Antonyuk v. Hochul (2nd Cir.)

B.L.U.F.
This is the long-awaited opinion from the Second Circuit court regarding the CCIA challenges. This panel was anti-gun, there is nothing negative in the opinion that is surprising.

What is surprising is that we won even a little bit.

The plaintiffs will either request an en banc rehearing or take it to the Supreme Court. I believe that the Antonyuk case is at final judgement at the district level. If that is the situation, then this case is ripe to be heard by the Supreme Court.
(3100 words)

The Second Circuit Court has finally issued their opinion on New York state’s Bruen tantrum. It isn’t great.

We now AFFIRM the injunctions in part, VACATE in part, and REMAND for proceedings consistent with this opinion. In summary, we uphold the district court’s injunctions with respect to N.Y. Penal L. § 400.00(1)(o)(iv) (social media disclosure); N.Y. Penal L. § 265.01-d (restricted locations) as applied to private property held open to the general public; and N.Y. Penal L. § 265.01-e(2)(c) as applied to Pastor Spencer, the Tabernacle Family Church, its members, or their agents and licensees. We vacate the injunctions in all other respects, having concluded either that the district court lacked jurisdiction or that the challenged laws do not violate the Constitution on their face.
—ECF 320 - Antonyuk v. Hochul, No. 22-2972, slip op. at 4 (2d Cir. Dec. 8, 2023)

If you are applying for a CCW in New York, you no longer have to give social media information and access, private property no defaults to “carry ok” rather than “gun free zone”, and Pastor Spencer and his church members can carry in religious locations.

Everything else seems to still stand.

Background

New York adopted the CCIA in the wake of the Supreme Court’s decision in Bruen, which struck down New York’s former “proper cause” requirement for carrying a concealed firearm. 142 S. Ct. at 2122. Beginning with passage of the Sullivan Law in 1911 and its subsequent amendments, see 1911 N.Y. Laws ch. 195, § 1, p. 443; 1913 N.Y. Laws ch. 608, § 1, p. 1629, New York conditioned the right to carry a concealed firearm in public on a license that could be obtained only if the applicant demonstrated “good moral character” and a “proper cause” to carry the firearm “without regard to employment or place of possession,” N.Y. Penal L. § 400.00(1)(b), (2)(f) (effective Apr. 3, 2021, to July 5, 2022). Proper cause was defined as “a special need for self-protection distinguishable from that of the general community or of persons engaged in the same profession.” In re Klenosky, 75 A.D.2d 793, 793 (1980), aff’d, 53 N.Y.2d 685 (1981). No such proper cause was required to possess a firearm at one’s home. N.Y. Penal L. § 400.00(2)(a) (effective Apr. 3, 2021, to July 5, 2022). An applicant for an in-home license needed only to show good moral character and to satisfy certain other statutory requirements, such as being at least 21 years old and having no felony convictions. Id. § 400.00(1)(a)–(c), (2)(a).
—id. at 17

Emphasis added.

The bold passage struck me as strange. If there was a “good moral character” and “proper cause” requirements, why didn’t Bruen address the “good moral clause” aspect? The answer seems to be that the Second Circuit court is playing word games. Beginning with the passage of the Sullivan Law in 1911 sets our expectations that this law has existed since 1911. The reality is in its subsequent amendments. “Good moral character” was added much later.

I believe it was added after Bruen was decided.

The Second says it existed before Bruen but it sounds like it wasn’t used because “proper cause” was enough to stop most applicants.

Legal Standards Governing

The Supreme Court’s simultaneous endorsement of Connecticut and Rhode Island’s suitability regimes and criticism of state laws that give licensing officials “discretion to deny licenses based on a perceived lack of need or suitability,” id. at 2123, suggests that States cannot grant or deny licenses based on suitable need or purpose but may do so based on the applicant having a suitable character or temperament to handle a weapon.
—id. at 44

“Endorsement” is more than a trifle strong. The Supreme Court said they were presumed constitutional.

