Antonyuk Hardaway Christian Spencer v. Chiumento
This text of Antonyuk Hardaway Christian Spencer v. Chiumento (Antonyuk Hardaway Christian Spencer v. Chiumento) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
22-2908 (L); 22-2933; 22-2987; 22-3237 Antonyuk; Hardaway; Christian; Spencer v. Chiumento
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT ____________________
August Term, 2022
Argued: March 20, 2023 Decided: December 8, 2023
Docket Nos. 22-2908 (L), 22-2972 (Con); 22-2933; 22-2987; 22-3237 ____________________
IVAN ANTONYUK, COREY JOHNSON, ALFRED TERRILLE, JOSEPH MANN, LESLIE LEMAN, LAWRENCE SLOANE,
Plaintiffs-Appellees,
v.
DOMINICK L. CHIUMENTO, in his official capacity as the Acting Superintendent of the New York State Police, MATTHEW J. DORAN, in his official capacity as the Licensing Official of Onondaga County, JOSEPH CECILE, in his Official Capacity as the Chief of Police of Syracuse,
Defendants-Appellants,
KATHLEEN HOCHUL, in her official capacity as the Governor of the State of New York, WILLIAM FITZPATRICK, in his official capacity as the Onondaga County District Attorney, EUGENE CONWAY, in his official capacity as the Sheriff of Onondaga County, P. DAVID SOARES, in his official capacity as the District Attorney of Albany County, GREGORY OAKES, in his official capacity as the District Attorney of Oswego County, DON HILTON, in his official capacity as the Sheriff of Oswego County, JOSEPH STANZIONE, in his official capacity as the District Attorney of Greene County,
Defendants. ____________________
JIMMIE HARDAWAY, JR., LARRY A. BOYD, FIREARMS POLICY COALITION, INC., SECOND AMENDMENT FOUNDATION, INC.,
DOMINICK L. CHIUMENTO, in his official capacity as the Acting Superintendent of the New York State Police,
Defendant-Appellant,
BRIAN D. SEAMAN, in his official capacity as the District Attorney for the County of Niagara, New York, JOHN J. FLYNN, in his official capacity as the District Attorney for the County of Erie, New York,
Defendants-Appellees. ____________________
BRETT CHRISTIAN, FIREARMS POLICY COALITION, INC., SECOND AMENDMENT FOUNDATION, INC.,
JOHN BROWN,
Plaintiff,
DOMINICK L. CHIUMENTO, in his official capacity as the Acting Superintendent of the New York State Police,
2 JOHN J. FLYNN, in his official capacity as District Attorney for the County of Erie, New York,
Defendant-Appellee. ____________________
MICHEAL SPENCER, HIS TABERNACLE FAMILY CHURCH, INC.,
DOMINICK L. CHIUMENTO, Acting Superintendent of the New York State Police, in his official capacity, and STEVEN A. NIGRELLI in his individual capacity,
WEEDEN A. WETMORE, District Attorney for the County of Chemung, New York, in his official and individual capacities, MATTHEW VAN HOUTEN, District Attorney for the County of Tompkins, New York, in his official and individual capacities,
Defendants. * ____________________
Before: JACOBS, LYNCH, and LEE, Circuit Judges. ____________________
In these four cases, heard and now decided in tandem, Plaintiffs raise First and Second Amendment challenges to many provisions of New York’s laws
*The Clerk of Court is respectfully directed to amend the caption to conform to the above. Steven A. Nigrelli, formerly Superintendent of the New York State Police, was sued in his official capacity. By operation of Federal Rule of Appellate Procedure 43(c)(2), Dominic L. Chiumento was automatically substituted upon assuming the office of Acting Superintendent of the New York State Police on October 5, 2023, following Nigrelli’s retirement.
3 regulating the public carriage of firearms. In Antonyuk, the U.S. District Court for the Northern District of New York (Suddaby, J.) enjoined enforcement of more than a dozen such provisions. In Hardaway, Christian, and Spencer, the U.S. District Court for the Western District of New York (Sinatra, J.) separately enjoined a subset of the laws previously enjoined in Antonyuk, though based on slightly different reasoning. We stayed the various injunctions pending appeal, expedited the appeals, and in light of the substantial overlap among the cases, heard argument in tandem on March 20, 2023. 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. ____________________
ESTER MURDUKHAYEVA, Deputy Solicitor General, New York State Office of the Attorney General, New York, NY (Barbara D. Underwood, Philip J. Levitz, Alexandria Twinem, Eric Del Pozo, Sara Coco; Letitia James, Jonathan D. Hitsous, New York State Office of the Attorney General, Albany, NY, on the briefs), for Defendants-Appellants Dominick L. Chiumento and Matthew A. Doran.
TODD M. LONG, (Danielle R. Smith, on the briefs), City of Syracuse Office of the Corporation Counsel, Syracuse, NY, for Defendant- Appellant Joseph Cecile.
STEPHEN D. STAMBOULIEH, Stamboulieh Law, PLLC, Olive Branch, MS (Robert J. Olson, William J. Olson, William J. Olson, PC, Vienna, VA, on the briefs), for Plaintiffs-Appellees Ivan Antonyuk, Corey Johnson, Alfred Terrille, Joseph Mann, Leslie Leman, And Lawrence Sloane.
4 JOHN D. OHLENDORF, Cooper & Kirk, PLLC, Washington, DC (David H. Thompson, Peter A. Patterson, John W. Tienken; Nicolas J. Rotsko, Phillips Lytle LLP, Buffalo, NY, on the briefs), for Plaintiffs-Appellees Jimmie Hardaway, Jr., Larry A. Boyd, Firearms Policy Coalition, Inc., and Second Amendment Foundation, Inc.
BRIAN P. CROSBY, (Melissa M. Morton, Claude A. Joerg, on the briefs), Gibson, McAskill & Crosby, LLP, Buffalo, NY, for Defendant- Appellee Brian D. Seaman.
PETER A. PATTERSON, Cooper & Kirk, PLLC, Washington, DC (David H. Thompson, John W. Tienken; Nicolas J. Rotsko, Phillips Lytle LLP, Buffalo, NY, on the briefs), for Plaintiffs-Appellees Brett Christian, Firearms Policy Coalition, Inc., and Second Amendment Foundation, Inc.
ERIN E. MURPHY, Clement & Murphy, PLLC, Alexandria, VA (Andrew C. Lawrence, Nicholas M. Gallagher; David J. Hacker, Jeremy Dys, Keisha Russell, Ryan Gardner, First Liberty Institute, Plano, TX; Jordan E. Pratt, First Liberty Institute, Washington DC; Anjan K. Ganguly, Ganguly Brothers, PLLC, Rochester, NY, on the briefs), for Plaintiffs-Appellees Micheal Spencer and His Tabernacle Family Church, Inc.
Jeffrey S. Trachtman, Susan Jacquemot, Jason M. Moff, Kramer Levin Naftalis & Frankel LLP, New York, NY for Amici Curiae Bishops of the Episcopal Church in New York and New England; Synods of the Evangelical Lutheran Church in America in New York and New England; New York Conference of the United Church of Christ; Central Conference of American Rabbis; Union for Reform Judaism; Men of Reform Judaism; Women of Reform Judaism; Reconstructionist Rabbinical Association; Reconstructing Judaism; and other individual religious leaders, in support of Defendants-Appellants in Antonyuk v. Chiumento and Hardaway v. Chiumento.
5 Alvin L. Bragg, Jr., District Attorney New York County, Steven C. Wu, Chief, Appeals Division, Philip V. Tisne, Assistant District Attorney, New York County District Attorney’s Office, New York, NY; Darcel D.
Free access — add to your briefcase to read the full text and ask questions with AI
22-2908 (L); 22-2933; 22-2987; 22-3237 Antonyuk; Hardaway; Christian; Spencer v. Chiumento
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT ____________________
August Term, 2022
Argued: March 20, 2023 Decided: December 8, 2023
Docket Nos. 22-2908 (L), 22-2972 (Con); 22-2933; 22-2987; 22-3237 ____________________
IVAN ANTONYUK, COREY JOHNSON, ALFRED TERRILLE, JOSEPH MANN, LESLIE LEMAN, LAWRENCE SLOANE,
Plaintiffs-Appellees,
v.
DOMINICK L. CHIUMENTO, in his official capacity as the Acting Superintendent of the New York State Police, MATTHEW J. DORAN, in his official capacity as the Licensing Official of Onondaga County, JOSEPH CECILE, in his Official Capacity as the Chief of Police of Syracuse,
Defendants-Appellants,
KATHLEEN HOCHUL, in her official capacity as the Governor of the State of New York, WILLIAM FITZPATRICK, in his official capacity as the Onondaga County District Attorney, EUGENE CONWAY, in his official capacity as the Sheriff of Onondaga County, P. DAVID SOARES, in his official capacity as the District Attorney of Albany County, GREGORY OAKES, in his official capacity as the District Attorney of Oswego County, DON HILTON, in his official capacity as the Sheriff of Oswego County, JOSEPH STANZIONE, in his official capacity as the District Attorney of Greene County,
Defendants. ____________________
JIMMIE HARDAWAY, JR., LARRY A. BOYD, FIREARMS POLICY COALITION, INC., SECOND AMENDMENT FOUNDATION, INC.,
DOMINICK L. CHIUMENTO, in his official capacity as the Acting Superintendent of the New York State Police,
Defendant-Appellant,
BRIAN D. SEAMAN, in his official capacity as the District Attorney for the County of Niagara, New York, JOHN J. FLYNN, in his official capacity as the District Attorney for the County of Erie, New York,
Defendants-Appellees. ____________________
BRETT CHRISTIAN, FIREARMS POLICY COALITION, INC., SECOND AMENDMENT FOUNDATION, INC.,
JOHN BROWN,
Plaintiff,
DOMINICK L. CHIUMENTO, in his official capacity as the Acting Superintendent of the New York State Police,
2 JOHN J. FLYNN, in his official capacity as District Attorney for the County of Erie, New York,
Defendant-Appellee. ____________________
MICHEAL SPENCER, HIS TABERNACLE FAMILY CHURCH, INC.,
DOMINICK L. CHIUMENTO, Acting Superintendent of the New York State Police, in his official capacity, and STEVEN A. NIGRELLI in his individual capacity,
WEEDEN A. WETMORE, District Attorney for the County of Chemung, New York, in his official and individual capacities, MATTHEW VAN HOUTEN, District Attorney for the County of Tompkins, New York, in his official and individual capacities,
Defendants. * ____________________
Before: JACOBS, LYNCH, and LEE, Circuit Judges. ____________________
In these four cases, heard and now decided in tandem, Plaintiffs raise First and Second Amendment challenges to many provisions of New York’s laws
*The Clerk of Court is respectfully directed to amend the caption to conform to the above. Steven A. Nigrelli, formerly Superintendent of the New York State Police, was sued in his official capacity. By operation of Federal Rule of Appellate Procedure 43(c)(2), Dominic L. Chiumento was automatically substituted upon assuming the office of Acting Superintendent of the New York State Police on October 5, 2023, following Nigrelli’s retirement.
3 regulating the public carriage of firearms. In Antonyuk, the U.S. District Court for the Northern District of New York (Suddaby, J.) enjoined enforcement of more than a dozen such provisions. In Hardaway, Christian, and Spencer, the U.S. District Court for the Western District of New York (Sinatra, J.) separately enjoined a subset of the laws previously enjoined in Antonyuk, though based on slightly different reasoning. We stayed the various injunctions pending appeal, expedited the appeals, and in light of the substantial overlap among the cases, heard argument in tandem on March 20, 2023. 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. ____________________
ESTER MURDUKHAYEVA, Deputy Solicitor General, New York State Office of the Attorney General, New York, NY (Barbara D. Underwood, Philip J. Levitz, Alexandria Twinem, Eric Del Pozo, Sara Coco; Letitia James, Jonathan D. Hitsous, New York State Office of the Attorney General, Albany, NY, on the briefs), for Defendants-Appellants Dominick L. Chiumento and Matthew A. Doran.
TODD M. LONG, (Danielle R. Smith, on the briefs), City of Syracuse Office of the Corporation Counsel, Syracuse, NY, for Defendant- Appellant Joseph Cecile.
STEPHEN D. STAMBOULIEH, Stamboulieh Law, PLLC, Olive Branch, MS (Robert J. Olson, William J. Olson, William J. Olson, PC, Vienna, VA, on the briefs), for Plaintiffs-Appellees Ivan Antonyuk, Corey Johnson, Alfred Terrille, Joseph Mann, Leslie Leman, And Lawrence Sloane.
4 JOHN D. OHLENDORF, Cooper & Kirk, PLLC, Washington, DC (David H. Thompson, Peter A. Patterson, John W. Tienken; Nicolas J. Rotsko, Phillips Lytle LLP, Buffalo, NY, on the briefs), for Plaintiffs-Appellees Jimmie Hardaway, Jr., Larry A. Boyd, Firearms Policy Coalition, Inc., and Second Amendment Foundation, Inc.
BRIAN P. CROSBY, (Melissa M. Morton, Claude A. Joerg, on the briefs), Gibson, McAskill & Crosby, LLP, Buffalo, NY, for Defendant- Appellee Brian D. Seaman.
PETER A. PATTERSON, Cooper & Kirk, PLLC, Washington, DC (David H. Thompson, John W. Tienken; Nicolas J. Rotsko, Phillips Lytle LLP, Buffalo, NY, on the briefs), for Plaintiffs-Appellees Brett Christian, Firearms Policy Coalition, Inc., and Second Amendment Foundation, Inc.
ERIN E. MURPHY, Clement & Murphy, PLLC, Alexandria, VA (Andrew C. Lawrence, Nicholas M. Gallagher; David J. Hacker, Jeremy Dys, Keisha Russell, Ryan Gardner, First Liberty Institute, Plano, TX; Jordan E. Pratt, First Liberty Institute, Washington DC; Anjan K. Ganguly, Ganguly Brothers, PLLC, Rochester, NY, on the briefs), for Plaintiffs-Appellees Micheal Spencer and His Tabernacle Family Church, Inc.
Jeffrey S. Trachtman, Susan Jacquemot, Jason M. Moff, Kramer Levin Naftalis & Frankel LLP, New York, NY for Amici Curiae Bishops of the Episcopal Church in New York and New England; Synods of the Evangelical Lutheran Church in America in New York and New England; New York Conference of the United Church of Christ; Central Conference of American Rabbis; Union for Reform Judaism; Men of Reform Judaism; Women of Reform Judaism; Reconstructionist Rabbinical Association; Reconstructing Judaism; and other individual religious leaders, in support of Defendants-Appellants in Antonyuk v. Chiumento and Hardaway v. Chiumento.
5 Alvin L. Bragg, Jr., District Attorney New York County, Steven C. Wu, Chief, Appeals Division, Philip V. Tisne, Assistant District Attorney, New York County District Attorney’s Office, New York, NY; Darcel D. Clark, District Attorney, Bronx County District Attorney’s Office, Bronx, NY; Eric Gonzalez, District Attorney, Kings County District Attorney’s Office, Brooklyn, NY; Melinda Katz, District Attorney, Queens County District Attorney’s Office, Kew Gardens, NY, for Amici Curiae District Attorneys for New York County, Bronx County, Kings County, and Queens County, in support of Defendants-Appellants in Antonyuk v. Chiumento.
Janet Carter, William J. Taylor, Jr., Everytown Law, New York, NY for Amicus Curiae Everytown for Gun Safety, in support of Defendants-Appellants in Antonyuk v. Chiumento and Hardaway v. Chiumento.
Max Rodriguez, Pollock Cohen LLP, New York, NY; Raphael Janove, Pollock Cohen LLP, Philadelphia, PA, for Amicus Curiae Dr. Jaclyn Schildkraut, Ph.D, in support of Defendants-Appellants in Antonyuk v. Chiumento.
P. Benjamin Duke, Covington & Burling LLP, New York, NY, for Amici Curiae Giffords Law Center to Prevent Gun Violence, Brady, and March for Our Lives, in support of Defendants- Appellants in Hardaway v. Chiumento and Christian v. Chiumento.
Mark D. Harris, Matthew J. Morris, Proskauer Rose LLP, New York, NY; Adam L. Deming, Proskauer Rose LLP, Boston, MA, for Amicus Curiae Greater New York Hospital Association, in support of Defendants-Appellants in Antonyuk v. Chiumento.
Alan Shoenfeld, Juan M. Ruiz Toro, Joshua M. Feinzig, William Cutler Pickering Hale and Dorr LLP, New York, NY; Simon B. Kress, William Cutler Pickering Hale and Dorr LLP, Boston, MA, for
6 Amici Curiae Professors of Property Law, in support of Defendants-Appellants in Antonyuk v. Chiumento.
Hon. Sylvia O. Hinds Radix, Corporation Counsel of the City of New York, Richard Dearing, Claude S. Platton, Elina Druker, of Counsels, New York City Law Department, New York, NY, for Amicus Curiae The City of New York, in support of Defendants- Appellants in Antonyuk v. Chiumento.
Brian L. Schwab, Attorney General, Caroline S. Van Zile, Solicitor General, Ashwin P. Phatak, Principal Deputy Solicitor General, Alexandra Lichtenstein, Assistant Attorney General, District of Columbia, Washington, D.C.; Kwame Raoul, Attorney General, Jane Elinor Notz, Solicitor General, Sarah A. Hunger, Deputy Solicitor General, State of Illinois, Chicago, IL; Rob Bonta, Attorney General, State of California, Sacramento, CA; William Tong, Attorney General, State of Connecticut, Hartford, CT; Kathleen Jennings, Attorney General, State of Delaware, Wilmington, DE; Anne E. Lopez, Attorney General, State of Hawaii, Honolulu, HI; Anthony G. Brown, Attorney General, State of Maryland, Baltimore, MD; Elizabeth N. Dewar, Acting Attorney General, Commonwealth of Massachusetts, Boston, MA; Dana Nessel, Attorney General, State of Michigan, Lansing, MI; Keith Ellison, Attorney General, State of Minnesota, St. Paul, MN; Matthew J. Platkin, Attorney General, State of New Jersey, Trenton, NJ; Ellen F. Rosenblum, Attorney General, State of Oregon, Salem, OR; Peter F. Neronha, Attorney General, State of Rhode Island, Providence, RI; Charity R. Clark, Attorney General, State of Vermont, Montpelier, VT; Robert W. Ferguson, Attorney General, State of Washington, Olympia, WA; Edward E. Manibusan, Attorney General, Commonwealth of the Northern Mariana Islands, Saipan, MP, for Amici Curiae the District of Columbia, the States of Illinois, California, Connecticut, Delaware, Hawaii, Maryland, Massachusetts, Michigan, Minnesota, New Jersey, Oregon, Rhode Island, Vermont, and Washington, and the
7 Northern Mariana Islands, in support of Defendants-Appellants in Antonyuk v. Chiumento.
Brian L. Schwab, Attorney General, Caroline S. Van Zile, Solicitor General, Ashwin P. Phatak, Principal Deputy Solicitor General, Alexandra Lichtenstein, Assistant Attorney General, District of Columbia, Washington, D.C.; Kwame Raoul, Attorney General, Jane Elinor Notz, Solicitor General, Sarah A. Hunger, Deputy Solicitor General, State of Illinois, Chicago, IL; Rob Bonta, Attorney General, State of California, Sacramento, CA; William Tong, Attorney General, State of Connecticut, Hartford, CT; Kathleen Jennings, Attorney General, State of Delaware, Wilmington, DE; Anne E. Lopez, Attorney General, State of Hawaii, Honolulu, HI; Anthony G. Brown, Attorney General, State of Maryland, Baltimore, MD; Andrea Joy Campbell, Attorney General, Commonwealth of Massachusetts, Boston, MA; Dana Nessel, Attorney General, State of Michigan, Lansing, MI; Keith Ellison, Attorney General, State of Minnesota, St. Paul, MN; Matthew J. Platkin, Attorney General, State of New Jersey, Trenton, NJ; Ellen F. Rosenblum, Attorney General, State of Oregon, Salem, OR; Michelle A. Henry, Acting Attorney General, Commonwealth of Pennsylvania, Harrisburg, PA; Peter F. Neronha, Attorney General, State of Rhode Island, Providence, RI; Charity R. Clark, Attorney General, State of Vermont, Montpelier, VT; Robert W. Ferguson, Attorney General, State of Washington, Olympia, WA, for Amici Curiae the District of Columbia and the States of Illinois, California, Connecticut, Delaware, Hawaii, Maryland, Massachusetts, Michigan, Minnesota, New Jersey, Oregon, Pennsylvania, Rhode Island, Vermont, and Washington, in support of Defendants-Appellants in Christian v. Chiumento.
Brian L. Schwab, Attorney General, Caroline S. Van Zile, Solicitor General, Ashwin P. Phatak, Principal Deputy Solicitor General, Alexandra Lichtenstein, Assistant Attorney General, District of Columbia, Washington, D.C.; Kwame Raoul, Attorney General,
8 Jane Elinor Notz, Solicitor General, Sarah A. Hunger, Deputy Solicitor General, State of Illinois, Chicago, IL; Rob Bonta, Attorney General, State of California, Sacramento, CA; Philip J. Weiser, Attorney General, State of Colorado, Denver, CO; William Tong, Attorney General, State of Connecticut, Hartford, CT; Kathleen Jennings, Attorney General, State of Delaware, Wilmington, DE; Anne E. Lopez, Attorney General, State of Hawaii, Honolulu, HI; Anthony G. Brown, Attorney General, State of Maryland, Baltimore, MD; Andrea Joy Campell, Attorney General, Commonwealth of Massachusetts, Boston, MA; Dana Nessel, Attorney General, State of Michigan, Lansing, MI; Keith Ellison, Attorney General, State of Minnesota, St. Paul, MN; Matthew J. Platkin, Attorney General, State of New Jersey, Trenton, NJ; Ellen F. Rosenblum, Attorney General, State of Oregon, Salem, OR; Michelle A. Henry, Acting Attorney General, Commonwealth of Pennsylvania, Harrisburg, PA; Peter F. Neronha, Attorney General, State of Rhode Island, Providence, RI; Charity R. Clark, Attorney General, State of Vermont, Montpelier, VT; Robert W. Ferguson, Attorney General, State of Washington, Olympia, WA; Joshua L. Kaul, Attorney General, State of Wisconsin, Madison, WI; for Amici Curiae the District of Columbia and the States of Illinois, California, Colorado, Connecticut, Delaware, Hawaii, Maryland, Massachusetts, Michigan, Minnesota, New Jersey, Oregon, Pennsylvania, Rhode Island, Vermont, Washington, and Wisconsin, in support of Defendants-Appellants in Hardaway v. Chiumento.
Anna Diakun, Katherine Fallow, Alex Abdo, Knight First Amendment Institute at Columbia University, New York, NY, for Amici Curiae the Asian Pacific American Gun Owners Association, the DC Project Foundation, the Liberal Gun Club, the National African American Gun Association, Operation Blazing Sword–Pink Pistols, and the Knight First Amendment Institute at Columbia University, in support of Plaintiffs- Appellees in Antonyuk v. Chiumento.
9 Noel J. Francisco, Robert N. Stander, Jones Day, Washington, DC; Sarah E. Welch, Jones Day, Cleveland, OH; Eric C. Rassbach, The Hugh and Hazel Darling Foundation Religious Liberty Clinic at Pepperdine Caruso School of Law, Malibu, CA; Wade J. Callendar, Callender & Co., LLC, Plano, TX, for Amicus Curiae Congregation Beth Aron D’Karlin, in support of Plaintiffs- Appellees in Spencer v. Chiumento.
Austin Kundsen, Attorney General, Chistian B. Corrigan, Solicitor General, Peter M. Torstensen, Jr. Assistant Solicitor General, State of Montana, Helena, MT; Steve Marshall, Attorney General, State of Alabama, Montgomery, AL; Tim Griffin, Attorney General, State of Arkansas, Little Rock, AR; Christopher M. Carr, Attorney General, State of Georgia, Atlanta, GA; Raúl R. Labrador, Attorney General, State of Idaho, Boise, ID; Theodore E. Rokita, Attorney General, State of Indiana, Indianapolis, IN; Brenna Bird, Attorney General, State of Iowa, Des Moines, IA; Kris Kobach, Attorney General, State of Kansas, Topeka, KS; Daniel Cameron, Attorney General, State of Kentucky, Frankfort, KY; Jeff Landry, Attorney General, State of Louisiana, Baton Rouge, LA; Lynn Fitch, Attorney General, State of Mississippi, Jackson, MS; Andrew Bailey, Attorney General, State of Missouri, Jefferson City, MO; John M. Formella, Attorney General, State of New Hampshire, Concord, NH; Gentner F. Drummond Attorney General, State of Oklahoma, Oklahoma City, OK; Alan Wilson, Attorney General, State of South Carolina, Columbia, SC; Marty J. Jackley, Attorney General, State of South Dakota, Pierre, SD; Ken Paxton, Attorney General, State of Texas, Austin, TX; Patrick Morrisey, Attorney General, State of West Virginia, Charleston, WV; Bridget Hill, Attorney General, State of Wyoming, Cheyenne, WY, for Amici Curiae the States of Montana, Alabama, Arkansas, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, New Hampshire, Oklahoma, South Carolina, South Dakota, Texas,
10 West Virginia, and Wyoming, in support of Plaintiffs-Appellees in Hardaway v. Chiumento and Spencer v. Chiumento.
Stephen R. Klein, Barr & Klein PLLC, Washington, DC, for Amicus Curiae New York State Firearms Association, in support of Plaintiffs-Appellees in Antonyuk v. Chiumento.
Dan M. Peterson, Dan M. Peterson PLLC, Fairfax, VA; C.D. Michel, Michel & Associates, P.C., Long Beach, CA, for Amici Curiae New York State Sheriffs’ Association, National Association of Chiefs of Police, Western States Sheriffs’ Association, California State Sheriffs’ Association, International Law Enforcement Educators and Trainers Association, Law Enforcement Legal Defense Fund, Connecticut Citizens Defense League, CRPA Foundation, Gun Owners’ Action League Massachusetts, Gun Owners of California, Second Amendment Law Center, Vermont Federation of Sportsmen’s Clubs, Vermont State Rifle & Pistol Association, and Virginia Shooting Sports Association, in support of Plaintiffs-Appellees in Antonyuk v. Chiumento.
David C. Tyron, Robert Alt, Jay R. Carson, Alex M. Certo, The Buckeye Institute, Columbus, OH, for Amicus Curiae Project 21, in support of Plaintiffs-Appellees in Christian v. Chiumento.
Bradley A. Benbrook, Stephen M. Duvernay, Benbrook Law Group, PC, Sacramento, CA, for Amicus Curiae The Center for Human Liberty, in support of Plaintiffs-Appellees in Antonyuk v. Chiumento.
Jay Alan Sekulow, The American Center for Law & Justice, Washington, DC, for Amici Curiae The Synagogue Security Council of North America and The American Center for Law & Justice, in support of Plaintiffs-Appellees in Spencer v. Chiumento.
