2nd Circuit Rejects New York's Default Rule Against Guns in Businesses

The court upheld several other location-specific gun bans, along with the state's "good moral character" requirement for a carry permit.

The U.S. Court of Appeals for the 2nd Circuit recently upheld New York's requirement that applicants for handgun carry permits demonstrate "good moral character," deeming it consistent with the Second Amendment. But the appeals court enjoined enforcement of the state's demand that applicants submit information about their social media accounts, deeming it inconsistent with the First Amendment as well as the Second.

The 2nd Circuit also delivered a mixed verdict on New York regulations that prohibit even permit holders from carrying guns in specified locations. The court rejected the state's default rule against carrying guns in businesses open to the public while upholding several other bans on firearms in places that legislators deemed "sensitive."

The decision by a unanimous three-judge panel, published on Friday, addresses four challenges to regulations that New York enacted after the Supreme Court's 2022 ruling in New York State Rifle & Pistol Association v. Bruen, which upheld the right to carry guns in public for self-defense. In Bruen, the Court rejected New York's requirement that residents show "proper cause" for bearing arms, which it said was not "consistent with this Nation's historical tradition of firearm regulation."

New York legislators responded by eliminating the "proper cause" criterion while retaining a reference to "good moral character," which they defined as "the essential
character, temperament and judgement necessary to be entrusted with a weapon
and to use it only in a manner that does not endanger oneself or others." That requirement, U.S. District Judge Glenn T. Suddaby concluded last year in Antonyuk v. Hochul, "is just a dressed-up version of the State's improper 'special need for self-protection' requirement."

Suddaby found "historical support for a modern law providing that a license shall be issued or renewed except for applicants who have been found, based on their
past conduct, to be likely to use the weapon in a manner that would injure themselves or others (other than in self-defense)." That standard, he wrote, "is objective, easily applied, and finds support in numerous analogues that deny the right to carry to citizens based on their past conduct." By contrast, he said, New York's "good moral character" requirement gave licensing officials "open-ended discretion" to reject applicants based on a subjective standard—precisely the situation that the Supreme Court had deemed unconstitutional in Bruen.

In overruling Suddaby, the three 2nd Circuit judges—Dennis Jacobs, Gerard Lynch, and Eunice Lee—concede that licensing officials might violate the Second Amendment by applying the "good moral character" standard in an "arbitrary" way. "We recognize that 'good moral character' is a spongy concept susceptible to abuse," Jacobs et al. write. "But such abuses, should they become manifest, can still be vindicated in court as they arise." While "we do not foreclose as-applied challenges to particular character-based denials," they say, Suddaby erred by deeming New York's standard unconstitutional on its face. "The provision is not invalid in all of its applications," the panel says, because "a reasoned denial of a carry license to a person who, if armed, would pose a danger to themselves, others, or to the public is consistent with the well-recognized historical tradition of preventing dangerous individuals from possessing weapons."

The 2nd Circuit did, however, agree with Suddaby that New York went too far by requiring carry permit applicants to submit "a list of all former and current social media accounts from the preceding three years." That demand, the court notes, impinges on the First Amendment right to engage in pseudonymous speech as well as the Second Amendment right to keep and bear arms. "Although the review of public social media posts by a licensing officer poses no constitutional difficulties," the panel says, "requiring applicants to disclose even pseudonymous names under which they post online imposes an impermissible infringement on Second Amendment rights that is unsupported by analogues in the historical record and moreover presents serious First Amendment concerns."

The 2nd Circuit also agreed with Suddaby (and with U.S. District Judge John L. Sinatra Jr.) that New York had failed to justify its rule that guns are prohibited in all businesses open to the public unless the owner posts "clear and conspicuous signage" allowing them or "has otherwise given express consent." That provision "functionally creates a universal default presumption against carrying firearms in public places, seriously burdening lawful gun owners' Second Amendment rights," Jacobs et al. note. "That burden is entirely out of step with that imposed by the proffered analogues, which appear to have created a presumption against carriage only on private property not open to the public."

While the appeals court enjoined that restriction in its entirety, it provided a narrower remedy for plaintiffs who challenged New York's ban on guns in places of worship. Micheal Spencer, pastor of His Tabernacle Family Church in upstate New York, challenged that rule, arguing that it unconstitutionally interfered with the armed communal defense that he and his congregants viewed as a religious duty. The 2nd Circuit, which agreed that the provision was problematic under the First Amendment in this context, barred New York from enforcing it against Spencer or members of his church.

The appeals court rejected all the other challenges to New York's location-specific gun bans, either because it determined that the plaintiffs lacked standing or because it concluded that the provisions were consistent with the Second Amendment. The panel's analysis of the latter issue is notably less demanding than Suddaby's, requiring fewer historical analogs and applying them at a higher level of generality.

The 2nd Circuit, for example, says banning guns in parks, zoos, and theaters fits a "well-established and representative tradition of regulating firearms in quintessentially
crowded places." And it says that tradition, combined with early laws prohibiting people from carrying or firing guns in public while intoxicated, provides ample support for New York's ban on guns in bars and restaurants that serve alcohol.

Judges obviously disagree about how the Bruen test should be applied to newly established gun-free zones in states such as New York, New Jersey, Maryland, Hawaii, and California. But an excessively lenient approach, if it allows states to bar permit holders from carrying guns in most public places, runs the risk of nullifying the right upheld in Bruen.