Supreme Court Sends Latest New York Gun Case Back to Appeals Court for a Re-Do

Supreme Court Sends Latest New York Gun Case Back to Appeals Court for a Re-Do

We have been closely following a case out of New York, Antonyuk v. Hochul, that challenged New York’s attempt to do an end-around to avoid the Supreme Court’s Bruen ruling.

New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022), as I’m sure you know, held that the previous New York statute that required a citizen to have a “special need” to obtain a concealed carry permit, was unconstitutional:

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 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.

You got that, right? New York cannot require a New York State citizen to show a “special need” for a carry permit. You meet the requirements, which cannot include the requirement to show of special need, you get the permit.

Well, apparently, Kathy Hochul didn’t get the memo, because shortly after Bruen issued, she signed a new law requiring a showing of “good moral character” prior to receiving a carry permit. The law also banned concealed carry of firearms in many sensitive places, including churches, and mandated that carry in any business was prohibited unless the owner affirmatively posted a sign saying that concealed carry was permitted.

And, of course, litigation immediately ensued, with federal judge Glenn Suddaby striking down the good moral character requirement as well as a provision requiring permit applicants to provide three-years-worth of social media accounts to reviewing officials, among others.

Of course New York immediately appealed, and in March of last year, the Second Circuit U.S. Court of Appeals heard oral argument on the case, which I attended at the federal courthouse in Manhattan.

Interestingly, many groups, some far to the left of center, including 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, advocated for portions of the new New York law to be stricken.

In December this past year the Second Circuit issued its opinion, striking down the social media requirement and the ban on concealed carry in churches, but allowing the “good moral character” requirement and other “sensitive places” restrictions to stand: Appeals Court Strikes Down Major Portions of New York State Gun Carry Law, But Allows “Sensitive” Places Restrictions:

[N]ow, nine months [after the March 2023 oral argument], 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.

Since the court kept the good moral character requirement, the Plaintiffs, now Appellants, filed a Petition for Certiorari with the U.S. Supreme Court, asking them to take the case: Second Circuit’s Partial Upholding of New York’s Gun Carry Law Appealed to SCOTUS.

The Petition, available for review here, argued that New York’s “good moral character” requirement is incompatible with Bruen, and argued that the case should therefore be reversed:

New York’s “good moral character” standard is…a prohibited “suitability” determination and, as the district court noted, is merely a surrogate for the “proper cause” standard that was struck down in Bruen…Indeed, under the CCIA, New York officials decide whether a person “ha[s] the essential character, temperament and judgement necessary to be entrusted with a weapon….”

It is quite difficult to understand Bruen’s criticism of “suitability” not to include “good moral character.” And it is even more difficult to believe that this Court would approve the discretionary power to deny carry licenses to “all Americans” unless they first “convince a ‘licensing officer’” of their general morality.

[bold added; italics in original]

My take was that this was going to be a tough sell to SCOTUS to get them to review the case, because they take so few cases as it is (“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”).

But, I predicted, one possible course of action SCOTUS could take would to tell the Second Circuit to take another look based on the then-upcoming Rahimi case:

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.

Well, I’m happy to report that my prediction was right on the money, because on July 2nd the Supreme Court did exactly that:

Petition GRANTED. Judgment VACATED and case REMANDED for further consideration in light of United States v. Rahimi, 602 U. S. ___ (2024).

Rahimi was handed down by SCOTUS on June 21, 2024, as we reported: Supreme Court Upholds Law Temporarily Disarming Person Subject to Domestic Violence Restraining Order:

The U.S. Supreme Court handed down a landmark Second Amendment decision this morning in a case that pitted the Second Amendment against the interests of domestic violence victims.

The Court held 8–1 in United States v. Rahimi that a law temporarily disarming a person subject to a domestic violence restraining order does not violate the Second Amendment in an opinion written by the Chief Justice.

“When an individual has been found by a court to pose a credible threat to the physical safety of another,” the Court held, “that individual may be temporarily disarmed consistent with the Second Amendment.”

You can immediately see the intersection of this New York case and Rahimi: If a person can be stripped, temporarily, of the right to keep and bear arms if they pose a credible threat to another, maybe New York’s good moral character requirement isn’t so outlandish. Of course the counterpoint would be that a citizen applying for a gun permit shouldn’t have to prove that he or she doesn’t beat their spouse. Maybe the sheriff could just do a background check on each applicant to see if they have any outstanding restraining orders?

In any case, it is unclear exactly what happens now, but clearly the Second Circuit will take another look at the case, in light of Rahimi, and will issue another opinion taking Rahimi into account or explaining why their original opinion stands because Rahimi doesn’t apply.

We’ll keep you posted.

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