Challenges to New York’s End Run Around SCOTUS 2nd Amendment Ruling Argued At Second Circuit

Challenges to New York’s End Run Around SCOTUS 2nd Amendment Ruling Argued At Second Circuit

As we reported last week, Second Circuit to Hear First Comprehensive Post-Bruen Firearms Statute Challenge, on Monday the U.S. Court of Appeals for the Second Circuit was scheduled to hear five separate cases challenging New York’s new Concealed Carry Improvement Act (CCIA). That hearing proceeded as scheduled, and I was at the Thurgood Marshall United States Courthouse in downtown Manhattan to observe (see photo above). This is my report on the proceedings.

These challenges all stemmed from Governor Kathy Hochul’s response to the United States Supreme Court’s 6-3 decision overturning New York’s prior concealed carry law, which required that an applicant for a concealed carry license demonstrate some “special need” for the carry license. Justice Thomas, writing for the Court in New York State Rifle & Pistol Association, Inc. v. Bruen last June, found that New York State’s “special need” licensing regime “violates the Constitution,” as we reported: Supreme Court Strikes Down Restrictive New York Gun Licensing Law.

Governor Hochul was not happy: Some Blue States Already Trying to Work Around SCOTUS 2nd Amendment Ruling, convened an emergency session of the New York legislature, and eight days after Bruen enacted the CCIA, which is even worse than the previous act that the Supreme Court struck down. Details were reported here: New York Democrats Undermine Supreme Court 2nd Amendment Ruling In New Legislation.

The new law, we noted, prohibits concealed carry in so many “sensitive places,” including all private property throughout New York State, that it means that “you cannot actually carry” a firearm. Add to that extremely onerous licensing requirements, such as providing your social media accounts to the licensing officer, and “fuzzy, judgmental standards that reestablish [licensing officer] discretion,” and the new law constitutes “a willful and knowing evasion of a constitutional right.”

Litigation ensued, and much of the law was ruled unconstitutional by two different federal judges, as we reported in part here: Federal Judge Finds Key Parts of New York’s Gun Law Unconstitutional. Of course, New York immediately appealed, resulting in yesterday’s hearing.

The hearing lasted for almost three hours; eons for a court of appeals where each appeal is usually afforded 10 minutes per side, total. A summary of each of the five cases, and what came up at the hearing, follows:

Christian v. Nigrelli

This case challenges a new CCIA rule forbidding concealed carry on all private property in the State of New York unless “the owner or lessee of such property” has permitted “possession by clear and conspicuous signage indicating that the carrying of firearms, rifles or shotguns on their property is permitted or has otherwise given express consent.” N.Y. Penal Law § 265.01-d(1). Anyone who enters private property where the owner has not posted conspicuous signage or otherwise provided express consent commits a Class E felony. Id. There are exceptions for police officers and for those legally engaged in hunting. Id. at § 265.01-d(2)(a)-(g).

In his brief, Christian describes this rule as New York’s “Anti-Carry Default,” and explains its effect:

“[B]efore September 1, 2022 [when the CCIA went into effect], Christian would carry at places open to the public, including a local gas station and a local hardware store. After September 1, 2022, he can no longer carry there. These businesses were silent before September 1. After September 1, they were still silent. Indeed several businesses have responded to Christian’s inquiries by refusing to either affirmatively allow or bar carrying-thus leaving New York’s default anti-carry rule in place. Christian’s daily routine of carrying for self-defense during his day-to-day activities has been brought to a screeching halt by the Anti-Carry Default.”

In their papers and at the hearing, New York argued that Christian didn’t even have standing to challenge this rule, because although he was certainly injured by the new law (part 1 of the standing requirement), his inability to carry could not be “traced” to the state (part 2 of the standing requirement); rather, it was the property owners’ fault that Christian couldn’t carry, not the State’s.

At the hearing, from the jump Judge Gerald E. Lynch was having none of it. Embodying what lawyers often refer to as a “hot bench,” Judge Lynch grilled the State’s attorney, asking wasn’t it “state action” that caused Christian’s inability to carry, noting that the day before the law went into effect, Christian could have carried into Macy’s, but not the day after. Isn’t it the statute that caused the problem?, he asked. The State’s attorney responded no, the statute does not bar carry on private property, it is the property owners’ decision. But Judge Lynch suggested that many property owners would not want to get involved, which he thought was understandable.

Christian’s attorney, sensing perhaps that he was likely to win the argument on Christian’s standing, moved to the merits of the case, arguing that under Bruen it was the State’s burden to show that the history of firearms’ regulation dating back to the founding supported the State’s carry prohibition on private property, and that the State had not carried its burden. The laws the State cited concerned hunting abuses and the prohibition of armed hunting when those abuses occurred, but had little bearing on the regulation of concealed carry on private property in general. Judge Lynch grilled Christian’s attorney as well to some degree, but noted that apart from the hunting statutes, there was not much statutory history bearing on the subject.

