2d Amendment victory at the 2d Circuit

Second Amendment litigation is now a regular occurrence in the Second Circuit, as the Court of Appeals continues to interpret the Supreme Court's ruling in New York State Rifle & Piston v. Bruen from 2022, which created a new framework for evaluating the constitutionality of gun laws, making it more difficult to regulate firearms, as courts have to determine if today's gun laws are in alignment with gun restrictions that were in place when the Constitution was enacted; if not, the gun law violates the Second Amendment.

The case is Mills v. City of New York, issued on November 10. Clarifying how courts must apply the Bruen case, the Court of Appeals (Raggi, Livingston and Park) revives several Second Amendment challenges to New York City firearms regulations, holding that restrictions on the number of guns a person may carry, purchase, or register implicate the Second Amendment. The decision clarifies that plaintiffs challenging gun regulations do not have to demonstrate a complete or permanent deprivation of their Second Amendment rights to get past the first step of the Supreme Court's framework in Bruen.

Plaintiffs challenged restrictions including a rule limiting licensees to carrying one handgun at a time, a 90-day waiting period between handgun purchases, and a former regulation limiting the number of handguns that could be registered to a carry license to two. The district court dismissed the complaint, concluding the challenged regulations did not implicate conduct protected by the Second Amendment under the first step of Bruen. The Second Circuit vacates the dismissal of several constitutional challenges.

Under Bruen, courts first determine whether the regulated conduct falls within the plain language of the Second Amendment. If it does, the government must establish at the second step that the regulation is consistent with the nation's historical tradition of firearm regulation. The Second Circuit says that the first step is a textual inquiry: the question is whether the regulation restricts the right to keep or bear arms, not whether the regulation is sensible, longstanding, or likely constitutional. Those considerations belong at the second step.

The Court holds that the Second Amendment does not protect only against permanent or complete deprivations of the right to possess firearms. Temporary and partial restrictions can also implicate constitutional rights. The Court adds that plaintiffs do not have to establish at step one that the challenged regulations are effectively prohibited by the Second Amendment. They need only plausibly allege that the regulations restrict conduct covered by its language. The government then bears the burden of establishing historical justification.

The challenge to the City's one-handgun carry rule returns to the district court docket. The district court reasoned that because individuals could still defend themselves with one handgun, the regulation did not interfere with their constitutional rights. Not so fast, says the Second Circuit. The Second Amendment protects the right to bear arms, and does not limit individuals to carrying only the minimum number of weapons that a court might consider necessary for self-defense. More than one gun in the house is okay. Or even more than that.

The Court also revives the challenge to the 90-day purchase restriction. Although the City said the waiting period deterred straw purchases, the Second Circuit said this justification belongs at step two of Bruen. The regulation delays the acquisition of additional firearms and meaningfully undermines the right to keep and bear arms. The Court also reinstated plaintiff's challenge to the former two-handgun registration limit. Because carrying an unregistered handgun was criminalized, the restriction effectively prevented plaintiff from carrying most of his lawfully owned handguns.