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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

The Court’s 261-page opinion invalidates requirement to provide social media to reviewing officials and bans on concealed carry in businesses open to the public and houses of worship, but lets some other provisions stand, such as the required showing of “good moral character” and the ban on concealed carry in “sensitive” public places

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:

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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That’s a crotch.

“Good moral character”. Jim Crow 2.0. who determines this? The Democrat Party, LGBQWERTY++–&234, Donations to local law enforcement? All of this is a rehash of Dem imposed restrictions since The Civil War to limit rights of many groups… They just can’t take there thumb off of the scales of justice.

    alaskabob in reply to alaskabob. | December 10, 2023 at 11:01 am

    North Carolina removed the good moral character barrier this year overriding the Dem governor’s veto. (There we go again). To have the Dems rely on morals is a fraud.

Isn’t not having a felony conviction more than proof of good moral character? Nah, the state demands a glowing letter of recommendation from five strangers plus bored bureaucrats poring over your social media in order for you to prove positive your character.

    henrybowman in reply to George S. | December 10, 2023 at 12:44 pm

    35 years ago, Massachusetts demanded I procure glowing letters of recommendation from at least three neighbors in order to qualify for a license to purchase and possess (not even carry). I got one of mine from the Unitarian minister next door, who ran churches in two towns and was a former town selectman. A couple years later, he was imprisoned for keeping a Tibetian “exchange student” as his personal housemaid and sex slave. A fellow ranked IPSC competitor at my club got his endorsement from the police chief in his NY hometown, who was later convicted of embezzlement of public funds.

    “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.”

    That has been happening for years. Many knowledgeable gun owners entirely avoid routine mental health counseling after deaths, divorces, etc., because they know it will be used against them.

      CommoChief in reply to henrybowman. | December 10, 2023 at 4:06 pm

      The absurdity of these sorts of invasive requirements is revealed in a simple exercise of substitution by using a protest permit to hold a rally in the park by disenfranchised groups in our past. If we applied the same criteria to 1A activity in a park by minority groups would the requirements stand? Nope. The judiciary and our political class must stop treating some of our rights as second class or worse optional.

The Gentle Grizzly | December 10, 2023 at 12:10 pm

I think those sensitive areas need to grow up and accept that life can be hard.

“The entire scheme is a willful and knowing evasion of a constitutional right.”

Still and again: Abolish qualified immunity. Winning a popularity contest to govern should not be a license to defecate on the Law of the Land, sworn to uphold, and implement whatever tyranny with impunity.

The remedy is plain: politicos who egregiously and aggressively conspire and attack the plain, enumerated civil rights of American citizens should be imprisoned or executed for their seditious, anti-constitutional crimes.

Unless or until these punishments are applied, we are simply engaged in repeated political m*st*rbation before the courts as these seditious, anti-constitutional politicians continue in their crimes against American citizens.

Abolish qualified immunity.

That is my TED talk. Thank you.

When will they learn criminals or lunatics with evil in their hearts don’t care about the law? I’m sure you an still carry a knife or baseball bat into these sensetive areas; a nut can hurt lots of people with household items knowing no armed citizen

    ChrisPeters in reply to JimWoo. | December 10, 2023 at 4:54 pm

    Hey! I just realized that as members of a minority, law-abiding citizens should claim the law is discriminating against them!

    Crawford in reply to JimWoo. | December 10, 2023 at 6:40 pm

    Here’s the thing: the left doesn’t care that criminals will ignore the law. They know the law-abiding will, leaving them defenseless and at the mercy of the criminals.

What if New York’s anti-Second Amendment provisions were applied to voting rights?

What if you must reveal your social media accounts and demonstrate “good moral character” in order to be able to get “approval” to vote?

The howls from liberals would rock the rafters.

I’d never carry a gun in a sensitive place. Too much danger of shooting it off.

    henrybowman in reply to Crawford. | December 11, 2023 at 12:50 am

    Pop quiz — did you know?
    You can carry a firearm in a “school zone” (not on school grounds, but otherwise within 1,000 of a school) legally, if you are a resident of that state and have that state’s carry license.
    Nevertheless, if you are within that 1,000 feet when you are forced to fire your gun in perfectly legal self-defense, it’s still a federal crime.
    Sensitive places, my ass.

    I will never appendix carry a firearm.

SC needs an enforcement arm to stop this bs. Some are waking up though, so good for them.

