2nd Circuit Decision
Last week, the U. S. Court of Appeals for the 2nd Circuit issued a decision on several 2nd Amendment cases. The decisions are lengthy and will, no doubt, get numerous follow up legal opinions and will certainly be appealed. Below is a non-lawyer’s update, pending more detailed analysis.
First, a brief history.
On June 23, 2022, the U.S. Supreme Court, in a 6-3 opinion authored by Justice Thomas, struck down New York State’s restrictive concealed carry law.
New York (and other blue states) immediately began attempting to work around the ruling, which resulted in New York passing its new Concealed Carry Improvement Act (CCIA) - only eight days after the Court’s ruling. (Not a lot of time for public debate or deep constitutional consideration going into it.)
Numerous lawsuits were filed to declare CCIA to be unconstitutional and were initially heard in lower courts.
While the actual cases are being decided, a subset of requests were filed for restraining orders to stop enforcement of CCIA. These do not request a decision on the lawsuits themselves but only to stop enforcement of the new law’s while the cases are being decided.
The lawsuits and requests for restraining orders were heard in lower federal courts with mixed decisions, although many were favorable to gun rights advocates. These decisions were then appealed to the federal 2nd Circuit.
Five cases for Restraining Orders to stop enforcement of CCIA were heard in tandem at the Second Circuit on March 20th.
Antonyuk II v. Nigrelli, challenges CCIA on almost everything on 2nd & 1st Amendments issues
Christian v Nigrelli, challenges CCIA rules about Concealed Carry on private property (NY Penal Law 265.01-d)
Hardaway v. Nigrelli, challenges CCIA’s rules about Concealed Carry in houses of worship as a 2nd Amendment violation.
Spencer v. Nigrelli, challenges CCIA’s rules about Concealed Carry in houses of worship as a 1st Amendment violation
Gazzola v. Hochul, challenges a multitude of CCIA’s Federal Firearms Licensee rules
Because of the lawsuits, Governor Hochul and the legislature saw several undefendable weaknesses in CCIA and changed a few parts of CCIA this past spring. This is a common tactic of the left in order to moot parts or all of the lawsuits against them. Basically, it was a small victory for gun rights advocates.
See this link for more detail on those changes: https://scopeny2a.org/Briefings/13195733
Decision of the 2nd Circuit
The part of the Gazzola decision that is a victory for 2nd Amendment advocates reinforces the link between 2nd Amendment rights and access to dealers who sell firearms; having access to acquiring firearms is an essential part of ‘keep and bear arms.’ As attorney Paloma Capanna put it, “dealers in firearms are essential to the individual exercise of Second Amendment rights.”
In spite of the Supreme Court’s (SCOTUS) direction to the Second Circuit to expedite the appeals, we waited 9 months for a decision on the restraining orders. It’s a mixed bag of decisions that favored both sides with the ANTI-2nd Amendment advocates winning the majority. The decisions will require more in-depth legal examination and, in any case, they will certainly be appealed.
The decision was made by three members of the 2nd Circuit Court and the decisions may be appealed to the full 2nd Circuit Court or to SCOTUS. This could follow many paths and will certainly take much more time. Meanwhile, this current decision of the 2nd Circuit as to injunctions will stay in place.
There were two decisions:
a 261 page decision that covered Antonyuk, Christian, Hardaway and Spencer;
a 36 page decision that covered Gazzola.
Gazzola dealt with Federal Firearms licensees (FFL) while the other four cases dealt with other parts of CCIA and sometimes those four overlapped.
In the 2nd Circuit’s own words: “…a State cannot impose a regulation on commercial firearms dealers as a class that has the effect of prohibiting law-abiding, responsible citizens from possessing common-use weapons.”
On the negative side, the 2nd Circuit dismissed many of the other claims for a restraining order because the plaintiffs did not have standing or because of gaps between state and federal laws.
The former is a tactic where, if you are going to lose on facts, argue that the plaintiffs aren’t allowed to sue on technical reasons so, even if the plaintiffs are correct, they can’t sue.
In denying standing, the 2nd Circuit made an extraordinary statement that the plaintiffs: “…have not shown that the New York law is so restrictive that it threatens a citizen’s right to acquire firearms.” (How can it not threaten the right to acquire firearms when that was the purpose of the law!) It then cites a case decided by the most 9th circuit (left coast), the most far left appeals court in the federal system.
The latter reason follows the traditional leftist strategy to delay by finding issues not addressed in court decisions. For instance, D.C. v Heller was a SCOTUS victory for gun rights advocates but the left delayed its implementation by arguing it only applied to D.C. and not the states. McDonald v Chicago closed that gap and said that Heller did apply to the states. Then the Left argued that keeping and bearing arms only applied in the home until NYSRPA v Bruen shot down that argument. (But there were 13 years between the Heller and Bruen decisions.)