What, I believe, the Supreme Court was suggesting was that as long as the default is to grant the permit, then it is likely acceptable. Setting up the default to deny a permit is unacceptable.

… That is especially true of the Second Amendment: like the First Amendment, the Second Amendment codifies a pre-existing right, see Heller, 554 U.S. at 592, 603; Bruen, 142 S. Ct. at 2130, 2135, 2145, and therefore can fairly be read to incorporate “traditional limitations” that existed at or around ratification, unless historical context suggests otherwise, cf. R.A.V. v. City of St. Paul, 505 U.S. 377, 383 (1992) (explaining that “‘the freedom of speech’ … does not include a freedom to disregard … traditional limitations”). Thus, while the literal text of the Second Amendment, like that of the First Amendment, contains no exception and therefore appears to be “unqualified,” Bruen, 142 S. Ct. at 2126, 2130 (quoting Konigsberg v. State Bar of Cal., 366 U.S. 36, 50 n.10 (1961)), its indeterminate text is “not unlimited,” as the Supreme Court has repeatedly observed, id. at 2128 (quoting Heller, 554 U.S. at 626). Accordingly, “reliance on history” and tradition “inform[s] the meaning of” the “pre-existing right” to keep and bear arms. Bruen, 142 S. Ct. at 2130 (emphasis omitted).
—id. at 45–46

Well, that’s a new one. The Second Circuit says that because the right to keep and bear arms is a pre-existing right, even though the constitution has given an unqualified command, “shall not be infringed”, the Second Amendment should be read to include the “traditional limitations” that existed at the time of ratification.

This is why the Supreme Court told the inferior courts that it was a history and tradition of regulations. It is not “traditional limitations”. It is only limitations that were codified into law and were a tradition across geography and time.

Continuing in the vain of ignoring what they, an inferior court, were told to do, they move to:

Third, the absence of a distinctly similar historical regulation in the presented record, though undoubtedly relevant, can only prove so much. Legislatures past and present have not generally legislated to their constitutional limits. Reasoning from historical silence is thus risky; it is not necessarily the case that, if no positive legislation from a particular place is in the record, it must be because the legislators there deemed such a regulation inconsistent with the right to bear arms. There are many reasons why the historical record may not evince statutory prohibitions on a given practice. For example, lawmakers are not moved to forbid behavior that is governed by custom, universal practice, or private warning. No legislation is needed to forbid zoo patrons from entering the lion’s enclosure; similarly, a town with only a single daycare facility that privately bans firearms from its premises has no need to pass a regulation prohibiting guns in daycare centers. Thus, “[t]he paucity of eighteenth century gun control laws might have reflected a lack of political demand rather than constitutional limitations.” Binderup v. Att’y Gen. United States of Am., 836 F.3d 336, 369 (3d Cir. 2016) (en banc) (Hardiman, J., concurring in part and concurring in the judgments) (quoting Nelson Lund, The Second Amendment, Heller, and Originalist Jurisprudence, 56 UCLA L. REV. 1343, 1354 (2009)). Stated differently, “novelty does not mean unconstitutionality.” Id. at 368. That is so even if the problems faced by past generations could be described, at a high level of generality, as similar to the problems we face today.
—id. at 48–49

Notice that the Second cites to a concurring opinion and not the majority opinion in a Third Circuit Court case from 2016. Right in the middle of the means-end two-step shuffle. The judge they quote was in turn quoting a paper about Heller.

This is the expert shopping that should not be done. Since they, after Bruen, can’t directly cite to experts on the meaning of the law, they are citing to a cite to an “expert.”

The gist of this argument is that even though the Supreme Court told them they had to find analogous regulations (laws), they are saying the lack of such laws means that the modern law would be accepted in the Founding Era if only they had wanted them.

The Second then goes down the “more nuanced approach” malarkey. The Supreme Court described when a more nuanced approach would be required, nothing presented by the state, across the country, has met that requirement.

Like every other rogue court, they put emphasis into the Supreme Court’s opinions that are not there. Bruen emphasized is not the Supreme Court emphasizing the cite, it is the Second Circuit Court’s opinion of the importance the Supreme Court put on the cite.

