N.Y. Concealed Carry Restrictions Cut Back, at Least Temporarily, by Court Order

Antonyuk v. Hochul, decided today by Judge Glenn Suddaby (N.D.N.Y.), temporarily blocks the following provisions of the New York "Concealed Carry Improvement Act" as to the process for getting a license:

1. the provisions contained in Section 1 of the CCIA requiring "good moral character" EXCEPT to the extent it is construed to mean that a license shall be issued or renewed except for an applicant who has been found, by a preponderance of the evidence based on his or her conduct, to not have "good moral character," which is defined as "having the essential character, temperament and judgment necessary … to use [the weapon entrusted to the applicant] only in a manner that does not endanger oneself or others, other than in self-defense";
2. the provision contained in Section 1 of the CCIA requiring that the applicant "meet in person with the licensing officer for an interview";
3. CCIA requiring the "names and contact information for the applicant's current spouse, or domestic partner, any other adults residing in the applicant's home, including any adult children of the applicant, and whether or not there are minors residing, full time or part time, in the applicant's home";
4. the provision contained in Section 1 of the CCIA requiring "a list of former and current social media accounts of the applicant from the past three years"; and

It blocks the prohibitions on carrying in various supposedly "sensitive locations," except for:

1. "any place owned or under the control of federal, state or local government, for the purpose of government administration, including courts" (as contained in paragraph "2(a)" of Section 4);
2. "any location being used as a polling place" (as contained in paragraph "2(q)" of Section 4);
3. "any public sidewalk or other public area restricted from general public access for a limited time or special event that has been issued a permit for such time or event by a governmental entity, or subject to specific, heightened law enforcement protection, or has otherwise had such access restricted by a governmental entity, provided such location is identified as such by clear and conspicuous signage" (as contained in paragraph "2(r)" of Section 4);
4. "any place of worship or religious observation" (as contained in paragraph "2(c)" of Section 4), EXCEPT for those persons who have been tasked with the duty to keep the peace at the place of worship or religious observation;
5. "nursery schools" and "preschools" (as contained in paragraph "2(f)" of Section 4);
6. "any building or grounds, owned or leased, of any educational institutions, colleges and universities, licensed private career schools, school districts, public schools, private schools licensed under article one hundred one of the education law, charter schools, non-public schools, board of cooperative educational services, special act schools, preschool special education programs, private residential or non-residential schools for the education of students with disabilities, and any state-operated or state-supported schools" (as contained in paragraph "2(m)" of Section 4);
7. "any gathering of individuals to collectively express their constitutional rights to protest or assemble" (as contained in paragraph "2(s)" of Section 4).

And it blocks the prohibition on carrying in "the 'restricted locations' provision contained in Section 5 of the CCIA EXCEPT for fenced-in farmland owned by another or fenced-in hunting ground owned by another (where the restriction stands)"; that provision "prohibits license holders from carrying in other persons' buildings and or on their land, enclosed or not, unless expressly permitted to do so." (I take it that property owners remain free to expressly forbid concealed carry on their property.)

I realize some of this opaque, but I'm on the run right now and this is all I could post; I hope to add more details later. Congratulations to Robert J. Olson and Stephen D. Stamboulieh, who represent the plaintiff.

Comments

[apedad]

d. "any place of worship or religious observation" (as contained in paragraph "2(c)" of Section 4), EXCEPT for those persons who have been tasked with the duty to keep the peace at the place of worship or religious observation;

Isn't that a double-edge sword so-to-speak for two reasons?

1. Why do religious establishments get special recognition (seem like a 1A violation)/
2. If the church/temple/mud hut allows it, then why is the govt saying no?

[CJColucci]

Because they're targets?

[Rev. Arthur L. Kirkland]

" Why do religious establishments get special recognition (seem like a 1A violation)/ "

The smart money is on 'this judge is a Republican and likely afflicted by adult-onset superstition.'

[Bored Lawyer]

The smart money is on someone who bothers to read the opinion. The NY statute singled out places of worship, among other places. The judge had to deal with the law before him.

But don't let the facts get in the way of your bigotry.

[BadLib]

When reading the opinion that really stood out to me.

If one’s religion requires them to attend a place of worship or religious observation, a governmental requirement that they relinquish their RKBA in order to fulfill that obligation but does not require them to similarly relinquish their RKBA to, for example, enter a grocery store seems like a blatant violation of the First Amendment as it singles out religious practice.

I suppose if there was strong evidence that places of religious observation were particularly and generally prone to illegal gunfights involving parishioners, perhaps the restriction could be justified. However, I’m not under the impression that there is such a propensity on the part of parishioners.

I assume, though, that this was not an issue in this case so just wasn’t addressed here. The First Amendment aspect seems to doom that provision of the law as the law gets additional challenges.