11 Contents BACKGROUND.............................................................................................................. 16 I. Regulatory Background ...................................................................................... 16 A. Licensing ........................................................................................................... 19 B. Sensitive Locations .......................................................................................... 21 C. Restricted Locations......................................................................................... 22 II. Procedural History .............................................................................................. 23 A. Antonyuk ............................................................................................................ 23 B. Hardaway............................................................................................................ 27 C. Christian ............................................................................................................. 28 D. Spencer ................................................................................................................ 29 E. Summary ........................................................................................................... 30 III. Legal Standards Governing the Right to Keep and Bear Arms .................... 31 A. Heller .................................................................................................................. 32 B. McDonald ........................................................................................................... 35 C. Post-Heller and -McDonald Circuit Precedent .............................................. 36 D. Bruen .................................................................................................................. 39 E. History and Tradition ..................................................................................... 45 LICENSING REGIME .................................................................................................... 57 I. Standing ................................................................................................................ 62 II. Merits ..................................................................................................................... 72 A. The Character Requirement ........................................................................... 72 1. Facial Second Amendment Challenge..................................................... 74 2. Historical Challenge to Licensing Officer Discretion............................ 85 3. Bruen-Based Challenge to Licensing-Officer Discretion ..................... 102 B. The Catch-All .................................................................................................. 110 C. The Cohabitant Requirement ....................................................................... 113 D. The Social Media Requirement .................................................................... 118
12 SENSITIVE LOCATIONS ............................................................................................ 124 I. Treatment Centers ............................................................................................. 132 A. Standing........................................................................................................... 132 B. Merits ............................................................................................................... 135 1. District Court Decision ............................................................................ 135 2. The State’s Historical Analogues ........................................................... 137 a. Well-Established and Representative................................................. 137 b. Consistency with Tradition ................................................................. 140 3. Proper Analysis of Proffered Analogues .............................................. 144 II. Places of Worship .............................................................................................. 146 A. Antonyuk and Hardaway ................................................................................ 148 1. Standing and Mootness ........................................................................... 148 2. Vacatur of Preliminary Injunctions ........................................................ 153 B. Spencer .............................................................................................................. 154 1. Burden on Religious Practice .................................................................. 157 2. Neutrality & General Applicability ....................................................... 163 3. Strict Scrutiny ............................................................................................ 167 4. Irreparable Harm & Balance of Equities ............................................... 170 III. Parks and Zoos ................................................................................................... 172 A. Standing........................................................................................................... 172 B. Merits ............................................................................................................... 175 1. District Court Decision ............................................................................ 175 a. Public Parks............................................................................................ 178 b. Zoos ......................................................................................................... 179 2. Analysis of the Historical Analogues — Public Parks ........................ 181 a. Well-Established and Representative................................................. 183 b. Consistency with Tradition ................................................................. 193 3. Analysis of the Historical Analogues — Zoos ..................................... 199
13 a. Well-Established and Representative................................................. 199 b. Consistent with Tradition .................................................................... 200 IV. Premises Licensed for Alcohol Consumption ............................................... 203 A. District Court Decision.................................................................................. 203 B. The State’s Historical Analogues ................................................................. 206 1. Well-Established and Representative .................................................... 208 2. Consistency with Tradition..................................................................... 211 V. Theaters, Conference Centers, and Banquet Halls ....................................... 214 A. Justiciability .................................................................................................... 215 B. Merits ............................................................................................................... 225 1. District Court Decision ............................................................................ 225 2. The State’s Historical Analogues ........................................................... 228 VI. First Amendment Gatherings .......................................................................... 233 A. Mann ................................................................................................................ 233 B. Terrille.............................................................................................................. 237 RESTRICTED LOCATIONS ........................................................................................ 239 I. Standing .............................................................................................................. 241 II. Merits ................................................................................................................... 243 A. The District Court Decisions ........................................................................ 243 1. Antonyuk .................................................................................................... 243 2. Christian...................................................................................................... 246 B. Merits Analysis of Christian and Antonyuk ................................................ 249 1. Christian...................................................................................................... 249 a. Scope of Second Amendment ............................................................. 249 b. The State’s Analogues on Appeal ....................................................... 253 2. Antonyuk .................................................................................................... 258 CONCLUSION .............................................................................................................. 261
14 DENNIS JACOBS, GERARD E. LYNCH, AND EUNICE C. LEE, Circuit Judges:
In these four cases, heard and now decided in tandem, Plaintiffs raise First
and Second Amendment challenges to many provisions of New York’s laws
regulating the public carriage of firearms. In Antonyuk, the U.S. District Court for
the Northern District of New York (Suddaby, J.) enjoined enforcement of more
than a dozen such provisions. In Hardaway, Christian, and Spencer, the U.S.
District Court for the Western District of New York (Sinatra, J.) separately
enjoined a subset of the laws previously enjoined in Antonyuk, though based on
slightly different reasoning. We stayed the various injunctions pending appeal,
expedited the appeals, and in light of the substantial overlap among the cases,
heard argument in tandem on March 20, 2023.
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
15 concluded either that the district court lacked jurisdiction or that the challenged
laws do not violate the Constitution on their face.
BACKGROUND
Plaintiffs are several individuals, one church, and two advocacy groups.
They raise numerous challenges to provisions of New York’s Concealed Carry
Improvement Act (“CCIA”), primarily on Second Amendment grounds. We
begin with a description of that statute and then outline the Plaintiffs’ challenges
in the district court and the issues on appeal. Because the Second Amendment
dominates this appeal, we conclude this background section with a discussion of
the Supreme Court’s three 21st-century precedents addressing that Amendment:
District of Columbia v. Heller, 554 U.S. 570 (2008); McDonald v. City of Chicago, 561
U.S. 742 (2010); and New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1,
142 S. Ct. 2111 (2022). 1
I. Regulatory 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
1Some Plaintiffs raise claims based on other constitutional provisions. The law governing those claims will be described in connection with those particular claims.
16 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). 2 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).
2 Nor was proper cause a requirement for certain classes of people to possess a concealed firearm under certain conditions. See, e.g., N.Y. Penal L. § 400.00(2)(b)-(e) (effective Apr. 3, 2021, to July 5, 2022) (“a merchant or storekeeper” “in his place of business”; “a messenger employed by a banking institution or express company” “while so employed”; “a justice of the supreme court in the first or second judicial departments,” or “a judge of the New York city civil court or the New York city criminal court”; certain employees of correctional or detention institutions, as approved by an appropriate supervisor).
17 Addressing only New York’s proper-cause requirement, the Supreme
Court in Bruen held that that requirement violated the Second Amendment
because there was no 18th- or 19th-century tradition of conditioning the right to
carry a firearm in public on a state official’s assessment of special need or
justification. 142 S. Ct. at 2135–36, 2156. “We know of no other constitutional
right,” the Supreme Court explained, whose exercise depends on an individual
“demonstrating to government officers some special need.” Id. at 2156.
Following the decision in Bruen, New York Governor Kathy Hochul
convened an Extraordinary Legislative Session, see N.Y. CONST. art. IV, § 3
(authorizing the governor “to convene the legislature, or the senate only, on
extraordinary occasions”), during which the New York legislature passed the
CCIA. Signed into law on July 1, 2022, the CCIA amended various firearms-
related provisions of New York’s Penal Law, General Business Law, Executive
Law, and State Finance Law, as those laws relate to firearms. These appeals
concern the CCIA’s Penal Law amendments related to “licensing,” “sensitive
locations,” and “restricted locations.”
18 A. Licensing
Under the CCIA, applicants for both in-home and concealed-carry licenses
must have “good moral character” to obtain a license. N.Y. Penal L.
§ 400.00(1)(b) (2023). The CCIA defines “good moral character” as “the essential
character, temperament and judgement necessary to be entrusted with a weapon
and to use it only in a manner that does not endanger oneself or others.” Id. As
noted above, the good-moral-character requirement for both in-home and
concealed-carry licenses pre-dates Bruen and the CCIA, but that standard had not
previously been defined by statute. See § 400.00(1)(b) (effective Apr. 3, 2021, to
July 5, 2022).
The CCIA added other relevant requirements that are particular to the
issuance of concealed-carry licenses. An applicant for a concealed-carry license
must attend an in-person meeting with a licensing officer and disclose to the
officer: (1) the “names and contact information for the applicant’s current spouse,
or domestic partner, any other adults residing in the applicant’s home, including
any adult children of the applicant, and whether or not there are minors residing,
full time or part time, in the applicant’s home”; (2) the “names and contact
information of . . . four character references who can attest to the applicant’s
19 good moral character”; (3) a list of all former and current social media accounts
from the preceding three years; and (4) such other information as the licensing
officer may require “that is reasonably necessary and related to the review of the
licensing application.” Id. § 400.00(1)(o)(i)–(ii), (iv)–(v).
The applicant must also provide the licensing officer with a certificate
verifying that he has completed certain required training. Id. § 400.00(1)(o)(iii).
To obtain a concealed-carry license, the applicant must “complete an in-person
live firearms safety course conducted by a duly authorized instructor with
curriculum approved by the division of criminal justice services and the
superintendent of state police.” Id. § 400.00(19). Among other things, the course
must provide “a minimum of sixteen hours of in-person live curriculum”
addressing various specified topics, like general firearm safety, safe-storage
requirements, situational awareness, conflict de-escalation and management, the
use of deadly force, and suicide prevention. Id. § 400.00(19)(a)(i)–(ii), (iv)–(v),
(viii)–(x). The course must also provide “a minimum of two hours of a live-fire
range training.” Id. § 400.00(19)(b). To obtain a certificate of completion, the
applicant must pass a written test and show proficiency in live-fire range
training. Id. § 400.00(19).
20 B. Sensitive Locations
The CCIA makes it a crime to carry a firearm in a number of “sensitive
locations,” even for individuals with concealed-carry licenses. N.Y. Penal L.
§ 265.01-e(1); cf. Bruen, 142 S. Ct. at 2133 (recognizing a “longstanding” tradition
of “laws forbidding the carrying of firearms in sensitive places such as schools
and government buildings” (quoting Heller, 554 U.S. at 626)). The CCIA
designates twenty categories of places as sensitive locations. N.Y. Penal L.
§ 265.01-e(2)(a)–(t). For example, firearms are prohibited in “any place owned or
under the control of federal, state or local government, for the purpose of
government administration, including courts,” id. § 265.01-e(2)(a); in nursery
schools, preschools, public schools, and certain licensed private schools, § 265.01-
e(2)(f), (m); and “any location being used as a polling place,” id. § 265.01-e(2)(q).
More relevant to these appeals, an individual may not carry a firearm in “any
location providing health, behavioral health, or chemical depend[e]nce care or
services,” id. § 265.01-e(2)(b); any place of worship, id. § 265.01-e(2)(c); zoos and
public parks, id. § 265.01-e(2)(d); any place holding a license for on-premise
alcohol consumption, id. § 265.01-e(2)(o); “any place used for . . . performance,
art[,] entertainment, gaming, or sporting events such as theaters, . . . conference
21 centers, [and] banquet halls,” id. § 265.01-e(2)(p); and “any gathering of
individuals to collectively express their constitutional rights to protest or
assemble,” id. § 265.01-e(2)(s). 3
C. Restricted Locations
In addition to prohibiting the carriage of firearms in any designated
sensitive location, the CCIA makes it a crime to possess firearms in a “restricted
location”:
A person is guilty of criminal possession of a weapon in a restricted location when such person possesses a firearm, rifle, or shotgun and enters into or remains on or in private property where such person knows or reasonably should know that the owner or lessee of such property has not permitted such possession by clear and conspicuous signage indicating that the carrying of firearms, rifles, or shotguns on their property is permitted or has otherwise given express consent.
N.Y. Penal L. § 265.01-d(1) (2023). It is undisputed that the restricted-locations
provision effectively prohibits entrance with a firearm onto another person’s
private property – whether that property is generally open to the public, like a
3 The CCIA was amended on May 3, 2023, during the pendency of these appeals, to narrow its provisions applicable to places of worship and public parks. See Ch. 55, pt. F, § 1, 2023 N.Y. Laws. In particular, persons “responsible for security” at places of worship are now exempt from the place-of-worship prohibition, and the term “public parks” has been defined to exclude specially-defined forest preserves and privately-owned land within public parks. Id. Those amendments took immediate effect. Id. § 4. We discuss the impact of those amendments on these appeals below.
22 gas station or grocery store, or is generally closed to the public, like a personal
residence – unless the owner or lessee of the property provides affirmative,
express consent to armed entry. Id.
II. Procedural History
As noted, we are concerned with four appeals: Antonyuk v. Chiumento, 22-
2908-cv, 22-2972-cv; Hardaway v. Chiumento, 22-2933-cv; Christian v. Chiumento,
22-2987-cv; and Spencer v. Chiumento, 22-3237-cv. While we discuss the district
courts’ analyses in more detail during our discussion of the challenged
provisions of the CCIA, here we simply outline the events in the district courts
and those courts’ decisions, to provide context to that discussion.
A. Antonyuk
In Antonyuk, six individual Plaintiffs sued several defendants in their
official capacity on September 20, 2022 in the United States District Court for the
Northern District of New York, challenging aspects of the CCIA’s licensing,
sensitive-locations, and restricted-locations provisions. The Plaintiffs are Ivan
Antonyuk, Corey Johnson, Alfred Terrille, Joseph Mann, Leslie Leman, and
Lawrence Sloane. Sloane, the only Plaintiff who does not already have a
concealed-carry license, brought a Second Amendment challenge to the
23 character, in-person interview, disclosure, and firearm-training requirements of
the CCIA licensing regime. The other five Plaintiffs challenged certain of the
CCIA’s sensitive-locations provisions on Second Amendment grounds. All six
Plaintiffs challenged the CCIA’s restricted-locations provision on First
Amendment compelled-speech and Second Amendment grounds. Altogether,
the Plaintiffs sued Governor Hochul, Steven A. Nigrelli, at that time the
Superintendent of the New York State Police, 4 the Superintendent of the New
York State Police, and various local officials responsible for enforcing the CCIA in
their respective jurisdictions: Matthew J. Doran, the licensing official of
Onondaga County; William Fitzpatrick, the District Attorney of Onondaga
County; Eugene Conway, the Sheriff of Onondaga County; Joseph Cecile, the
Chief of Police of Syracuse; P. David Soares, the District Attorney of Albany
County; Gregory Oakes, the District Attorney of Oswego County; Don Hilton,
the Sheriff of Oswego County; and Joseph Stanzione, the District Attorney of
Greene County.
4By operation of Federal Rule of Appellate Procedure 43(c)(2), Defendant-Appellant Dominick L. Chiumento was automatically substituted as a Defendant-Appellant after assuming the office of Acting Superintendent of the New York State Police on October 5, 2023. He replaced previous Defendant-Appellant Steven A. Nigrelli. Because former-Superintendent Nigrelli was a Defendant-Appellant when briefs were filed, the opinion cites to briefs filed on Nigrelli’s behalf.
24 On September 22, 2022, the Plaintiffs moved for preliminary injunctive
relief. On November 7, 2022, the district court (Suddaby, J.) granted their motion
in part and denied it in part. See Antonyuk v. Hochul, 639 F. Supp. 3d 232, 349
(N.D.N.Y. 2022).
First, the court held that Sloane had standing to challenge the CCIA’s
licensing requirements, id. at 261; that each Plaintiff had standing to challenge the
restricted-locations provision, id. at 293–94; and that at least one Plaintiff had
standing to challenge the following sensitive-location provisions: (1) any location
providing behavioral health or chemical dependence care or services; (2) any
place of worship; (3) public playgrounds, public parks, and zoos; (4) nursery
schools and preschools; (5) buses and airports; (6) any place that is licensed for
on-premise alcohol consumption; (7) theaters, conference centers, and banquet
halls; and (8) any gathering of individuals to collectively express their
constitutional rights to protest or assemble, id. at 266–67, 269–72, 275, 282–83, 285,
288, 291–92. 5
5 The Antonyuk Plaintiffs do not challenge the district court’s ruling that they lacked standing to challenge the sensitive-locations provision as applied to: (1) any place under the control of federal, state, or local government for purposes of government administration; (2) libraries; (3) the location of any program that provides services to children and youth, or any legally exempt childcare provider; (4) summer camps; (5) the location of any program regulated, operated, or funded by the Office for People with Developmental Disabilities; (6) the
25 Second, the court held that the CCIA violated the Second Amendment by
conditioning the issuance of a license on an applicant’s good moral character and
disclosure of a list of the applicant’s current spouse and all adult cohabitants, a
list of all former and current social media accounts from the preceding three
years, and such other information as the licensing officer may require. Id. at 305,
308, 311–12. The court declined, however, to enjoin the requirements that an
applicant attend an in-person meeting, provide four character references, and
undergo firearms training. Id. at 306–07, 314, 316. Sloane does not challenge the
latter aspects of the district court’s decision.
Third, the court enjoined the sensitive-locations provisions as applied to
each place a Plaintiff had standing to challenge except for polling places, public
areas restricted from general public access for a limited time by a governmental
entity, public playgrounds, nursery schools, and preschools. Id. at 288, 327–28,
location of any program regulated, operated, or funded by the Office of Addiction Services and Supports; (7) the location of any program regulated, operated, or funded by the Office of Mental Health; (8) the location of any program regulated, operated, or funded by the Office of Temporary and Disability Assistance; (9) homeless shelters, family shelters, domestic violence shelters, and emergency shelters; (10) residential settings licensed, certified, regulated, funded, or operated by the Department of Health; (11) any building or grounds of any educational institutions, colleges, school districts, and private schools; and (12) the area commonly known as Times Square. Antonyuk, 639 F. Supp. 3d at 261, 267, 273–74, 275, 276–79, 292. Also unchallenged is the district court’s ruling that Governor Hochul was not a proper defendant because she does not have or exercise sufficient enforcement authority over the CCIA. Id. at 295–96.
26 349. The Plaintiffs do not challenge the court’s refusal to enjoin the CCIA’s
enforcement as to these five places.
Fourth, and finally, the court enjoined the restricted-locations provision in
its entirety on First Amendment compelled-speech and Second Amendment
grounds. Id. at 340–47, 78–85.
B. Hardaway
In Hardaway, the Plaintiffs are Reverend Dr. Jimmie Hardaway, Jr., Bishop
Larry A. Boyd, and two advocacy organizations: the Firearms Policy Coalition,
Inc. (“FPC”) and the Second Amendment Foundation (“SAF”). Reverend
Hardaway is the Pastor at Trinity Baptist Church in Niagara Falls, New York,
and Bishop Boyd is the Pastor at Open Praise Full Gospel Baptist Church in
Buffalo, New York. Both possess concealed-carry licenses. On October 13, 2022,
those Plaintiffs filed suit in the Western District of New York against
Superintendent Nigrelli, Brian D. Seaman, the District Attorney of Niagara
County, and John J. Flynn, the District Attorney of Erie County. The Plaintiffs
claimed that the CCIA’s sensitive-locations provision violates the Second
Amendment by prohibiting firearms in Reverend Hardaway’s and Bishop Boyd’s
respective churches—two places of worship.
27 The next day, they moved for preliminary injunctive relief. On November
3, 2022, the district court (Sinatra, J.) granted their motion in part and denied it in
part. Hardaway v. Nigrelli, 639 F. Supp. 3d 422, 426 (W.D.N.Y. 2022). While the
court held that the two organizational plaintiffs lacked standing to bring a 42
U.S.C. § 1983 claim under this Circuit’s precedents, id. at 427 n.3, that conclusion
did not alter the scope of relief because the court enjoined the place-of-worship
provision facially, in all of its applications, id. at 444–46.
C. Christian
In Christian, the Plaintiffs are Brett Christian, an individual licensed to
carry a concealed firearm, and FPC and SAF, the same two organizational
Plaintiffs as in Hardaway. On September 13, 2022, those Plaintiffs sued
Superintendent Nigrelli and District Attorney Flynn in the Western District of
New York, challenging the restricted-locations provision on Second Amendment
grounds. A little more than two weeks later, the Plaintiffs moved for preliminary
injunctive relief.
On November 22, 2022, the district court (Sinatra, J.) granted the motion in
part and denied it in part. Christian v. Nigrelli, 642 F. Supp. 3d 393, 398 (W.D.N.Y.
2022). As it did in Hardaway, the court held that the two organizational Plaintiffs
28 lacked standing under this Circuit’s precedents, id. at 399 n.4, but that the
restricted-locations provision violated the Second Amendment, enjoining
enforcement of that provision only “with respect to private property open to the
public,” id. at 410–11.
D. Spencer
Finally, in Spencer, the Plaintiffs are Pastor Micheal Spencer, an individual
licensed to carry a concealed firearm, and His Tabernacle Family Church, the
church at which Spencer is the Senior Pastor. On November 3, 2023, those
Plaintiffs sued Superintendent Nigrelli, Weeden A. Wetmore, the District
Attorney of Chemung County, and Matthew Van Houten, the District Attorney
of Tompkins County, in the Western District of New York, challenging the
CCIA’s places-of-worship provision. In addition to a Second Amendment
challenge, they raise First Amendment challenges under the Establishment and
Free Exercise Clauses, on the theory that the CCIA substantially burdens Pastor
Spencer’s belief that he has a religious obligation to protect his congregation.
On November 8, 2022, the Plaintiffs moved for preliminary injunctive
relief. On December 22, 2022, the district court (Sinatra, J.) held a hearing on the
motion, during which Pastor Spencer testified about, among other things, his
29 religious beliefs concerning self-defense and the defense of his congregation.
One week later, the district court granted the Plaintiffs’ motion and enjoined the
places-of-worship provision on grounds that it violated the Free Exercise Clause,
the Establishment Clause, and the Second Amendment. Spencer v. Nigrelli, 648 F.
Supp. 3d 451 (W.D.N.Y. 2022). As it did in Hardaway, the district court enjoined
that provision facially. Id. at 470–71.
E. Summary
Altogether, the district courts enjoined the CCIA’s:
(1) licensing requirements that
(a) an applicant have good moral character and
(b) disclose to a licensing officer
(i) a list of the applicant’s current spouse and all adult cohabitants,
(ii) a list of all former and current social media accounts from the preceding three years, and
(iii) such other information as the officer may require;
(2) sensitive-locations provisions concerning
(a) locations providing behavioral health or chemical dependence care or services;
(b) places of worship;
30 (c) public parks and zoos;
(d) buses and airports;
(e) places that are licensed for on-premise alcohol consumption;
(f) theaters, conference centers, and banquet halls; and
(g) gatherings of individuals to collectively express their constitutional rights to protest or assemble; and
(3) restricted-locations provision.
The State timely appealed and moved this Court for stays pending appeal
in Antonyuk, Hardaway, and Christian, which were granted. The State challenges
each aspect of the injunctions except for the Antonyuk court’s injunction against
the CCIA’s application to buses and airports. No Plaintiff cross-appeals or
otherwise challenges any aspect of the district courts’ decisions adverse to them.
III. Legal Standards Governing the Right to Keep and Bear Arms
With that background, we now outline the Supreme Court’s trilogy of 21st-
century cases interpreting the right to keep and bear arms: District of Columbia v.
Heller, 554 U.S. 570 (2008); McDonald v. City of Chicago, 561 U.S. 742 (2010); and
New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1, 142 S. Ct. 2111 (2022).
We also outline our former circuit precedent and the historical framework that
31 we understand Supreme Court precedent requires be applied to Second and
Fourteenth Amendment challenges asserting the right to keep and bear arms.
A. Heller
The Second Amendment provides: “A well regulated Militia, being
necessary to the security of a free State, the right of the people to keep and bear
Arms, shall not be infringed.” U.S. CONST. amend. II. In Heller, the Supreme
Court held for the first time that the Second Amendment codifies a pre-existing
individual right to keep and bear arms for self-defense in case of confrontation—
a right that is not limited to service in an organized militia. 554 U.S. at 592, 595. 6
6 Before Heller, Second Amendment issues were rarely litigated in federal court. Not until passage of the Fourteenth Amendment was it understood that any provision of the Bill of Rights applied to the States, see Barron v. City of Baltimore, 32 U.S. 243, 250–51 (1833), and even after passage of the Fourteenth Amendment, the Supreme Court reaffirmed that the Second Amendment “means no more than that it shall not be infringed by Congress,” United States v. Cruikshank, 92 U.S. 542, 553 (1875). Shortly after Congress began passing firearms regulations in the first half of the 20th century, most notably in the National Firearms Act of 1934 and then the Federal Firearms Act of 1938, the Supreme Court instructed courts and litigants that the Second Amendment “must be interpreted and applied” in light of its “obvious purpose to assure the continuation and render possible the effectiveness” of the well-regulated militia. United States v. Miller, 307 U.S. 174, 178 (1939). To that end, the Supreme Court in Miller rejected a Second Amendment challenge to a federal prohibition on possessing sawed-off shotguns because there was no evidence that such weapons had “some reasonable relationship to the preservation or efficiency of a well regulated militia.” Id. Dissenting in Heller, Justice Stevens pointed out that “hundreds of judges ha[d] relied on [Miller’s] view of the Amendment,” and that the Court had in fact reaffirmed that view in 1980. Heller, 554 U.S. at 638 & n.2 (Stevens, J., dissenting) (citing Lewis v. United States, 445 U.S. 55, 65–66 n.8 (1980)).
32 But that right, the Court twice cautioned, is “not unlimited,” just as no
other right in the Bill of Rights is unlimited. Id. at 595, 626. Historically, “the
right was not a right to keep and carry any weapon whatsoever in any manner
whatsoever and for whatever purpose.” Id. at 626. Nor has the right ever been
understood to “protect those weapons not typically possessed by law-abiding
citizens for lawful purposes.” Id. at 625. Stated differently, the Second
Amendment protects the right to keep and bear “the sorts of weapons” that are
“‘in common use’”—a “limitation [that] is fairly supported by the historical
tradition of prohibiting the carrying of ‘dangerous and unusual weapons.’” Id. at
627 (first quoting United States v. Miller, 307 U.S. 174, 179 (1939); then quoting 4
Commentaries on the Laws of England 148–49 (1769)). And, the Court made
clear, “nothing in [its] opinion should be taken to cast doubt on longstanding
prohibitions on the possession of firearms by felons and the mentally ill, or laws
forbidding the carrying of firearms in sensitive places such as schools and
government buildings, or laws imposing conditions and qualifications on the
commercial sale of arms.” Id. at 626–27. The Court identified those “regulatory
measures” as “presumptively lawful,” noting too that those “examples” were not
33 an “exhaustive” list of constitutional regulations governing firearms. Id. at 627
n.26.
Ultimately, however, the Court had no occasion to “undertake an
exhaustive historical analysis . . . of the full scope of the Second Amendment.”
