Federal court strikes down parts of 2022 NY gun law

A federal  judge has enjoined the State of New York from enforcing parts of the 2022 gun safety law that the State Legislature enacted after the U.S. Supreme Court held that New York's prior gun laws were unconstitutional.

The case is Antonyuk v. Hochul, issued by Judge Suddaby of the Northern District of New York on November 7. The Concealed Carry Improvement Act of 2022 requires gun owners who want to carry a concealed weapon in public to (1) satisfy a "good moral character" clause, (2) provide a list of current and past social-media accounts, the names and contact information of family members, cohabitants, and at least four character references, (3) attend an in-person interview; and (4) complete 18 hours of in-person and "live-fire" firearm training. The law also provides a list of "sensitive locations" and "restricted locations" were firearms are prohibited, including churches and other houses of worship, libraries, bars, and public parks.

When the Supreme Court issued its New York Second Amendment case in June 2022, it created a new legal standard to review laws like this, holding that the government must identify a well-established and representative historical analogue to demonstrate that the constitutional framers in 1791 would have honored today's gun restrictions. In short, in order to defend a gun law, the government must show the firearm “regulation is consistent with this Nation's historical tradition of firearm regulation.” Moreover, "Regarding what and how many historical analogues constitute part of this Nation’s historical
tradition of firearm regulation, such an inquiry must begin by observing the principle that, 'where
a governmental practice has been open, widespread, and unchallenged since the early days of the
Republic, the practice should guide our interpretation of an ambiguous constitutional provision.'” This is a difficult legal standard to satisfy, and New York cannot do so, Judge Suddaby holds in issuing the injunction.

The good moral character clause violates the Second Amendment because it's too burdensome in that it turns on open-ended discretionary findings of "temperament," "judgment" and "trust." There is some evidence that a test like this was in place two centuries ago but the test was imposed on certain groups of people and could be avoided by taking an oath. As for the four character references, that requirement is not unconstitutional, as early America imposed a similar requirement on gun owners. But the requirement that you provide the names of family members does violate the Second Amendment, as the government can obtain this information on its own, making the requirement "exorbitant." What about the social media accounts? The concern is that a gun applicant may have posted something online that would show them to be a danger to themselves or others. Since there is no historical analogy for this requirement, and the state had not provided the court with examples of people who abused their gun privileges after making troublesome comments on social media, this provision violates the Second Amendment and even has some troublesome First Amendment implications.

As for the other provisions, the requirement that gun applicants provide “Such Other Information Required by the Licensing Officer that is Reasonably Necessary and Related to the Review of the
Licensing Application” is also unconstitutional, as it gives the government too much discretion in making its determination. The firearm training requirement is upheld however, despite any financial burden on gun-owners, as the U.S. has a historical tradition of imposing similar requirements. The in-person meeting requirement is also legal in the absence of any evidence that it poses a significant burden on gun owners. 

Finally, the restrictions on guns in certain public places, including places of worship. There is no historical analogy for some but not all of these restrictions. The church restriction is unconstitutional in particular may also infringe on the First Amendment right to participate in congregate religious services. The schools restriction is constitutional, as American history has traditionally banned firearms in schools. The public parks restriction is struck down as unconstitutional. While the New York law also prohibits guns at zoos, that restriction violates the Second Amendment, as there is no historical tradition in support of such laws. The prohibition against guns at bars and taverns, theaters, conference centers and banquet halls is also unconstitutional.

You get the picture. Second Amendment cases require the parties and the courts to engage in historical research to ensure that any gun laws are not inconsistent with American gun traditions. Judge Suddaby himself conducted research into this issue to the extent the parties did not provide enough information. Under the Supreme Court's recent Second Amendment cases, the legal standard adopted by the Court in reviewing these laws is quite difficult for the government to satisfy. Gun laws like the one passed in New York in 2022 will continue to be largely struck down.