Of course, a religious entity could presumably just formally declare that all parishioners have a “duty to keep the peace at the church/temple/mosque or religious observation to the best of their abilities” and then at least those practicing the religion (vs. the plumber or housekeeper) could carry on the premises under terms of this TRO.

(Obviously, a religious entity can impose and post their own “no firearms on premises” policy just as I can on my hardware store and the government could make it a crime to fail to adhere to such postings if the posting met objective requirements such as size, location, font size etc.)

[Brett Bellmore]

My own church isn't particularly hostile to gun ownership, but they have designated concealed carry people in each mass, who know who each other are, and prefer that nobody else do it simply for clarity in case of an incident.

Which I think is not unreasonable.

[Bubba Jones]

Churches do generate some funny debates on this topic.

I suppose the church could task all members.

I think they are trying to split the baby in recognizing that churches are often targets (and bans are magic totems to prevent attacks), but that churches should have final say on allowing it.

Perhaps the idea is they want to be able to charge someone, at the discretion of the church, BEFORE any shots are fired?

[Brett Bellmore]

So, you still can't carry at a 2nd amendment rally...

[John F. Carr]

At least you can still speak in a First Amendment zone.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

IANAL and don't have a lot to go on, but this really seems like some judge pissed at the obvious finger to Bruen and precedent, legislating from the bench. I'd rather he just threw it out altogether, leaving them as constitutional carry for the time being, and threatened contempt of court if their next attempt was just as blatant.

[John F. Carr]

I don't like laws laden with unconstitutional language that request judicial paring to the maximum constitutional application. My inclination would have been to strike down all the restricted location language. Not the whole concept of location restrictions, but the section of law. If a judge wants to ban guns in his courtroom, a school board in a school, a property owner on his property, etc., other laws would have to provide that authority.

[BadLib]

There were aspects of the law that he didn't think clearly violated the Constitutional RKBA and that were unrelated to the other aspects of the law.

One of these was the requirement for 18 hours of training including live fire. If that isn't unconstitutional (and I'm not taking a position on that matter), I don't see any reason for enforcement of that aspect to be restrained.

[John F. Carr]

Footnote 1: The state wanted this case assigned to a different judge but judge Suddaby concluded it was closely related to its predecessor.

Why did the state object? Perhaps to buy some time. The assignment to a judge familiar with the facts and law resulted in "a substantial saving of judicial resources to the Court during the two-week period since Plaintiffs’ motion was filed."

[Noscitur a sociis]

The same judge recently dismissed a substantively identical challenge for lack of standing, but that he would have ruled in favor of the challengers if they had standing.

[John F. Carr]

Other observations by the judge:

The Sheriff of Onondaga County had a one year wait for a licensing appointment.

The new New York law places the burden of proof on the applicant to demonstrate good moral character. The judge shifts the burden of proof by some awkward judicial rulemaking.

You still need to have four friends to get a gun permit. There is not much historical evidence on this point. In 1832 Delaware required freed blacks to have character references before they could carry a gun. So there is some. (In my opinion, since blacks were second class citizens at the time that precedent should not count.)

[BadLib]

Interesting.

I wonder if a freed black could routinely satisfy the reference requirement by having their references being from other blacks.

If, in practice, references from other freed blacks were regularly dismissed as being "unreliable" or similar, that would also fatally flaw considering this law as relevant to constitutional analysis.

(I have a sneaking suspicion w/o any evidence that a reference from a "black" might not have had the same weight as one from a "white" in that era in Delaware.)

[John F. Carr]

I think the modern counterpart of the Delaware law would be a law allowing felons to carry guns if they had four character references.

[Ken Arromdee]

This is better than nothing, but still absurd in places. The judge went through the set of sensitive locations deciding whether they were allowed or not based *only* on historical precedent. Historical precedent should be a necessary but not sufficient condition for a restriction, and he should allow such restrictions to be challenged on other grounds. This is a temporary order before the trial, but it’s not clear whether he’d allow them to be challenged on other grounds at the main trial.

[John F. Carr]

Strict scrutiny with a presumption that historically common rules are legitimate. Or, a distinction between government in its proprietary capacity (owner of a courthouse, school, etc.) and its governmental capacity (master of all it surveys). But we got a weird decision instead of an easy one and we have to live with it.

[Brett Bellmore]

As I've pointed out, the general problem with the historically common rules is that they date back to before the 2nd amendment was admitted to be incorporated, so the states imposing them weren't actually required to comply with it. You need to look to see if the states in question had similar language in their own constitutions; If not, their practice doesn't really tell you much.

[John F. Carr]

The fenced in land rule is based on some old laws meant to prevent poaching. I think it should apply to long guns and not handguns. But that would require more judicial rulemaking. It should be struck down with the rest and the legislature invited to enact a new law that is narrowly tailored to prevent a specific harm.