Id. at 626. At issue in Heller was a District of Columbia law that “totally ban[ned]
handgun possession in the home” and “require[d] . . . any lawful firearm in the
home [to] be disassembled or bound by a trigger lock at all times, rendering it
inoperable.” Id. at 628. The Court held that requirement was a major intrusion
on “the inherent right of self-defense,” because “[t]he handgun ban amount[ed]
to a prohibition of an entire class of ‘arms’ that is overwhelmingly chosen by
American society for that lawful purpose,” and because the “prohibition
extend[ed] . . . to the home, where the need for defense of self, family, and
property is most acute.” Id. “Under any of the standards of scrutiny that [the
Court] ha[s] applied to enumerated constitutional rights,” the challenged District
of Columbia law “would fail constitutional muster.” Id. at 628–29. The Second
Amendment, if nothing else, “elevates above all other interests the right of law-
abiding, responsible citizens to use arms in defense of hearth and home.” Id. at
635.
34 Heller did not offer much guidance to lower courts analyzing future
Second Amendment claims. There would come a day, the Court explained, for it
to “expound upon the historical justifications for the exceptions [it had]
mentioned if and when those exceptions come before [it].” Id. But the Court
ruled out the standard of rational-basis review, id. at 628 n.27, or an “interest-
balancing inquiry” that assesses the proportionality of the law’s burden to the
state’s interest, id. at 634, because no other enumerated constitutional right is
subject to such standards, id. at 628 n.27, 634–35.
B. McDonald
Two years later came McDonald, which held that the Second Amendment is
“fully applicable to the States.” 561 U.S. at 750. A plurality reached that
conclusion via the Due Process Clause of the Fourteenth Amendment, id. at 791
(plurality opinion), while Justice Thomas reached the same conclusion relying on
the Privileges or Immunities Clause of the Fourteenth Amendment, id. at 806
(Thomas, J., concurring in part and concurring in the judgment).
Like Heller, McDonald did not survey the full scope of the Second
Amendment. But the plurality instructed that the Second Amendment is not
“subject to an entirely different body of rules than the other Bill of Rights
35 guarantees.” Id. at 780 (plurality opinion). And incorporating the Second
Amendment to apply to the States, the Supreme Court assured us, would “not
imperil every law regulating firearms”:
It is important to keep in mind that Heller, while striking down a law that prohibited the possession of handguns in the home, recognized that the right to keep and bear arms is not “a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as “prohibitions on the possession of firearms by felons and the mentally ill,” “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” We repeat those assurances here.
Id. at 786 (quoting Heller, 554 U.S. at 626–27). McDonald also repeated Heller’s
clarification that “self-defense [i]s ‘the central component of the right itself.’” Id. at
787 (emphasis in original) (quoting Heller, 554 U.S. at 599).
C. Post-Heller and -McDonald Circuit Precedent
In the wake of Heller and McDonald, this Circuit, as well as every other
regional circuit, 7 employed a two-part test to assess Second Amendment
7 Gould v. Morgan, 907 F.3d 659, 668–69 (1st Cir. 2018); United States v. Marzzarella, 614 F.3d 85, 89 (3d Cir. 2010); United States v. Chester, 628 F.3d 673, 680–83 (4th Cir. 2010); National Rifle Ass’n of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms, and Explosives, 700 F.3d 185, 194–95 (5th Cir. 2012); United States v. Greeno, 679 F.3d 510, 518 (6th Cir. 2012); Ezell v. City of Chicago,
36 challenges. E.g., Libertarian Party of Erie County v. Cuomo, 970 F.3d 106, 118 (2d
Cir. 2020). At step one, we asked whether a challenged law burdened conduct
that fell within the scope of the Second Amendment based on its text and history.
Id. If so, we proceeded to step two, assessing whether the challenged law
burdened the core of the Second Amendment, defined by Heller as self-defense in
the home. Id. at 119. If the burden was de minimis, the law was subject to
intermediate scrutiny; if the burden was substantial and affected the core of the
right, the law was subject to strict scrutiny. Id. at 119, 128.
For example, applying that two-part test in Kachalsky v. County of
Westchester, we upheld New York State’s proper-cause requirement to obtain a
license to carry a concealed firearm outside the home without regard to
employment or place of possession. 701 F.3d 81, 101 (2d Cir. 2012). As noted, an
applicant had proper cause for such a license if he had “a special need for self-
protection distinguishable from that of the general community or of persons
engaged in the same profession.” Klenosky, 75 A.D.2d at 793. In Kachalsky, we
assumed the first step of the two-part test in favor of the challenger: specifically,
651 F.3d 684, 700–04 (7th Cir. 2011); Young v. Hawaii, 992 F.3d 765, 783 (9th Cir. 2021) (en banc), United States v. Reese, 627 F.3d 792, 800–01 (10th Cir. 2010), GeorgiaCarry.Org, Inc. v. Georgia, 687 F.3d 1244, 1260 n.34 (11th Cir. 2012); Heller v. District of Columbia (Heller II), 670 F.3d 1244, 1252 (D.C. Cir. 2011).
37 that the Second Amendment protects the right to keep and bear arms outside the
home. 701 F.3d at 89, 93. Indeed, all we could tell from Heller and McDonald was
“that Second Amendment guarantees are at their zenith within the home,” and
“[w]hat we d[id] not know [wa]s the scope of that right beyond the home and the
standards for determining when and how the right can be regulated by a
government.” Id. at 89 (emphasis added). Proceeding to step two, we assessed
the proper-cause requirement under intermediate scrutiny, because that
requirement did not burden the core right of armed self-defense in the home. Id.
at 94–96. We upheld the requirement under intermediate scrutiny because New
York had “substantial, indeed compelling, governmental interests in public
safety and crime prevention,” id. at 97, and because a limitation on “handgun
possession in public to those who have a reason to possess the weapon for a
lawful purpose is substantially related” to that interest, id. at 98.
Later, in Libertarian Party of Erie County, we upheld New York’s character
requirement, which at that time was statutorily undefined, against a facial
challenge. 970 F.3d at 127–28. We acknowledged that the requirement
“affect[ed] the core Second Amendment right” identified in Heller because it
prohibited individuals lacking good moral character from possessing firearms
38 for self-defense in the home. Id. at 127. But the requirement “d[id] not burden
the ability of ‘law-abiding, responsible citizens to use arms in defense of hearth and
home.’” Id. (quoting Heller, 554 U.S. at 635). We therefore applied intermediate
scrutiny because “the conditions placed on the core Second Amendment right
[we]re not onerous.” Id. at 127–28. Applying intermediate scrutiny, we found
that the challenger’s complaint itself “reveal[ed] a close relationship between the
licensing regime and the State’s interests in public safety and crime prevention –
as well as solicitude for the Second Amendment rights of citizens who are
responsible and law abiding.” Id. at 128.
D. Bruen
Fourteen years after Heller and twelve years after McDonald, the Supreme
Court decided Bruen, abrogating our circuit precedent, both the specific holding
of Kachalsky and the general approach we took to Second Amendment claims.
Bruen rejected step two of “the predominant framework” described above
and set out a new “test rooted in the Second Amendment’s text, as informed by
history.” 142 S. Ct. at 2127. Thus, a court must now consider whether “the
Second Amendment’s plain text covers an individual’s conduct.” Id. at 2129–30.
If so, “the Constitution presumptively protects that conduct.” Id. at 2130. To
39 overcome that presumption, “[t]he government must then justify its regulation
by demonstrating that it is consistent with the Nation’s historical tradition of
firearm regulation.” Id. Stated differently, “the government must affirmatively
prove that its firearms regulation is part of the historical tradition that delimits
the outer bounds of the right to keep and bear arms.” Id. at 2127. Like the Fifth,
Eighth, and Eleventh Circuits, we read Bruen as setting out a two-step
framework, with the first step based on text and the second step based on
history. See United States v. Sitladeen, 64 F.4th 978, 985–86 & n.3 (8th Cir. 2023);
Nat’l Rifle Ass’n v. Bondi, 61 F.4th 1317, 1321 (11th Cir.), vacated pending reh’g en
banc, 72 F.4th 1346 (11th Cir. 2023); United States v. Rahimi, 61 F.4th 443, 453 (5th
Cir. 2023), cert. granted, 143 S. Ct. 2688 (2023).
Applying that two-step framework, the Supreme Court struck down New
York’s proper-cause requirement. First, the Court held that the plain text of the
Second Amendment protected the petitioners’ right to carry handguns outside
the home. Bruen, 142 S. Ct. at 2134–35. Like the challengers in Heller and
McDonald, the petitioners were “ordinary, law-abiding, adult citizens” and “part
of ‘the people’ whom the Second Amendment protects,” id. at 2134 (quoting
Heller, 554 U.S. at 580), and they wished to carry handguns that were “weapons
40 ‘in common use’ today for self-defense,” id. (quoting Heller, 554 U.S. at 627). The
Court also held that the Second Amendment protected their right to carry those
firearms outside the home: the Second Amendment does not draw a
“home/public distinction”; the word “‘bear’ naturally encompasses public carry”
because even though people “keep” firearms in their homes, they do not
typically “‘bear’ (i.e., carry) them in the home beyond moments of actual
confrontation”; and “confining the right to ‘bear’ arms to the home would make
little sense” because self-defense is central to the right and “[m]any Americans
hazard greater danger outside the home than in it.” Id. at 2134–35.
Second, New York failed to demonstrate that the proper-cause
requirement was consistent with the Nation’s historical tradition of firearm
regulation. Id. at 2156. In reaching that conclusion, the Court emphasized the
exceptional nature of the proper-cause requirement. “We know of no other
constitutional right that an individual may exercise only after demonstrating to
government officers some special need.” Id. Historically, only two states, Texas
and West Virginia, had laws in the late-19th century that remotely resembled
New York’s proper-cause requirement, and those states “‘contradict[ed] the
overwhelming weight of other evidence regarding the right to keep and bear
41 arms for defense’ in public.” Id. at 2153 (quoting Heller, 554 U.S. at 632). The
overwhelming weight of the historical evidence revealed that legislatures did not
require a showing of special need to exercise the right to public carry but instead
enacted laws that “limited the intent for which one could carry arms, the manner
by which one carried arms, or the exceptional circumstances under which one
could not carry arms, such as before justices of the peace and other government
officials.” Id. at 2156. Thus, the Second Amendment does not tolerate a “may
issue” licensing regime, like New York’s former regime, that conditions the
issuance of a concealed-carry license on a discretionary assessment of need or
justification. Id.
The Court, however, made clear that “nothing in [its] analysis should be
interpreted to suggest the unconstitutionality of the . . . ‘shall-issue’ licensing
regimes” applicable in 43 States. Id. at 2138 n.9. In “‘shall issue’ jurisdictions,’”
licensing “authorities must issue concealed-carry licenses whenever applicants
satisfy certain threshold requirements.” Id. at 2123. “Because these licensing
regimes do not require applicants to show an atypical need for armed self-
defense, they do not necessarily prevent ‘law-abiding, responsible citizens’ from
exercising their Second Amendment right to public carry.” Id. at 2138 n.9
42 (quoting Heller, 554 U.S. at 635). “Rather, it appears that these shall-issue
regimes, which often require applicants to undergo a background check or pass a
firearms safety course, are designed to ensure only that those bearing arms in the
jurisdiction are, in fact, ‘law-abiding, responsible citizens.’” Id. (quoting Heller,
554 U.S. at 635). And those regimes do so by applying “‘narrow, objective, and
definite standards’ guiding licensing officials.” Id. (quoting Shuttlesworth v.
Birmingham, 394 U.S. 147, 151 (1969)).
The Court also made clear that New York’s proper-cause requirement did
not resemble the “[t]hree States – Connecticut, Delaware, and Rhode Island –
[that] have discretionary criteria but appear to operate like ‘shall issue’
jurisdictions.” Id. at 2123 n.1. For example, “[a]lthough Connecticut officials
have discretion to deny a concealed-carry permit to anyone who is not a ‘suitable
person,’ the ‘suitable person’ standard precludes permits only to those
‘individuals whose conduct has shown them to be lacking the essential character
o[r] temperament necessary to be entrusted with a weapon.’” Id. (first quoting
CONN. GEN. STAT. § 29-28(b) (2021); then quoting Dwyer v. Farrell, 475 A.2d 257,
260 (1984)). Likewise, the Court explained that, while “Rhode Island has a
suitability requirement, . . . the Rhode Island Supreme Court has flatly denied
43 that the ‘[d]emonstration of a proper showing of need’ is a component of that
requirement.” Id. (quoting Gadomski v. Tavares, 113 A.3d 387, 392 (2015); citing R.
I. GEN. LAWS § 11-47-11).
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. 8
8 Justice Kavanaugh, joined by Chief Justice Roberts, emphasized that “[t]he Court’s decision addresses only the unusual discretionary licensing regimes, known as ‘may-issue’ regimes, that are employed by 6 States including New York,” under which a licensing official has “open-ended discretion” to deny concealed-carry licenses and may deny a license for a failure to “show some special need apart from self-defense.” Bruen, 142 S. Ct. at 2161 (Kavanaugh, J., concurring). “Those features,” Justice Kavanaugh wrote, “in effect deny the right to carry handguns for self-defense to many ordinary, law-abiding citizens.” Id. (internal quotation marks omitted). Accordingly, the Court did not address “objective shall-issue licensing regimes,” under which the State “may require a license applicant to undergo fingerprinting, a background check, a mental health records check, and training in firearms handling and in laws regarding the use of force, among other possible requirements.” Id. at 2162. “Unlike New York’s may-issue regime, those shall-issue regimes do not grant open-ended discretion to licensing officials and do not require a showing of some special need apart from self-defense.” Id. Shall-issue regimes are constitutional, Justice Kavanaugh explained, so long as they “operate in [an objective] manner in practice.” Id.
44 E. History and Tradition
Bruen requires courts to engage in two analytical steps when assessing
Second Amendment challenges: first, by interpreting the plain text of the
Amendment as historically understood; and second, by determining whether the
challenged law is consistent with this Nation’s historical tradition of firearms
regulation, as “that delimits the outer bounds of the right to keep and bear
arms.” Id. at 2127. We focus here on the history-and-tradition prong.
As we understand it, history and tradition give content to the
indeterminate and underdetermined text of the Second Amendment: “the right
of the people to keep and bear Arms.” U.S. CONST. amend. II. “As James
Madison wrote, ‘a regular course of practice’ can ‘liquidate & settle the meaning
of’ disputed or indeterminate ‘terms & phrases.’” Chiafalo v. Washington, 140 S.
Ct. 2316, 2326 (2020) (quoting Letter to S. Roane (Sept. 2, 1819), in 8 Writings of
James Madison 450 (G. Hunt ed. 1908)). 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.
45 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).
That conclusion carries several implications. First, when used to interpret
text, “not all history is created equal.” Id. at 2136. While ancient practices and
postenactment history remain “critical tool[s] of constitutional interpretation,”
Heller, 554 U.S. at 605, they must be examined with some care because while
history and tradition shed light on the meaning of the right to keep and bear
arms – they do not create it. “Constitutional rights are enshrined with the scope
they were understood to have when the people adopted them.” Bruen, 142 S. Ct. at
2136 (quoting Heller, 554 U.S. at 634–35). Thus, historical practices that long
46 predate or postdate codification of the relevant constitutional provision may not
have much bearing on the provision’s scope if the practices were obsolete or
anomalous. See id. For example, a one-off and short-lived territorial law,
military decree, or local law, while no doubt relevant, will not carry the day if it
contradicts the overwhelming weight of other evidence. See id. at 2152 n.26,
2154–55. What matters is “our whole experience as a Nation.” Chiafalo, 140 S. Ct.
at 2326 (quoting NLRB v. Noel Canning, 573 U.S. 513, 557 (2014)).
Second, in examining history and tradition, a court must identify the
“societal problem” that the challenged regulation seeks to address and then ask
whether past generations experienced that same problem and, if so, whether
those generations addressed it in similar or different ways. Bruen, 142 S. Ct. at
2131. 9 “For instance, when a challenged regulation addresses a general societal
problem that has persisted since the 18th century,” that regulation might more
likely be unconstitutional if there is a “lack of a distinctly similar historical
regulation addressing that problem,” or if “earlier generations addressed the
societal problem . . . through materially different means,” or if state courts struck
9 The Court left open the question as to how to identify the level of generality at which to compare the problems addressed by contemporary legislatures with those being addressed in 1791 or 1868 to determine whether those problems are the same.
47 down similar regulations addressing the same problem on “constitutional
grounds.” Id. Conversely, “where a governmental practice has been open,
widespread, and unchallenged since the early days of the Republic, the practice
should guide [a court’s] interpretation of an ambiguous constitutional
provision.” Id. at 2137 (quoting Noel Canning, 573 U.S. at 572 (Scalia, J.,
concurring in the judgment)). And if courts during that period upheld similar
governmental practices against similar constitutional challenges, that is strong
evidence of constitutionality. Id. at 2155 & n.30.
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. 10 There are many reasons why the historical record may not
evince statutory prohibitions on a given practice. For example, lawmakers are
10 See Jacob D. Charles, The Dead Hand of a Silent Past: Bruen, Gun Rights, and the Shackles of History, 73 DUKE L.J. 67, 153 (2023) (criticizing such an inference because it “elevates mere unregulated conduct to the status of inviolate constitutional right”).
48 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.
Fourth, courts must be particularly attuned to the reality that the issues we
face today are different than those faced in medieval England, the Founding Era,
the Antebellum Era, and Reconstruction. To put it plainly, our era does not
resemble those. Thus, the lack of a distinctly similar historical regulation, though
(again) no doubt relevant, may not be reliably dispositive in Second Amendment
49 challenges to laws addressing modern concerns. Such a lack of precedent was, to
be sure, dispositive in Bruen. But that was due to the exceptional nature of New
York’s proper-cause requirement, which conditioned the exercise of a federal
constitutional right on the rightsholder’s reasons for exercising the right. As the
Supreme Court explained, and as we repeated earlier, “[w]e know of no other
constitutional right that an individual may exercise only after demonstrating to
government officers some special need.” Bruen, 142 S. Ct. at 2156. “[A] more
nuanced approach” will often be necessary in cases challenging less exceptional
regulations. Id. at 2132. The Supreme Court emphasized in Bruen that such a
“more nuanced approach” is necessary in cases concerning “new circumstances”
or “modern regulations that were unimaginable at the founding,” such as
regulations addressing “unprecedented societal concerns or dramatic
technological changes.” Id.
Fifth, under the more nuanced approach, the “historical inquiry that courts
must conduct will often involve reasoning by analogy.” Id. When reasoning by
analogy, a court should ask whether the challenged regulation and the proposed
historical analogue are “relevantly similar.” Id. (quoting Cass Sunstein, On
Analogical Reasoning, 106 HARV. L. REV. 741, 773 (1993)). In making that
50 determination, a court must identify an appropriate metric by which to compare
the two laws. Id. Without “provid[ing] an exhaustive survey of the features that
render regulations relevantly similar under the Second Amendment,” Bruen
identified “at least two metrics: how and why the regulations burden a law-
abiding citizen’s right to armed self-defense.” Id. at 2132–33. Thus, under the
more nuanced approach, “whether modern and historical regulations impose a
comparable burden on the right of armed self-defense and whether that burden
is comparably justified are ‘central’ considerations when engaging in an
analogical inquiry.” Id. at 2133 (quoting McDonald, 561 U.S. at 767).
Bruen emphasized that “analogical reasoning . . . is neither a regulatory
straightjacket nor a regulatory blank check.” Id. A court should not uphold
modern laws simply because they remotely resemble historical outliers. Id.
Conversely, a court should not search in vain for a “historical twin”; “a well-
established and representative historical analogue” is sufficient. Id. Thus, “even if
a modern-day regulation is not a dead ringer for historical precursors, it still may
be analogous enough to pass constitutional muster.” Id. As an “example” of
how modern regulations can be justified through analogical historical analysis,
Bruen analogized regulations regarding schools and government buildings to
51 more historically precedented “sensitive place” regulations regarding legislative
assemblies, polling places, and courthouses:
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.
Sixth, just as the existence vel non of a distinctly similar historical regulation
is not dispositive, it is likewise not dispositive whether comparable historical
regulations exist in significant numbers. The Bruen court’s rejection of certain
historical analogues due to the “miniscule territorial populations who would
have lived under them” occurred in the exceptional context of a regulation that
52 “‘contradic[ted] the overwhelming weight’ of other, more contemporaneous
historical evidence.” Id. at 2154–55 (quoting Heller, 554 U.S. at 632). In less
exceptional contexts lacking such countervailing historical evidence, the absence
in other jurisdictions of positive legislation distinctly similar to a proffered
historical analogue does not command the inference that legislators there
deemed such a regulation inconsistent with the right to bear arms. In a similar
vein, while evidence that “some jurisdictions actually attempted to enact
analogous regulations” that “were rejected on constitutional grounds . . . surely
would provide some probative evidence of constitutionality,” Id. at 2131, the lack
of any “disputes regarding the lawfulness of such prohibitions” may lead to the
inference that it was “settled” that states could prohibit or regulate arms in that
manner “consistent with the Second Amendment.” Id. at 2133.
Consider, for example, Bruen’s reference to legislative assemblies, polling
places, and courthouses. In finding those places supported by the historical
record, Bruen cited a law review article and amicus curiae brief that cited a few
laws existing around the time of the adoption of the Second Amendment.
Amicus curiae, for example, cited one law prohibiting arms at legislative
assemblies, see 1647 Md. Laws 216; two laws prohibiting arms at polling places,
53 see Del. Const. of 1776, art. 28; 1787 N.Y. Laws 345; and one law prohibiting arms
in courthouses, see 1786 Va. Acts 33, ch.21. Although the law review article
treated those laws as aberrational, see Kopel & Greenlee, supra, at 235–36, the
Bruen Court examined those few prohibitions in context and explained that it
was “aware of no disputes regarding the lawfulness of such prohibitions,” 142 S.
Ct. at 2133. Thus, depending on the historical context, comparable historical
laws need not proliferate to justify a modern prohibition. 11
Seventh, as we noted above, the right to keep and bear arms is applicable
to the States through the Fourteenth Amendment, see McDonald, 561 U.S. at 750,
which was adopted in 1868. Acknowledging as much, however, Bruen expressly
declined to decide “whether courts should primarily rely on the prevailing
understanding of an individual right when the Fourteenth Amendment was
ratified in 1868 when defining its scope.” 142 S. Ct. at 2138.
11 While the law review article also cited several more 19th-century and Reconstruction Era laws supporting prohibitions at polling places and courthouses, see Kopel & Greenlee, supra, at 245–47, Bruen’s analysis was independent of those laws, cf. 142 S. Ct. at 2138 (declining to address “whether courts should primarily rely on the prevailing understanding of” the right to keep and bear arms from around 1791 (the Second Amendment’s ratification) or 1868 (the Fourteenth Amendment’s ratification)). And, to the extent Bruen did rely on those later prohibitions, that confirms our conclusion that courts–rather than ignoring laws because they are “too old” or not “old enough”–should consider this Nation’s whole tradition.
54 Because the CCIA is a state law, the prevailing understanding of the right
to bear arms in 1868 and 1791 are both focal points of our analysis. See Bruen,
142 S. Ct. at 2136 (“Constitutional rights are enshrined with the scope they were
understood to have when the people adopted them.” (quoting Heller, 554 U.S. at
634–35)); McDonald, 561 U.S. at 778 (plurality opinion) (“[I]t is clear that the
Framers and ratifiers of the Fourteenth Amendment counted the right to keep and
bear arms among those fundamental rights necessary to our system of ordered
liberty.” (emphasis added)). The time periods in close proximity to 1791 and
1868 are also relevant to our analysis. True, the farther we depart from these key
dates, the greater the chance we stray from the original meaning of the
constitutional text. See Bruen, 142 S. Ct. at 2137. Nevertheless, it is implausible
that the public understanding of a fundamental liberty would arise at a historical
moment, rather than over the preceding era. 12 And it is implausible that such
public understanding would promptly dissipate whenever that era gave way to
another. In this way, sources from the time periods close around these dates
12 Although this may suggest that the values articulated in Bruen would tolerate reference to a more expansive sweep of time, we are careful to limit our analysis to the two relevant historical moments and the periods close around them. See 142 S. Ct. at 2136 (“[W]e must also guard against giving postenactment history more weight than it can rightly bear.”). This is a useful discipline, and maybe necessary, for thinking about the Second Amendment in a way that avoids inconsistency, cherry-picking, and special pleading.
55 “illuminat[e] the understanding of those steeped in the contemporary
understanding of a constitutional provision.” Duncan v. Bonta, 83 F.4th 803, 819
(9th Cir. Oct. 10, 2023) (Butamay, J., dissenting).
“McDonald confirms” that understanding. Ezell, 651 F.3d 684, 702 (7th Cir.
2011). As some scholars urged the Court to do, 13 the McDonald plurality looked
to evidence of the pre-Civil War and Reconstruction Eras to hold that right to
keep and bear arms was a fundamental right fully applicable to the States. See
561 U.S. at 770–78 (plurality opinion). In so holding, the plurality gave particular
emphasis to how “the Framers and ratifiers of the Fourteenth Amendment counted
the right to keep and bear arms among those fundamental rights necessary to our
system of ordered liberty.” Id. at 778 (emphasis added). It would be
incongruous to deem the right to keep and bear arms fully applicable to the
13 See Josh Blackman & Ilya Shapiro, Keeping Pandora’s Box Sealed: Privileges or Immunities, the Constitution in 2020, and Properly Extending the Right to Keep and Bear Arms to the States, 8 GEO. J.L. & PUB. POL’Y 1, 52 (2010) (“Analyzing the meaning of the right to keep and bear arms in 1791 was proper in Heller, because the Second Amendment in that case only applied to the federal government. In McDonald, however, the key year is 1868, and the Court should look at evidence from the time of Reconstruction, not the time of the Revolution.”); Steven G. Calabresi & Sarah E. Agudo, Individual Rights Under State Constitutions When the Fourteenth Amendment Was Ratified in 1868: What Rights Are Deeply Rooted in American History and Tradition?, 87 TEX. L. REV. 7, 115– 16 (2008) (“We think [Akhil] Amar is exactly right that for those wondering about incorporation or judicial protection against the states of unenumerated rights in federal constitutional law, the question is controlled not by the original meaning of the first ten Amendments in 1791 but instead by the meaning those texts and the Fourteenth Amendment had in 1868.”).
56 States by Reconstruction standards but then define its scope and limitations
exclusively by 1791 standards.
We therefore agree with the decisions of our sister circuits – emphasizing
“the understanding that prevailed when the States adopted the Fourteenth
Amendment” – is, along with the understanding of that right held by the
founders in 1791, a relevant consideration. Bondi, 61 F.4th at 1322; see also Range
v. Att’y Gen. United States of Am., 69 F.4th 96, 112 (3d Cir. 2023) (en banc) (Ambro,
J., concurring) (observing that if the relevant period extends beyond the
Founding era, “then Founding-era regulations remain instructive unless
contradicted by something specific in the Reconstruction-era”); Drummond v.
Robinson Twp., 9 F.4th 217, 227 (3d Cir. 2021) (“[T]he question is if the Second and
Fourteenth Amendments’ ratifiers approved regulations barring training with
common weapons in areas where firearms practice was otherwise permitted.”
(emphasis added)); Ezell, 651 F.3d at 702, 705–06 (explaining that a “wider
historical lens” is required for a local—or state—regulation, and considering
evidence from both the Founding-era and Reconstruction).