Hardaway v. Nigrelli

This case challenges a new CCIA rule forbidding concealed carry in all houses of worship. Under the CCIA, “any place of worship or religious observation,” is a “sensitive location” where concealed carry is prohibited even if the property owner wishes to allow carry and expresses consent to do so. N.Y. Penal Law § 265.01-e(2)(c). Carrying in any sensitive location, including place of worship, is a Class E felony. Id. § 265.01-e. There are exceptions for police officers and armed security guards hired by the church. Id. § 265.01-e(3).

In their brief, Hardaway and his co-Plaintiff Boyd, both church pastors, explain that the effect of this new rule is to prevent them from carrying for the defense of their congregations, even though their churches are located in areas of Buffalo, New York know for serious violent crime. This is especially a problem, they argue, because their churches are open to anyone and everyone, and they have no way of knowing who will walk in the door.

In their brief, Hardaway and his co-plaintiff argue that the State had not met its burden, under Bruen, to show that the history of firearms’ regulation supported banning concealed carry in places of worship. In fact, Plaintiffs argued, just the opposite was the case, citing a number of revolutionary war era statutes mandating the carry of firearms in churches.

At the hearing, the State’s attorney argued that the State had hired an expert who had discovered a number of historical statutes that supported the prohibition of carrying firearms in places of worship and analogous places such as schools.

Judge Lynch asked whether a school is analogous to a church for the purpose of banning firearms, and Judge Lee asked a more basic question about what the definition of “sensitive places” was. The State’s attorney responded that sensitive places are either ones where firearms were historically banned or places analogous to those, and that places of worship met either definition. The State’s attorney also faulted the district court, which had ruled against New York on this issue, because the district court had improperly categorically discounted laws enacted after the revolutionary era. But the Supreme Court only suggested discounting such laws was proper if they were in conflict with revolutionary era laws, which these weren’t. In sum, the historical record supported banning firearms in places of worship, according to the State.

Hardaway’s attorney argued that the statutes the State had “scrounged” up consisted of only two state laws and some laws from territories before they were even states, and thus did not support the idea that firearms could be banned in churches. Judge Lynch pointed out, though, that the Second Amendment didn’t apply to the States before adoption of the Fourteenth Amendment in the late 19th century, and that we don’t know what the states thought about carrying in churches. Hardaway’s attorney responded that some of the states had incorporated Second Amendment-like protections in their state constitutions, so there was some evidence of state protection of gun rights.

This led to another discussion of how “sensitive places” is defined, with Judge Lee asking what the Supreme Court meant when it said gun restrictions are “presumptively lawful” in sensitive places, and with Judge Lynch joking that Justice Thomas, who authored Bruen, is probably happy that the Supreme Court said courthouses are sensitive places.

The State’s attorney, on rebuttal, said that Bruen’s list of sensitive places was not exhaustive, and that the statutes the State had uncovered show that there is a history of firearms regulation that supports banning firearms in churches.

Spencer v. Nigrelli

This case, like Hardaway, challenges the CCIA’s ban on guns in places of worship, but on First Amendment grounds rather than Second Amendment grounds.

Spencer argues in his brief that the CCIA’s ban on guns in places of worship violates the First Amendment’s “Free Exercise” clause because “[b]y explicitly prohibiting the exercise of a fundamental constitutional right in places of worship while permitting its exercise on other private property” [assuming the owner consents, of course], places of worship are treated less favorably than secular locations. And, the CCIA violates the “Establishment Clause” because it “encroaches on church autonomy…by telling places of worship whom they can admit into their sanctuaries to worship and under what circumstances.” In either case, the law would only be constitutional if it met strict scrutiny, meaning that it served a compelling governmental interest and was narrowly tailored to serve that interest.

At the hearing, the State’s attorney argued that the CCIA was consistent with the First Amendment because churches were allowed under the law to hire armed security, that there is no burden on religious practices, and in his declaration Spencer never said that he considered carrying a firearm religious activity.

Judge Jacobs mentioned that Spencer said that he felt he had to “protect his flock” by carrying, but the State’s attorney argued that his carrying a firearm was secular activity, not a religious issue, and that Spencer had never discussed carrying firearms with either his bishop or his congregation, nor carried on Sunday when preaching the gospel.

Spencer’s attorney argued that the CCIA regulates religious worship whether or not carrying a gun itself is an expression of religious activity. And because the CCIA burdens religion, it is only constitutional if it is narrowly tailored, but it is not because it bans guns in churches regardless of whether the property owner wants people to carry. Spencer’s attorney also argued that the law is irrational because churches have received numerous threats and suffered numerous attacks, and the law disarms church goers. Judge Lynch seemed to agree and added it even disarms the proprietor of the religious establishment. Spencer’s attorney suggested that the law makes houses of worship soft targets.

