Appeals Court Strikes Down Major Portions of New York State Gun Carry Law, But Allows “Sensitive” Places Restrictions

Appeals Court Strikes Down Major Portions of New York State Gun Carry Law, But Allows “Sensitive” Places Restrictions

As we reported in March of this year, Second Circuit to Hear First Comprehensive Post-Bruen Firearms Statute Challenge, the U.S. Court of Appeals for the Second Circuit (which covers New York, Connecticut, and Vermont) held oral argument in the appeal of several New York federal court cases challenging New York’s new, extremely restrictive, gun carry law. Governor Hochul signed this law mere days after the U.S. Supreme Court’s Bruen case, which held that New York’s previous statute, which conditioned the right to carry on a showing of some “special need” for self-defense, was unconstitutional: Supreme Court Strikes Down Restrictive New York Gun Licensing Law.

The new law was even worse than the previous one that the Supreme Court struck down. For one thing, it required New York State citizens desiring a concealed carry permit to disclose three years of all social media accounts for state bureaucrats to peruse, required citizens to demonstrate “good moral character,” outlawed concealed carry in every business open to the public, and outlawed concealed carry in almost every public place, including all parks and places of worship.

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 massive litigation immediately ensued, and in the lead case federal judge Glenn Suddaby struck down almost the entire statute:

“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.

And of course, that case, and the others that had similarly ruled, were immediately appealed.

I attended the three-hour “spirited” oral argument in the appeal, which occurred on March 20, 2023, Challenges to New York’s End Run Around SCOTUS 2nd Amendment Ruling Argued At Second Circuit, and summarized the proceedings on each point.

Of special note, the social media provision had been attacked on First Amendment free speech grounds by just about everybody, as we reported: Liberal Groups File Court Opposition To NY Gun Control Law Requiring Disclosure Of Social Media Accounts.

The groups opposing the social media disclosure provision included the Knight First Amendment Institute at Columbia University, the Liberal Gun Club, the Asian Pacific American Gun Owners Association, the National African American Gun Association, the  DC Project Foundation, which “is a coalition of female gun owners from all fifty states dedicated to protecting and preserving their Second Amendment rights, and even Operation Blazing Sword–Pink Pistols (“OBSPP“), which “comprises two organizations, Operation Blazing Sword and Pink Pistols, which together advocate on behalf of lesbian, gay, bisexual, transgender, and queer (“LGBTQ”) firearm owners.

The Knight Institute’s excellent amicus (friend of the court) brief can be reviewed here, and argued 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.”

At oral argument, even recent Biden-appointee federal appellate judge Eunice Lee grilled the state’s attorney and expressed skepticism about “how it was appropriate to require people to provide their social media to the state.”

Judge Lee and other two judges on the Second Circuit panel, Gerald Lynch and Dennis Jacobs, did a great job at the three-hour hearing dissecting the parties’ arguments, and now, nine months later, we have their 261-page opinion/order, which can be reviewed here:

From Fox News: Gun rights group applauds after federal appeals court deals blow to NY concealed carry law:

Gun rights activists cheered Friday after a federal appeals court struck down parts of New York’s expansive concealed carry law.

The U.S. Court of Appeals for the Second Circuit blocked three provisions of New York’s “Concealed Carry Improvement Act” (CCIA), a law Democrats passed last year in response to a Supreme Court ruling that declared the state’s previous concealed carry permitting requirements unconstitutional. In doing so, the appeals court allowed other parts of the law to go into effect.

In a 261-page ruling, the three-judge panel struck down a requirement that gun owners disclose their social media accounts for review when applying for a concealed carry permit. The court also blocked restrictions on carrying firearms on private property that is accessible to the public, as well as a restriction on concealed carry in houses of worship.

Unfortunately, the court held that some portions of the statute comported with the Second Amendment, even after Bruen:

[C]ontroversial parts of the law remain intact, including a requirement that applicants demonstrate good moral character and disclose household and family members on a permit application. New York will also be allowed to enforce bans on concealed carry in so-called “sensitive places,” including theaters, bars, public parks and other spaces.

Still, Gun Owners of American applauded the ruling:

Gun rights activists praised the court’s decision but said the judges failed to faithfully apply the Supreme Court’s precedent, arguing the entire law should be thrown out.

“Governor [Kathy] Hochul and her cabal in Albany never seem to get the message, and in turn, GOA is proud to have played a major role in rebuking her unconstitutional law,” Gun Owners of America (GOA) Senior Vice President Erich Pratt said in a statement.

“Nevertheless, this was not a total victory, and we will continue the fight until this entire law is sent to the bowels of history where it belongs,” Pratt added.

GOA’s attitude foreshadows what will almost certainly be a request to the U.S. Supreme Court to review the Second Circuit’s ruling. In fact, both sides may seek Supreme Court review. The parties challenging the law will likely ask the Supreme Court to hold the good moral character provision and the public places provisions unconstitutional, and New York is likely to ask the Court to reinstate its ban on carry in places of worship and businesses open to the public, not to mention its social media provisions.

My prediction is that the Supreme Court probably will not accept the case for review.

I base this on several factors:

1. The Supreme Court only “accepts 100-150 of the more than 7,000 cases that it is asked to review each year,” or about one to two percent of cases submitted for review, so the chance of review in any case is slim.
2. The Bruen case is so recent that the Court may not want to hear yet another gun case since it is already reviewing the Rahimi gun case this term. That case, United States v. Rahimi, concerns a challenge to “a federal law that bars anyone subject to a domestic-violence restraining order from possessing a gun.”
3. The Second Circuit opinion splits the baby, striking down the social media provision and the ban on carry in houses of worship and businesses open to the public, while upholding the good moral character and sensitive places provisions. And it is 261 pages long and took nine months to write, which suggests that it is not so outlandish or one-sided that the Supreme Court might feel compelled to review it.

This last point is interesting because each side is claiming victory to some degree:

Dueling media: Fox: “Gun rights group applauds after federal appeals court deals blow to NY concealed carry law”. NYTimes: “A federal appeals court on Friday upheld significant portions of New York’s expansive gun law”.

— Julia Stewart (@JuliaST_70130) December 9, 2023

Another possibility is that the Supreme Court might “GVR” the case, or at least the “good moral character” provision, in light of Rahimi. GVR stands for “grant, vacate, and review,” and basically in this case would tell the Second Circuit to redo the opinion’s good moral character section in light of what the Supreme Courts says in Rahimi, assuming Rahimi has something to say about moral character, which it might since it concerns those subject to domestic violence restraining orders.

We will, as always, keep you posted.

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