LICENSING REGIME
Plaintiffs’ first set of challenges are to provisions of New York’s law
governing licensure of firearms. “New York maintains a general prohibition on
57 the possession of ‘firearms’ absent a license.” Kachalsky, 701 F.3d at 85.
Individuals holding a firearm license are exempt from most (but not all) of New
York’s criminal prohibitions on firearm possession. N.Y. Penal L. § 265.20(a)(3).
“Section 400.00 of the Penal Law ‘is the exclusive statutory mechanism for the
licensing of firearms in New York State.’” Kachalsky, 701 F.3d at 85 (quoting
O’Connor v. Scarpino, 83 N.Y. 2d 919, 920 (1994)). Section 400.00 provides for
many types of firearm licenses, see generally N.Y. Penal L. § 400.00(2), but this case
focuses on “concealed carry licenses,” which allow the holder to “have and carry
[a pistol or revolver] concealed, without regard to employment or place of
possession.” Id. § 400.00(2)(f).
Before us are facial Second Amendment challenges to four components of
New York’s firearm licensing regime:
• N.Y. Penal L. § 400.00(1)(b) — To receive a firearm license, the applicant must be “of good moral character.” Following the enactment of the CCIA, “good moral character” means “having the essential character, temperament and judgment necessary to be entrusted with a weapon and to use it only in a manner that does not endanger oneself or others.” We refer to this provision as the “character requirement” or “character provision.” “Good moral character” appears to be a prerequisite for all types of firearm licenses, but since both the district court and the Plaintiffs discuss the character requirement only with respect to concealed carry licenses, and since the sole Plaintiff claiming he is injured by the licensing regime asserts a desire to
58 obtain only a concealed carry license, we confine our discussion to that context.
• N.Y. Penal L. § 400.00(1)(o)(i) — An applicant for a concealed carry license must “submit to the licensing officer . . . names and contact information for the applicant’s current spouse, [] domestic partner, [and] any other adults residing in the applicant’s home, including any adult children of the applicant.” The applicant must further disclose “whether or not there are minors residing, full time or part time, in the applicant’s home.” We refer to this provision as the “cohabitants requirement.”
• N.Y. Penal L. § 400.00(1)(o)(iv) — An applicant for a concealed carry license must “submit . . . a list of former and current social media accounts of the applicant from the past three years to confirm the information regarding the applicant[’]s character and conduct.” We refer to this provision as the “social media requirement.”
• N.Y. Penal L. § 400.00(1)(o)(v) — An applicant for a concealed carry license must “submit . . . such other information required by the licensing officer that is reasonably necessary and related to the review of the licensing application.” We refer to this provision as the “catch-all” requirement.
Plaintiffs argue that these requirements interfere with their right to carry a
gun publicly and violate the Second Amendment because they lack a sufficient
basis in the “Nation’s historical tradition of firearm regulation.” Bruen, 142 S. Ct.
at 2126. The district court agreed and enjoined defendants from enforcing these
four requirements. 14
14Plaintiffs challenged other aspects of the licensing regime in the district court, including provisions that require concealed carry applicants to attend an in-person interview
59 First, we conclude that at least one Plaintiff has presented a justiciable
challenge to the licensing regime. The cohabitants, social media, and “catch-all”
requirements have deterred Plaintiff Lawrence Sloane from obtaining a
concealed carry license, a cognizable injury traceable to the enforcement of those
provisions and redressable by an injunction. And given the close relationship
between the disclosure requirements and the character requirement, Sloane’s
injury is attributable to the character provision itself and redressable by an
injunction against enforcement. Although a plaintiff who challenges a rule that
renders him ineligible to receive a license must first either seek a license or show
that his application would be denied, a plaintiff (like Sloane) who challenges a
component of the application process itself is not required to subject himself to
that process in order to present a justiciable constitutional claim.
Second, on the merits, we affirm the district court’s injunction in part and
vacate it in part. We reject Sloane’s challenges to the character, catch-all, and
cohabitants requirements. The character requirement, we conclude, is not facially
with the licensing officer, submit a list of four character references, and complete 18 hours of in- person firearms training. The district court concluded that Plaintiffs had not demonstrated substantial likelihood of success on these claims and accordingly denied preliminary relief with respect to those provisions. See Antonyuk, 639 F. Supp. 3d at 307, 314, 316. Plaintiffs have not cross-appealed from or otherwise challenged those rulings here, so we express no view on them.
60 unconstitutional. A reasoned denial of a carry license to a person who, if armed,
would pose a danger to themselves, others, or to the public is consistent with the
well-recognized historical tradition of preventing dangerous individuals from
possessing weapons. We do not foreclose as-applied challenges to particular
character-based denials, but the provision is not invalid in all of its applications.
Nor does the bounded discretion afforded to licensing officers by the
character provision render it invalid. On the contrary, Bruen explains that
several licensing regimes with arguably discretionary criteria identical to New
York’s are consistent with its analysis. Similarly, although it is possible that a
licensing officer could make an unconstitutional demand for information
pursuant to the catch-all, we cannot conclude that there are no questions a
licensing officer might constitutionally ask an applicant under that provision.
Since the catch-all has a “plainly legitimate sweep,” we cannot strike it down on
its face. 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.
But we affirm the preliminary injunction against enforcement of the social
media requirement: although the review of public social media posts by a
61 licensing officer poses no constitutional difficulties, requiring applicants to
disclose even pseudonymous names under which they post online imposes an
impermissible infringement on Second Amendment rights that is unsupported
by analogues in the historical record and moreover presents serious First
Amendment concerns.
I. Standing
We must first consider our jurisdiction. E.g., Sinochem Int’l Co. v. Malaysia
Int’l Shipping Corp., 549 U.S. 422, 430–31 (2007). Article III courts have power to
decide only “Cases” or “Controversies.” U.S. CONST. art. III, § 2, cl. 1. “‘The
doctrine of standing gives meaning to these constitutional limits,’ by requiring a
plaintiff to ‘allege such a personal stake in the outcome of the controversy as to
warrant his invocation of federal-court jurisdiction and to justify exercise of the
court’s remedial powers on his behalf.’” Knife Rights, Inc. v. Vance, 802 F.3d 377,
383 (2d Cir. 2015) (alteration adopted) (first quoting Susan B. Anthony List v.
Driehaus, 573 U.S. 149, 157 (2014); then quoting Warth v. Seldin, 422 U.S. 490, 498–
99 (1975)). “To establish Article III standing, a plaintiff must have ‘(1) suffered an
injury in fact, (2) that is fairly traceable to the challenged conduct of the
defendant, and (3) that is likely to be redressed by a favorable judicial decision.’”
62 Silva v. Farrish, 47 F.4th 78, 86 (2d Cir. 2022) (quoting Spokeo, Inc. v. Robins, 578
U.S. 330, 338 (2016)).
Lawrence Sloane, a Plaintiff in the Antonyuk case, is the sole Plaintiff in the
cases before us who claims standing to challenge New York’s licensing regime.
Sloane avers that he has long wanted to obtain a New York concealed carry
license and “intended to apply for [his] carry license” after the Supreme Court
decided Bruen. J.A. 144 (Sloane Decl. ¶¶ 3–4). But the CCIA caused him to
reconsider because he is unwilling to “provide the government of New York with
information about [his] family[] on the carry license application,” id. at 146
(Sloane Decl. ¶ 10); to submit “information about [his] associates, so some
licensing official can interrogate them about [his] life,” id. at 147 (Sloane Decl.
¶ 16); or to “turn over [his] ‘social media’ . . . to the government[] as a condition
of applying for a license,” lest he be forced to “self-censor . . . knowing that the
state’s prying anti-gun eye is looking over [his] shoulder,” id. at 145 (Sloane Decl.
¶¶ 8–9). He also objects to the required interview with the licensing officer
“because there do not appear to be any limits on the questions [he can be]
asked,” an objection we understand as relating also to the officer’s ability to
request supplemental information pursuant to the catch-all disclosure
63 requirement. Id. at 147 (Sloane Decl. ¶ 17). Sloane does not have the option to
omit this information, as incomplete applications “will not be processed.” Id. at
148 (Sloane Decl. ¶ 21 & n.2) (quoting Onondaga County Sheriff’s website). But
“[i]f these unconstitutional requirements were removed from the application,”
Sloane declares, he “would immediately submit [an] application for a concealed
carry license, something [he] greatly desire[s] to obtain and, but for the CCIA’s
unconstitutional demands, [he] would seek to obtain.” Id. at 151 (Sloane Decl.
¶ 30).
Sloane has standing to challenge the disclosure requirements (which for
standing purposes we assume to be unconstitutional) based on these averments.
Sloane is deterred from seeking—and thereby prevented from obtaining—a
concealed carry license; he is injured by the consequent inability to exercise his
Second Amendment rights; that injury is traceable to the defendants’
enforcement of these provisions (their refusal to process applications omitting
the required information); and the injury is redressable by the injunction that
Sloane seeks, because he would apply if the requirements were stricken.
True, Sloane’s injury stems from his own unwillingness to comply with the
challenged requirements; but so long as the interest at stake is cognizable (as
64 Sloane’s interest in carrying a firearm surely is), a plaintiff suffers an injury-in-
fact if the defendant’s allegedly unlawful conduct impairs that interest, even if it
does so by deterring the plaintiff due to his individual, but reasonable,
sensibilities. In Friends of the Earth, Inc. v. Laidlaw Environmental Services. (TOC),
Inc., 528 U.S. 167 (2000), members of an environmental organization had
standing to sue the operator of a wastewater treatment plant for discharging
contaminants. Plaintiffs who wanted to visit the river for recreation had become
unwilling to do so because of their own anxiety about the defendant’s pollution.
See id. at 181–83. The Court explained that the plaintiffs had a cognizable interest
in their enjoyment and use of the river, and “Laidlaw’s discharges . . . directly
affected those affiants’ recreational, aesthetic, and economic interests” by way of
their “reasonable concerns about the effects of those discharges.” Id. at 183–84.
Since the plaintiffs had alleged that “they would use the [river] for recreation if
Laidlaw were not discharging pollutants into it,” they had Article III standing.
Id. at 184.
Sloane has standing with respect to the three disclosure requirements
because defendants’ enforcement of the (allegedly unlawful) requirements
impairs Sloane’s interest in obtaining a license by deterring him from applying.
65 However, the character requirement presents a slightly different question: rather
than being a component of the application itself, the character provision
determines who can receive a concealed carry license. And it is unclear at best
whether Sloane is deterred by the character requirement itself, as opposed to the
investigation it might prompt.
But the CCIA’s character requirement is inextricable from its disclosure
requirements. The State explains that the required disclosures are solely
“intended to inform a licensing officer’s assessment of good moral character”—
they merely implement the character requirement. Antonyuk Nigrelli Br. at 29. 15
Sloane’s injury is thereby traceable to the character requirement itself, even if he
is directly deterred only by the disclosure requirements. And an injunction
against considering “good moral character” would redress Sloane’s injury: if
character ceased to determine the licensing decision, the State would have no
reason for the invasive inquiries that deter Sloane from applying for a license.
See J.A. 145–47 (Sloane Decl. ¶¶ 9, 10, 15). Thus, in these particular circumstances
and on the record before us, we can decide his claims on the merits because we
15 The appellants in Antonyuk filed two briefs: one on behalf of former defendant Nigrelli and defendant Doran, and one on behalf of defendant Cecile. We cite the former as “Antonyuk Nigrelli Br.” and the latter as “Antonyuk Cecile Br.”
66 are satisfied that Sloane is suffering a cognizable injury that is traceable to the
challenged provisions and redressable by the injunction he seeks.
Unsurprisingly, the State sees things differently. Relying on our decisions
in United States v. Decastro, 682 F.3d 160 (2d Cir. 2012), and Libertarian Party of Erie
County, the State contends that a litigant who wishes to challenge a licensing
regime must either apply for a license and be denied or make a substantial
showing that his application would be futile. But challenging a rule that limits
eligibility for a license is different from challenging a component of the
application process itself. This case is an example of the latter, while the Decastro
rule governs only the former.
In Decastro, the criminal defendant challenged his conviction for unlawful
transport of a firearm across state lines: New York’s licensing regime was so
restrictive, he argued, that the only way he could exercise his Second
Amendment rights was to purchase a gun in another state and bring it into New
York. See 682 F.3d at 163–64. We treated his claim as “tantamount to a challenge
to [New York’s licensing] scheme” on the theory that the New York regime was
“constitutionally defective” because it barred too many individuals from gun
ownership. Id. Given the nature of this claim, we concluded that he “lack[ed]
67 standing to challenge the licensing laws of the state” because he had failed to
show that he was one of those individuals rendered ineligible for a permit, i.e.,
that he had been or would have been denied a license under the allegedly-
unconstitutional rules. 16 Id. at 164; cf. id. at 163 (“‘[A] person to whom a statute
may constitutionally be applied will not be heard to challenge that statute on the
ground that it may conceivably be applied unconstitutionally to others.’”
(quoting Parker v. Levy, 417 U.S. 733, 759 (1974)). We applied Decastro to
conceptually identical claims in Libertarian Party, in which the plaintiffs argued
that New York had impermissibly restricted eligibility for firearm licenses. See
970 F.3d at 114–15. But since many of the plaintiffs had neither applied for
licenses nor demonstrated futility, we dismissed their claims for lack of standing.
Id. at 121–22.
16 Decastro can be read as a case about injury—and failure to apply for a license is sometimes best understood that way—but Decastro’s criminal conviction surely qualified as an Article III injury-in-fact. Instead, we understand his standing to have faltered on traceability: his refusal to use the state’s licensing procedure severed the causal chain connecting the challenged rule to his conviction. Similarly, Jackson-Bey v. Hanslmaier, 115 F.3d 1091 (2d Cir. 1997)—a case on which Decastro and many other decisions in this area rely—also sounds in traceability. There, a prison had forbidden an inmate from wearing certain religious garb to his father’s funeral. We acknowledged that while the plaintiff had been injured, he lacked standing because he had neither registered his religious affiliation (enabling him to wear the garb) or shown that such registration would have been futile. Accordingly, any injury was traceable not to the defendants but to “his own decision not to follow the simple procedure of registering his religion.” 115 F.3d at 1095.
68 Decastro governs only challenges to a licensing rule regarding eligibility.
Bruen also exemplifies this sort of challenge: the plaintiffs asserted a desire (and
right) to carry a gun publicly, sought a license to do so, and were denied based
on an eligibility rule—the proper cause requirement—which they alleged was
unconstitutionally restrictive. See Bruen, 142 S. Ct. at 2125. Since the plaintiff’s
injury in such a case stems from his personal ineligibility for a license, the
plaintiff must prove up that premise either by applying for a license or by
making a substantial showing of futility. In this context, then, “futility” refers to
the outcome of the contemplated application, i.e., whether the result is
preordained. See Decastro, 682 F.3d at 164 (sufficiency of a futility showing is
judged on whether plaintiff has shown that his application would have been
denied); Bach v. Pataki, 408 F.3d 75, 82–83 (2d Cir. 2005) (application was futile
where applicant “was statutorily ineligible for [the] carry license”); Image Carrier
Corp. v. Beame, 567 F.2d 1197, 1201–02 (2d Cir. 1977) (bid for contract was futile
“since it is obvious that [the potential bidder] could not have been awarded a
contract”). The district court therefore erred in concluding that Sloane’s
application was futile because it would not have been processed in a timely
69 manner. See Antonyuk, 639 F. Supp. 3d at 260. Futility refers to the denial of an
application; delays in receiving a decision do not render an application futile.
Sloane’s challenge is of a different type. Rather than challenge eligibility
criteria, Sloane argues that a portion of the application process is unconstitutional.
His injury flows from the application itself, not from his asserted ineligibility for
a license. Indeed, he pleads the opposite: “Lawrence Sloane . . . is a law-abiding
person . . . and is (aside from not having a license) eligible to possess and carry
firearms in the state of New York.” J.A. 19 (Compl. ¶ 7). The State’s reliance on
Decastro is thus premised on its misapprehension of the nature of Sloane’s claim.
The State even asserts that “the license application ‘denial . . . is [the] distinct
injury’” whenever a plaintiff challenges a licensing regime. 17 Antonyuk Nigrelli Br.
at 26 (alterations in original) (quoting Parker v. District of Columbia, 478 F.3d 370,
376 (D.C. Cir. 2007)). But when the plaintiff challenges the application itself (or
as here, a portion thereof), he is not required to first apply for and be refused a
17 The full quote from Parker—which the Supreme Court affirmed as District of Columbia v. Heller—makes clear that the D.C. Circuit was opining on Heller’s injury, not making a blanket statement about all licensing challenges: “[Heller] is not asserting that his injury is only a threatened prosecution, nor is he claiming only a general right to handgun ownership; he is asserting a right to a registration certificate, the denial of which is his distinct injury.” 478 F.3d at 376 (emphasis added). And the D.C. Circuit was correct: Heller’s constitutional claim centered on his ineligibility for a license and was thus akin to those in Decastro, Libertarian Party, and Bruen. See id. (“[Heller] invoked his rights under the Second Amendment to challenge the statutory classifications used to bar his ownership of a handgun under D.C. law.”).
70 license. See Brokamp v. James, 66 F.4th 374, 387–89 (2d Cir. 2023) (no application
or futility required when mental health counselor challenged licensing
requirement as violation of First Amendment right to give counsel); Desiderio v.
National Ass’n of Securities Dealers, Inc., 191 F.3d 198, 202 (2d Cir. 1999) (would-be
securities dealers’ challenge to mandatory arbitration consent as condition to
licensure). 18
By eliding the distinction between challenges to eligibility rules and to the
application process, the State in effect argues that the only way a plaintiff can
challenge an application process is to do exactly what the plaintiff claims that he
may not be required to do. Such a rule contravenes common sense. An applicant
who challenges an application itself is not required to first comply with the
18 Desiderio and Sammon are framed in terms of ripeness rather than standing, but we understand them to apply the same justiciability principles as failure-to-apply cases using a standing framing. See Nat’l Org. for Marriage, Inc. v. Walsh, 714 F.3d 682, 688 (2d Cir. 2013) (“Often, the best way to think of constitutional ripeness is as a specific application of the actual injury aspect of Article III standing.”); 13B WRIGHT & MILLER, FED. PRAC. & PROC. JURIS. § 3531.12 (3d ed.) (“Although discrete names have been given to the several nominate categories of justiciability, they are tied closely together. . . . The most direct connections run between standing and ripeness.”). We have expressly noted that arguments of this type sound in both standing and ripeness. Bach, 408 F.3d at 82 & n.15 (defendants’ “‘standing’ objection” regarding plaintiff’s failure to apply for license “might also be understood as a ripeness challenge”); see also Image Carrier, 567 F.2d at 1201–02 (construing argument that plaintiff “should have bid for City work and been turned down in order to present a justiciable claim” as sounding in ripeness instead of standing).
71 objected-to component before bringing suit. Therefore, Sloane may challenge the
disclosure requirements without first making the required disclosures.
II. Merits
Having assured ourselves of our jurisdiction, we consider whether the
challenged portions of New York’s licensing regime violate the Constitution.
A. The Character Requirement
To recapitulate, the character requirement states that “[n]o license shall be
issued or renewed except for an applicant . . . of good moral character.” N.Y.
Penal L. § 400.00(1)(b). Since 1913, New York has required concealed carry
licensees to possess “good moral character,” 19 but this phrase was left statutorily
undefined until the CCIA added the following definition: “having the essential
character, temperament and judgement necessary to be entrusted with a weapon
and to use it only in a manner that does not endanger oneself or others.” Id.
Between them, Sloane and the district court put forward three reasons why
the character requirement is unconstitutional. First, Sloane contends that the
character requirement is, despite its century-long history, facially inconsistent
19See 1913 N.Y. Laws ch. 608, § 1, p. 1629 (“It shall be lawful for any magistrate, upon proof before him that the person applying therefor is of good moral character . . . to issue to such person a license to have and carry concealed a pistol or revolver . . . .”).
72 with the history and tradition of firearm regulation. Second, the district court
concluded that the discretion baked into the character provision is unsupported
by history and tradition, and is therefore impermissible. Finally, Sloane argues
that statements in Bruen categorically forbid states from conferring any discretion
on licensing officers.
We reject all three arguments and vacate the district court’s injunction
against enforcement of the character requirement. First, the requirement is not
facially invalid because it is not unconstitutional in all its applications. The
CCIA’s definition of “character” is a proxy for dangerousness: whether the
applicant, if licensed to carry a firearm, is likely to pose a danger to himself,
others, or public safety. And there is widespread consensus (notwithstanding
some disputes at the margins) that restrictions which prevent dangerous
individuals from wielding lethal weapons are part of the nation’s tradition of
firearm regulation. We therefore cannot conclude that every denial on grounds of
“good moral character” as defined by New York will violate the Second
Amendment, though various avenues lie open for as-applied challenges.
Next, we disagree with the district court’s conclusion that affording
licensing officers a modicum of discretion to grant or deny a concealed carry
73 permit is inconsistent with the nation’s tradition of firearm regulation. For as
long as licensing has been used to regulate privately-owned firearms, issuance
has been based on discretionary judgments by local officials. Licensing that
includes discretion that is bounded by defined standards, we conclude, is part of
this nation’s history and tradition of firearm regulation and therefore in
compliance with the Second Amendment.
Finally, Bruen does not forbid discretion in licensing regimes—on the
contrary, the Bruen Court specifically stated that its decision did not imperil the
validity of more than a dozen licensing schemes that confer discretion materially
identical to the CCIA. At most, the Court indicated that the practical operation of
a licensing scheme is relevant to whether it is impermissibly discretionary. It
was therefore error to strike down New York’s scheme on a facial challenge.
1. Facial Second Amendment Challenge
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
74 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.
This potentially dispositive argument bears upon the scope of the Second
Amendment right. The State reasons that the character provision impairs the
ability to bear arms only of those individuals who do not have Second Amendment
rights in the first place: the irresponsible. That is a controversial supposition.
Though the Supreme Court has suggested that “law-abiding,” “responsible,”
and/or “ordinary” individuals are protected by the Second Amendment, 20 it is far
20 See Heller, 554 U.S. at 635 (“[W]hatever else it leaves to future evaluation, [the Second Amendment] surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.”); Bruen, 142 S. Ct. at 2122 (summarizing Heller and McDonald as “recogniz[ing] that the Second and Fourteenth Amendments protect the right of an ordinary, law-abiding citizen to possess a handgun in the home for self-defense,” and framing its own holding as extending only that right to public carry (emphasis added)); id. at 2138 n.9 (suggesting that licensing regimes which “do not necessarily prevent ‘law-abiding, responsible citizens’ from exercising their Second Amendment right to public carry” and instead “are designed to ensure only that those bearing arms in the jurisdiction are, in fact, ‘law- abiding, responsible citizens’” are consistent with Bruen’s analysis); id. at 2156 (“Nor . . . have American governments required law-abiding, responsible citizens to [show proper cause] . . . in
75 from clear whether these adjectives describe individuals who stand outside the
Second Amendment or instead those who may be disarmed consistent with that
Amendment. See Kanter v. Barr, 919 F.3d 437, 452 (7th Cir. 2019) (Barrett, J.,
dissenting) (summarizing these two positions and explaining that “one uses
history and tradition to identify the scope of the right, and the other uses that
same body of evidence to identify the scope of the legislature’s power to take it
away”). Indeed, the Fifth Circuit, the Third Circuit en banc, and then-Judge
Barrett in a Seventh Circuit dissent have advocated the latter view (contrary to
the State’s position here). See id. at 453 (Barrett, J., dissenting); Rahimi, 61 F.4th at
451–53; Range, 69 F.4th at 101–03.
But we may resolve this appeal without opining on a tricky question with
wide-ranging implications. The character requirement has not been enforced
against a Plaintiff, nor has any Plaintiff alleged that he would be denied a license
on character grounds—Sloane therefore brings only a facial challenge to the
order to carry arms in public.”); see also United States v. Jimenez, 895 F.3d 228, 234–35 (2d Cir. 2018) (“The Supreme Court thus identified the core of Second Amendment protections by reference not only to particular uses and particular weapons but also to particular persons, namely, those who are ‘law-abiding and responsible.’”); United States v. Bryant, 711 F.3d 364, 369 (2d Cir. 2013) (“We read [Heller’s] exegesis as an implicit limitation on the exercise of the Second Amendment right to bear arms for ‘lawful purposes,’ and a limitation on ownership to that of ‘law-abiding, responsible citizens.’” (alteration adopted) (quoting Heller, 554 U.S. at 628, 630, 635)).
76 character provision. See N.Y. State Rifle & Pistol Ass’n, Inc. v. Cuomo, 804 F.3d 242,
265 (2d Cir. 2015) (“Because plaintiffs pursue this ‘pre-enforcement’ appeal
before they have been charged with any violation of law, it constitutes a ‘facial,’
rather than ‘as-applied,’ challenge.”) And even assuming that the character
requirement does impair Second Amendment rights, Sloane has failed to
demonstrate that it is unconstitutional on its face.
“[C]lassifying a lawsuit as facial or as-applied affects the extent to which
the invalidity of the challenged law must be demonstrated . . . .” Bucklew v.
Precythe, 587 U.S. ----, 139 S. Ct. 1112, 1127 (2019). To mount a successful facial
challenge, the plaintiff “must ‘establish that no set of circumstances exists under
which the [law] would be valid,’ or show that the law lacks ‘a plainly legitimate
sweep.’” Ams. for Prosperity Found. v. Bonta, 594 U.S. ----, 141 S. Ct. 2373, 2387
(2021) (alteration in original) (first quoting United States v. Salerno, 481 U.S. 739,
745 (1987); then quoting Wash. State Grange v. Wash. State Republican Party, 552
U.S. 442, 449 (2008)). In other words, “[a] facial challenge is really just a claim
that the law or policy at issue is unconstitutional in all its applications.” Bucklew,
139 S. Ct. at 1127; accord Cmty. Hous. Improvement Program v. City of New York, 59
F.4th 540, 548 (2d Cir. 2023). For this reason, facial challenges are “the most
77 difficult to mount successfully.” City of Los Angeles v. Patel, 576 U.S. 409, 415
(2015) (alteration adopted and quotation omitted).
There are applications of the character provision that would be
constitutional. The Second Amendment does not preclude states from denying a
concealed-carry license based on a reasoned determination that the applicant, if
permitted to wield a lethal weapon, would pose a danger to himself, others, or to
public safety. There is widespread agreement among both courts of appeals and
scholars that restrictions forbidding dangerous individuals from carrying guns
comport with “this Nation’s historical tradition of firearm regulation,” Bruen, 142
S. Ct. at 2126. Indeed, the Supreme Court has repeatedly admonished that the
Second Amendment protects the rights of law-abiding and responsible citizens 21
and has approved of “shall-issue” licensing regimes that deny firearms licenses
to individuals who lack good moral character in the sense that they are not law-
abiding and responsible and pose a danger to the community if licensed to carry
21 See Heller, 554 U.S. at 635 (“[W]hatever else [the Second Amendment] leaves to future evaluation, it surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.”); Bruen, 142 S. Ct. at 2122, 2135 (“[T]he Second and Fourteenth Amendments protect the right of an ordinary, law-abiding citizen to possess a handgun in the home for self-defense . . . [and] publicly for their self-defense.”).
