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Judge’s Ruling Maps Strategy for N.Y. Concealed-Carry Gun Cases

Sept. 9, 2022, 9:05 AM

A federal judge has written what could become a blueprint for challenging New York’s concealed-carry law.

New York and other states including California, rushed to pass legislation after the US Supreme Court threw out a century-old law that limited who could carry a handgun in public.

New York banned concealed weapons in most public places. Private business owners can opt to allow concealed weapons in their establishments under the law and must post signs saying so.

Though US District Judge Glenn T. Suddaby denied a request last week to stop the law from taking effect, his 78-page decision described at length why the law could be found unconstitutional.

Among his reasons:

  • The new law omitted the phrase “other than in self-defense,” which could create a Second Amendment problem;
  • The state’s list of “sensitive places” is extensive, and automatically declaring private property a restricted location usurps private property rights;
  • The law’s social media and character reference requirements grant too much discretion to licensing officers and risk punishment for political speech in violation of the First Amendment;
  • Fifth Amendment concerns stem from an applicant having to incriminate themselves by providing all the information required for the permit.

Attorneys involved in other cases are sure to notice Suddaby’s contention that the plaintiffs would have had a “strong likelihood of success” on several of their claims, noted Margaret Finerty, co-chair of the New York State Bar Association’s Task Force on Mass Shootings.

“I think they’ll learn from the judge’s ruling,” said Finerty, a partner with Getnick and Getnick LLP and member of the American Bar Association’s Standing Committee on Gun Violence.

“The judge basically said we were right,” said William Robinson, communications director for Gun Owners of America New York.

The state Republican Party said it plans to take the judge’s decision into consideration as it prepares a suit to be filed jointly with the Conservative Party.

“As the judge stated, Kathy Hochul’s law is blatantly unconstitutional and we have full confidence that it will ultimately be overturned,” GOP Chairman Nick Langworthy said in an emailed statement. “We are working with top legal experts to ensure that when filed, our case moves forward successfully.”

Concealed Carry Permits

The New York law increased requirements for obtaining a concealed carry permit—for example by requiring a list of former and current social media accounts from the past three years, seeking four character references who can attest to the applicant’s good moral character, and requiring 16 hours of in-person training and two hours of live-fire training.

The law followed two shootings on New York City subway trains that injured dozens and left one man dead. A racist gunman also killed 10 Black people in a mass shooting at a Buffalo, N.Y., supermarket May 14.

“Responsible gun control measures save lives and any attempts by the gun lobby to tear down New York’s sensible gun control laws will be met with fierce defense of the law,” State Attorney General Letitia James (D) said. “We will continue to defend the constitutionality of our laws to protect all New Yorkers.”

Case Dismissed

Gun Owners of America, its New York branch, and Ivan Antonyuk, a member of the gun owner group, filed suit July 11 alleging the new concealed-carry law is unconstitutional. He took issue with several aspects of the legislation, including the extensive list of sensitive places, and “incredulous demands for carry license applicants.”

The judge dismissed the case, largely because Antonyuk didn’t specify that he intended to carry a concealed weapon after the law took effect, only that he would like to.

Intent to carry and evidence of an imminent threat of arrest or prosecution by law enforcement would have been required to seek an injunction, Suddaby wrote.

Suddaby also took particular issue with a part of the law that says no license will be issued or renewed unless the person is an applicant of “good moral character” with the judgment necessary to only use the weapon in a manner that does not endanger oneself or others. The legislation didn’t include the phrase “other than in self-defense,” and without it, New York residents are left with a statue “plagued by a profound Second Amendment problem’,” he said.

The plaintiff would have had a “strong likelihood of success” in challenging that omission and also could have prevailed on their excessive training claims, he said.

“We will be back in court,” said Robinson. “The US Constitution is on our side, so we’re going to win this.”

Pending Cases

Buffalo real estate developer Carl Paladino on July 11 filed suit contending that the provision making private businesses automatically off-limits to concealed weapons violates the US Constitution.

A concealed-carry license applicant also has filed suit contending the law’s social media, character reference, and training requirements violate the right to free speech, to bear arms, and to due process.

The New York State Jewish Gun Club has said it, too, plans to file suit, taking issue with banning guns from houses of worship.

It’s understandable why the state wanted stricter gun laws, more training, and scrutiny of social media, Finerty said, noting that the Buffalo shooter posted his plans online and then live streamed the attack.

“I think the state has a lot of good arguments they can make to support the law,” Finerty said. “Many people feel it’s just overbroad, and it will be very interesting how it plays out in court.”

Everytown for Gun Safety advocates for universal background checks and other gun control measures. Michael Bloomberg is the majority owner of Bloomberg Government’s parent company and serves as a member of Everytown’s advisory board.

The cases are Antonyuk et al. v. Bruen, N.D.N.Y., Case 1:22-cv-00734-GTS-CFH, Decision 8/31/22; Paladino v. New York State Police Superintendent Et al., W.D.N.Y., Case 1:22-cv-00541, Complaint 7/11/22; and Jonathan Corbett v. Kathleen Hochul, S.D.N.Y., Case 1:22-cv-05867, Complaint 7/11/22.

To contact the reporter on this story: Keshia Clukey in Albany, N.Y. at kclukey@bloomberglaw.com

To contact the editors responsible for this story: Katherine Rizzo at krizzo@bgov.com; Fawn Johnson at fjohnson@bloombergindustry.com