Second Circuit to Hear First Comprehensive Post-Bruen Firearms Statute Challenge
On March 20 the Second Circuit U.S. Court of Appeals will hear oral argument in cases challenging New York’s unconstitutional response to the Supreme Court’s Bruen case, which held that there is a constitutional right to keep AND BEAR arms
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.
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.
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I’d like to believe the 2nd Circuit will follow the constitution, but with their track record, I’m pretty sure the En Banc review will say “New York can do whatever it pleases”
Perhaps. But if they do, I suspect SCOTUS will deal with it in three letters: GVR.
(GVR is SCOTUS lingo for a summary order Granting the cert petition, Vacating the order appealed from, Remanding the case. I suspect we will see SCOTUS use it to deal with the Second and Ninth Circuits trying to weasel around Bruen. Message will be “we meant what we said, and we will knock down every artifice you try and construct to evade the ruling.”)
LKB – I think you are correct about the 2nd Cir “trying to weasel around Bruen.” It will be interesting to see how they do it. I hope you are also correct about the SCOTUS message.
At this point in time I doubt they will go against Bruen. There have been multiple rulings across the country already post-Bruen, and they almost all call these new laws from various states unconstitutional when Bruen is applied.
Agreed. The 2nd Circuit will also try to “work around” Bruen in order to show its wokeness.
SCOTUS has already fired a shot across the bow at the 2nd Circuit on this, and told them to expedite the hearings. If the 2nd doesn’t get the message, I think that they will step in on this occasion.
Thanks for this Mr. Nault
One final point: I interned for Judge Wesley while a law student at Cornell Law School, and he is an incredibly impressive jurist and person. He first sat as a trial-level state judge in 1986, which means he has almost 40 years of experience as a judge. I intend to be in the courtroom for this Monday’s oral argument,
Personal experience is so good to see.
There is some hope then.
At the Thurgood Marshall United States Courthouse.
I have no doubt how that bro would have voted had he still been on the USSC. Adds to my enjoyment when the 2d Circuit panel hands down its decision.
She makes Morticia look like Sharon Stone.
Not all of us have your beauty and hourglass figure.
more’s the pity
TV Morticia was hot. Hochul is more creepy, like Movie Morticia.
the Second and Fourteenth Amendments protect an individual’s right to carry a handgun for self-defense outside the home
And there was a screw-up, in my opinion. He should have written “to carry a weapon” instead of a handgun. The Second Amendment is not restricted to firearms, much less handguns. You have a right to carry a weapon of any sort deemed “reasonable” (so no nukes or hand grenades for general self-defense) for self-defense: a shotgun, a handgun, a rifle, a musket, a sword, a knife, a club, anything.
(A definition of “reasonable” could be “useful for repelling or stopping any attack on an individual without needlessly causing collateral damage to property or persons not involved in the incident at issue.”)
And, yeah, I’ll believe 2d Circuit cares about the Constitution when I see them strike down this stuff wholesale, but I won’t hold my breath waiting for it.
Given that private cannon were noncontrovertial at the time of the revolution, any weapon of war is protected, so that the body of the people might form itself into a fully-fledged military force as needs be.
In fact, Hearst gave the American forces going to Cuba an armed yacht. Tiffanys gave Roosevelt’s group a Colt machine gun. The present push is to seal off any chance to stop the Communist Democrat Party from complete take over of the country and complete control of the people. One doesn’t have to take Alex Jones’ lessons to see the trajectory. The day has partially come where the Entrenched Party has ignored court rulings and some day will completely ignore any ruling they don’t like. I’d love to be a fly on the wall when SCOTUS finds out they are totally worthless and a sham.
But carrying for self defense? That becomes a bit unwieldy. Just saying.
Also, forming a military force isn’t the same as “carrying for self-protection.” I’m OK with you storing (appropriately) hand grenades and nukes, just not carting them about for self-defense.
(I could possibly see a distinction made between concussion grenades and fragmentation grenades. I could also see allowing them but requiring indemnity if you cause collateral damage – that would be a more general application to the whole area of law.)