78 firearms in public. 22 The Court’s statements reflect a recognition that such
regulations are not inherently inconsistent with the Second Amendment or our
historical traditions. Whether the relevant tradition is limited to dangerousness,
or more broadly permits the disarmament of all law-breakers or “unvirtuous”
individuals is the subject of considerable debate, but the use of dangerousness as
a disqualifier does not appear controversial. 23 However this tradition is
22 Bruen, 142 S. Ct. at 2138 n.9 (“[N]othing in our analysis should be interpreted to suggest the unconstitutionality of the 43 States’ ‘shall-issue’ licensing regimes” as “they do not necessarily prevent ‘law-abiding, responsible citizens’ from exercising their Second Amendment right to public carry” and “are designed to ensure only that those bearing arms in the jurisdiction are, in fact, ‘law-abiding, responsible citizens.’”) (quoting Heller, 554 U.S. at 635). 23 Compare Kanter, 919 F.3d at 451, 454–64 (Barrett, J., dissenting) (“History is consistent with common sense: it demonstrates that legislatures have the power to prohibit dangerous people from possessing guns. But that power extends only to people who are dangerous.”); Binderup, 836 F.3d at 369 (Hardiman, J., concurring in part and concurring in the judgments) (“[T]he public understanding of the scope of the Second Amendment was tethered to the principle that the Constitution permitted the dispossession of persons who demonstrated that they would present a danger to the public if armed.”); Folajtar v. Att’y Gen. of the U.S., 980 F.3d 897, 914 (3d Cir. 2020) (Bibas, J., dissenting) (similar); Range, 69 F.4th at 110 (Ambro, J., concurring) (federal prohibition on felons possessing guns is constitutional in almost all applications “because it fits within our Nation’s history and tradition of disarming those persons who legislatures believed would, if armed, pose a threat to the orderly functioning of society”); Joseph G.S. Greenlee, The Historical Justification for Prohibiting Dangerous Persons from Possessing Arms, 20 WYO. L. REV. 249 (2020), with United States v. Jackson, 69 F.4th 495, 502–05 (8th Cir. 2023) (describing this debate and holding that either view supports the federal prohibition on all felons possessing guns: “[L]egislatures traditionally employed status-based restrictions to disqualify categories of persons from possessing firearms. Whether those actions are best characterized as restrictions on persons who deviated from legal norms or persons who presented an unacceptable risk of dangerousness, Congress acted within the historical tradition when it enacted § 922(g)(1) and the prohibition on possession of firearms by felons.”); Range v. Att’y Gen. of U.S., 53 F.4th 262, 273–74 (3d Cir. 2022), rev’d en banc 69 F.4th 96 (3d Cir. 2023) (concluding that the Second Amendment permits disarmament not just of dangerous individuals but also “those who have demonstrated disregard for the rule of law through the
79 characterized, the Supreme Court’s approving references to “good moral
character” licensing requirements, as imposed in states with requirements that
define “good moral character” essentially as New York now defines it,
demonstrate that such requirements are permissible. 24
Such dangerousness is the core of New York’s character requirement, as
clarified in the CCIA. The gravamen of the “character” inquiry is whether the
commission of felony and felony-equivalent offenses, whether or not those crimes are violent.”); Binderup, 836 F.3d at 348 (lead opinion) (“People who have committed or are likely to commit ‘violent offenses’ . . . undoubtedly qualify as ‘unvirtuous citizens’ who lack Second Amendment rights. . . . The category of ‘unvirtuous citizens’ is . . . broader than violent criminals; it covers any person who has committed a serious criminal offense, violent or nonviolent.”); United States v. Carpio-Leon, 701 F.3d 974, 979–80 (4th Cir. 2012) (characterizing tradition in terms of “virtuousness”); United States v. Yancey, 621 F.3d 681, 684–85 (7th Cir. 2010) (same); United States v. Vongxay, 594 F.3d 1111, 1118 (9th Cir. 2010) (same); Saul Cornell & Nathan DeDino, A Well Regulated Right: The Early American Origins of Gun Control, 73 FORDHAM L. REV. 487, 491–92 (2004); Glenn Harlan Reynolds, A Critical Guide to the Second Amendment, 62 TENN. L. REV. 461, 480 (1995); Don B. Kates, Jr., The Second Amendment: A Dialogue, LAW & CONTEMP. PROBS., Winter 1986, at 143, 146. See also Petition for Writ of Certiorari at 8–11, United States v. Rahimi, No. 22- 915 (S. Ct. Mar. 17, 2023) (expressing the federal government’s view that “the Second Amendment allows the government to disarm dangerous individuals—that is, those who would pose a serious risk of harm to themselves or to others if allowed to possess a firearm”). 24 For this reason, we disagree with the Fourth Circuit’s conclusion in Maryland Shall Issue, Inc. v. Moore, -- F.4th --, 2023 WL 8043827 (4th Cir. Nov. 21, 2023), that firearm licensing regimes based on a determination of “dangerousness” are constitutionally impermissible. The majority’s conclusion, by “invalidating an entire shall-issue statute as facially unconstitutional without any discussion [of] whether the statute’s requirements infringe every permit applicant’s constitutional rights, . . . runs directly against Bruen’s clear guidance on shall-issue regimes.” Id. at *15 (Kennan, J., dissenting). We find it especially difficult to square the court’s conclusion that a thirty-day review period is per se an unconstitutional temporary deprivation of Second Amendment rights, Moore, 2023 WL 8043827 at *9, with Bruen’s contrasting statements that “lengthy wait times . . . [would] deny ordinary citizens their right to public carry.” 142 S. Ct. at 2138 n.9 (emphasis added).
80 applicant can “be entrusted with a weapon and to use it only in a manner that
does not endanger oneself or others.” N.Y. Penal L. § 400.00(1)(b) (emphasis
added). The denial of a license to an individual deemed likely to pose such a
danger (by, for instance, using a weapon unlawfully against another or by
refusing to take safety precautions) is an application squarely within the
provision’s heartland. Such a denial would clearly fall within the historical
tradition of preventing dangerous individuals from carrying guns. Since at least
some possible applications of the character requirement would not violate the
Constitution, it is not unconstitutional on its face.
The district court effectively acknowledged as much, concluding that it
would be constitutional to deny a license to “applicants who have been found,
based on their past conduct, to be likely to use the weapon in a manner that
would injure themselves or others (other than in self-defense).” Antonyuk, 639 F.
Supp. 3d at 305. The court found that the provision was facially invalid because
of the possibility of license denials in other situations that the court deemed
unconstitutional. Id. That does not support a facial challenge. The denials the
district court described as constitutional are likely (at least) applications of the
character provision as enacted; the prospect that the scheme might also permit a
81 licensing officer to deny a license unconstitutionally is insufficient to strike the
provision down in all of its applications.
The district court’s reasoning seems to rely in part on its view that Bruen
“create[d]” an “exception” to the normal rules regarding facial and as-applied
challenges, wherein it would “defy [the Bruen] standard for [a court] to find that
such a law is inconsistent with history and tradition, just to watch it be saved by
the one possible application that makes it constitutional.” See id. at 305. We do
not agree. It is highly unlikely that the Court upended longstanding principles
of constitutional litigation by mere implication. Indeed, Bruen itself recognized
the viability of as-applied challenges to licensing regimes, see 142 S. C.t at 2138
n.9, a curious statement if the Court meant to eliminate the facial vs. as-applied
distinction in Second Amendment cases.
Bruen was a facial challenge and proceeded accordingly. But, unlike the
character requirement here, the premise of the proper-cause rule at issue in Bruen
(that “ordinary, law-abiding, adult citizens,” 142 S. Ct. at 2134, can be prohibited
from carrying a gun if they lack a good reason to do so) was unsupported by
history and thus violated the Second Amendment. How that rule was applied in
particular cases was irrelevant given its facial constitutional flaw.
82 We recognize that “good moral character” is a spongy concept susceptible
to abuse, but such abuses, should they become manifest, can still be vindicated in
court as they arise. A licensing officer who denies an application on character (or
any other) grounds must provide “a written notice to the applicant setting forth
the reasons for such denial,” N.Y. Penal L. § 400.00(4-a). A notice that does not
articulate the evidence underlying the character determination or that fails to
connect that evidence to the applicant’s untrustworthiness to responsibly carry a
gun may well be deemed arbitrary and thus subject to vacatur under Article 78 of
the New York Civil Practice Law and Rules, see N.Y. C.P.L.R. §§ 7801–06, and
possibly the Second Amendment as well. 25
Likewise, 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
25It is worth mentioning that a rejected applicant can file an internal administrative appeal of his denial. See N.Y. Penal L. § 400.00(4-a). Indeed, such an appeal is likely a prerequisite to an Article 78 proceeding, which does not permit review of “determination[s] [] which . . . can be adequately reviewed by appeal . . . to some other body.” N.Y. C.P.L.R. § 7801(1); see, e.g., Essex County v. Zagata, 91 N.Y. 2d 447, 453 (1998). Similarly, it is doubtful that a plaintiff who brings a federal suit challenging an initial denial before seeking administrative review would present a ripe case or controversy.
83 is no historical basis. 26 And we further agree with Sloane (and the district court)
that it would violate the Second Amendment to deny a license because the
applicant is willing to use a weapon in lawful self-defense (and thereby be said to
“endanger . . . others”). See Antonyuk, 639 F. Supp. 3d at 299, 303 (noting this
problem). But this observation is insufficient to enjoin the law. Contrary to the
district court’s views, see id. at 304 (faulting the character provision for “fail[ing]
to expressly remind the licensing officer to make an exception for actions taken in
self-defense” (emphasis omitted)), so long as the law has a “plainly legitimate
sweep”—as this one does—the law need not catalog and expressly forbid
potential abuses.
Plaintiffs assume that licensing officers will act in bad faith, but facial
challenges require the opposite assumption. Permissible outcomes are possible
(and we think likely) under the statute. “Facial challenges are disfavored”
because they “often rest on speculation,” “raise the risk of ‘premature
interpretation of statutes on the basis of factually barebones records,’” and
26 We also leave open challenges based on a de facto pattern of denials or de jure interpretation of the provision which impermissibly restricts the right to carry a gun in public. Cf. Bruen, 142 S. Ct. at 2138 n.9 (“[B]ecause any permitting scheme can be put toward abusive ends, we do not rule out constitutional challenges to shall-issue regimes where, for example, lengthy wait times in processing license applications or exorbitant fees deny ordinary citizens their right to public carry.”).
84 “threaten to short circuit the democratic process by preventing laws embodying
the will of the people from being implemented in a manner consistent with the
Constitution.” Wash. State Grange, 552 U.S. at 450–51 (quoting Sabri v. United
States, 541 U.S. 600, 609 (2004)). These principles confirm that a facial injunction
against the character provision is inappropriate at this stage.
2. Historical Challenge to Licensing Officer Discretion
The district court deemed the character requirement facially invalid for a
further reason: that the statutorily bounded discretion baked into the provision is
inconsistent with the history of firearm regulation in the United States and thus
violates the Second Amendment. See Antonyuk, 639 F. Supp. at 301–02. We
disagree as a matter of historical fact. For as long as American jurisdictions have
issued concealed-carry-licenses, they have permitted certain individualized,
discretionary determinations by decisionmakers.
It is important at the outset to be clear about the possible meanings of the
term “discretion.” Professor Ronald Dworkin long ago distinguished between
strong and weak senses of the term. He emphasized that discretion “does not
exist except as an area left open by a surrounding belt of restriction. It is
therefore a relative concept. It always makes sense to ask ‘Discretion under
which standards?’” Ronald Dworkin, Taking Rights Seriously 31 (1977). A
85 statutory scheme that gave officials discretion in the strong sense, such that they
could grant or deny licenses as they saw fit, would plainly not pass muster. But
almost any regime that describes standards that must be applied to a wide
variety of individual cases creates a certain bounded area of discretion, in a
weaker sense, in determining whether those standards are met. As the Supreme
Court recognized in Bruen, licensing statutes that require “good moral
character,” defined in terms of a person’s ability to carry weapons without
creating danger to themselves or others based on whether they are law abiding
and responsible persons, are permissible, even if they inevitably rely on the
judgment of the licensing authorities in determining whether than criterion has
been met. As we explain below, moreover, statutes that grant that kind of
limited discretion in applying defined criteria are consistent with our tradition of
firearms regulation.
The State has identified firearm licensing schemes from the years
immediately following ratification of the Fourteenth Amendment that authorized
a local official to issue permits in his limited discretion without the kind of
86 objective criteria the district court deemed necessary. 27 There are a lot of them. 28
Many schemes omit criteria altogether, requiring only “written permission from
the mayor,” 29 or a “special written permit from the Superior Court.” 30 See, e.g.,
Helena, Mont., Ordinance No. 43: Concealed Weapons, § 1 (June 14, 1883), in The
Charter and Ordinances of the City of Helena, Montana 103–04 (Alexander C. Botkin
ed., 1887); Fresno, Cal., Ordinance No. 6, § 25 (Nov. 5, 1885), printed in The Fresno
Weekly Republican, Nov. 7, 1885, at 3; Monterey, Cal., Ordinance No. 49: To
Prohibit the Carrying of Concealed Weapons, § 1 (Jan. 5, 1892), printed in The
Ordinances of the City of Monterey 112 (1913).
27 As we explained supra, evidence from Reconstruction regarding the scope of the right to bear arms incorporated by the Fourteenth Amendment is at least as relevant as evidence from the Founding Era regarding the Second Amendment itself. The period of relevance extends past 1868 itself. Laws enacted in 1878 or even 1888 were likely drafted or voted on by members of the same generation that ratified the Fourteenth Amendment and thus remain probative as to the meaning of that Amendment. 28 The State—and this Court—relies on and incorporates by reference the catalog of 43 licensing ordinances compiled in an amicus brief filed with the Supreme Court in Bruen by historian Patrick J. Charles. See Brief of Amicus Curiae Patrick J. Charles in Support of Neither Party, App’x 1, N.Y. State Rifle and Pistol Ass’n v. Bruen, 142 S. Ct. 2111 (2022) (No. 20-843) (hereinafter, “Charles Amicus Br.”). We cite only a sample of Mr. Charles’s list, which he in turn represents to be “only a sample of the nearly 300 laws governing the carrying of concealed and dangerous weapons that [he] has researched.” Id. at App’x 1. We also note a (partially co- extensive) list of discretionary city licensing regimes in Patrick J. Charles, The Faces of the Second Amendment Outside the Home, Take Two: How We Got Here and Why It Matters, 64 CLEV. ST. L. REV. 373, 419 n.245 (2016). 29 THE MUNICIPAL CODE OF ST. LOUIS § 8 (1881). Spokane, Wash., Ordinance No. A544, § 1 (Jan. 2, 1895), reprinted in THE MUNICIPAL 30
CODE OF THE CITY OF SPOKANE, WASHINGTON 309–10 (Rose M. Denny ed., 1896).
87 Other schemes placed limits on eligibility that embedded a certain amount
of discretion. For instance, an influential scheme in California authorized “[t]he
Police Commissioners [to] grant written permission to [certain] peaceable
person[s] . . . to carry concealed deadly weapons for [their] own protection.” San
Francisco, Cal., Order No. 1,226: Prohibiting the Carrying of Concealed Deadly
Weapons § 1 (July 9, 1875), reprinted in SAN FRANCISCO MUNICIPAL REPORTS 886
(1875); accord, e.g., Sacramento, Cal., Ordinance No. 84: Prohibiting the Carrying
of Concealed Deadly Weapons, Apr. 24, 1876, reprinted in CHARTER AND
ORDINANCES OF THE CITY OF SACRAMENTO 173 (R.M. Clarken ed., 1896); Oakland,
Cal., Ordinance No. 1141: An Ordinance to Prohibit the Carrying of Concealed
Weapons, § 1 (May 15, 1890), reprinted in GENERAL MUNICIPAL ORDINANCES OF
THE CITY OF OAKLAND, CAL. (Fred L. Burton ed., 1895). Indeed, the United States
Congress enacted a similar scheme in 1892. See An Act to Punish the Carrying or
Selling of Deadly or Dangerous Weapons Within the District of Columbia, and
for Other Purposes, 27 Stat. 116, 116–17, ch. 159 (1892).
The State draws special attention to the history of discretionary licensing
regimes in New York. Decades before the state-wide Sullivan Act in 1911,
localities from around New York were enacting permitting schemes that
88 depended on individualized assessments by local officials. See, e.g., J.A. 441–42
(New York, N.Y., An Ordinance to Regulate the Carrying of Pistols in the City of
New York, § 2 (Feb. 12, 1878), printed in PROCEEDINGS OF THE BOARD OF
ALDERMEN OF THE CITY OF NEW YORK 612–16 (1878)) (“1878 New York
Ordinance”) (“Any person . . . who has occasion to carry a pistol for his
protection, may apply of the officer in command at the station-house of the
precinct where he resides, and such officer, if satisfied that the applicant is a
proper and law-abiding person, shall give said person a recommendation to the
Superintendent of Police . . . who shall issue a permit to the said person allowing
him to carry a pistol of any description.”); J.A. 475 (Brooklyn, N.Y., Ordinance to
Regulate the Carrying of Pistols, §§ 2, 4 (Oct. 25, 1880), printed in BROOKLYN
DAILY EAGLE, Oct. 26, 1880) (“1880 Brooklyn Ordinance”) (similar); J.A. 482
(Elmira, N.Y., Official Notice (July 18, 1892), printed in ELMIRA DAILY GAZETTE
AND FREE PRESS, July 22, 1892) (similar); J.A. 478–79 (An Act to Revise the Charter
of the City of Buffalo, 1891 N.Y. Laws 127, 176–77, ch. 105, § 209) (“The
superintendent [of police] may, upon application in writing, setting forth under
oath sufficient reasons, issue to any person a permit in writing to carry any pistol
or pistols in the city. . . . No person . . . shall, in the city, carry concealed upon or
89 about his person, any pistol or revolver . . . without having first obtained a
permit, as hereinbefore provided.”).
These regimes were among the earliest concealed-carry-licensing schemes
enacted in the nation. 31 For as long as licenses to carry concealed weapons have
been issued in this country, the officials administering those systems have been
tasked with making individualized assessments of each applicant. See also
Clayton E. Cramer & David B. Kopel, Shall Issue: The New Wave of Concealed
Handgun Permit Laws, 62 TENN. L. REV. 679, 681 (1995) (noting that the first
permitting statutes “were broadly discretionary; while the law might specify
certain minimum standards for obtaining a permit, the decision whether a permit
should be issued was not regulated by express statutory standards”). Nor was
discretionary licensing a transient measure: cities and states continued enacting
such schemes into the early-twentieth century and beyond. See generally Charles
31 Licensing schemes were a post-Civil War phenomenon. E.g., Brief of Amici Curiae Profs. of Hist. & L. in Supp. of Resps. at 22, N.Y. State Rifle and Pistol Ass’n v. Bruen, 142 S. Ct. 2111 (2022) (No. 20-843) (hereinafter, “Profs.’ Amicus Br.”) (“In the latter half of the nineteenth century, many municipalities also began to enact licensing schemes, pursuant to which individuals had to obtain permission to carry dangerous weapons in public.”); Charles Amicus Br. at 7–9; Saul Cornell, History and Tradition or Fantasy and Fiction: Which Version of the Past Will the Supreme Court Choose in NYSRPA v. Bruen?, 49 HASTINGS CONST. L.Q. 145, 168–71 (2022). See also infra.
90 Amicus Br. at 13–17 & App’x 2. 32 Indeed, the record thus suggests that the kind
of purely “objective” licensing scheme which the district court deemed required
by history and tradition is in fact a historical outlier. 33
The geographical breadth of licensing schemes that confer a measure of
discretion likewise demonstrates their place in “our whole experience as a
32 Twentieth-century evidence is not as probative as nineteenth century evidence because it is less proximate to the ratification of the 14th Amendment. Bruen cautions “against giving postenactment history more weight than it can rightly bear.” 142 S. Ct. at 2136. But such laws are not weightless. The Bruen Court’s concern was with temporally distant laws inconsistent with prior practices. See id. at 2137 (“[P]ost-ratification adoption or acceptance of laws that are inconsistent with the original meaning of the constitutional text obviously cannot overcome or alter that text.” (quotation omitted); see also id. at 2138 (“[T]o the extent later history contradicts what the text says, the text controls.” (emphasis added)). In contrast, when laws which otherwise might be too recent when considered in isolation nonetheless reflect previously settled practices and assumptions, they remain probative as to the existence of an American tradition of regulation. 33 “Laws granting the authorities discretion over the issue of concealed carry permits, ‘may issue’ laws, predominated in the early post-World War II period: by 1960, only two states, Vermont and New Hampshire, had ‘shall issue’ laws.” Richard S. Grossman & Stephen A. Lee, May Issue Versus Shall Issue: Explaining the Pattern of Concealed Carry Handgun Laws, 1960–2001, 26 CONTEMP. ECON. POL. 198, 200 (2008); see also Robert J. Spitzer, Gun Law History in the United States and Second Amendment Rights, 80 L. & CONTEMP. PROBS. 55, 62 (2017) (“[A]s late as 1981, only two states of the union had loose, ‘shall issue’ carry laws . . . . Nineteen states barred concealed gun carrying entirely, and twenty-eight states had ‘may issue’ laws, where states have great discretion as to whether to issue carry permits. (footnotes omitted)); Cramer & Kopel, supra, at 680 (noting that in 1995 “[a]bout one-third of all states have adopted laws or practices . . . requir[ing] that after passing a background check (and sometimes a firearms safety class), eligible persons must be granted [a concealed-carry] permit if they apply”). The district court appears to have based its conclusion that purely objective licensing schemes are required by history on Bruen’s statement that non-discretionary licensing regimes are dominant now. See Antonyuk, 639 F. Supp. 35 at 302 But Bruen made no historical claim about discretionary licensing; the fact that a given form of regulation is popular now is irrelevant to whether a different regulation is part of the nation’s tradition of firearm regulation. In any event, as we explain below, we count at least twenty-three licensing regimes that still call for discretionary judgments by licensing officers.
91 Nation,” Chiafalo, 140 S. Ct. at 2326 (quoting NLRB v. Noel Canning, 573 U.S. 513,
557 (2014)); see supra Background § III.E. Cities from across the country, from San
Francisco and Eureka to New York and Elmira, adopted similar discretionary
permitting schemes. That widespread adoption by diverse and distant localities
under varying circumstances suggests that these policies enjoyed broad popular
support and were understood at the time to be consistent with the Second and
Fourteenth Amendments. See Saul Cornell, The Right to Regulate Arms in the Era of
the Fourteenth Amendment: The Emergence of Good Cause Permit Schemes in Post-Civil
War America, 33 U.C. DAVIS. L. REV. ONLINE 65, 85 (2021).
Strikingly, moreover, these laws and ordinances did not merely exist –
they appear to have existed without constitutional qualms or challenges.
Plaintiffs cite, and we are aware of, no case in which laws of this type were found
by courts to be inconsistent with federal or state constitutional provisions
guaranteeing the right to bear arms before the Supreme Court’s 21st century
reinvigoration of the Second Amendment in Heller. Indeed, the record not only
lacks any successful challenges to licensing schemes on such grounds, but it also
lacks any challenges at all.
92 It is unnecessary to consider whether licensing was a uniform practice in
this period, nor whether officials’ limited discretion was unanimously allowed.
Bruen instructs us to determine whether a given modern law is part of the
nation’s tradition of firearm regulation, not the sum of it. That tradition is
multiplicitous, consisting of many different attempts to balance individual
freedom with public safety. And based on the evidence presented here, a branch
of the tradition—dating to the years immediately following the ratification of the
Fourteenth Amendment—has employed laws that condition the ability to
lawfully carry a concealed weapon on obtaining a permit based in part on
individualized assessment by a local official, frequently under lesser constraints
than those in the CCIA or in the very similar statutes that the Bruen Court cited
as acceptable. Given the frequency of such regulations, and the absence of
successful constitutional challenges to them, we find it impossible to read out of
our historical tradition the longstanding and established restriction of concealed
carry licenses by those who present a danger to themselves or others, or who
otherwise cannot be characterized as “law abiding, responsible citizens” simply
because such regulations require some individualized application of a clearly
delineated standard.
93 * * *
The district court discounted the evidence discussed above based on
categorical rules it derived from Bruen. For instance, the district court relied on
the “rule” that city ordinances are of lesser weight than state laws, Antonyuk, 639
F. Supp. 3d at 300, 306 n.81, and that the relevant laws are those that governed a
certain percentage of the nation’s population, id. at 301. 34 But Bruen merely
warns against allowing “the bare existence of . . . localized restrictions” to
“overcome the overwhelming evidence of an otherwise enduring American
tradition.” 142 S. Ct. at 2154. It does not suggest that local laws are not
persuasive in illuminating part of the nation’s tradition of firearm regulation.
Similarly, the number of people subject to a given law is only one clue to whether
said law may have been an outlier unable to refute a contrary tradition. See id. at
2154–56.
The district court also seemed to draw strong and specific inferences from
historical silence, reasoning that, if the submitted record lacks legislation from a
particular place, it must be because the legislators there deemed such a
34 The district court reasonably sought methodological guidance in Bruen, a challenge undertaken only a few short months after that decision was handed down. We have no doubt that the court’s analysis was driven by a desire to apply Bruen faithfully—we now play our part by offering further guidance for how to assess the historical record future in cases.
94 regulation inconsistent with the right to bear arms. That inference is not
commanded by Bruen, nor is it sound. There are many reasons why the
historical record may not evince statutory prohibitions on a given practice. See
supra Background § III.E; see also Binderup, 836 F.3d at 369 (Hardiman, J.,
concurring in part and concurring in the judgments) (“The paucity of eighteenth
century gun control laws might have reflected a lack of political demand rather
than constitutional limitations.” (quoting Nelson Lund, The Second Amendment,
Heller, and Originalist Jurisprudence, 56 UCLA L. REV. 1343, 1354 (2009)).
Moreover, our national tradition of firearms regulation has taken a multiplicity
of forms, and a jurisdiction’s use of another type of regulation may have
obviated the need to enact a regulation analogous to the contemporary one at
issue. For example, the city of Oakland operated a permitting system that
restricted armed carriage, under which only seventy Oakland residents, out of a
population of around 48,000, held a license in 1889. Carry Arms: Those Who Have
Permits to Carry Concealed Weapons, OAKLAND TRIBUNE (Cal.), July 20, 1889, at 1;
Oakland Census Data for 1860–1940, BAY AREA CENSUS,
http://www.bayareacensus.ca.gov/cities/Oakland40.htm [https://perma.cc/JJM2-
3W3T]. Given the relatively small population that was licensed to be armed
95 within the city’s limits, Oakland’s legislators likely would not have seen the need
to also designate certain locations as sensitive places where armed carriage was
absolutely prohibited. Bruen calls on courts to undertake an inquiry that sounds
fundamentally in history rather than law: a court must ask itself what people of
the past thought (or even assumed) about the right to bear arms and the
regulations that comport with that right. And the Supreme Court understood
that such historical analysis is marked by skepticism and nuance, rather than
authority and precept. “[H]istorical analysis can be difficult; it sometimes
requires resolving threshold questions, and making nuanced judgments about
which evidence to consult and how to interpret it.” Bruen, 142 S. Ct. at 2130
(quoting McDonald, 561 U.S. at 803–804 (Scalia, J., concurring)). It proceeded
accordingly, declining to establish ironclad rules and instead noting
considerations which would be “relevant evidence,” id. at 2131, or “could be
evidence,” id., or “may not illuminate the scope of the right if” certain conditions
are present, id. at 2136.
