Second Amendment Roundup: NYC's "Good Moral Character" Requirement Void

An official may not deny the right to possess a firearm based on subjective criteria.

On Oct. 24, Judge John P. Cronan of the Southern District of New York rendered summary judgment in favor of an applicant for a license to possess firearms who had been denied for supposed inadequate "good moral character."  The case is Srour v. City of New York.

There were actually two license denials, one for a license to possess a rifle or shotgun, the other to possess a handgun.  The pre-Bruen denials recited Srour's alleged 28 moving violations and 30 driver's license suspensions (wow!) as "reflecting negatively on your moral character."  After he filed his Second Amendment lawsuit, Bruen was decided.  Srour then withdrew his as-applied challenge, rendering discovery unnecessary, and proceeded with his facial challenge.

The rule that a facial challenge can succeed only if a law is invalid in all applications, the court found, does not apply when the law implicates "fundamental rights protected by the Constitution. And as Bruen stated, "when the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct."

The burden then shifts to the state to demonstrate that its restriction is consistent with America's history of firearm regulation.  In footnote 6, Judge Cronan noted: "In their briefing, Defendants at times seem not to appreciate that it is their burden to come forward with evidence that the challenged regulations are consistent with our country's historical tradition of firearm regulation."  He then quotes two passages in which the City tried to flip the burden upside down.

First, the City observed that "plaintiff's memorandum is devoid of citations to source material, statutes, historical analysis, or historical legal precedent to support the assertion that governments did not require individuals to seek permission to keep or bear firearms." Very true, as the plaintiff had no such obligation.

Second, the City added: "Nor does plaintiff provide any historical analysis or contemporary statements regarding the ratification of the Second Amendment to support the conclusory assertion that the challenged regulations are 'entirely inconsistent with this Nation's traditional history of firearm regulation.'" Again, true, but it was the City's burden to show the ordinance to be consistent with the Nation's history of firearm regulations.  Thank you for those insights, Captain Obvious.

The City went on to argue that the Second Amendment applies only to "responsible" and "law-abiding" persons, thus excluding persons who lack "good moral character." But that failed to distinguish the conduct at issue, which is possession of a firearm, and the regulation of that conduct.  As the court observed, "Under Defendants' theory, the government would be able to skirt a court's analysis of the history and tradition of firearm regulation, as required by Bruen, merely by roping the actual regulation into the individual's conduct."  The state could manipulate the Second Amendment by choosing a label to determine whom to exclude from "the people."

Given that possession of a firearm for a lawful purpose is within the plain text of the Second Amendment, the court next asked whether the "good moral character" requirement is consistent with the Nation's historical tradition of firearm regulation.  The ordinance listed various factors for the character determination, including arrests, convictions, "a poor driving history," "a lack of candor toward lawful authorities," "and/or other good cause for the denial of the permit."  One could hear echoes of the "may issue" law that Bruen struck down.

As the court went on to explain, the concepts of "good moral character" and "good cause" are subjective.  "Someone may be deemed to have good moral character by one person, yet a very morally flawed character by another. Such unfettered discretion is hard, if not impossible, to reconcile with Bruen."  And it goes without saying that no historical analogues exist for such a law.

The City referred generally to historical laws that prohibited "dangerous or potentially dangerous" persons from possession of a firearm, but they were hardly analogous to vesting a discretionary power in a City official to deny the right to possess a firearm based on lack of "good moral character."  The court noted: "Presumably, there were plenty of people at the time of our country's Founding who were considered to lack good moral character, but were not necessarily dangerous…."

The City cited the "usual suspect" laws that we hear in most litigation on the Second Amendment, but none of them are analogous.  Yes, there were times when persons who refused to take a loyalty oath were disarmed.  But such requirements "provided an objective criterion for an administering official to assess: did the person make the oath or not?"  That was a far cry from a municipal official subjectively deciding a person's character.