On rebuttal, the State’s attorney argued that the CCIA does not make houses of worship soft targets because it allows them to hire security guards, and that houses of worship were sensitive places partly because like polling places, protected constitutional activity takes pace there.

There was also discussion regarding a proposed legislative change to the CCIA in the works that might allow a church leader to designate certain church-goers to carry firearms without having to pay them or designate them security guards, and whether that indicated that the State knew there was something amiss with this section of the law.

Antonyuk v. Nigrelli

This case challenged almost every section of the CCIA, including the provision that indicated that a license to carry permit could only be issued to someone of “good moral character,” and was directed not only against the State, but against the Chief of Police for the City of Syracuse, New York.

At the hearing, the State’s attorney indicated that if the CCIA is struck down, untrained people would be allowed to carry firearms virtually anywhere. There was a standing problem for one of the plaintiffs because he had never applied for a carry permit, and it was speculative whether he would suffer injury by having his application denied if he did. Judge Lynch objected, noting that the plaintiff wants to apply for a permit but believes some of the requirements are unconstitutional.

The state’s attorney then stated that even of the standing requirements were satisfied, the challenge to the good moral character requirement was faulty because the CCIA is designed to only allow permits for people of good moral character. Judge Lee suggested that was fine, but asked how it was appropriate to require people to provide their social media to the state.

In response, the State’s attorney said they are concerned about providing permits to people who might be considering suicide, and that providing social media might provide some insight into that.

Judge Lynch then shifted to whether the CCIA would prohibit the carry of firearms in all of the Adirondack State Park, which might not be a good idea due to bears and other threats from wildlife. The State’s attorney explained that guidance had been provided indicating that the Adirondack State Park did not meet the definition of a “public park” for CCIA purposes, and so carry there was no restricted.

A different attorney argued the Syracuse police chief’s case, and stated that the plaintiff in that case had no standing because there was no evidence in the record that the plaintiff was a resident of Syracuse, which might support his statement that he was injured because the CCIA prevented him from carrying at a zoo in Syracuse.

The plaintiffs’ attorney argued that even if the plaintiff was not a resident of Syracuse, his declaration that he had intended to carry at the Syracuse zoo but could not due to the CCIA was enough to support standing.

Next Judge Lee asked Antonyuk’s attorney what the significance was of the State designating something a “sensitive place.” Judge Lynch piled on and complained that the Supreme Court gave the Second Circuit little to work with to decide whether a location is truly “sensitive” enough to warrant banning the carry of firearms there. Antonyuk’s attorney suggested that a sensitive place could be a place where the functions of democracy take place and where government security is provided, such as at courthouses, but Judge Lynch confessed that he was still confused about the subject.

After this, there was discussion about what statutes might be sufficient to establish an adequate historical record supporting the regulation of firearms, and more discussion about social media posts.

Judge Lynch opined that it seemed weird that before Bruen, people could carry firearms into a zoo, but after Bruen and the CCIA, they cannot.

Gazzola v. Hochul

The final case of the day involved challenges to the CCIA and other pre-Bruen legislation concerning the regulation of firearms dealers. This case is unlike the others because at the district court level the challengers lost, and they are the ones who appealed the case.

I am no expert on firearms dealer regulations, and Gazzola’s brief is very involved, but appears to indicate that the CCIA and other laws are problematic because 1.) they are impossible to comply with while simultaneously complying with federal firearms law, 2.) they would result in the State of New York setting up an impermissible registry of gun owners and their firearms, and 3.) they are so onerous that they will result in the eventual ruination of all firearms dealers in New York, meaning that the public will eventually have no means of obtaining firearms.

At the hearing, Judge Lynch complained that it was not clear where there was a conflict between federal and state law, dismissed Gazzola’s attorney’s argument that the new law’s annual certification requirement was a problem, and discounted the possibility that New York would set up an impermissible gun registry. Judge Jacobs asked if Gazzola’s attorney could cite which federal statute would be violated by compliance with New York law, and the response was that there was a table in the brief indicating same.

As for the possibility of New York dealers being put out of business, Judge Lynch was skeptical, saying the district court had said no such showing had been made, but Gazzola’s attorney stated that New York was targeting gun dealers with overburdensome regulations, and they would be driven from the state.

The State’s attorney argued that there was no conflict between state and federal law, that the safety and record keeping regulations were permissible, and that there is no evidence that gun stores are closing due to overburdensome regulations.

Conclusion

I cannot read the tea leaves clearly as to how these cases will come out. But it was clear to me that Judge Lynch was totally engaged in these cases and taking them very seriously, had studied all of the briefs assiduously, and was approaching the cases from a straight up legal point of view, without any hint of bias for one side or the other or any particular political point of view. The other judges were also strongly engaged as well, and while not quite as vocal as Judge Lynch, had clearly done their homework and were thinking deeply about the issues involved.

Stay tuned!

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