With that perspective, we are not troubled that many licensing schemes
originated in the cities of the post-Civil War period. Licensing was the result of
changes in American society in the nineteenth century, including urbanization
96 and concomitant shifts in norms of governance. The post-Civil War world was
transformed by rapid urbanization. 35 And city people have long had a different
relationship with guns than their rural neighbors, a relationship generally
marked by greater concern about interpersonal violence. See Joseph Blocher,
Firearm Localism, 123 YALE L. J. 82, 98–103, 112–21 (2013).
That was true in the Reconstruction era as well: New York’s 1878
concealed-carry ordinance made explicit the connection between the new urban
environment and the bearing of arms as a potential problem; it warned that the
disorderly and the intoxicated were going about carrying pistols, “insult[ing]
35 In 1790, the nation’s largest urban area (New York City) had a population of 33,000. In 1880, the census counted 1,206,299 people, not to mention a further half-million across the East River in still-independent Brooklyn. See Campbell Gibson, Population of the 100 Largest Cities and Other Urban Places In The United States: 1790 to 1990, tbls. 2 & 11 (U.S. Census Working Paper No. POP-WP027), available at https://www.census.gov/library/working-papers/1998/demo/POP- twps0027.html#urban [https://perma.cc/KK43-HBEA]. The nation was 5.1% urban in 1790; 28.2% in 1880. Urban expansion was especially concentrated in the Northeast, where 50.8% of people were city-dwellers in 1880. U.S. Census Bureau, United States Summary: 2010 — Population and Housing Unit Counts, at 20 tbl. 10 (Sept. 2012), available at https://www2.census.gov/library/publications/decennial/2010/cph-2/cph-2-1.pdf [https://perma.cc/ZJF5-976W]. As historian Eric Monkkonen summarized it: In both structure and form, the modern American city was born in the nineteenth century, a century of dramatic transformation on practically every front. . . . [T]he century-long period of local economic and population growth from 1830 to 1930 saw a dynamic and historically unprecedented expansion of cities—in absolute size, in proportion, and in number. ERIC H. MONKKONEN, AMERICA BECOMES URBAN 4–5 (1988).
97 respectable citizens, and draw[ing] a pistol on any and every occasion, while the
better and law-abiding class try to obey the laws and protect themselves with
nothing but nature’s weapons.” J.A. 443; see also J.A. 440 (New York, N.Y., An
Ordinance to Regulate the Carrying of Pistols in the City of New York, committee
report) (“As to the necessity for the passage of the ordinance there can be no
question. The reckless use of fire-arms by the dangerous classes in this city is
proverbial, and this measure of repression seems to be necessary.”). The
problem was made more serious by the increased lethality of firearms in the
latter decades of the nineteenth century, see Profs.’ Amicus Br. at 19
(“[T]echnological advances spurred by the Civil War made guns more lethal and
available.”): one military historian has estimated that firearms became ten times
more lethal over the course of the nineteenth century, Trevor Nevitt Dupuy, The
Evolution of Weapons and Warfare 92, 286–89 (1984). 36
36Similarly, historian Jack Rakove has questioned whether the Founders would have even recognized the problem confronting policymakers of today (or of the post-Civil War period): [B]ecause eighteenth-century firearms were not nearly as threatening or lethal as those available today, we . . . cannot expect the discussants of the late 1780s to have cast their comments about keeping and bearing arms in the same terms that we would. . . . Guns were so difficult to fire in the eighteenth century that the very idea of being accidentally killed by one was itself hard to conceive. Indeed, anyone wanting either to murder his family or protect his
98 Accompanying the nineteenth-century explosive growth of cities was the
development of governance institutions that were more tightly organized,
specialized, and bureaucratic than those required by the towns of the late
eighteenth and early nineteenth centuries. “The transformation of the state is
one of the most prominent themes of nineteenth-century American history,” and
“[f]or the most part, it is a story of the expansion and increasing complexity of
government and of the professionalization and decreasing popular character of
politics.” 37 It is no coincidence that true police forces come into being in this
period, first in London, and then in Boston, New York, and Philadelphia in the
1830s. 38
home in the eighteenth century would have been better advised (and much more likely) to grab an axe or knife than to load, prime, and discharge a firearm. Jack N. Rakove, The Second Amendment: The Highest State of Originalism, 76 CHI.-KENT L. REV. 103, 110 (2000). 37 ALLEN STEINBERG, THE TRANSFORMATION OF CRIMINAL JUSTICE: PHILADELPHIA 1800- 1880, at 2 (1989); see also Charles Amicus Br at 7 (“It was not until the nineteenth century that the adaptable and discretionary common law model of criminal law enforcement began to develop into more tangible, concrete forms.” (citing PATRICK J. CHARLES, ARMED IN AMERICA: A HISTORY OF GUN RIGHTS FROM COLONIAL MILITIAS TO CONCEALED CARRY 141–47 (2019)). 38 See SAMUEL WALKER & CHARLES M. KATZ, THE POLICE IN AMERICA: AN INTRODUCTION 33–34 (9th ed., 2018); Eric H. Monkkonen, History of Urban Police, 15 CRIME & JUST. 547, 553 (1992) (“Uniformed police spread across the United States to most cities in the three decades between 1850 and 1880. . . . [I]n general, a city’s rank size among American cities determined the order in which police were adopted, the spread of police innovation following a diffusion curve typical for all sorts of innovations.”).
99 These new institutions and ideas shaped the response to increasingly-
lethal guns in increasingly-populous cities and naturally led to a greater resort to
legislation and regulation. 39 Police-administered licensing schemes evinced a
degree of administrative sophistication typical of the late-nineteenth century
cities but unusual in the Founding Era. Cf. J.A. 440–41 (1878 New York
Ordinance); J.A. 475 (1880 Brooklyn Ordinance). More generally, the growth of
permitting schemes—as opposed to prohibitory laws enforced in the courts 40—
reflected the developing philosophy of proactive local government. 41 In sum,
“[o]ver the course of the nineteenth century, as America modernized and
urbanized, professional police forces, police courts, and administrative agencies
took over the job of maintaining public order from justice[s] of the peace. The
39See Charles Amicus Br. at 8–9 (“In the mid-nineteenth century, to meet changing public safety concerns as well as changing social and cultural norms, laws governing the carrying of concealed and dangerous weapons once again began to evolve.”). 40 For those other models of concealed carry restrictions, see, e.g., Saul Cornell, The Right to Carry Firearms Outside of the Home: Separating Historical Myths from Historical Realities, 39 FORDHAM URB. L.J. 1695, 1719–25 (2012); Profs.’ Amicus Br. at 14–18; Charles Amicus Br. at 9, App’xs 3 & 4. 41 See Steinberg, supra, at 3 (contrasting the late-nineteenth-century’s “administrative and policy-making state” with the “reactive, particularistic, and extremely informal” “early- nineteenth-century local state”); Patrick J. Charles, The Second Amendment and the Basic Right to Transport Firearms for Lawful Purposes, 13 CHARLESTON L. REV. 1285, 146 (“[B]eginning in the 1860s, corresponding with the growth of statutory law, [a surety system] was gradually phased out in favor of two legal alternatives. . . . The first legal alternative was armed carriage licensing laws.”).
100 new permit-based scheme emerged in the context of these larger changes in
criminal justice.” 42
In context, it makes sense that licensing regimes were instituted by cities
rather than states, and that such schemes were not enacted until after the Civil
War. We therefore see nothing in either the timing or urban origins of limited
discretionary licensing regimes to justify discounting this tradition of American
firearm regulation, which can be documented in the aftermath of the ratification
of the Fourteenth Amendment.
For the reasons above, we disagree with the district court’s conclusion that
licensing regimes that afford a modicum of discretion to issuing officers are not
part of the nation’s tradition of firearm regulation and that the character
provision thus violates the Second Amendment. We need not determine at what
point a regime grants so much untethered discretion to licensing authorities as to
be unconstitutional on its face; it is sufficient to conclude, as we do in the
following section, that the CCIA’s definition of ‘good moral character’ in terms of
public safety, drawn from statutes that Bruen treats as likely constitutional, does
not approach that point.
42 Cornell, supra at 171 (citing ERIC H. MONKKONEN, AMERICA BECOMES URBAN 98–108 (1988)).
101 3. Bruen-Based Challenge to Licensing-Officer Discretion
Plaintiffs also attack the discretionary aspect of the character requirement
on a different basis. They assert that Bruen announced a freestanding rule of
constitutional law that requires states to determine eligibility for a gun license
using only a checklist that wholly precludes individualized judgments. This
claim is based on an overreading of one footnote in Bruen:
To be clear, nothing in our analysis should be interpreted to suggest the unconstitutionality of the 43 States’ “shall- issue” licensing regimes, under which a general desire for self-defense is sufficient to obtain a permit. Because these licensing regimes do not require applicants to show an atypical need for armed self-defense, they do not necessarily prevent law-abiding, responsible citizens from exercising their Second Amendment right to public carry. Rather, it appears that these shall-issue regimes . . . are designed to ensure only that those bearing arms in the jurisdiction are, in fact, law-abiding, responsible citizens. And they likewise appear to contain only narrow, objective, and definite standards guiding licensing officials rather than requiring the appraisal of facts, the exercise of judgment, and the formation of an opinion— features that typify proper-cause standards like New York’s.
142 S. Ct. at 2138 n.9 (emphasis added; alterations adopted; quotation marks, and
internal citations omitted).
Plaintiffs’ rule precluding all discretion cannot be squared with Bruen’s
discussion of “shall-issue” regimes, even if one thought that the Court would
102 announce a sweeping prohibition of discretion in a single sentence of a footnote
designed to clarify the limited scope of its decision. Of the forty-three licensing
regimes that Bruen described as consistent with its analysis, more than a dozen
confer some measure of discretion on licensing officers, with many using terms
that are nearly identical to New York’s character provision. If “nothing in
[Bruen] should be interpreted to suggest the unconstitutionality of” those
licensing schemes, then Bruen did not totally foreclose discretion and does not
require invalidation of New York’s character requirement. 142 S. Ct. at 2138 n.9.
Earlier in Bruen, the Court explained that three states whose licensing
regimes use “discretionary criteria”—Connecticut, Delaware, and Rhode
Island—are nonetheless “shall-issue” jurisdictions (and thus, per footnote 9,
consistent with Bruen). 43 Connecticut licensing officers have “discretion to deny
a concealed-carry permit to anyone who is not a ‘suitable person,’” Bruen, 142 S.
Ct at 2123 n.1 (quoting CONN. GEN. STAT. § 29-28(b) (2021)), but because
Connecticut courts have supplied a narrowing gloss on that broad standard,
Connecticut nonetheless qualified as a “shall-issue” state. Id. Crucially,
43Tellingly, other commentators on licensing regimes have categorized these states’ regimes as “may-issue.” E.g., Noah C. Chauvin, The Constitutional Incongruity of “May-Issue” Concealed Carry Permit Laws, 31 UNIV. FLA. J. L. & PUB. POL’Y 227, 230 n.23, 237 (2021).
103 Connecticut’s gloss on the suitability standard is nearly identical to the CCIA’s
definition of “good moral character,” excluding only those “individuals whose
conduct has shown them to be lacking the essential character o[r] temperament
necessary to be entrusted with a weapon.” Id. (quoting Dwyer, 475 A.2d at 260).
Bruen also classifies Delaware as a shall-issue jurisdiction notwithstanding
its inherently discretionary “good moral character” provision, Bruen, 142 S. Ct. at
2123 n.1, which (like New York) requires that the applicant be “of . . . good moral
character.” Del. Code Ann. tit. 11, § 1441(a) (2022); see also id. § 1441(a)(2)
(requiring five character references attesting to the applicant’s “sobriety and
good moral character” and “good reputation for peace and good order in the
community”). Finally, the Court explained that, though Rhode Island (like
Connecticut) requires that an applicant be “a suitable person to be so licensed,”
R.I. GEN.. LAWS § 11-47-11(a) (2002), its regime is “shall-issue” because (again like
Connecticut) “suitability” does not require “[d]emonstration of a proper showing
of need.’” Bruen, 142 S. Ct. at 2123 n.1 (quoting Gadomski, 113 A.3d at 392).
Furthermore, without specific discussion, Bruen categorized as “shall-
issue” jurisdictions at least twelve other licensing schemes that call for
discretionary judgments, such as whether the applicant “causes justifiable
104 concern for public safety,” ALA. CODE § 13A-11-75(c)(11) (2021); “is likely to use a
weapon unlawfully,” IOWA CODE ANN. § 724.8(3) (West 2011); “likely . . . will
present a danger to self or others if the applicant receives a permit,” COLO. REV.
STAT. ANN. § 18-12-203(2) (West 2023), etc. 44 Similarly, many Bruen-compliant
states forbid issuing a concealed carry license to individuals who, for example,
“chronically or habitually abuse a controlled substance to the extent that his or
her normal faculties are impaired,” ARK. CODE ANN. § 5-73-309(7)(A) (2021);
44 See also GA. CODE ANN. § 16-11-129(b.1)(3) (West 2022) (permitting court to grant exception to general rule against issuing a license to individual with history of mental illness if court finds “that the person will not likely act in a manner dangerous to public safety in carrying a weapon and that granting the relief will not be contrary to the public interest”); ME. REV. STAT. ANN., TIT. 25, § 2003(1) (2022) (“good moral character”); MINN. STAT. § 624.714 subd. 6(a)(3) (West 2023) (“substantial likelihood that the applicant is a danger to self or the public if authorized to carry a pistol under a permit”); MONT. CODE ANN. § 45-8-321(2) (West 2023) (“reasonable cause to believe that the applicant is mentally ill, mentally disordered, or mentally disabled or otherwise may be a threat to the peace and good order of the community to the extent that the applicant should not be allowed to carry a concealed weapon”); MO. REV. STAT. § 571.101 (2016) (applicant eligible if he “[h]as not engaged in a pattern of behavior . . . that causes the sheriff to have a reasonable belief that the applicant presents a danger to himself or others”); 18 PA. STAT. AND CONS. STAT. ANN. § 6109(e)(1)(i) (West 2016) (“character and reputation is such that the individual would be likely to act in a manner dangerous to public safety”); id. § 6109(d)(3) (authorizing the sheriff to “investigate whether the applicant’s character and reputation are such that the applicant will not be likely to act in a manner dangerous to public safety”); TEX. GOV’T CODE ANN. § 411.172(a)(7) (West 2021) (“not incapable of exercising sound judgment with respect to the proper use and storage of a handgun”); UTAH CODE ANN. § 53-5-704(3)(a) (West 2022) (“reasonable cause to believe that the applicant or permit holder has been or is a danger to self or others as demonstrated by evidence” like past violent behavior); WYO. STAT. ANN. § 6-8-104(g) (West 2021) (“reasonably likely to be a danger to himself or others, or to the community at large as a result of the applicant’s mental or psychological state, as demonstrated by a past pattern or practice of behavior”); VA. CODE. ANN. § 18.2-308.09(13) (West 2021) (“likely to use a weapon unlawfully or negligently to endanger others”).
105 “suffer from a physical or mental infirmity that prevents the safe handling of a
handgun,” N.C. GEN. STAT. ANN. § 14-415.12(a)(3) (West 2022); or exhibit a
“condition relating to or indicating mental instability or an unsound mind,”
OKLA. STAT. ANN. tit. 21, § 1290.10(6) (West 2019). These are plainly
determinations that “requir[e] the appraisal of facts, the exercise of judgment,
and the formation of an opinion,” Bruen, 142 S. Ct. at 2138 n.9 (quotation marks
omitted). 45
The same modicum of discretion as New York’s character requirement is
embedded in the licensing schemes discussed above. Indeed, Delaware uses the
very phrase “good moral character,” and the CCIA’s definition of that term
matches Connecticut law nearly verbatim. Yet Bruen expressly denominated those
states (not to mention the dozen others that call for discretionary judgments) as
“shall-issue jurisdictions.” It therefore cannot be that Bruen even “suggest[s]”—
45 See also FLA. STAT. ANN. § 790.06 (2023); IDAHO CODE ANN. § 18-3302(11)(f) (West 2020); LA. STAT. ANN. § 40:1379.3(C)(8) (2023); MISS. CODE. ANN. § 45-9-101(2)(e), (f) (West 2023); N.M. STAT. ANN. § 29-19-4(A)(9) (West 2023); 18 PA. STAT. AND CONS. STAT. ANN. § 6109(e)(1)(v)– (vii); TEX. GOV’T CODE ANN. § 411.172(a)(8); WYO. STAT. ANN. § 6-8-104(b)(vi). Many of these statutes include rebuttable presumptions or other guidance for the licensing officers’ determination, e.g., LA. STAT. ANN. § 40:1379.3(C)(8) (establishing presumption that applicant “chronically and habitually uses alcoholic beverages to the extent that his normal faculties are impaired” if he has been convicted of a DUI or admitted to treatment for alcoholism in the past five years), but all ultimately require some exercise of discretion.
106 let alone holds—that a licensing regime which confers some limited degree of
discretion is facially invalid. 46
Footnote 9 is better read as addressing laws that combine discretion with a
special-need requirement. That combination—present in the invalid proper-
cause regime but absent in the “shall-issue” regimes—separates unconstitutional
from permissible licensing regimes. Bruen intimated as much in footnote 1:
Rhode Island’s discretionary scheme was “shall-issue” solely because
“[d]emonstration of a proper showing of need” was not required. Bruen, 142 S.
Ct. at 2123 n.1 (internal quotation omitted). Similarly, the Court described “shall-
issue” regimes in the first sentence of footnote 9 as those “under which ‘a general
desire for self-defense is sufficient to obtain a [permit].’” Bruen, 142 S. Ct. at 2138
46 Justice Kavanaugh’s concurrence can be read to posit a categorically anti-discretion view. See Bruen, 142 S. Ct. at 2162 (Kavanaugh, J., concurring) (New York “may continue to require licenses for carrying handguns for self-defense so long as [it] employ[s] objective licensing requirements like those used by the 43 shall-issue states”) (emphasis added). But for the reasons stated above, such a view, if the term “objective” is read strictly literally, is incompatible with footnotes 1 and 9 in the majority opinion (which Justice Kavanaugh joined in full). Further, Justice Kavanaugh’s concurring opinion expressly approved of the licensing requirements “used by the 43 shall-issue states,” many of which, as discussed above, call for the exercise of discretion by licensing officials. Id. As the district court pointed out, many 18th- century restrictions aimed at keeping firearms away from people perceived as dangerous were based on readily ascertainable – but overbroad and discriminatory – racial, religious, or political categories. S.A. 99. Judgments based on “objective” characteristics are not inherently more fair than individualized determinations.
107 n.9 (alteration adopted) (quoting Drake v. Filko, 724 F.3d 426, 442 (3d Cir. 2013)
(Hardiman, J., dissenting)). 47 And footnote 9 is appended to a sentence which
faults New York’s prior regime only for “limiting public carry only to those law-
abiding citizens who demonstrate a special need for self-defense.” Id. at 2138.
At the very least, Bruen teaches that mere use of a “good moral character”
requirement does not justify facial invalidation. Bruen gave great weight to state
court interpretations of the Connecticut and Rhode Island standards, which
indicated that the statutes, in practice, operated as “shall-issue” regimes.
Whether such a scheme is impermissibly discretionary cannot be decided before
it has been implemented and brought before state courts. Time may disclose
whether New York’s regime under the CCIA will “operate like a ‘shall-issue’
jurisdiction,” Bruen, 142 S. Ct. at 2131 n.1, or whether it will be narrowed in
salient ways by the New York courts. Accordingly, facial invalidation is not
appropriate. See Wash. State Grange, 552 U.S. at 450 (warning against invalidating
a law before “the State has had [an] opportunity to implement [it] and its courts
47 Although the Court had earlier defined “shall-issue” regimes as those in which officials lack “discretion to deny licenses based on a perceived lack of need or suitability,” Bruen, 142 S. Ct. at 2123, the Court immediately followed that sentence with footnote 1’s explanation that Connecticut and Rhode Island are shall-issue jurisdictions, despite their suitability requirements, because “perceived lack of need” is not a valid basis to deny a license in those states.
108 have had no occasion to construe the law in the context of actual disputes . . . or
to accord the law a limiting construction”).
In sum, Bruen does not require that New York’s character requirement be
struck down by virtue of the limited discretion it affords to licensing officers.
Given the patent incompatibility between Plaintiffs’ proffered reading of footnote
9 with the remainder of the Court’s opinion, we are confident that the Court did
not establish a new rule forbidding all discretionary judgments in firearm
licensing.
* * *
For the foregoing reasons, we VACATE the district court’s preliminary
injunction: licensing officers across New York may consider whether an applicant
for a firearm license can be trusted to use that gun in a responsible, safe way.
Licensing officers nevertheless have a statutory duty to make “character”
determinations only with respect to an applicant’s potential dangerousness, and
a denial on that ground requires a written, reasoned notice of denial supported
by evidence. Where necessary, both state and federal courts are empowered to
enforce those statutory requirements and consider as-applied constitutional
challenges, thereby ensuring that individuals are not prevented from carrying a
109 gun on the basis of flimsy imputations, unsupported subjective intuitions, or
hunches about the applicant’s character. But there is currently no reason to
doubt that licensing officers across New York will approach their task with
diligence and a respect for the relevant constitutional interests.
B. The Catch-All
We vacate the district court’s injunction against the catch-all disclosure
provision for the same reason: it is not facially unconstitutional. Though we
(along with Plaintiffs and the district court) can think of situations in which the
catch-all could be abused, there are plenty of possible applications that would be
permissible.
Section 400.00(1)(o)(v) provides that “the applicant . . . shall, in addition to
any other information or forms required by the license application[,] submit . . .
such other information required by the licensing officer that is reasonably
necessary and related to the review of the licensing application.” Sloane does not
challenge a particular request made pursuant to this provision—none has been
made. Instead, he argues that the authority to seek supplemental information is
unconstitutional on its face because every application of the catch-all provision
—i.e., any request a licensing officer could make—would be an unconstitutional
110 burden on the right to bear arms. See, e.g., Bucklew v. Precythe, 139 S. Ct. 1112,
1127 (2019) (“A facial challenge is really just a claim that the law or policy at issue
is unconstitutional in all its applications.”).
However, as the district court recognized in a previous opinion in this
litigation, it surely does not violate the Constitution for a licensing officer to
request “only very minor follow-up information from an applicant (such as
identifying information).” Antonyuk v. Hochul, 635 F. Supp. 3d 111, 137 (N.D.N.Y.
2022). There seems to be statutory authority in subparagraph (1)(o)(v) for
licensing authorities to request the kind of information that one would find
required by any government form, such as a driver’s license number, social
security number, or previous name. See N.Y. Penal L. § 400.00(3) (mandating
only that the license application state the applicant’s name, date of birth,
residence, occupation, and citizenship status). The catch-all therefore has a
“plainly legitimate sweep.”
The district court struck down this provision (as it did the character
requirement) as providing licensing officials with “unbridled discretion.”
Antonyuk, 639 F. Supp. 3d at 312. But neither the history of licensing regimes nor
Bruen itself supports the conclusion that the conferral of some discretion to a
111 licensing officer to request reasonable supplementary information is
unconstitutional. Given that allowing discretionary denials of a license is part of
the nation’s tradition of firearm regulation, there can be no constitutional
problem with conferring the lesser discretion to ask for reasonable
supplementary information.
As-applied challenges to particular requests made pursuant to the catch-all
provision remain viable. There surely exist some possible requests which would
unconstitutionally burden the right to bear arms: the reader can no doubt
conceive of apt hypotheticals. But administrative, state, and federal remedies
will be available to an applicant who is denied a license for declining to comply
with a supplementary request. A court properly presented with a Second
Amendment challenge to such a request will be able to assess whether the
information requested is sufficiently analogous to historical restrictions on
bearing arms. In addition, a disappointed applicant may argue that the licensing
officer’s request was not “reasonably necessary and related to the review of the
licensing application,” and do so either in an administrative appeal or in an
Article 78 proceeding. Federal courts generally should be wary about granting
facial challenges, which deny the opportunity for agency officials and state
112 courts to interpret, apply, or limit state laws. As the Supreme Court has
instructed, “[i]n determining whether a law is facially invalid, we must be careful
not to go beyond the statute’s facial requirements and speculate about
hypothetical or imaginary cases. The State has had no opportunity to implement
[the law], and its courts have had no occasion to construe the law in the context
of actual disputes . . , or to accord the law a limiting construction . . . .” Wash.
State Grange, 552 U.S. at 449–50 (internal quotation marks and citations omitted).
But no such request for supplementary information is before us: Sloane
chose to challenge the law on its face. And for the reasons stated above, a
challenge so framed fails.
C. The Cohabitant Requirement
N.Y. Penal Law § 400.00(1)(o)(i) requires that an applicant (i) identify and
provide contact information for their current spouse or domestic partner and any
adult cohabitants, and (ii) disclose whether minors reside in the applicant’s
home. This provision is intended to “facilitate inquiries to the applicant’s close
associates for information relevant to the good-moral-character evaluation and
assist in identifying red flags that may cast doubt on the applicant’s ability to use
firearms safely.” Antonyuk Nigrelli Br. at 40. Plaintiffs argue—and the district
113 court held—that this requirement is unconstitutional on its face. We disagree
and vacate the district court’s injunction as to that provision.
The district court itself recognized the existence of a “sufficiently
established and representative . . . tradition of firearm regulation based on
reputation (for example, by a reasonable number of character references).”
Antonyuk, 639 F. Supp. 3d at 306. It accordingly upheld New York’s requirement
that applicants provide “four character references who can attest to the
applicant's good moral character . . . .” N.Y. Penal L. § 400.00(1)(o)(ii); see
Antonyuk, 639 F. Supp. 3d at 305–07. Plaintiffs do not challenge either conclusion
here. In our view, disclosure of one’s cohabitants (in part for the purpose of
identifying references regarding the applicant’s trustworthiness) is tantamount
to the character-reference provision upheld by the district court. If the character-
reference requirement is consistent with a historical tradition of firearm
regulation, how can the cohabitant provision’s requirement of a limited number
of additional character references be inconsistent with that tradition? 48
48The district court distinguished the cohabitant requirement from a character-reference requirement on the ground that the latter dealt with the applicant’s public reputation while the former requires disclosure of individuals who may only know about private reputation. See Antonyuk, 639 F. Supp. 3d at 307. We are not sure such a distinction is a coherent one. Nor is it meaningful in the context of assessing the burden on the applicant’s rights. The information
114 More generally, we have already explained that it is constitutional for a
state to make licensing decisions by reference to an applicant’s “good moral
character,” at least where that “character” is defined in terms of dangerousness.
