Second Circuit to Hear First Comprehensive Post-Bruen Firearms Statute Challenge

Second Circuit to Hear First Comprehensive Post-Bruen Firearms Statute Challenge

As we have covered, on June 23, 2022, the U.S. Supreme Court, in a 6-3 opinion authored by Justice Thomas, struck down New York State’s restrictive concealed carry law:

In District of Columbia v. Heller, 554 U. S. 570 (2008), and McDonald v. Chicago, 561 U. S. 742 (2010), we recognized that the Second and Fourteenth Amendments protect the right of an ordinary, law-abiding citizen to possess a handgun in the home for self-defense. In this case, petitioners and respondents agree that ordinary, law-abiding citizens have a similar right to carry handguns publicly for their self-defense. We too agree, and 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 parties nevertheless dispute whether New York’s licensing regime respects the constitutional right to carry handguns publicly for self-defense. In 43 States, the government issues licenses to carry based on objective criteria. But in six States, including New York, the government further conditions issuance of a license to carry on a citizen’s showing of some additional special need. Because the State of New York issues public-carry licenses only when an applicant demonstrates a special need for self-defense, we conclude that the State’s licensing regime violates the Constitution.

The usual suspects, of course, were not happy, as we reported:

• Biden, Leftists Hate That SCOTUS Upheld the 2nd and 14th Amendment in NY Conceal Carry Case
• DOJ Goes Insurrectiony – Vows To Minimize Effects Of Supreme Court 2nd Amendment and Abortion Rulings
• Kirkland & Ellis Law Firm Forces Out Conservative Superstar Paul Clement After He Won Big SCOTUS 2nd Amendment Case

The State of New York’s Response to Bruen

New York and other blue states impacted by the Court’s decision immediately began attempting to work around the ruling, which resulted in New York passing its new Concealed Carry Improvement Act (CCIA) only eight days after the Court’s ruling, 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.”

Post-CCIA Litigation Finds New Statute Unconstitutional

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.

The Appeal

Now that case is on appeal, and even liberal groups such as the Knight First Amendment Institute at Columbia University, Operation Blazing Sword–Pink Pistols, an LGBT Second Amendment advocacy group, the Liberal Gun Club, and others have filed an amicus (friend of the court) brief against the CCIA, as we reported here: Liberal Groups File Court Opposition To NY Gun Control Law Requiring Disclosure Of Social Media Accounts.

Oral argument will be heard in the case at 10:00 a.m. on Monday morning, March 20, 2023 at the Thurgood Marshall United States Courthouse in lower Manhattan.

This is important, because as the New York Sun reports, this is the first comprehensive federal appellate challenge to states’ attempts to work around, or even completely emasculate, the US. Supreme Court’s Bruen ruling: The Second Circuit Prepares To Hear Biggest Gun Cases of the Year:

The New York-based Second Circuit will soon hear arguments in what is likely to be the most significant Second Amendment court case of the year. Dozens of Second Amendment groups, gun control advocates, and states see it as the first major test of what courts now deem permissible gun regulations.

Five cases out of New York’s federal district courts will be heard in the Second Circuit on March 20 in front of a panel of three judges. The judges face the difficult task of interpreting the state’s gun laws in the wake of a Supreme Court decision from last year.

The confusion around what is and what is not permissible following the Bruen decision will now face its first comprehensive test at the appellate level after five decisions from lower courts struck down key aspects of the CCIA.

The five cases — Antonyuk v. Nigrelli, Hardaway v. Nigrelli, Spencer v. Nigrelli, Christian v. Nigrelli, and Gazzola v. Hochul — resulted in a number of the CCIA’s provisions being thrown out. A requirement that permit applicants demonstrate “good moral character” was thrown out, as was the requirement that applicants submit their social media information as part of background checks.

The Appellate Judges and the Effect of Their Ruling

The panel who will hear the appeal consists of Circuit Judge Eunice C. Lee, appointed by President Biden, and Senior Circuit Judges Gerard E. Lynch, a Clinton appointee, and Dennis Jacobs, appointed by President George H. W. Bush. This is a correction to our original judges list.

Especially important as regards this appeal is that the U.S. Supreme Court is typically reluctant to hear Second Amendment cases. Before Bruen, the Court had not heard a gun case since McDonald v. Chicago, 561 U.S. 742, in 2010. So, what the Second Circuit says regarding the CCIA is likely to be the last word, at least for now.

One final point: I intend to be in the courtroom for this Monday’s oral argument, and I look forward to reporting back to Legal Insurrection’s loyal Second Amendment readers on how the proceedings progressed and predicting what the eventual outcome of the case, and the CCIA, will be.

_______________________________________________

Thanks to Stephen Stamboulieh, who pointed out that the judges for oral argument were different than originally listed. A corrected list is included above.

Donations tax deductible
to the full extent allowed by law.