The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Today U.S. District Judge Glenn T. Suddaby issued a preliminary injunction against many portions of New York's recently enacted "Concealed Carry Improvement Act." The act had been passed shortly after the U.S. Supreme Court's decision in New York State Rifle & Pistol Association v. Bruen, which upheld the Second Amendment right to "bear arms."
Today's 184-page preliminary injunction opinion in Antonyuk v. Hochul is the latest step in a challenge by Gun Owners of America, represented by Stephen Stamboulieh and Robert J. Olson. The case was filed shortly after the anti-carry statute was enacted. Shortly before the act's September 1 effective date, Judge Suddaby ruled that none of the plaintiffs had pleaded sufficient specific facts to create standing. After an amended complaint was filed, the Judge granted a temporary restraining order on October 6, which was stayed by a Second Circuit panel.
In Part IV.B of the opinion, "Substantial Likelihood of Success on the Merits," there are three major sections:
- Application requirements (including good moral character, 4 character references, social media disclosure, and 18 hours of training). Some upheld, some not.
- Carry bans in many different "sensitive locations." Some upheld, some not.
- Carry bans in "restricted locations" (all homes and businesses that are not "sensitive locations"). Held to violate either the Second Amendment or the First.
Below, I will summarize each subsection.
- Application requirements
a. "Good Moral Character"
Based on the historical record presented by the parties, "America lacks a historical tradition of firearm-licensing schemes conferring open-ended discretion on licensing officers." Unlike the current NY law, many states have constitutionally-valid laws that allow for license denials "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). This standard is objective, easily applied, and finds support in numerous analogues that deny the right to carry to citizens based on their past conduct (including crimes, demonstrations of mental illnesses, and dangerous behavior)."
b. List of Four Character References
The court found "eight laws (five of which came from states in 1777, including Virginia) were sufficiently established and representative to constitute a historical tradition of firearm regulation based on reputation. The burden of character references "is reasonably proportionate to the burdensomeness of the relevant historical analogues."
c. List of Family Members and Cohabitants
The character references requirement was analogized to historic laws involving public reputation. There are no comparable historical analogies for private reputation.
d. List Social Media Accounts for Past Three Years
No historic analogies. Modern background check laws are not analogous, nor are modern laws about social media disclosure for convicted sex offenders. Moreover, required disclosure of anonymous speeches raises First Amendment problems.
e. "Such Other Information Required by the Licensing Officer"
While minor follow-up information might sometimes be appropriate, the statute's "unbridled discretion" is too open-ended.
f. Eighteen Hours of Firearm Training
Analogies to required militia training are improper, because Heller says that the right to keep and bear arms is not dependent on militia service. Bruen says that "exorbitant fees" for carry permits are unconstitutional, but plaintiffs have not produced sufficient proof of their claim that training and fees could cost over $700. Of course plaintiffs at trial will have the opportunity to introduce more evidence about costs.
g. In-Person Meeting
Although the historical analogies are tenuous, the burden on applicants is slight. So "based on better briefing by the State Defendants (and in the absence of testimony at the Preliminary Injunction Hearing), the Court reconsiders its prior ruling on this issue (in its Decision and Temporary Restraining Order of October 6, 2022), and denies Plaintiffs' motion for a preliminary injunction with regard to this regulation."
2. Prohibition in "Sensitive Locations"
a. "[A]ny location providing … behavioral health, or chemical dependance care or services"
No valid historical analogies. Laws against arms possession by alcoholics cannot be analogized to laws against possession by everyone. There are no historical examples of firearms bans in doctors' offices, hospitals, or almshouses. The prohibition is enjoined, "except to places to which the public or a substantial group of persons have not been granted access."
b. "[A]ny place of worship or religious observation"
The court agrees with the preliminary injunction issued by the W.D.N.Y. in Hardaway v. Nigrelli, 22-CV-0771, 2022 WL 16646220 (W.D.N.Y. Nov. 3, 2022) (Sinatra, J.).
In the alternative, the court provides additional reasoning. Bans on carry in churches were enacted 1870-83, plus the Arizona territory in 1889 and the Oklahoma territory in 1890. Per Bruen, the late 19th century territorial laws are discounted.
Here, as with many of the other restrictions, the court is dubious that restrictive laws in a few states can establish a tradition that overcomes the practice in the large majority of states. But the court assumes arguendo that there is such a restrictive tradition, and then proceeds to evaluate the analogy. Here, the analogy fails.
First, the NY law even bans firearms possession by owners or authorized employees of the religious premises. The only exception is if the church, synagogue, etc. hires employees of a state-licensed security guard company. The court notes that there are at least three twentieth-century examples of people in a church using a handgun to stop a mass shooter.
Second, the NY laws bans home firearms possession for Bible studies classes and similar home religious meetings.
Third, the law "treads too close to infringing on one's First Amendment right to
participate in congregate religious services." While the TRO had only applied to church employees, the entire subsection of the statute is now enjoined.
c. "[P]ublic playgrounds, public parks, and zoos"
Defendants analogize to Texas 1870, Missouri 1883, Arizona territory 1899, Oklahoma territory 1890, and eight municipal ordinances 1861-95. As before, the territorial laws count for little, including Salt Lake City 1888. Likewise of low value are Pittsburgh 1893 and Detroit 1895.