It must therefore be constitutional for the licensing authority to investigate the
applicant’s character, and no one argues that a licensing officer may not inquire
into the applicant’s trustworthiness beyond the challenged disclosures. It
follows that the State can also require modest disclosures of information that are
relevant to that investigation and that will make the (permissible) assessment of
dangerousness more efficient and more accurate.
This provision serves that end. In addition to providing an alternate
means by which the licensing officer can learn of potential character references,
the cohabitants themselves can inform the dangerousness inquiry. An
assessment of an applicant’s “good moral character” requires an evaluation of
the whole individual. The identity and characteristics of an applicant’s
cohabitants are obviously relevant to the dangerousness of the applicant in situ.
For instance, if an applicant living with multiple young children was unwilling
or unable to secure firearms from meddling, surely a licensing officer could
demanded—the names and contact information of persons close to the applicant who can speak to his or her fitness to be licensed to wield a lethal weapon—is the same.
115 conclude that the applicant cannot “be entrusted with a weapon and to use it
only in a manner that does not endanger [him]self or others,” N.Y. Penal L.
§ 400.00(1)(b).
Of course, conditioning a firearm license on disclosures that are
burdensome and historically unprecedented can still violate the Second
Amendment—we strike down one such disclosure obligation in the next
section—but we conclude that the cohabitant requirement is not within that
category. Instead, requiring disclosure of information regarding cohabitants
imposes a similar burden as requesting supplemental identifying information, a
disclosure that we (and the district court) have already recognized is
constitutional. See supra Licensing Regime § II.C; Antonyuk, 635 F. Supp. 3d at
137. Put most simply, disclosing cohabitants is within the category of disclosures
reasonably included in the kind of background check that has long been
Concluding otherwise, the district court reasoned that the disclosure is a
burden “imposed solely for the licensing officers’ convenience” because the
requested information is theoretically already in the state’s possession in the
form of “marriage licenses, children’s birth certificates, guardianship forms,
116 school forms, adoption paperwork, applications for driver’s license or passport,
and U.S. census forms.” Antonyuk, 639 F. Supp. 3d at 307. At the outset, we have
our doubts that the relevant agencies would willingly hand over adoption
records, census forms, or school paperwork to licensing officers without
objection. That aside, we draw the opposite conclusion from the fact that the
State will usually already possess the requested information due to the
disclosure requirements of its various other agencies: that there is only a minimal
privacy interest in the identity of one’s cohabitants. Disclosing that information
again in another context is that much less burdensome. Unlike the social media
provision discussed infra, the cohabitants requirement does not demand
information with constitutional implications or in which the applicant has any
special interest in concealing.
Moreover, the “convenience” of licensing officers, properly understood, is
a legitimate consideration that, at least in this context, furthers the relevant
constitutional values. See Bruen, 142 S. Ct. at 2138 n.9 (suggesting that “lengthy
wait times in processing license applications” may “deny ordinary citizens their
right to public carry”). Background investigations should be quick and efficient,
and should not require licensing officers to engage in burdensome cross-checks
117 with other government records to learn relevant information that would result in
unnecessary delays and backlogs in processing applications, especially where
that information is routinely disclosed to the government in other contexts and is
readily available to the applicant.
For these reasons, we conclude that Plaintiffs are not likely to succeed in
their challenge to the cohabitants requirements and VACATE the district court’s
preliminary injunction against enforcing that provision.
D. The Social Media Requirement
Under N.Y. Penal L. § 400.00(1)(o)(iv), an applicant for a concealed carry
license must “submit . . . a list of former and current social media accounts of the
applicant from the past three years to confirm the information regarding the
applicant[’]s character and conduct.” The district court rejected the State’s
proffered analogues, found “the burdensomeness of this modern regulation to be
unreasonably disproportionate to the burdensomeness of any historical
analogues,” and preliminarily enjoined enforcement of the provision. Antonyuk,
639 F. Supp. 3d at 310. We generally agree. Disclosing one’s social media
accounts—including ones that are maintained pseudonymously—forfeits
anonymity in that realm. Conditioning a concealed carry license on such a
118 disclosure imposes a burden on the right to bear arms that is without sufficient
analogue in our nation’s history or tradition of firearms regulation.
At the outset, it is important to be clear about what the social media
provision does and does not require. All that this provision demands is a “list
of . . . accounts,” N.Y. Penal L. § 400.00(1)(o)(iv), which we understand to mean
the platforms the applicants use and the names under which they post (in
modern parlance, their “handles”). It does not compel applicants to provide a
password to their accounts, make their posts accessible to the public, or give a
licensing officer permission to view non-public posts (such as by “friending” the
officer or accepting a request to “follow” the applicant). No such requirements
appear in the statute, and the State has consistently disclaimed any such
obligation for applicants. See Antonyuk Nigrelli Br. at 45–46 (“The law requires
only that applicants identify the existence of recent social-media accounts . . . .
The CCIA does not permit a licensing officer to see . . . restricted social-media
accounts.”); Antonyuk Nigrelli Reply Br. at 17–18 (“[T]he social-media provision
does not require disclosure of any non-public material from social-media
accounts. . . . The provision requires only a list of accounts that would allow a
licensing official to review information that applicants have already chosen to
119 disclose publicly.”). And licensing officers, like anybody else, may review an
applicant’s public social media posts at their leisure without the aid of
§ 400.00(1)(o)(iv). This distinction appears to have been lost on Sloane, who
devotes much attention to the requirement of “access” to social media. See
Antonyuk Appellee Nigrelli Br. at 35–38.
On the other hand, compelled disclosure of pseudonymous social media
handles to a licensing officer is no small burden. It is uncontroversial that the
First Amendment protects the right to speak anonymously. Cornelio v.
Connecticut, 32 F.4th 160, 169–70 (2d Cir. 2022) (reiterating a speaker’s First
Amendment interest in anonymity and holding that a requirement that a sex
offender report all online “communication identifier[s]” burdened protected
speech); see generally McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 341–43
(1995); Talley v. California, 362 U.S. 60, 64–65 (1960). Anyone familiar with most
social media platforms knows that nearly all handles are pseudonymous, at least
to the extent that the poster’s identity is not immediately apparent. Requiring
disclosure of handles is thus to demand that applicants effectively forfeit their
right to pseudonymous speech on social media (where so much speech now
takes place).
120 That significant burden on the right to bear arms is not one for which we
see persuasive historical analogues. The State points to no historical law
conditioning lawful carriage of a firearm on disclosing one’s pseudonyms or,
more generally, on informing the government about one’s history of speech.
That historical silence is telling because, as the district court explained at length,
the Founders were familiar with pseudonymous publishing, including of
“virulent political pamphlets” and other “controversial writings,” Antonyuk, 639
F. Supp. 3d at 309. Yet neither the Founders nor successive generations required
forfeiture of a speaker’s anonymity in order to facilitate an inquiry into character
or dangerousness. This constitutes “relevant evidence that the challenged
regulation is inconsistent with the Second Amendment.” Bruen, 142 S. Ct. at
2131.
The State argues more generally that review of social media is consistent
with a tradition of licensing officers “looking to past conduct, associates, and
reputation to assess whether an applicant is law-abiding and responsible.”
Antonyuk Nigrelli Br. at 44. That is true, so far as it goes: social media posts can
be relevant to assessing character and reputation. But review of these posts is not
the burden imposed by § 400.00(1)(o)(iv). The burden is the disclosure of
121 pseudonyms under which applicants have a constitutional right to post their
views. That is a burden analytically distinct from (and more severe than) the
burden of a licensing officer reviewing applicants’ publicly available posts.
The State also asks for flexibility in our historical inquiry because “[t]he
development of social media is a quintessential dramatic technological change”
which requires “a nuanced analogical approach.” Antonyuk Nigrelli Br. at 44
(citing Bruen, 142 S. Ct. at 2132); see also supra Background § III.E. Social media is
of course revolutionary because of the ease with which individuals can
disseminate their thoughts to a large audience without the traditional barriers to
publishing. This is indeed a break from the practice of publishing newspaper
pieces as “Publius”—we grant that Facebook likely would have baffled the
Founders. But the CCIA’s social media requirement does not bear upon the
aspects of social media that are new. While social media writ large may have no
historical analogue, social media handles do. The frequency, formality, and
barriers to dissemination of one’s views may be different, but the election of a
pseudonym to hide one’s true identity is not.
The State is not wrong that posting on social media in the twenty-first
century is different from publishing on physical media in the nineteenth century.
122 Social media posts are frequently of a very different character from the well-
crafted pamphlets known to students of the Ratification debates. And the
spontaneity of speech on social media, without editors or filters, may indeed lead
to a greater frequency of messages that are relevant to an assessment of character
and dangerousness. See Amicus Br. of Dr. Jaclyn Schildkraut (discussing social
science research indicating that social media posts “provide[] insights into
intended behavior, and that an examination of potential social media [content]
can provide an early warning sign of potential future violence”). But those
considerations of relevance or usefulness cannot overcome the absence of any
analogous disclosure requirement from the historical record combined with the
constitutional interests implicated by the mandatory disclosure of online
pseudonyms.
In sum, we agree with the district court that Plaintiffs are likely to succeed
on the merits of their constitutional challenge to this provision, and we AFFIRM
the district court’s preliminary injunction as it applies to the social media
requirement.
123 SENSITIVE LOCATIONS
We now consider the Plaintiffs’ challenges to assorted subsections of N.Y.
Penal L. § 265.01-e banning the carriage of firearms in “sensitive locations.”
Standing is a live issue with respect to many of the sensitive location
challenges. No plaintiff has been arrested or prosecuted under § 265.01-e, but
“an actual arrest, prosecution, or other enforcement action is not a prerequisite to
challenging the law.” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014).
Instead, a plaintiff has Article III standing to bring a pre-enforcement challenge
to a criminal statute if he or she can “demonstrate: (1) ‘an intention to engage in a
course of conduct arguably affected with a constitutional interest’; (2) that the
intended conduct is ‘proscribed by’ the challenged law; and (3) that ‘there exists
a credible threat of prosecution thereunder.’” Vitagliano v. County of Westchester,
71 F.4th 130, 136 (2d Cir. 2023) (quoting Driehaus, 573 U.S. at 159).
We discuss many standing issues below as they arise, usually relating to
intention and proscription. But we consider at the outset the need for a “credible
threat of prosecution,” as it cuts across all of plaintiffs’ challenges. The various
verbal formulations elaborating this standard tend to be unhelpful. We have said
that “credible threat” means that the “fear of criminal prosecution . . . is not
124 imaginary or wholly speculative.” Hedges v. Obama, 724 F.3d 170, 196 (2d Cir.
2013) (quoting Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 302
(1979)). And a credible threat is missing where “plaintiffs do not claim that they
have ever been threatened with prosecution, that a prosecution is likely, or even
that a prosecution is remotely possible.” Knife Rights, 802 F.3d at 384.
These statements could be overread to require a rigorous inquiry into the
chances that a given plaintiff will be prosecuted. But Article III is satisfied by
much less. In Babbitt v. United Farm Workers National Union, the Supreme Court
found pre-enforcement standing without much evidence suggesting that a
prosecution was either imminent or particularly likely. There, a labor group
challenged a law criminalizing “dishonest, untruthful, and deceptive publicity.”
442 U.S. at 302. The plaintiff organization “ha[d] actively engaged in consumer
publicity campaigns in the past,” “alleged . . . an intention to continue to engage
in boycott activities,” and stated that although it did “not plan to propagate
untruths . . . erroneous statement is inevitable in free debate.” Id. at 301 (internal
quotation marks omitted). The Court acknowledged that the challenged law
“has not yet been applied and may never be applied” but nonetheless found an
Article III case or controversy because “the State ha[d] not disavowed any
125 intention of invoking the criminal penalty provision against unions that commit
unfair labor practices.” Id. at 302. The timorous organization was “thus not
without some reason in fearing prosecution,” and its fears were “not imaginary
or wholly speculative.” Id.
Babbitt demonstrates that the “credible threat of prosecution” is a “quite
forgiving” requirement that sets up only a “low threshold” for a plaintiff to
surmount. Hedges, 724 F.3d at 197 (quoting N.H. Right to Life Pol. Action Comm. v.
Gardner, 99 F.3d 8, 14–15 (1st Cir. 1996)); see also id. at 200 (“[N]either this Court
nor the Supreme Court has required much to establish this final step . . . .”).
Courts have “not place[d] the burden on the plaintiff to show an intent by the
government to enforce the law against it” but rather “presumed such intent in
the absence of a disavowal by the government.” Id. at 197; accord Vitagliano, 71
F.4th at 138 (“[W]here a statute specifically proscribes conduct, the law of
standing does not place the burden on the plaintiff to show an intent by the
government to enforce the law against it.” (quoting Tweed-New Haven Airport
Auth. v. Tong, 930 F.3d 65, 71 (2d Cir. 2019))). That is, “courts are generally
‘willing to presume that the government will enforce the law as long as the
126 relevant statute is recent and not moribund.’” Cayuga Nation, 824 F.3d at 331
(quoting Hedges, 724 F.3d at 197).
To be sure, some of our recent decisions regarding pre-enforcement
standing have relied on more specific indications that enforcement can be
expected. For example, in Silva v. Farrish, we explained that the plaintiffs had
“already been subject to fines and enforcement proceedings for violating the
fishing regulations” that they challenged. 47 F.4th 78, 87 (2d Cir. 2022). Similarly,
the plaintiffs in Knife Rights had previously been charged under the challenged
statute, and one plaintiff had been party to a deferred prosecution agreement
which “expressly threatened future charges if its terms were not satisfied,” 802
F.3d at 385–86. And in Cayuga Nation, the government had specifically
“announced its intention to enforce the Ordinance against the Nation” as well as
the group headed by the lead individual plaintiff. 824 F.3d at 331 (citation
Here, one defendant argues that such indicia of future prosecution are
required to show standing and, accordingly, that at least some plaintiffs lack
standing because they have “failed to establish [that they have] been threatened
with certain . . . prosecution pursuant to the CCIA.” Antonyuk Cecile Br. at 15–16.
127 The principal support advanced for that position is a summary order that (by its
nature) lacks precedential force and that, in any event, lacks persuasive force in
this case. 49 But we rejected that very position in Vitagliano v. County of
Westchester: “While evidence [that a plaintiff faced either previous enforcement
actions or a stated threat of future prosecution] is, of course, relevant to assessing
the credibility of an enforcement threat, none of these cases suggest that such
evidence is necessary to make out an injury in fact.” 71 F.4th at 139 (citing
Driehaus, 573 U.S. at 164); accord id. (“[R]equiring an ‘overt threat to enforce’ a
criminal prohibition ‘would run afoul of the Supreme Court's admonition not to
put the challenger to the choice between abandoning his rights or risking
prosecution.’” (some quotation marks omitted) (quoting Tong, 930 F.3d at 70)).
Instead, we reiterated that, although “the presumption that the government will
49 Cecile relies on Does 1-10 v. Suffolk County, N.Y., No. 21-1658, 2022 WL 2678876 (2d Cir. July 12, 2022) (summary order), to urge this higher bar for standing. In Does 1-10, the defendant county informed the plaintiffs that their guns were prohibited and that they “‘may be subject to arrest and criminal charges’ if they ‘fail to present the weapon’” to the police within fifteen days. 2022 WL 2678876, at *3. But, since the county did not follow up on those warnings for over a year, and there was no evidence that “any purchaser of the [gun in question] ha[d] been arrested or had their firearm forcibly confiscated,” we decided by summary order that the plaintiffs failed to “allege[] that they are at an imminent risk of suffering an injury in fact.” Id. However, “[t]he identification of a credible threat sufficient to satisfy the imminence requirement of injury in fact necessarily depends on the particular circumstances at issue,” Knife Rights, 802 F.3d at 384, and Does 1-10 presented significantly different facts than those now before us.
128 enforce its own laws ‘in and of itself, is not sufficient to confer standing,’” id.
(quoting Adam v. Barr, 792 F. App'x 20, 23 (2d. Cir. 2019) (summary order)), “we
‘presume such intent [to enforce the law] in the absence of a disavowal by the
government or another reason to conclude that no such intent existed.’” Id. at
138 (quoting Tong, 930 F.3d at 71).
Babbitt and Vitagliano control this case. In Babbitt, the state of Arizona had
not specifically threatened the plaintiff organization with criminal sanctions, had
never prosecuted anyone under the challenged provision, and had
acknowledged it might never do so. See 442 U.S. at 301–02. The plaintiff then
averred an intention only to risk lawbreaking, and the state had not disavowed
prosecution. If those facts alone are enough to render a fear of prosecution more
than “imaginary or wholly speculative,” id. at 302, then so must the Plaintiffs’
allegations here. See Seegars v. Gonzales, 396 F.3d 1248, 1252 (D.C. Cir. 2005)
(“[Babbitt] appeared to find a threat of prosecution credible on the basis that
plaintiffs’ intended behavior is covered by the statute and the law is generally
enforced. Courts have often found that combination enough[.]”). And like the
plaintiff in Vitagliano, the Plaintiffs here challenge a law “enacted . . . just months
before [they] brought this action” which is “designed to curb the very conduct in
129 which [they] intend[] to engage”; “there is no indication that the [defendants]
ha[ve] disavowed enforcement” of the challenged law; and we have “no reason
to doubt that the [State] will enforce its recently enacted law against those who
violate its terms.” 71 F.4th at 138–39.
The Plaintiffs have surmounted the “low” and “quite forgiving” bar for
pre-enforcement standing with respect to many of the CCIA’s challenged
provisions. Hedges, 724 F.3d at 197. While the statements by law enforcement
officials cited by Plaintiffs may not directly threaten the specific Plaintiffs in these
cases with arrest, those statements are, in the context of this case, evidence that
Plaintiffs face a realistic threat of arrest and prosecution. Far from disavowing
prosecution of Plaintiffs, multiple Defendants have announced their intention to
enforce the CCIA, 50 and the Superintendent of State Police has warned that his
department will have “zero tolerance” for violations. Although prosecution is
not certain, Plaintiffs articulate a plausible chain of events resulting in their arrest
and prosecution: the “brazen nature of [their] intended defiance,” in the district
50Many of these announcements explained that enforcement would not be vigorous or proactive, and others suggested that the law was contrary to the speaker’s personal preference. But reluctant or not, statements that the law will be enforced cannot be construed as disavowals of enforcement or otherwise used to rebut the presumption that the government enforces its laws.
130 court’s words, makes it likely to be noticed by citizens and then by police. E.g.,
Antonyuk, 639 F. Supp. 3d at 263. 51 Plaintiffs “are thus not without some reason
in fearing prosecution,” and their fears are neither “imaginary [n]or wholly
speculative.” Babbitt, 442 U.S. at 302.
For those reasons, we conclude that the Plaintiffs here have adequately
demonstrated a credible threat of enforcement—each Plaintiff will accordingly
have standing if he can also show “an intention to engage in a course of conduct
arguably affected with a constitutional interest” and “that the intended conduct
is proscribed by the challenged law.” Vitagliano, 71 F.4th at 136 (quotation marks
omitted). With that settled, we proceed to Plaintiffs’ various challenges to
§ 265.01-e’s sensitive location restrictions.
51 Some Plaintiffs allege specific facts heightening their likelihood of arrest for certain intended violations. Mann alleges that a member of his congregation is a local law enforcement officer, J.A. 179 (Mann Decl. ¶ 23); Terrille explains that he is particularly likely to be arrested for possessing a gun at airports when he goes through TSA screening, J.A. 189, 194 (Terrille Decl. ¶¶ 9, 22); and Johnson notes that he often encounters state Environmental Conservation Officers while fishing, increasing the chance of arrest for carrying a gun in state parks, J.A. 142 (Johnson Decl. ¶ 24). Those claims are thus on safer footing, but we need not decide how much safer given our conclusion that, even without those additional allegations, Plaintiffs have stated a credible threat of prosecution.
131 I. Treatment Centers
Section 265.01-e(2)(b) prohibits possession of a gun in any “location
providing health, behavioral health, or chemical dep[e]ndance care or services.”
We first consider standing.
A. Standing
The district court found that only Joseph Mann has standing to challenge
paragraph (2)(b). 52 Antonyuk, 639 F. Supp. 3d at 265. Mann, a pastor at
Fellowship Baptist Church in Parish, NY, averred that his church “provides an
addiction recovery ministry” through an organization called “RU Recovery.”
J.A. 181 (Mann Decl. ¶ 28). This ministry “ha[s] brought persons in the program
to church property for counseling and care.” Id. at 181–82 (Mann Decl. ¶¶ 28–
29). It is not clear whether Mann personally provides counseling in these
sessions, but Mann does allege that the church (his workplace) is a “location
providing chemical depend[e]nce care or services” when hosting the RU
52 Plaintiff Leslie Leman asserted standing to challenge this provision (and nearly every other sensitive location restriction) on the basis that he regularly carries his personal firearm in his work as a volunteer firefighter and may be called to respond to various sensitive locations. The district court rejected this theory of injury-in-fact as impermissibly speculative. See Antonyuk, 639 F. Supp. 3d at 262. Since Plaintiffs do not dispute that conclusion, any argument as to Leman’s standing is forfeited. “Although parties cannot waive arguments against jurisdiction, they are more than free to waive (or forfeit) arguments for it.” Taylor v. Pilot Corp., 955 F.3d 572, 582 (6th Cir. 2020) (Thapar, J., concurring in part) (collecting cases).
132 Recovery program and that Mann “intend[s] to continue to possess and carry
[his] firearm while” at the church, J.A. 177, 181 (Mann Decl. ¶¶ 11, 29). The State,
by contrast, contends that the church is not a qualifying location providing
“behavioral health or chemical depend[e]nce care or services,” because the RU
Recovery program “is intended to encourage [participants] ‘to seek help and
voluntarily enter treatment’” rather than “to provide treatment.” Antonyuk
Nigrelli Br. at 49–50 (quoting J.A. 181 (Mann Decl. ¶ 28)).
In determining Mann’s standing, we are not called on to offer a definitive
or comprehensive interpretation of the CCIA. 53 “[C]ourts are to consider
whether the plaintiff’s intended conduct is ‘arguably proscribed’ by the
challenged statute, not whether the intended conduct is in fact proscribed.”
Picard v. Magliano, 42 F.4th 89, 98 (2d Cir. 2022) (quoting Driehaus, 573 U.S. at
162). Thus, “if a plaintiff’s interpretation of a statute is reasonable enough[,] and
under that interpretation, the plaintiff may legitimately fear that it will face
enforcement of the statute, then the plaintiff has standing to challenge the
53 For this reason, nothing we say here purports to bind New York state courts when interpreting § 265.01-e in cases properly before them. This case presents exclusively federal questions, and we would not presume to tell New York courts what a New York criminal statute means or to ignore a state court’s interpretation of the statute if one exists. But since we know of no relevant New York case law, of necessity we strike out on our own.
133 statute.” Id. (internal quotation marks omitted). In making that determination,
we do not defer to the government’s interpretation of the statute, Vt. Right to Life
Comm., Inc. v. Sorrell, 221 F.3d 376, 383 (2d Cir. 2000) (finding plaintiff’s
interpretation “reasonable enough” even though contradicted by the state), or to
its representations regarding the likelihood of a particular prosecution, id. (“The
State also argues that . . . [it] has no intention of suing [plaintiff] for its activities.
While that may be so, there is nothing that prevents the State from changing its
mind. It is not forever bound, by estoppel or otherwise, to the view of the law
that it asserts in this litigation.”).
Mann’s allegations suffice under this forgiving standard. Paragraph (2)(b)
is intentionally broad: rather than applying only to locations providing
“treatment,” as the State would have it, the law refers to “care or services.” The
RU Recovery program may not provide “chemical depend[e]nce care,” but
addiction counseling is at least arguably a “chemical depend[e]nce service.”
Since Mann has alleged an intention to violate the law by carrying a gun at a
location that (arguably) “provid[es] . . . chemical depend[e]nce . . . services” (and
he faces a “credible threat” of prosecution for the reasons explained above), he
has standing to seek an injunction against enforcement of paragraph (2)(b).
134 B. Merits
1. District Court Decision
We now turn to the merits of Mann’s challenge to § 265.01-e(2)(b). The
district court found that the plain text of the Second Amendment covered the
conduct proscribed by § 265.01-e(2)(b)—i.e., licensed carriage of a concealed
firearm for self-defense in a location providing behavioral health, or chemical
dependence care or services—and accordingly placed the burden on the State to
demonstrate the statute’s consistency with this Nation’s tradition of firearm
regulation. 54 The State, in turn, offered two categories of historical analogues.
First, the State pointed to an 1837 Massachusetts militia law, an 1837 Maine
militia law, and an 1843 Rhode Island militia law that each excluded people with
intellectual disabilities, mental illnesses, and alcohol addictions from militia
service. Second, the State generally referenced the tradition of restricting
firearms in locations frequented by vulnerable populations such as children and
provided, as examples, state statutes prohibiting firearms in school rooms.
54 The district court held that the Second Amendment covered the conduct proscribed by § 265.01-e(2)(b) “except to the extent that the places at issue in th[e] regulation” were not open to the public as defined by New York state law. Antonyuk, 639 F. Supp. 3d at 316. Thus, the district court’s injunction did not prohibit the State from enforcing § 265.01-e(2)(b) in non-public areas of behavioral health or substance dependence treatment centers.
135 Assuming, without deciding, that the State’s proffered analogues were
sufficiently established and representative to constitute a national tradition, the
district court nonetheless rejected the two groups of analogues as insufficiently
similar to the challenged provision. For one, the district court determined that
the purposes of the state militia laws were different from that of § 265.01-e(2)(b)
in that the militia laws were concerned with keeping firearms out of the hands of
individuals with intellectual disabilities, mental health issues, and alcoholism,
whereas § 265.01-e(2)(b) prohibits law-abiding, licensed individuals from
carrying their firearms in places providing behavioral health or chemical
dependence care or services. Even putting aside this difference in purpose, the
district court concluded that § 265.01-e(2)(b) burdened Second Amendment
rights more than did the state militia laws because, while the state militia laws
took firearms out of the hands of individuals with the above-listed conditions
only during wartime, § 265.01-e(2)(b) precludes all licensed carriers from ever
bringing their firearm into a behavioral health or chemical dependence service
center.
The district court likewise rejected the tradition of regulating firearms in
locations frequented by vulnerable populations such as children. Because the
136 State had not adduced any evidence showing that more children are present in
places of behavioral and substance dependence care today than in the 18th and
19th centuries, the court found that the absence of 18th- and 19th-century
regulations prohibiting firearms in medical establishments indicated that the
historical tradition of regulating firearms out of a concern for children has not
traditionally extended so far as to justify regulation in medical establishments.
