Federal Appeals Court Upholds Most of Restrictive New York Concealed Carry Gun Law; Next Stop SCOTUS

Federal Appeals Court Upholds Most of Restrictive New York Concealed Carry Gun Law; Next Stop SCOTUS

We have been following the twists and turns of litigation battles associated with New York’s most recent concealed carry gun law. This is important, not only because it affects the constitutional rights of millions of law-abiding New York State citizens, but also because this case could be a bellwether for the country, should the U.S. Supreme Court decide to review the case and provide further guidance on the gun rights of citizens nationwide.

You may recall that it all started, as we reported, when SCOTUS struck down New York’s previous concealed carry gun law, which required citizens to make a showing of “special need” when applying for a carry permit, as violative of the U.S. Constitution’s Second Amendment, in the seminal New York State Rifle & Pistol Association, Inc. v. Bruen case:

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.

So after Bruen, as the case is typically called, New York could not require citizens to show a special need to get a concealed carry permit. And boy was Kathy Hochul, the far-left governor of New York, pissed: NY Gov. Hochul Loses Her Mind Over SCOTUS Ruling Striking Down Conceal Carry Law.

So pissed, in fact, that she rapidly called a special session of the New York legislature, and immediately passed a new concealed carry gun law even more restrictive than the previous one: New York Democrats Undermine Supreme Court 2nd Amendment Ruling In New Legislation.

We provided a good summary of the new law’s provisions:

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.”

The new law also requires New Yorkers to prove that they are of “good moral character” before qualifying for a concealed carry permit, which sounds suspiciously like the “special need” requirement that SCOTUS had just struck down, and when litigation ensued, federal judge Glen Suddaby found exactly that in striking down most of the new law: Federal Judge Finds Key Parts of New York’s Gun Law Unconstitutional:

Suddaby blocked the part where applicants must prove “good moral character” and allow authorities to review their social media profiles. The move comes a few months after SCOTUS overturned “a prior licensing regime, which required applicants prove a need for self-protection” and good moral character. The justices found it “too subjective.”

Suddaby found the new “good moral character” provision “was no better” than the original:

However, instead, the CCIA expressly prohibits the issuance of a license unless the licensing officer finds (meaning unless the applicant persuades him or her through providing much information, including “such other information required by review of the licensing application that is reasonably necessary and related to the review of the licensing application”) that the applicant is of “good moral character,” which involves undefined assessments of “temperament,” “judgment” and “[]trust[].” Setting aside the subjective nature of these assessments, shouldering an applicant with the burden of showing that he or she is of such “good moral character” (in the face of a de facto presumption that he or she is not) is akin to shouldering an applicant with the burden of showing that he or she has a special need for self-protection distinguishable from that of the general community, which is prohibited under NYSRPA. In essence, New York State has replaced its requirement that an applicant show a special need for self-protection with its requirement that the applicant rebut the presumption that he or she is a danger to himself or herself, while retaining (and even expanding) the open-ended discretion afforded to its licensing officers.

“Simply stated, instead of moving toward becoming a shall-issue jurisdiction, New York State has further entrenched itself as a shall-not-issue jurisdiction,” wrote the judge. [emphasis added]

So the case went up to the federal Second Circuit U.S. Court of Appeals, which, after hearing oral argument that I attended in Manhattan, upheld much of the New York concealed carry law, reversing a good deal of Judge Suddaby’s opinion, including the “good moral character” requirement, although the court did strike down some of the law:

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.

Because the Second Circuit upheld the “good moral character” requirement, the Plaintiffs in the case filed a Petition with SCOTUS asking the Court to review the case: Second Circuit’s Partial Upholding of New York’s Gun Carry Law Appealed to SCOTUS:

Read the whole thing to get a good flavor of what it takes to get the Court to take a case, a truly daunting task (“the Court accepts 100-150 of the more than 7,000 cases that it is asked to review each year.”)

The key part of the Petition is its discussion of the New York law’s requirement that New Yorkers prove that they have “good moral character” before obtaining a concealed carry permit:

[T]his case would allow this Court the opportunity to clarify that government may not selectively disarm law-abiding members of “the people” whenever licensing officials feel they are of poor character, potentially dangerous, or otherwise unworthy of enjoying the natural right to self-defense with which they were endowed by their Creator….

In Bruen, this Court rejected New York’s requirement that, to be authorized to bear arms in public, citizens first must demonstrate “proper cause” — defined as “a special need for self-protection.” Here, the panel sanctioned New York’s stand-in requirement that citizens convince licensing officials of their “good moral character” prior to licensure. As the district court explained, New York simply “replaced” proper cause with good moral character, “while retaining (and even expanding) the open-ended discretion afforded to its licensing officers….”

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]

I predicted that SCOTUS would not take the case, based on how difficult it is to get the Court to take any case, but suspected it might GVR the case based on Rahimi, a case involving whether a federal statute taking someone’s guns away when they have a domestic violence restraining order against them is unconstitutional (it’s not):

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.

That is exactly what SCOTUS did, essentially asking the Second Circuit to take another look based on Rahimi. So the Second Circuit did so, and reached the same conclusion that they did initially. You can read the whole thing here, and at the end of this post, but here is the key part concerning the requirement that a concealed carry applicant prove that they have “good moral character”:

First, the requirement is not facially invalid because it is not unconstitutional in all its applications. The CCIA’s definition of “character” is a proxy for dangerousness: whether the applicant, if licensed to carry a firearm, is likely to pose a danger to himself, others, or public safety. And “[s]ince the founding, our Nation’s firearm laws have included provisions preventing individuals who threaten physical harm to others from misusing firearms.” Rahimi, 144 S. Ct. at 1896. We therefore cannot conclude that every denial on grounds of “good moral character” as defined by New York will violate the Second Amendment, though various avenues lie open for as-applied challenges.

Next, we disagree with the district court’s conclusion that affording licensing officers a modicum of discretion to grant or deny a concealed carry permit is inconsistent with the Nation’s tradition of firearm regulation. For as long as licensing has been used to regulate privately-owned firearms, issuance has been based on discretionary judgments by local officials. Licensing that includes discretion that is bounded by defined standards, we conclude, is part of this Nation’s history and tradition of firearm regulation and therefore in compliance with the Second Amendment.

Finally, Bruen does not forbid discretion in licensing regimes—on the contrary, the Bruen Court specifically stated that its decision did not imperil the validity of more than a dozen licensing schemes that confer discretion materially identical to the CCIA. 597 U.S. at 38 n.9. At most, the Court indicated that the practical operation of a licensing scheme is relevant to whether it is impermissibly discretionary. It was therefore error to strike down New York’s scheme on a facial challenge.

Basically, the court made much of the fact that New York’s gun law is being challenged as part of a “facial” challenge, i.e. based solely on the text of the statute, and not as an as-applied challenge, i.e. based on how licensing officials actually apply the law.

That seems like a dodge to me, setting up the inevitable clash at the U.S. Supreme Court.

We’ll keep you posted.

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