The Second is citing Bruen quoting Heller. This is the quote:

Consider, for example, Heller’s discussion of “longstanding” “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings.” 554 U.S. at 626. Although the historical record yields relatively few 18th- and 19th- century “sensitive places” where weapons were altogether prohibited–e.g., legislative assemblies, polling places, and courthouses–we are also aware of no disputes regarding the lawfulness of such prohibitions. See D. Kopel & J. Greenlee, The “Sensitive Places” Doctrine, 13 CHARLESTON L. REV. 205, 229–236, 244–247 (2018); see also Brief for Independent Institute as Amicus Curiae 11–17. We therefore can assume it settled that these locations were “sensitive places” where arms carrying could be prohibited consistent with the Second Amendment. And courts can use analogies to those historical regulations of “sensitive places” to determine that modern regulations prohibiting the carry of firearms in new and analogous sensitive places are constitutionally permissible.
—id. at 52

The most important language in that quote is we are also aware of no disputes regarding the lawfulness of such prohibitions. If the Supreme Court is not aware of a dispute, they are not allowed to issue an opinion. The question must be raised before the court, any court, can answer.

My grammar tool used to flag the use of Latin as an error. It strongly suggested using the English words instead. The idea being that it is clearer to use English than the Latin.

It is correct. But the courts do use Latin. I just ran into an example of why you should not use Latin.

Sixth, just as the existence vel non of a distinctly similar historical regulation is not dispositive … ; Looking up “vel non”, I find it means “or not”.

My sources say that it shouldn’t be used in legal documents anymore, for good reason.

The Bruen Court said history and tradition of regulations. They were quoting Heller when they did so. They threw out multiple outliers because they were not part of the tradition of firearm regulations.

The Second says that just like a lack of a regulation doesn’t mean the legislators of the Founding Era would have found the modern regulation unconstitutional, neither does a lack of tradition. Thus, only a very few are enough to allow the modern regulation to evade the unqualified command of the Second Amendment.

The Second also grabs on to the time of the ratification of the 14th amendment as the correct time frame. As explained, multiple times, the 14th didn’t rework the Second Amendment. It said that the people of 1868 were adopting the Second Amendment as it was understood at the founding.

This is the problem with dealing with smart people, sometimes they get it right. Just like that clock that is right, twice a day.

For a law to be ruled facially unconstitutional, there can be no circumstance where it is constitutional. The Second Circuit court opines that because there is a constitutional reason to deny permission to carry, the law character requirement is constitutional.

They give the example of permission being denied to a person who is a danger to themselves or others.

There are many arguments against this particular line of reasoning, but it is valid.

One of the things I’ve said many times, is that rogue courts and the state seem to spend a lot of time focused on what wasn’t said in Supreme Court opinions. In the situation at hand, the Second reasons, if that term can be applied to them, that because Bruen didn’t rule some nasty “shall issue” licensing regimes unconstitutional, they must be constitutional.

All the Supreme Court said on that matter was that the question was not before them.

That was the entire point of Bruen! The particular question before the court was: Is New York’s “proper clause” requirement constitutional?

The Bruen court then said: No, it is not. It is not because it implicates the plain text of the Second Amendment. Having implicated the plain text, the government is required to show a history and tradition of firearm regulations which matches the proper cause requirement. The government has not met its burden, the law is unconstitutional.

The Bruen court then explained to the inferior court how they must analyze future Second Amendment cases they adjudicate.

The inferior courts are not supposed to look at what the Supreme Court didn’t say. They are supposed to apply the rules correctly, thoroughly, and honestly.

Finally, the cohabitants requirement is consonant with the long tradition of considering an applicant’s character and reputation when deciding whether to issue a firearm license.
—id. at 61

By “long tradition” they actually mean “since the late 1800s”. No citations to regulations supporting that long tradition. Maybe it is later in this 261-page monstrosity.

The Second Circuit court then ignores their responsibilities in analyzing the character requirements.

