the law. Here is a summary:
Another case, Bleuer v. Nigrelli, before Judge Thomas McAvoy in the Northern District of New York, litigating the constitutionality of prohibiting carry in houses of worship, has been stayed by Judge McAvoy pending the outcome of the appeals outlined.*
In a stunning turn of events, a press release from The Knight First Amendment Institute at Columbia University explains that the Institute has just, along with five other gun rights organizations, filed an amicus (friends of the court) brief in the Second Circuit in Antonyuk v. Hochul: Knight Institute, Gun Owners’ Associations Urge Second Circuit to Block NY Gun Law’s Social Media Disclosure Requirement.
From the press release:
The Knight First Amendment Institute at Columbia University today filed an amicus brief in the U.S. Second Circuit Court of Appeals arguing that a part of New York’s Concealed Carry Improvement Act that requires applicants to register their social media…with the government is unconstitutional…’While New York plainly has a legitimate interest in regulating concealed carry, its regulations must conform to the First Amendment, and this particular provision of New York’s new gun law does not,’ said Anna Diakun, staff attorney at the Knight Institute. ‘Not only has the state failed to demonstrate that the social media registration requirement will actually further its goals, but it has also failed to acknowledge its costs: It will have a profound impact on the right to speak anonymously and associate privately online, and it will invite discrimination by licensing officials.”The state’s dragnet social media registration requirement goes far beyond what is necessary, and will set a dangerous precedent for broad intrusions on individuals’ First Amendment rights,’ said Katie Fallow, senior counsel at the Knight Institute. ‘If the New York law is allowed to stand, one can easily imagine the government imposing these requirements in any number of other situations.’
The gun rights organizations signing onto Columbia’s amicus brief include:
Columbia’s excellent brief, available here, explains to the court that “the statute compels applicants to direct the State to a record of their online speech and associations. The natural and predictable result of this requirement is that applicants will refrain from speech or associations online that they fear may be held against them in the application process or that they do not believe should be subject to government inspection. This is of urgent concern to amici gun owners’ associations, which represent Asian Pacific Americans, African Americans, women, LGBTQ individuals, and politically active individuals—some of whom have particular reasons to distrust law enforcement and to fear the government’s scrutiny of their online lives.”
The brief tellingly quotes a Justice Sonia Sotomayor concurrence from a 2012 Supreme Court case called United States v. Jones, in which the Justice stated that “Awareness that the government may be watching chills associational and expressive freedoms. And the government’s unrestrained power to assemble data that reveal private aspects of identity is susceptible to abuse.”
We will report on the March 20 proceedings in the Second Circuit, but at this point it seems unlikely that the CCIA’s social media requirement will survive, given that New York has already lost a federal judge, Columbia University, an LGBT gun rights group, and others.
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* In the one case where the court found the CCIA constitutional, Gazzola, which concerns firearms dealers, the court found that new requirements for firearms licenses, gathering of information on ammunition purchasers, and other requirements, which had markedly reduced firearms and ammunition sales, did not constitute “irreparable harm” for the purposes of Plaintiffs’ preliminary injunction motion.
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