The Other Four
CCIA designated most places in NY State into ‘sensitive areas’. (Gun-free zones.) The 2nd Circuit “split the baby” on this and left some gun free zones intact and did away with others.
Privately owned properties that are typically open to the public like gas stations and grocery stores are no longer sensitive places. A concealed carrier can now go to public areas without worry of being arrested.
As to private homes being gun-free zones unless the owner makes a proactive statement that guns are allowed, the 2nd Circuit “Remand(s) the preliminary injunction…with respect to private property not open to the public for further merits analysis consistent with this opinion.”
CCIA required applicants for gun licenses to submit a list of their social media accounts to help officials assess their character and conduct. The 2nd Circuit rejected that requirement, on 1st and 2nd Amendment grounds.
But the 2nd Circuit upheld CCIA’s character requirement in licensing. The judges wrote in their opinion. “Licensing that includes discretion that is bounded by defined standards, we conclude, is part of this nation’s history and tradition of firearm regulation.”
While upholding the character provision, the 2nd Circuit acknowledged that it is “a spongy concept susceptible to abuse” (ya think!) They further warned, “A licensing decision that uses ‘good moral character’ as a smokescreen to deny licenses for impermissible reasons untethered to dangerousness, such as the applicant’s lifestyle or political preferences, would violate the Constitution by relying on a ground for disarmament for which there is no historical basis.”
The 2nd Circuit lets the government have discretion in licensing. Interestingly, in another case, the Rahimi case, the U.S. Solicitor General argued that the government should not have discretion.
The 2nd Circuit let stand these laws that are subject to abuse because it feels that abuses can be addressed on an exception basis, as they arise. (As long as you have enough money and time to fight the government.)
The 2nd Circuit also upheld the statute’s “catch-all” provision, which requires a license applicant to submit any other information required by the licensing officer that is necessary and related to the review of the licensing application. “Neither the history of licensing regimes nor Bruen itself supports the conclusion that the conferral of some discretion to a licensing officer to request reasonable supplementary information is unconstitutional.” (Even when it results in the loss of a Constitutional right?)
The 2nd Circuit also upheld the law's cohabitant requirement. The panel found the law’s requirement for applicants to submit contact information for their current spouse or domestic partner, in addition to any adult cohabitants, is imperative to assess their moral character. (Assess moral character: there is a barn door asking the Left to drive a Mack Truck through! Wanna bet that NY State considers MAGA to be immoral? Remember when Governor Cuomo said there was no place in NY for Conservatives?)
But the court affirmed a preliminary injunction in favor of Pastor Micheal Spencer and His Tabernacle Family Church in Horseheads, New York, who challenged the “sensitive places” provision in relation to houses of worship on the grounds it burdens his religious practice.
“The CCIA is not neutral because it allows the owners of many forms of private property, including many types of retail businesses open to the public, to decide for themselves whether to allow firearms on the premises while denying the same autonomy to places of worship,” the judges said in their opinion.
The named plaintiff in the case, Pastor Spencer, and the congregation of the Tabernacle Family Church will be allowed to carry firearms, but the injunction only applies to them.
However, remember the changes in the law made this past Spring:
2022’s CCIA, among other things, banned individuals from carrying firearms in “sensitive locations,” including houses of worship, with the exception of private security. New York State’s 2023-24 budget amended CCIA. The new law now allows armed “persons responsible for security at such place(s) of worship.”
The vague language in the law makes it unclear how churches can defend themselves. The term “security guard” is defined as individuals “who have been granted a special armed registration card, while at the location of their employment and during their work hours as such a security guard.”
Amy Swearer, a senior legal fellow in The Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies told the Daily Caller that Hochul’s changes to the CCIA are “vague as to whether that can just be a concealed carry permit holder who is assigned to a security team or whether it has to be a licensed, paid security officer.”
While trying to hide the obvious leftward leaning slant to most of this judicial opinion, the NY Times revealed the true motives of the 2nd Circuit:
“…the appeals court allowed states broader freedom to justify new gun laws than had been understood by many judges in the wake of the Bruen decision.” (In plain words, they ignored SCOTUS’ Bruen decision.)
Jacob Charles, a Pepperdine University law professor whose work was cited in the ruling, said in an interview that the interpretation would “allow states to have a lot more leeway in enacting gun regulations.” (Don’t worry about what that pesky Constitution actually says, just twist it to your goals.)
As long as SCOTUS has its current roster of judges, when this ultimately reaches SCOTUS much of it should be overturned. Until then…we're stuck and the lawsuits will continue.