The ban on "public playgrounds" is upheld (for preliminary injunction purposes) as sufficiently analogous to bans in schools, which were specifically approved in Heller.
The two state laws that arguably could be read to include parks bans, plus the five municipal laws that definitely do, are insufficient to show that such laws are representative of the nation.
"Zoos" are in-between playgrounds and public parks. Zoos existed in the 19th century, but there were no bans on peaceable carry at zoos. Besides that, zoos can set their own policies.
As for the ban in "libraries," the plaintiffs did not have standing, but footnote 24 of the opinion is quite skeptical that there is a historical basis for a libraries ban.
d. "[N]ursery schools [and]preschools"
Upheld pursuant to Heller's language about schools. Additionally, there are enough historic analogies.
e. "[A]viation transportation," "airports" and "buses"
Historic analogies are weak, and even states that restricted carrying in general made exceptions for people on a "journey." The burden is severe; the N.Y. statute even prohibits an air traveler from checking an unloaded handgun in a locked case as luggage in compliance with Federal Aviation Administration regulations. Preliminary injunction granted for air travelers who comply with FAA regulations, and for buses and vans.
f. "[A]ny establishment issued a license …where alcohol is consumed"
Five state laws (1867-89) and two territorial laws (1889-90) banned gun carrying by persons who are "intoxicated." Mississippi in 1878 banned selling guns to intoxicated people. Assuming arguendo that such laws establish a representative tradition, there is no analogy between an intoxicated person and a sober person who merely happens to be dining at a restaurant with a liquor license.
g. "[T]heaters," "conference centers," and "banquet halls"
Defendants analogize to a 1786 Virginia law, but that was only for people who brandished arms "in terror of the county" at a fair or market. The law did not apply to fair-goers who kept their arms concealed. The 1889-90 Oklahoma and Arizona territorial laws get little weight. Texas and Tennessee (1869-70) are too few to show that such bans are either established or representative.
The burdensomeness of the regulation is disproportionate, especially for license-holders who "have provided four character references, completed numerous hours of firearms training, and satisfied the demands of a licensing officer."
h. "[A]ny gathering of individuals to collectively express their constitutional rights to protest or assemble"
Three laws from the usual suspects of Tennessee, Missouri, and Texas, the two territories, plus Georgia 1870. With the usual discount for late 19th century territories, the four states do not show a nationally representative tradition.
Even if they did, the laws were limited to "public assembly" or "public gathering," and the N.Y. law goes much further. It even applies to small religious gatherings of a congregation in a home, and to gun shows. And to people who simply happen to be standing on a sidewalk when a group of protesters unexpectedly appear.
3. Prohibition in "Restricted Locations"
Besides categorical ban on arms carrying in the above "sensitive places," the N.Y. statute bans arms carrying almost everywhere else: in all homes, and in all commercial property, whether or not the property is open to the public. There is an exception if the property owner has given "express consent" or has posted a sign to that effect.
The six historic laws against hunting on someone else's "inclosed land" without permission are not analogous. The purpose of those laws was anti-poaching. A law barring some people from open carry of rifles on other people's land is not analogous to law against carrying a concealed handgun into every commercial building. "Rest assured, none of the six Plaintiffs in this action has alleged that he has been injured by not being able to hunt turkey and deer (with his handgun) inside commercial establishments on privately owned property that is open for business to the public." The ban on carry as to commercial establishments open to the public is substantially likely to violate the Second Amendment.
As for residences and for private commercial establishments that are not open to the public, the Second Amendment is not the best source to protect plaintiffs' rights. Supreme Court precedent has only spoken of the right to arms at home and in public.
The First Amendment generally prohibits compelled speech, and under modern doctrine, compelled speech is subject to strict scrutiny.
It is unreasonably burdensome to expect a small business owner, like the small hotel/B&B-owning plaintiff, to station himself at the property boundary and give express consent to every person who enters. If he doesn't, then the a licensed carrier who wishes to stay and keep his handgun in his room cannot enter the business premises in order to ask for permission at the front desk. The moment that the would-be guest steps an inch onto the outer boundary of the hotels grounds, the would-be guest is a N.Y. felon.
Alternatively, the hotel owner could post a "Guns Welcome" sign at the property boundary. Thus, the sign posting law forces a business to take a public stand on a controversial public issue, which is sure to alienate some customers.
Notably, the five modern laws (4 states plus D.C.) that require consent on private property in certain situations do not coerce how consent may be given.
As for residences, N.Y. has introduced no evidence that there is any problem at all of licensed carriers causing trouble after entering residences despite not having been given "express permission."
All of the "Restricted Locations" subsection is enjoined.
Of course the injunction does not disturb the right of property owners to exclude licensed carriers or anyone else, as the owners see fit.
Scope and Stay
The request for a stay of the preliminary injunction is denied. Although not dispositive, it is relevant that five of the nine defendants "have not even opposed Plaintiffs' motion to preliminarily enjoin the below-enjoined provisions of this patently unconstitutional
My observation: the anti-gun lobbies that contributed to the drafting of the New York statute and filed amicus briefs in support portray themselves as champions of "common sense" gun control laws. Their behavior in New York indicates the opposite.