“Growing up, the mere thought of owning a gun or handling a gun was taboo. However, once I started having conversations with people after Tree of Life, I found the reality is everybody might be somebody who would buy a gun. It just depends on what it takes to get one,” he explained.

Still, he and his wife shelved the idea five years ago.

Then Oct. 7 happened — and everything else that went with it in the following days and weeks, like the brazen antisemitic graffiti splattered on the front wall of Allderdice High School and throughout the Summerset neighborhood, as well as the tire slashings, the defacing and burning of lawn signs that support Israel, and the woman using a hammer to hit the window of Marvista Design where a sign read “We Stand With Israel.”

My answer to the requirement for social media (really, it’s a lot more than social media) would be “I am exercising my 5th Amendment rights.” Anything after that is a violation of the 5th and 4th Amendments.

As to “sensitive places” I can see – given the idiotic belief that people carrying guns are like the worst of every 60s western – bars. But why is a theater a “sensitive place”? Because some people got shot there, in one town, once? By that standard, the cops should certainly not be allowed to carry firearms. Public parks? Again, I understand why – they can’t control entrance to them. It’s about control.

And control is why they pass laws that only affect the law-abiding. They can control you because you follow their rules. So, they clamp down to increase their illusion of control.

BTW, I am a radical insensitive placer. I don’t even think they should stop you from legally carrying in the court building. Obviously perps should likely not carry (that “legally” bit). But everyone else? Why should they be stopped? The only reason is because the judges (and lawyers) feel they’re a special case that should be protected. Same with municipal buildings. And everywhere else.

    CommoChief in reply to GWB. | December 11, 2023 at 6:13 pm

    I suppose the modern Judges and attorneys take Dick the Butcher’s admonition to heart. Many public offices have put up barriers to separate the members of the public from direct contact with public officials and employees. Perhaps removing those barriers would reduce the institutional arrogance some of the bureaucracy have, though rooting out the disdain many of the laptop class, neo clerisy hold for the general public is pretty unlikely.

    henrybowman in reply to GWB. | December 11, 2023 at 7:55 pm

    “As to “sensitive places” I can see … bars.”
    Here’s a chuckle. When I lived in MA, despite having some of the most restrictive licensing laws in the country, they never even bothered to pass a law about guns and bars. (Because “nobody has guns hereabouts,” dig?) To the point where the central feature of most of the gun clubs in my area of the state was a private membership bar! They all had club rules that you did your shooting first and your drinking afterward, but they were club rules, not mandated by any law or regulation. And a rule saying you could not carry in the bar would have never occurred to them, it would have been ludicrous. This aspect was actually MORE ‘Bruen” than any other place I have lived.

Please note that most of the “Sensitive Places” are College campuses. These places also suspend many 1st Amendment rights, through restrictions, organized “shout downs” and other means.

We are so screwed!

What a lousy outcome. The Court’s allowing the utterly obnoxious and manifestly unconstitutional “good moral character” and “sensitive places” restrictions to stand is outrageous and offensive. And, if SCOTUS declines review, other circuits will now deem these two conceits as legitimately sanctioned precedent to follow and give their blessing to.

So now all the criminals, who don’t give a rat’s behind about laws, will have a list of all the “sensitive places” so they can go about their criminal activities without fear of being stopped.

I will once again ask the question I have been asking now for more than 40 years without receiving a single coherent response: Where in the wording of The Second Amendment is there any provision for, or even a suggestion of, restrictions, limitations, or exceptions? Answer: There is none, meaning that a very strong argument can be made that all of the more than 24,000 gun control laws currently in effect in this nation at the federal, state, and local levels are unconstitutional.

The definition of a “sensitive place” can not be arbitrary, as New York has defined it. A defining characteristic is that it is secured by security personnel and all entering the area are subject to search for weapons. Think of an airport, or courthouse as common examples. Actually searching everyone is not necessary, just that the security people have the option should suffice.

    henrybowman in reply to Maz2331. | December 11, 2023 at 8:00 pm

    We got a law passed in AZ saying that a “public building” that doesn’t screen with metal detectors AND have public lockers available for visitors’ weapons cannot be gun-free. So I’m willing to submit at the local courthouse, but the posers at the library and the DMV can kiss my grits, despite the latter’s lockers.

So, the gummint is gonna designate places where the people are too stupid and reactive to have guns about? That seems kinda judge-y.