Let me clarify:
I am not saying the 2A only protects the right to carry for self-defense. It also covers the ability to form a militia for various reasons (including posses). But the decision was pointing to “carry for self-defense” and my objection was to limiting it to handguns. In general, I think you can say some weapons are not good for self-defense in an ordinary sense of defending against a mugger, car-jacker, or rapist because they are indiscriminate in application.
I think it would have been more of a mistake to cite a right to “to carry a weapon” and have NY respond, here’s a list of weapons you can carry, but no guns on it.
Didn’t the SC decide that the right to keep and bear arms was for roughly the same weapons as modern infantrymen.
The whole point of the 2nd amendment was to ensure that the citizens maintained the right to keep and bear arms for self defense. Self defense against criminals and self defense against tyranny of their government.
The Constitution give Congress the power to “grant letter of marque” . This was a license for a private citizen to take vessels of a enemy of the United States or pirates. In order to do this the individual would need to have a boat and the ability to privately outfit it with the appropriate weaponry, like cannon.
A right to contract and wield scalpels. Who empathizes with the millions of abortion victims, annually, globally. Keep women affordable, available, and taxable, and the “burden” of evidence sequestered in darkness. A Twilight faith, a Pro-Choice ethical religion, a class-disordered ideology, a wicked solution.
My Father bought a S&W Model 28 357 Magnum revolver in North Carolina back around 1961. In the box with the revolver is the letter of permission to purchase a handgun. This permission required an interview with the Sheriff’s office to show “good moral character”. Translated into English, this meant anyone not black in pre-Civil Rights Act Buncombe County. This law had been enacted in early 1900’s as part of ongoing Jim Crow laws. How segregated was N.C. in 1961? Duke University Hospital was segregated. The modern day Dems are apples that haven’t fall far from the segregation tree…just now applied to other deplorable folks…. rightists, wreckers, counter-revolutionaries, wrong thinkers.
Forgot one point! The law is sitll on the books! The legislature is trying to remove the law as it is obviously a relic of Jim Crow…. but the Dems want to keep the law in place. Imagine that… Dems holding on to Jim Crow laws…. downright KKK of them.
The fact is that the Dems are just as racist now as back when they fought to keep blacks enslaved. Just look at how racist the Black Panther movies are, where Wakanda fights the racist white countries to save their black brothers. Then their is their racist Critical Race Theory which judges everyone based on their race, all whites racists and all blacks are victims.
The judges face the difficult task of interpreting the state’s gun laws in the wake of a Supreme Court decision from last year.
Why will this be a difficult task? It should be pretty simple and easy to say, “Holy cow. What part of Bruen didn’t y’all get? All of it is vacated, and we censure NY State for so obviously passing off this crap as legitimate law.”
And it’s Miller time by 11am.
I’m psychic. I can see what is going to happen clearly.
–Judge Suddaby’s decision will be overturned by the Second Circuit using about 400 pages of mealy-mouthed slander and half-truths in the decision.
–This will be appealed to SCOTUS, which will take until next year to hear the case
–During this time, NY will substantially change the law’s wording (but not intent) and argue the appeal is moot because the laws are different.
–The SCOTUS will ignore NY’s whining, take the case, uphold Judge Suddaby’s decision, and then make a horrible mistake by sending the case back to the Second Circuit for implementation instead of taking the decisive step of striking down the unconstitutional gun laws.
–Second Circuit will dither, require some more NY gun law changes, and generally bat this around like a cat with a dead bird while NY continues to put law-abiding gun owners through the wringer and generally ignores criminals with guns like normal.
Here is hoping you are wrong, but I wouldn’t bet against you.
We have certainly seen that play before.
“while NY continues to put law-abiding gun owners through the wringer and generally ignores criminals with guns like normal” Professional courtesy.
“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”
Pre-COVID numbers, which were stable for decades (COVID changed everything):
firearms deaths ran approximately 30K/year; of that, roughly 20K were suicides and 10K were homicides.
Accidents were down around 800 total per year, nationally, and shrinking every year.
How big is the “gun violence” problem we have that can be attributed to lack of training? Zero/Zilch/Zip/Nada.
This is all Democrat gaslighting.
So, basically, if you vote Democrat, you’ve surrendered your rights under the Constitution and done so willfully.