The temporary restraining order is stayed three days to allow the Second Circuit to intervene. Otherwise it will stay in effect until a decision on a preliminary injunction.

The historical precedent standard strikes me as difficult in practice even though I agree with the result (guns are mostly legal).

[Jerry B.]

You can poach with the appropriate handgun.

[MatthewSlyfield]

You can poach with a bow and arrows too.

[Rossami]

The cancellations of exceptions to prohibtions to ... The double- and triple-negatives are giving me a headache. I know the court had to word it this way given the nature of the law being challenged but someone someday needs to do a clearer restatement of the current conditions.

[Michael P]

The legislature apparently doesn't want clarity, and nobody else can clarify the law for them.

[I Callahan]

The state of New York passed these laws knowing they went against the Bruen ruling. And because the legal establishment set it up this way, the judge who made this ruling doesn’t have the power to sanction everyone involved, including the idiot governor of that God forsaken state.

[Rev. Arthur L. Kirkland]

Maybe educated, advanced states are enacting sensible gun safety statutes in anticipation of an enlarged Supreme Court and a severe backlash against gun nuts and gun nuttery?

Maybe call them "trigger" laws?

[Jerry B.]

Guns apparently trigger you.

[Bored Lawyer]

Ah yes, respect for the law as we wish it were, and hope it might be.

[Michael Ejercito]

For the past two years, I have been told by you people that all cops are racist thugs who habitually hunt down and gun doen unarmed Black men.

And now you people tell us they will enforce gun control laws sensibly?

[nekit2010g]

The same "educated" states that think that a man that shoots off in his "husband's" rear is a hero?

[Eric VonSalzen]

Why couldn't NY simply have used the language of the "except" clause of the Second Amendment, you know: The right of the people to keep and bear arms shall not be infringed except . . . . Wouldn't that be a lot simpler?

[nekit2010g]

I'm sure some worthless panel of Obama judges on the 2nd Circuit will stay this TRO. Maybe even the piece of shit Jose Cabranes, who is better suited to eating rice and beans than writing decisions interpreting a Constitution written by better men.

[ReaderY]

With everyone and everything around you a piece of shit, how do you ever manage to take a step outside?

[ReaderY]

The NY legislature read Bruin as narrowly as possible. This judge appears to have read it almost as expansively as possible. Since there were no airports in the 19th century, it’s in some ways surprising the no guns in airports rule survived historical analysis.

We’ll see what the Supreme Court says.

But it’s no more inherently inappropriate for a state like NY to read the Court’s 2nd Amendment rulings as narrowly as possible (and the exceptions as broadly as possible) than it was for states like Mississippi to read the Supreme Court’s former abortion rulings as narrowly as possible.

[Jason Cavanaugh]

The NY legislature did no such thing. The Bruen decision was quite clear that subjective requirements were not acceptable, and the NY legislature went all-in on requiring exactly that.

NY is rightfully getting the second part of 'fuck around and find out.'

[Stephen Lathrop]

When I write stuff for this blog, I rarely have time to think about it longer than it takes to get the words in order. If I had time, and wisdom to use it, I would put everything aside for a few days, and then revisit it, to see if what I said still seemed to make sense, or instead came out as some awful muddle. I do not understand why this judge felt such urgency that he delivered such a muddle.

[Michael P]

Hahahahaha.

Wait, let me rephrase that.

Ahahaha hahaha hahahahaha.

[Bored Lawyer]

It seems to me that with regards to private property (houses of worship are but one example) the owners of each should be permitted to set their own terms. If a private owner wants to ban carrying, or allow it, the owner should be permitted to do so.

[nekit2010g]

Yes, but with a simple trespass, not with the power of the state behind it.

[Toranth]

How "private" does the property need to be?
An individual's home?
A limited membership club?
A general membership club?
A store?
The mall the store is located in?
A non-government owned unrestricted access park in town?
A toll-road owner?

It doesn't seem to be a clear a line as the word "private" would suggest.

[Kazinski]

No, I think you've got it, all of the above.

[DavidS-T]

When I saw the opinion, I thought "it's either a Trump or a G.W. Bush appointee" and of course I was right. Not that it was a surpeise of course given that the federal courts for a decade have been dedicated to a theory of the 2nd Amendment viewed with contempt by historians and which owes its popularity to srudent-edited, non-peer-reviewed law reviews.

[Toranth]

There are historians that view the 1619 Project with contempt, too, even as there are those that espouse it as Truth.

In the same way, there are historians that deny the plain language of the Amendment and the facts of the Founding era, even as there are those that recognize them for being accurate.
Just because there is disagreement - on a hot political topic! - does not mean that the other side is automatically wrong.

And thinking that all of the views from Heller came from a "srudent-edited" law review, you are massively ignorant yourself. Perhaps you should read a little on the topic, first?