The City next cited the surety laws, but they only empowered an official to require a surety before release from detention, not permanently to deprive a person of firearms.  Indeed, as Bruen made clear, "surety laws that restricted the carry of firearms presumed that individuals had a right to public carry, which could be burdened only by a specific showing of reasonable fear of an injury or breach of the peace."  By contrast, the City's ordinance entailed denial of the right to possess a firearm in the first instance based on the subjective character determination.

Finally, some eighteenth-century laws punished affrayers who would go or ride armed offensively, to the terror of others.  But the ordinance here applied to anyone seeking to possess a firearm.

Based on the above analysis, Judge Cronan declared the "good moral character" criterion facially unconstitutional.  He also found that Mr. Srour suffered irreparable injury by being denied his Second Amendment rights, that the City had no interest in enforcement of an unconstitutional law, and that the public interest is served by ensuring that constitutional rights are upheld.  He thus issued a permanent injunction against the provision, which he briefly stayed to give the City the option to seek a stay pending appeal.

Srour is not the first decision to find a "good moral character" requirement unconstitutional.  In its "get revenge" law enacted against Bruen, the state of New York required that no firearm license shall be issued except for an applicant "of good moral character, which, for the purposes of this article, shall mean having 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…."

New York requires a license to possess a handgun in one's dwelling or place of business, to carry a concealed handgun, or to possess an antique pistol (!).

In Antonyuk v. Hochul (N.D. N.Y. 2022), Judge Glenn T. Suddaby wrote the following about the state's requirement:

shouldering an applicant with the burden of persuading a license officer that he or she is of "good moral character" based on the officer's undefined assessments of "temperament," "judgment" and "[ ]trust[ ]" (in the face of a de facto presumption that he or she is not) is akin to shouldering an applicant with the burden of persuading a license officer that he or she has a special need for self-protection distinguishable from that of the general community (an equally mushy and subjective finding). The "good moral character" requirement is just a dressed-up version of the State's improper "special need for self-protection" requirement.

Judge Suddaby rejected the state's historical arguments and issued a preliminary injunction against use of the character requirement in issuance of licenses.  The Second Circuit stayed the injunction.  The appeal was argued in that court on March 20, 2023.  No decision has been issued.  Given that the City's ordinance differs in language somewhat from that of the state, it is unclear the extent to which the decision in Antonyuk will affect what happens in an appeal of Srour.

Aside from its context in firearm laws such as the above, the concept of "good moral character" appears in other areas of the law.  A requirement for naturalization as an American citizen is "good moral character," which is defined primarily to exclude persons with criminal records and other negative characteristics.  Many of the factors are objective, but to the extent some are not, it may not matter constitutionally, given that the subject persons are aliens, not citizens.

"Good moral character" requirements also exist to obtain licenses to practice many professions, from barbering to bricklaying to lawyering.  The California State Bar defines "good moral character" as having "the qualities of honesty, fairness, candor, trustworthiness, observance of fiduciary responsibility, respect for and obedience to the law, and respect for the rights of others and for the judicial process…."  That's probably pretty normal for state bars, but leave it to the Golden State to allow that "there is no criminal act that disqualifies an applicant from receiving a positive moral character determination, given a sufficient showing of rehabilitation."  Charlie Manson might have applied.  Moreover, "criminal acts not involving moral turpitude, such as some acts of civil disobedience," don't qualify, just be sure it's the right political cause.

So "good moral character" is likely here to stay in many contexts, and it may be applied consistent with due process if defined with specificity.  But it has no place where an official is empowered to determine whether a person is entitled to exercise a constitutional right.

In the firearms field, states with "shall issue" laws have done away with that language in favor of very specific criteria, such as types of crime, mental illness, and illegal alien status.  As Justice Kavanaugh wrote in his Bruen concurrence, "43 States employ objective shall-issue licensing regimes," which "do not grant open-ended discretion to licensing officials and do not require a showing of some special need apart from self-defense."

Keep your fingers crossed on what the Second Circuit may say about "good moral character" in Antonyuk, and what may happen thereafter in Srour.