At the outset, the State argues that the character requirement does not actually implicate the Second Amendment and therefore may be upheld without reference to historical analysis. Bruen instructs that history is relevant only if “the Second Amendment’s plain text covers an individual’s conduct,” 142 S. Ct. at 2126, and this threshold inquiry requires courts to consider three issues: whether the conduct at issue is protected, whether the weapon concerned is “in common use,” and whether the affected individuals are “ordinary, law-abiding, adult citizens” and thus “part of ‘the people’ whom the Second Amendment protects.” See id. at 2134 (resolving all three of these questions before proceeding to historical analysis). The State contends that, because the character requirement requires only that licensees can be entrusted to wield a gun responsibly, it does not infringe the rights of “law-abiding, responsible citizens” and so need not be assessed for consistency with history and tradition.
—id. at 74–75

The state has mist construed the plain text requirement. The plain text does not ask if the conduct is “protected”, it only asks if the conduct implicates the Second Amendment.

If I wish to purchase (acquire, possess) a nuclear weapon, that conduct implicates the Second Amendment. I wish to keep/posses a nuclear weapon. That is an arm. The state might be able to make the argument that it is not bearable, because it is too big, but that is unlikely to fly.

Having determined that my conduct implicates the Second Amendment, the state now carries the burden to prove that there is a history and tradition of regulating the possession of nuclear weapons.

At that point, under Bruen, the state can argue that the weapon is unusual. Since that is the case, the Heller shortcut doesn’t work. The state can now move forward with presenting a history and tradition of analogous regulations to prove that their infringement on me keeping this particular arm is constitutional.

Instead of slapping the state down for sloppy reasoning, the Second Circuit lets it stand. Instead, they avoid the issue by claiming there is no standing, since all the plaintiffs are law-abiding.

Note that the Second is upholding these laws because there is an agreement that at least one person exists that should be denied a license.

Imagine going to the local beach to hang out while the kids swim. Your town has passed a regulation that requires that you be able to swim to visit the beach. Because a person could swim out to the middle of the lake, they set their requirements for proving you can swim at 2 times the distance to the middle of the lake.

You challenge this in court. The court rules that everybody must have this level of ability because there might be one person that swims to the middle of the lake and needs to swim back.

The entire town must pay for the privilege of sun bathing by being strong swimmers because there is a hypothetical person that will kill themselves.

The real problem is that the court is refusing to acknowledge the difference between objective and subjective character evaluations. Have you been convicted of a violent felony? That is an objective fact. Will you commit a violent felony, sometime in the future? That is a subjective opinion.

The gist of the Second’s argument regarding good moral character is that the state is required to tell you why you were denied. You can then, at your expense, over a lengthy time, challenge that denial in court. And if you were to prevail, it would only apply to you, as applied.

Since there could be that one person that should be denied permission on subjective grounds, your ability to challenge keeps the law constitutional.

Here is another example of the Second twisting “history and tradition” as they see fit:

… For as long as American jurisdictions have issued concealed-carry-licenses, they have permitted certain individualized, discretionary determinations by decisionmakers.
—id. at 85

The Bruen court said the founding era. Not “since American jurisdictions have issued concealed-carry-license”. One is rooted in the history and traditions of firearms regulation, dating to 1791. The other is from the early 1900s.

Language games, again … As the Supreme Court recognized in Bruen, licensing statutes that require “good moral character,” defined in terms … The Supreme Court didn’t recognize anything to do with “good moral character”. The use of quotes in this case is to supply a feeling that the Supreme Court used those words in the way the Second Circuit says they did.

I’m going to close out here. We knew where they were going when they said 1868 was a good era to look at. We knew where they were going when they mentioned nuanced approach. We knew even more when they said that silence in the founding era doesn’t imply anything about the constitutionality of a modern regulation.

Or put another way, if they find regulations from the founding era justifying their current infringement, then that proves they are right. If they don’t find any regulations from the founding era justifying their current infringement, then that proves they are right, too.

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Antonyuk v. Hochul (2nd Cir.)

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