Second Circuit’s Partial Upholding of New York’s Gun Carry Law Appealed to SCOTUS

2024-02-29 10:00:19

We have been closely following the State of New York’s efforts to evade the U.S. Supreme Court’s (obviously) binding precedent regarding concealed carry of firearms, which was issued in June of 2022.

In that case, New York State Rifle & Pistol Assn. v. Bruen, the Supreme Court 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.

Kathy Hochul and company got to work, enacting a new, extremely restrictive gun carry law mere days after the U.S. Supreme Court’s Bruen case was issued, which was even worse than the previous one that the Supreme Court struck down.

A federal judge struck it down. The Second Circuit allowed some points to stand.

The Plaintiffs in the case have filed a Petition for a Writ of Certiorari with the U.S. Supreme Court, asking them to take the case and overturn, at least in part, the Second Circuit’s decision.

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]

The Petition also focuses on the Second Circuit’s disregard of the framework established by the Supreme Court’s Bruen case:

If New York’s challenged law was its “Bruen response bill,” then the panel’s decision represents the Second Circuit’s “Bruen response opinion.” Brazenly, the panel repeatedly justified wholesale rejection of Bruen’s methodology, claiming that Bruen was an “exceptional” case, and that in “less exceptional” cases — like this one, apparently — courts are free to contrive their own approach. Audaciously, the panel repeatedly chastised the district court for having hewed too closely to Bruen. And in one instance, the panel faulted the district court for having “failed to properly appreciate” a historical analogue that appears never to have existed.

The panel’s repudiation of Bruen was no accident. In support of its rejection of this Court’s holdings, the panel referenced a law review article written as a playbook for “lower courts” to “mitigate” Bruen by “engag[ing] in the time-honored practice of ‘narrowing Supreme Court precedent from below.’”

Finally, the Petition notes that the Second Circuit’s opinion sets up a “circuit split” between the Second Circuit and other U.S. Courts of Appeal, meaning that the courts are interpreting Bruen differently, leading to citizens’ Second Amendment rights being handled differently based on where they live; a situation the Supreme Court typically takes a case to review and correct:

The panel’s decision conflicts directly with two other circuit courts that have addressed the issue. And while there was one circuit decision employing similar reasoning as the panel, it was vacated by a grant of en banc review [i.e. review by the entire court rather than a three-judge panel]. In addition to this circuit split, the federal district courts and state courts have failed to coalesce on a consistent standard, instead taking multiple inconsistent approaches most of which cannot be reconciled with Bruen.

The Supreme Court often takes cases involving a circuit split to foster uniformity in the law across the land (“The Supreme Court frequently agrees to hear cases to resolve circuit splits by creating a unified interpretation of the law which is then binding on all lower courts.”).

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.’”

So the new law was litigated as well, with a federal judge striking down almost the whole thing for violating the Second Amendment:

“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.

New York appealed to the U.S. Court of Appeals for the Second Circuit, which covers New York, Connecticut, and Vermont, in an attempt to undo Judge Suddaby’s comprehensive order and reinstate the law in full.

I attended the Second Circuit’s oral argument in Manhattan last March, Challenges to New York’s End Run Around SCOTUS 2nd Amendment Ruling Argued At Second Circuit, and in December of 2023, the Second Circuit issued its decision:

The Court’s 261-page opinion invalidates [the] 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

[emphasis added]

As we noted, after the ruling, gun-rights groups found the decision a mixed bag:

Gun Owners of America 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.

We predicted that “GOA’s attitude foreshadows what will almost certainly be a request to the U.S. Supreme Court to review the Second Circuit’s ruling,” and that “[t]he parties challenging the law will likely ask the Supreme Court to hold the good moral character provision…unconstitutional.”

The $64,000 question is whether the Supreme Court will take this case. The fact that there is a circuit split helps, but my prior prediction was “probably not”:

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.

My opinion is bolstered by the fact that the Court has also granted review of the bump stock case, Garland v. Cargill, where the Court will decide whether a rifle equipped with a “bump stock” – an attachment that transforms a semiautomatic rifle into a weapon that can discharge hundreds of rounds per minute simply with one movement by the shooter – is a “machinegun,” which is generally prohibited under federal law.

If my prediction is correct, that would be extremely unfortunate, especially for me as a New York State citizen, because when I apply for my New York carry permit, I don’t need some government bureaucrat deciding whether I have “good moral character” or not. You would think 31 years of service in the U.S. Navy might be a factor in my favor. Still, if said bureaucrat doesn’t like what I have posted anywhere on Legal Insurrection or on social media, there is nothing stopping him or her from deciding against me.

We will, of course, keep you updated on whether the Supreme Court grants review in this case.

In the meantime:



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Second Circuit’s Partial Upholding of New York’s Gun Carry Law Appealed to SCOTUS


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