Much of New York’s Gun Control Law Revived Under Bruen Test

In two separate opinions Friday, the Second Circuit vacated preliminary injunctions against many sections of New York’s restrictions on concealed carry permits and upheld the state’s licensing requirements for gun dealers, reasoning that most of the provisions at issue have historical analogues.

In New York State Rifle & Pistol Ass’n Inc. v. Bruen, the US Supreme Court struck down New York’s requirement that a person have “proper cause” to carry a concealed weapon. In the wake of that opinion, New York adopted its Concealed Carry Improvement Act, which placed restrictions on where individuals can carry concealed weapons.

In the four separate concealed-carry appeals before it, which challenged the CCIA, the US Court of Appeals for the Second Circuit undertook the analysis mandated by the high court in Bruen, and looked for analogous laws that showed a history or tradition of regulating firearms.

The proper analogous time period was, in 1791 when the US Constitution was adopted, and in 1868, when the 14th Amendment was adopted, the Second Circuit said.

In granting the preliminary injunctions against the CCIA provisions, the district court found many of the historical analogues offered by the state insufficient. But the Second Circuit said that the analogues didn’t have to be exact. The “lack of distinctly similar historical regulations, though (again) relevant, may not be reliably dispositive in Second Amendment challenges to laws addressing modern concerns,” it said.

It also isn’t dispositive whether the comparable historical regulations exist in significant numbers, the Second Circuit said. Depending on the historical context, “comparable historical laws need not proliferate to justify a modern prohibition,” it said.

CCIA Preliminary Injunctions

To receive a license to carry a concealed weapon under the CCIA, the individual must have “good moral character.” Reversing a preliminary injunction on this provision, the appeals court said the provision isn’t unconstitutional in all its applications, that for as long as licensing has been used to regulate privately-owned guns, issuance of a license has been based on discretionary judgment of local officials, and Bruen allows licensing schemes based on the judgment of local officials.

The catch-all provision of the CCIA, which allows the licensing officer to request from an applicant any information deemed “reasonably necessary and related to the review of the licensing application” also passed muster. “Given that allowing discretionary denials of a license is part of the nation’s tradition of firearm regulation, there can be no constitutional problem with conferring the lesser discretion to ask for reasonable supplementary information,” the Second Circuit said.

It’s also permissible for New York to ask a license applicant for a list of their cohabitants, the appeals court said. The state can ask for disclosures that are relevant to a determination of the applicant’s character and finding out who they live with will make the assessment more efficient and accurate, it said.

But the Second Circuit left in place the preliminary injunction against the state requirement that an applicant submit a list of their social media accounts and any pseudonyms they used online. There is no historical analogue for the requirement, it said.

New York can, however, restrict concealed carrying in health care treatment centers, public urban parks, zoos, and places licensed to sell alcohol, the appeals court said, finding a tradition of prohibiting firearms in those or similar locations.

The Second Circuit also vacated the preliminary injunction against the prohibition on carrying concealed weapons in theaters, conference centers, and banquet halls, saying that the plaintiffs didn’t present a justiciable question as far as conference centers and banquet halls were concerned. The plaintiffs also aren’t likely to win on their theater claim, because the state presented evidence showing the historical tradition of “regulating firearms in quintessentially crowded places,” it said.

Looking at the challenges to the restriction on carrying weapons in places of worship, the appeals court said that the issue was mooted for some of the plaintiffs because of an amendment to the statute that now allows security guards in churches. But the preliminary injunction can stay in place for other plaintiffs, because the CCIA allows owners of other private property to permit guns on their property without giving a valid explanation why churches are singled out for different treatment and thus violates the First Amendment rights of pastors, who feel a religious obligation to protect their congregants, the Second Circuit said.

The CCIA also makes it a crime for a person to carry a concealed weapon on private property without permission. This provision creates a presumption against carrying a concealed weapon on private property, even if it’s opened to the public, the appeals court said. But none of the state’s historical analogues support that conclusion, it said.

Regulating Firearms Dealers

In the second case, firearms and ammunition dealers, who have federal firearms licenses, challenged the requirements they must follow to sell guns and ammunition in New York.

The state’s restrictions include requiring the plaintiffs to secure their firearms in a locked fireproof safe outside of business hours, install extensive security systems, provide their employees with training by the state police, perform monthly inventory checks, give the state police full access to their stores during on-site inspections, not allow minors in their stores without their parents or guardians, and only hire employees who are at least 21 years old.

The plaintiffs said that if they adhered to the regulations, they would be forced out of business, which would deprive their customers of their Second Amendment rights. The plaintiffs didn’t show “that the New York law is so restrictive that it threatens a citizen’s right to acquire firearms,” the Second Circuit said.

Nor were New York’s regulations preempted by federal law—they don’t specifically conflict with federal firearms regulations, the appeals court said.

The plaintiffs lacked standing to pursue their individual claims that provisions of the law that require them to get a license to own semiautomatic rifles, undergo background checks to purchase ammunition, and undergo training to renew their concealed-carry permits, violate the Second Amendment, the appeals court also ruled.

Judges Dennis Jacobs, Gerard E. Lynch, and Eunice C. Lee were on both panels. The 261-page opinion on the provisions of the CCIA was jointly written by all three judges. The other opinion on the challenges by firearms and ammunition dealers was a per curiam ruling of the Second Circuit.

The New York Attorney General’s Office represented the state in both cases. Stamboulieh Law PLLC, Cooper & Kirk PLLC, and Gibson McAskill & Crosby, were among the attorneys who represented the plaintiffs in the challenge to the CCIA. Paloma A. Capanna of Beaufort, N.C., represented the firearms dealers.

The cases are Antonyuk v. Chiumento, 2023 BL 446199, 2d Cir., No. 22-2908 (L), 12/8/23; Gazzola v. Hochul, 2023 BL 446201, 2d Cir., No. 22-3068-CV, 12/8/23.