Court of Appeals upholds some but not all of New York's gun licensing scheme

Gun cases under the Second Amendment are becoming more commonplace ever since the Supreme Court over the last 15 years or so breathed life into what had been a dormant constitutional provision and held that you have an individual right to arm yourself. That was the Heller decision. Things became more complicated in 2022, when the Supreme Court held in the Bruen decision that gun regulations that do not resemble the ones in place when the Second Amendment was adopted are unconstitutional. That leads to this case, in which the Second Circuit upholds most but not all the challenges to New York's gun rules.

The case is Antonyuk v. James, issued on October 24 after kicking around the courts for years, including a trip to the U.S. Supreme Court, which remanded the case to the Second Circuit for more analysis. This time around, the Second Circuit was assisted by numerous amicus briefs from a variety of interest groups, and I bet the Court read them all because this is a new area of constitutional law that requires extensive analysis. Here is what the Second Circuit (Jacobs, Lynch and Lee) did:

1. New York's requirement that the potential gun owner pass a "good moral character" test is constitutional because the state law makes it clear that character is a proxy for dangerousness to yourself or others. The U.S. has long had licensing rules like this in order to ensure that dangerous people do not own any firearms. Our society has also allowed for discretionary moral judgments by local officials in deciding whether to issue a gun permit. There may be some unconstitutional applications of the moral character clause, but since this lawsuit poses a facial challenge to the statute, and there are conceivable ways the statute serves a constitutional purpose, this provision cannot be struck down in this lawsuit. Other lawsuits may highlight flaws in the licensing scheme, but not this one.

2. New York's "catch-all" provision is also constitutional. Under that rule, the decisionmaker may consider other, unspecified, information in determining whether to issue a gun permit provided that information is relevant to the decision. While some information requests may be illegal under the Second Amendment, others would surely be relevant, so the facial challenge to this provision fails. 

3. New York also allows the decisionmaker to consider the gun applicant's co-habitants and minors in determining whether to issue a gun permit. This provision allows the decider to learn more about the applicant's moral character, like a character reference. All of this is consistent with the historical tradition of firearm regulation.

4. Plaintiffs win on one challenge, however: the social media requirement, which allows the decisionmaker to review the applicant's social media accounts for the past three years to learn more about their character and conduct. You do not have to provide passwords, just a list of social media accounts so the regulators can see what you've said online. The problem is you have to provide a list of pseudonymous social media handles; that would violate the First Amendment right to speak without revealing your true identity.