Finally, because both medical establishments and gun violence existed in
the 18th- and 19th-centuries, the district court considered the lack of evidence as
to historical firearm bans “in places such as ‘almshouses,’ hospitals, or
physician’s offices,” as “evidence of th[e] regulation’s inconsistency with the
Second Amendment.” Antonyuk, 639 F. Supp. 3d at 318.
2. The State’s Historical Analogues
a. Well-Established and Representative
Because the district court only assumed, without deciding, that the State’s
proposed analogues were representative and established, we begin there.
“[A]nalogical reasoning requires only that the government identify a well-
established and representative historical analogue.” Bruen, 142 S. Ct. at 2133
(emphasis removed). Representativeness and establishment ensure against
137 “endorsing outliers that our ancestors would never have accepted.” Id. (internal
quotation marks omitted). On the other hand, as Bruen cautioned, these
requirements cannot be stretched to require the historical twin or “dead ringer.”
Despite assuming that the State’s proffered analogues were sufficiently
well-established and representative, the district court expressed some skepticism
as to this conclusion. First, it questioned whether laws from three states could
constitute an established tradition. Second, due to the population size of those
three states relative to that of the nation, it doubted these laws were
representative. 55 We do not share these skepticisms. True, Bruen did utilize the
number of states with analogous regulations and their relative populations as
indicia of the orthodoxy and representativeness of New York’s proper-cause
requirement, but New York’s requirement was exceptional in both the way and
the extent to which it burdened Second Amendment rights. As we have already
55 Contrary to the district court’s conclusion, the percentage of the national population— six percent—living in Massachusetts, Rhode Island, and Maine at the time of the statutes’ passage was significant compared to that deemed unrepresentative in Bruen. See Bruen, 142 S. Ct. at 2154 (“The exceptional nature of these western restrictions is all the more apparent when one considers the miniscule territorial populations [about two-thirds of 1%] who would have lived under them.”).
138 noted, less exceptional regulations permit a “more nuanced approach.” Id. at
2132.
Lacking any evidence that the laws from Maine, Massachusetts, and Rhode
Island were historical anomalies, we find them sufficiently established and
representative to stand as analogues. 56 Compare id. at 2133 (“Although the
historical record yields relatively few 18th- and 19th-century ‘sensitive places’
where weapons were altogether prohibited . . . we are also aware of no disputes
regarding the lawfulness of such prohibitions.” (emphasis added)), with id. at 2154
(“the bare existence of these localized restrictions cannot overcome the
overwhelming evidence of an otherwise enduring American tradition permitting
public carry” (emphasis added)). Disqualifying proffered analogues based only
on strict quantitative measures such as population size absent any other
indication of historical deviation would turn Bruen into the very “regulatory
straightjacket” the Court warned against. Id. at 2133; see also supra Licensing
Regime § II.A.2 (rejecting view that percentage of population governed is
56The district court did not question the conventionality or representativeness of the State’s other group of analogous regulations—those prohibiting firearms in schools—nor do we. The Supreme Court has already determined that such regulations are well-established and representative. See Bruen, 142 S. Ct. at 2133 (noting “Heller’s discussion of ‘longstanding’ laws forbidding the carrying of firearms in sensitive places such as schools” (internal quotation marks omitted)).
139 dispositive and instead explaining that this consideration “is only one clue that
said law may have been an outlier unable to overcome a contrary tradition”).
b. Consistency with Tradition
Both sets of the State’s proffered analogues place § 265.01-e(2)(b) within
this Nation’s tradition of firearm regulation in locations where vulnerable
populations are present. We begin by comparing how and why § 265.01-e(2)(b)
and each set of the proffered historical analogues burdens Second Amendment
rights. Section 265.01-e(2)(b) aims to protect “vulnerable or impaired people who
either cannot defend themselves or cannot be trusted to have firearms around
them safely.” Antonyuk Nigrelli Br. at 62. It does so by prohibiting carriage of
firearms in centers providing behavioral health or substance dependence
services. As to the 19th-century state militia laws, the State argues that the
statutes of Maine, Massachusetts, and Rhode Island, which prohibited those with
mental illness, intellectual disabilities, and alcohol addiction from serving in
militias, were aimed at protecting vulnerable populations from either misusing
arms or having arms used against them. 57 These statutes operated by preventing
such individuals from serving in the militia. See J.A. 635 (MASS. GEN. LAWS ch.
57Though taking issue with these laws’ fit as analogues for § 265.01-e(2)(b), Plaintiffs do not dispute this characterization of the statutes’ purpose, and the district court accepted it.
140 240, § 1 (1837)); J.A. 639 (1837 Me. Laws 424); J.A. 644 (1843 R.I. Pub. Laws 1).
Similarly, the State claims that the tradition of regulating firearms in locations
frequented by children, as exemplified by historical regulations prohibiting guns
in schools, is motivated by the need to protect a vulnerable population. 58 This
category of laws operated by preventing the carriage of firearms in places of
education or school rooms. See, e.g., J.A. 602 (1870 Tex. Gen. Laws 63, ch. 46); J.A.
611 (1883 Mo. Sess. Laws 76); J.A. 617 (1889 Ariz. Sess. Laws 17, § 3); J.A. 621
(1890 Okla. Terr. Stats., Art. 47, § 7).
The three militia laws and the tradition of prohibiting firearms in schools
are each “relevantly similar” to § 265.01-e(2)(b). The relevantly similar features
of those statutes prohibiting firearms in schools are the burden they place on
Second Amendment rights and the reason: prohibiting firearm carriage for the
protection of vulnerable populations. 59 The relevantly similar feature of the state
58 Again, though taking issue with their fit as analogues for § 265.01-e(2)(b), Appellees do not dispute that 18th- and 19th-century laws prohibiting guns in schools, which the State provided as examples of the more general tradition of prohibiting firearms in places frequented by vulnerable people, were motivated by the need to protect children. Nor do Plaintiffs dispute that children are a vulnerable population. 59We also find historical support for § 265.01-e(2)(b) in the fact that these laws tended to not only prohibit guns in school rooms, i.e., spaces frequented by vulnerable children, but also anywhere people “assemble[] for educational, literary or social purposes.” J.A. 602 (1870 Tex. Gen. Laws 63, ch. 46); see also J.A. 611 (1883 Mo. Sess. Laws 76) (same); J.A. 617 (1889 Ariz. Sess. Laws 17, § 3) (same for “amusement or for educational or scientific purposes”); J.A. 620 (1890
141 militia laws is who has historically been considered to make up a vulnerable
population justifying firearm regulation on their behalf, i.e., the mentally ill or
those with substance use disorders. 60
In this case, both analogues surely suffice to validate our finding of the
likely constitutionality of § 265.01-e(2)(b). Had the State pointed only to those
laws prohibiting firearms in schools, the State would have had to demonstrate
that individuals with behavioral and substance abuse disorders are sufficiently
analogous to children protected by school carriage prohibitions, as the State
cannot justify a sensitive location prohibition merely by designating a population
as “vulnerable” and enacting a law purporting to protect them. See Bruen, 142 S.
Okla. Terr. Stats., Art. 47, § 7) (same for “educational purposes”). The modern hospitals that provide some of today’s behavioral care and substance disorder services provide “the principal clinical-education settings for medical students enrolled in medical schools.” Amicus Br. on behalf of Greater New York Hospital Assoc., at 14. 60 Our finding that individuals with behavioral and substance abuse disorders have historically been considered a “vulnerable population” who cannot be entrusted near weapons finds further support in the regulation of weapons by many publicly operated asylums for the mentally ill. Such rules appear to have been motivated by the fear that patients would obtain possession of such weapons and thereby injure themselves or others. Utica Asylum and Buffalo State Asylum (both state facilities) prohibited “attendant[s]” from “plac[ing] in the hands of a patient, or leav[ing] within his reach,” certain weapons. See Rules, Regs. & By-Laws of the N.Y. State Lunatic Asylum at Utica, Duty of Attendants to Patients § 7 (1840); Rules & Regs. Governing the Buffalo State Asylum, Duty of Attendants to Patients § 7 (1888). During Reconstruction and shortly after, many other government-run institutions adopted the same rule. See Rules for the Missouri State Lunatic Asylum § 8 (1870); Rules, Regulations, and By- Laws of the Arkansas Lunatic Asylum, Little Rock § 8 (1883); Rules & Regulations of State Lunatic Asylum No. 3, Nevada, Mo. § 129 (1887).
142 Ct. at 2133 (emphasizing that “analogical reasoning under the Second
Amendment” is not a “blank check”). However, the evidence from the state
militia laws that individuals with behavioral or substance dependence disorders
have historically been viewed as a vulnerable population justifying firearm
regulation makes such analogical reasoning unnecessary to our holding. 61
Likewise, had the State pointed only to the militia law analogues, which
disarmed the members of the vulnerable population itself rather than others in
proximity, it would have borne the burden of demonstrating that § 265.01-
e(2)(b)—which disarms everyone in spaces where a vulnerable population is
present—is consistent with or distinctly similar to a historical tradition.
In sum, the State’s evidence establishes a tradition of prohibiting firearms
in locations congregated by vulnerable populations and a concomitant tradition
of considering those with behavioral and substance dependence disorders to
61 The state need not always provide evidence that a group has historically been considered vulnerable every time it wishes to regulate firearms to protect that group. An even “more nuanced approach” would be appropriate were the regulation to address a vulnerable group or setting that did not exist at the time of Reconstruction or the Founding. Bruen, 142 S. Ct. at 2132. But, as the State itself argues and depends on here, those with behavioral and substance use disorders have long been considered a vulnerable group. See id. at 2132 (requiring more where “a challenged regulation addresses a general societal problem that has persisted since the 18th century”).
143 constitute a vulnerable population justifying firearm regulation. Section 265.01-
e(2)(b) is consistent with these traditions.
3. Proper Analysis of Proffered Analogues
In rejecting the State’s evidence as to the tradition of regulating firearms in
places frequented by vulnerable populations such as children, the district court
misidentified the relevantly similar features of the State’s proffered analogues
The district court found that the State failed to show that today’s treatment
centers contain more children than similar locales in the 18th- and 19th-centuries;
but the relevantly similar feature of these analogues is the how and the why:
firearm prohibition (how) in places frequented by and for the protection of
vulnerable populations (why). The New York legislature need not have
attempted to protect the exact same subset of vulnerable persons for its
regulation to be relevantly similar to these historical analogues. Similarly, the
district court discounted the state militia laws on the ground that they impose a
lesser burden on Second Amendment rights than § 265.01-e(2)(b); but the
relevantly similar feature of the state militia laws is that the intellectually
disabled, mentally ill, or those with substance use disorders have historically
been considered a vulnerable population justifying firearm regulation. In
144 requiring both sets of the State’s analogues to burden Second Amendment rights
on behalf of the exact same group in the very same way, the district court
disregarded Bruen’s caution that “even if a modern-day regulation is not a dead
ringer for historical precursors, it still may be analogous enough to pass
constitutional muster.” Bruen, 142 S. Ct. at 2133.
Furthermore, contrary to the district court’s conclusion, the State was not
required to show that firearms were traditionally banned “in places such as
‘almshouses,’ hospitals, or physician’s offices.” Antonyuk, 639 F. Supp. 3d at 318.
For one, this requirement by the district court was a product of its erroneous
conclusion that the State’s evidence was insufficiently analogous. Properly
construed, that evidence establishes a historical tradition of firearm regulation
embracing § 265.01-e(2)(b) — the opposite of historical silence. Yet, even putting
that foundational error aside, the district court made too much of Bruen’s
observation that “when a challenged regulation addresses a general societal
problem that has persisted since the 18th century, the lack of a distinctly similar
historical regulation addressing that problem is relevant evidence that the
challenged regulation is inconsistent with the Second Amendment.” Bruen, 142
S. Ct. at 2131. See also supra Background § III.E.
145 * * *
For the above stated reasons, the preliminary injunction is VACATED
insofar as the State was enjoined from enforcing § 265.01-e(2)(b) in behavioral
health and substance dependence care and service centers.
II. Places of Worship
Section 265.01-e(2)(c) of the CCIA criminalizes possession of a firearm in
“any place of worship, except for those persons responsible for security at such
place of worship.” N.Y. Penal L. § 265.01-e(2)(c). A suite of challenges to this
provision is before us on appeal:
• In Antonyuk v. Chiumento, plaintiff Joseph Mann avers that, as pastor, he frequently carries a concealed firearm in his church, the Fellowship Baptist Church in Parish, New York, and that he intends to continue doing so notwithstanding the CCIA’s prohibition on carrying firearms in places of worship. Antonyuk J.A. 72 ¶¶ 182–83. The district court (Suddaby, J.) held that the place of worship provision intruded on Mann’s Second Amendment right to carry firearms and that the State had failed to produce sufficient evidence of a historical tradition of analogous firearm regulations. It thus enjoined the defendants from enforcing the provision. 62 Antonyuk, 639 F. Supp. 3d at 321.
62The district court in Antonyuk also enjoined the place of worship provision on the ground that it was “too close to infringing on one’s First Amendment right to participate in congregate religious services.” Antonyuk, 639 F. Supp. 3d at 322. No Plaintiff had requested injunctive relief on this ground, nor did the district court make findings as to whether any Plaintiff’s free exercise was inhibited by the place of worship provision; we therefore do not consider it a basis for the injunction. See generally Mem. of Law in Supp. of Preliminary Inj.,
146 • In Hardaway v. Chiumento, the Plaintiffs Jimmie Hardaway, Jr. and Larry A. Boyd—respectively leaders of Trinity Baptist Church in Niagara Falls, New York and Open Praise Full Gospel Baptist Church in Buffalo, New York— similarly allege that the CCIA infringes on their right to carry firearms in their churches. Hardaway J.A. 57 ¶¶ 8–9; id. at 73 ¶ 43. The district court (Sinatra, J.) held that the historical analogues the State offered were “far too remote, far too anachronistic, and very much outliers,” and therefore it also enjoined enforcement of the place of worship provision. Hardaway, 639 F. Supp. 3d at 442.
• In Spencer v. Chiumento, Plaintiffs Micheal Spencer and His Tabernacle Family Church, Inc. in Horseheads, New York, of which Spencer is senior pastor, allege that the place of worship provision substantially burdens their “right to the free exercise of religion” by forbidding “Pastor Spencer and the Church’s members, under threat of criminal penalties, from exercising their religious conviction to carry firearms into the Church to protect themselves and other congregants.” Spencer J.A. 46–47 ¶¶ 11–12; id. at 61 ¶ 62. They also allege that the provision violates the Establishment Clause by “meddling in the internal affairs of houses of worship” by depriving them of “the ‘right to control who may enter, and whether that invited guest can be armed.’” Id. at 63 ¶¶ 71–72 (quoting GeorgiaCarry.org, Inc., 687 F.3d at 1264). To these arguments they also added a Second Amendment challenge based on Spencer’s individual right to carry firearms. Id. at 65–66 ¶¶ 78–86. The district court (Sinatra, J.) held that the Plaintiffs had shown a likelihood of success in demonstrating that the place of worship provision violates both their First and Second Amendment rights, and enjoined the defendants from enforcing the provision against “Pastor Spencer, the [plaintiff] Church, its members, or their agents and licensees.” Spencer, 648 F. Supp. 3d at 469–71.
Antonyuk v. Nigrelli, No. 22-cv-00986 (Sept. 22, 2022), ECF No. 6-1 (not specifically challenging the place of worship provision); Reply Mem. in Supp. of Preliminary Inj. at 29–31, supra (Oct. 22, 2022), ECF No. 69 (advancing only Second Amendment arguments against it).
147 The State now appeals from the grant of preliminary injunctions in each case. It
does not dispute any Plaintiff’s standing to challenge the place of worship
provision, and we see no impediment to standing.
A. Antonyuk and Hardaway
1. Standing and Mootness
The New York legislature amended the place of worship provision after
the district courts enjoined it. Previously, the provision criminalized possession
of a firearm in “any place of worship or religious observation.” 2023 N.Y. Laws,
Ch. 55, pt. F, § 4. Effective May 3, 2023, however, places of “religious
observation” are no longer covered, and the provision has an exception for
“those persons responsible for security at such place of worship.” Id. We must
consider whether the statutory amendment has mooted any of the Plaintiffs’
claims.
With respect to Hardaway and Antonyuk, it has. Put simply, the amended
statute prohibits none of the Plaintiffs in these cases from doing what they seek
to do. “A case is moot when the issues presented are no longer live or the parties
lack a legally cognizable interest in the outcome.” Tann v. Bennett, 807 F.3d 51, 52
(2d Cir. 2015) (internal quotation marks omitted). It remains live if “a court can
148 fashion some form of meaningful relief to award the complaining party.” Exxon
Mobil Corp. v. Healey, 28 F.4th 383, 392 (2d Cir. 2022) (internal quotation marks
The natural-person plaintiffs in Hardaway, Jimmie Hardaway, Jr. and Larry
Boyd, state directly in their complaint that they would grant themselves
permission to carry firearms in order to protect their churches if they could. See
Hardaway J.A. 71 ¶ 35 (“[A]s Pastor, Reverend Hardaway establishes the firearms
policy for Trinity Baptist. In that role, not only would he grant permission to himself
to carry for purposes of keeping the peace in his church (as he did prior to [the CCIA])
but he would also encourage congregants . . . to carry on church premises for the
defense of themselves and other congregants.” (emphasis added)); id. at 72 ¶ 37
(“Additionally, as Pastor, Bishop Boyd establishes the firearms policy for Open
Praise. In that role, prior to [the CCIA], he previously granted permission to
himself to carry for purposes of keeping the peace in his church and allowed
other licensed congregants to carry. He would continue to authorize licensed
concealed carry by himself and congregants on church premises for self-defense,
but for the enactment and enforcement of [the CCIA].” (emphasis added)). Now,
under the amended statute, they are perfectly capable of doing so.
149 Nor have the two organizational Plaintiffs in Hardaway articulated any
associational or direct injury sufficient to support the preliminary injunction. 63
To have associational standing, an organization must show, inter alia, that “its
members would otherwise have standing to sue in their own right.” United Food
& Com. Workers Union Loc. 751 v. Brown Grp., Inc., 517 U.S. 544, 553 (1996)
(quoting Hunt v. Wash. State Apple Advert. Comm’n, 432 U.S. 333, 343 (1977)).
Plaintiffs Firearms Policy Coalition, Inc. and the Second Amendment Foundation
premised their representational standing solely on the two named Plaintiffs,
without adding supporting declarations from other members. See Hardaway J.A.
57–58 ¶¶ 10–11. Having made no submission about any members other than the
named Plaintiffs, the organizational Plaintiffs’ associational standing therefore
collapses alongside that of Hardaway and Boyd.
This does not necessarily defeat the standing of the organizational
Plaintiffs; an organization may sue on its own behalf, so long as it can
“independently satisfy the requirements of Article III standing.” Knife Rights, 802
F.3d at 388. The organizational Plaintiffs allege the following theory of direct
injury: the passage of the CCIA prompted them to “incur ongoing expenses” to
63In any event, the injunction in Hardaway was premised on the standing of the two individual Plaintiffs. See Hardaway J.A. 14–18.
150 launch and operate a “hotline to answer questions and provide legal
information” about New York’s gun laws. See Hardaway J.A. 59 ¶¶ 13–14. But as
we have explained, “expenditures or other activities, if incurred at the
organization’s own initiative, cannot support a finding of injury” sufficient to
create standing “when the expenditures are not reasonably necessary to continue
an established core activity of the organization bringing suit.” Conn. Parents
Union v. Russell-Tucker, 8 F.4th 167, 174 (2d Cir. 2021). The organizational
Plaintiffs allege that they “designed” and “creat[ed]” programs to inform their
members about the CCIA, Hardaway J.A. 59, ¶¶ 13–14, and they make no
allegations about how these concededly new programs are a continuation of their
“established core activity,” Russell-Tucker, 8 F.4th at 174.
Compare this to Centro de la Comunidad Hispiana de Locust Valley v. Town of
Oyster Bay, which did find independent organizational standing. 868 F.3d 104,
110 (2d Cir. 2017). In Centro, the organization argued that a new ordinance
would increase the difficulty of its already ongoing activities. Id. That is different
from making the decision to create new programs, as the Plaintiffs in Hardaway
allege.
151 Like the Connecticut Parents Union in Russell-Tucker, the Firearms Policy
Coalition and the Second Amendment Foundation advance a theory of injury
that would allow any organization to “establish standing by claiming to have
been injured by any law or regulation touching on any issue within the scope of
its mission (which the organization itself can define or redefine) so long as it
expends resources to oppose that law or regulation.” Id. at 173. We reject so
broad a conception of organizational injury: again, because the organizational
Plaintiffs have not shown the kind of “involuntary and material impacts on core
activities by which the[ir] organizational mission has historically been carried
out,” id. at 175, they lack standing sufficient to support the preliminary
injunction issued against the place of worship provision.
The challenge to the place of worship provision in Antonyuk fares
similarly. Plaintiff Mann alleges that his church “maintained a church security
team, consisting of trusted church members . . . designated to carry their firearms
to provide security and protection to the congregation,” and that he “intends to
continue to possess and carry [his] firearm while on church property”
notwithstanding the place of worship provision. Antonyuk J.A. 72 ¶¶ 182–83
(alteration in original) (quotation marks omitted). Again, this is exactly what the
152 amended statute allows Mann to do; he can freely designate himself and the
church security team as “persons responsible for security,” N.Y. Penal L.
§ 265.01-e(2)(c), and thereby except them from the scope of the CCIA’s criminal
prohibition. 64 No other plaintiff in Antonyuk has standing to support the district
court’s injunction against the place of worship provision.
2. Vacatur of Preliminary Injunctions
With the subsequent mooting of Plaintiffs’ request for a preliminary
injunction, the question remains as to the nature of our mandate—whether to
vacate or affirm the injunctions. “In considering whether vacatur is
inappropriate, our primary concern is the fault of the parties in causing the
appeal to become moot.” Russman v. Bd. of Educ. of Enlarged City Sch. Dist. of
Watervliet, 260 F.3d 114, 121 (2d Cir. 2001). Vacatur is appropriate “in those cases
where review is ‘prevented through happenstance’ and not through
circumstances attributable to any of the parties.” Haley v. Pataki, 60 F.3d 137, 142
(2d Cir. 1995) (“Here, mootness resulted neither from happenstance nor from
64The Antonyuk Plaintiffs’ post-amendment submission to this Court under Federal Rule of Appellate Procedure 28(j) seems to confirm this analysis. It calls the new grant of authority to church leaders “a welcome change” and argues only that “other provisions” of the CCIA keep Mann from keeping weapons in the church (and that the statute amounts to compelled speech), objections addressed elsewhere in this opinion. See Antonyuk Appellees’ May 10, 2023 Letter at 1–2, ECF No. 378.
153 settlement from the entire action, but from the Governor’s voluntary compliance
with the preliminary injunction. Under the circumstances of this case, vacatur of
the injunction is proper.”).
The amendment of the place of worship provision is not attributable to any
named defendant in any of the cases on appeal; it is the product of the New York
legislature’s intervention. Most importantly, none of the New York officers
named as defendants made a voluntary choice to discontinue their enforcement
of the prior place of worship provision—which decision could one day be
reversed, and the issues thereby revived. The challenged law is gone, and there
is no possibility that the defendants could seek to enforce it against the Plaintiffs.
Under these circumstances, vacatur of the district courts’ injunctions is
warranted.
B. Spencer
The Plaintiffs in Spencer—Pastor Spencer and the church he leads—argue
that the CCIA’s restriction on firearms in places of worship violates the First
Amendment’s Free Exercise and Establishment Clauses. Spencer avers that he
feels a “moral and religious duty to take reasonable measures to protect the
safety of those who enter the Church,” and that accordingly “before the church
154 carry ban went into effect, [he] regularly carried a concealed pistol on the
Church’s New York campuses” and “allowed security volunteers and other
churchgoers with New York carry licenses to carry their own concealed
firearms.” Spencer J.A. 74 ¶¶ 22–23. Unlike the Plaintiffs in Antonyuk and
Hardaway, the claims of the Spencer Plaintiffs are not limited to their own carriage
of weapons, but extend to a “desire to allow others to carry concealed firearms
. . . on the Church’s New York campuses” because of a belief “that such
concealed carry will protect [Spencer] and other worshippers from the kind of
violence that other houses of worship across the country have suffered, and
because such concealed carry effectuates our religious beliefs . . . that we must
protect the physical safety of the flock.” Id. at 75 ¶ 29.
The district court accepted both First Amendment arguments. It held that
the CCIA’s explicit targeting of places of worship facially discriminates against
religious activity, and that the law was not neutral to religion because “[c]areful
drafting ensured that carrying of concealed weapons for religious reasons at
place[s] of worship is prohibited, while the same carrying in numerous other
circumstances remains permissible.” Spencer, 648 F. Supp. 3d at 462. It
determined that the law was not generally applicable because the CCIA permits
155 several different types of private businesses to allow weapons on their property
while prohibiting religious organizations from doing the same. Id. at 463.
Further, it concluded that the CCIA violates the Establishment Clause because it
interferes in internal matters of the church by “dictat[ing] that protection of the
Church may only be provided by . . . individuals fitting into a statutory
exemption,” instead of members of the congregation writ large. Id. at 465.
Separately, the district court concluded that the place of worship provision
lacked historical analogues sufficient to show that it imposed a constitutional
burden on the exercise of Spencer’s Second Amendment right to carry a firearm.
Id. at 466–68. It therefore enjoined the statute under both the First and Second
Amendments, as incorporated by the Fourteenth Amendment.
We affirm the preliminary injunction under the Free Exercise Clause, and
express no view as to the other arguments raised by the Plaintiffs.
We consider first whether Plaintiffs have demonstrated a likelihood of
success on the merits. “[A] plaintiff may carry the burden of proving a free
exercise violation . . . by showing that a government entity has burdened his
sincere religious practice pursuant to a policy that is not ‘neutral’ or ‘generally
156 applicable.’” Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407, 2421–22 (2022)
(quoting Emp. Div., Dep’t of Hum. Res. of Or. v. Smith, 494 U.S. 872, 878 (1990)).
1. Burden on Religious Practice
As with the Plaintiffs in Hardaway and Antonyuk, whether the Plaintiffs are
injured by the place of worship provision must be reconsidered following the
amendment to the statute.
The central argument advanced by the Spencer Plaintiffs is that the CCIA
impedes their religious duty to protect the congregation by carrying firearms in
their church and inviting congregants to do the same. A faith organization has a
cognizable interest in eliminating barriers to its religious practice, including
when the barriers primarily impact its adherents’ conduct. See, e.g, Church of the
Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 528 (1993) (church and
religious leader may challenge restriction on animal sacrifice); Roman Cath.
Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 65–66 (2020) (religious organizations
may challenge place-of-worship occupancy restrictions); Fifth Ave. Presbyterian
Church v. City of New York, 293 F.3d 570, 574–75 (2d Cir. 2002) (church may
challenge City policy to remove homeless people from church’s outdoor
property).
157 Although the burden on the Plaintiffs’ religious practice has been reduced
by the intervening amendment, a remediable injury to the Plaintiffs’ religious
practice subsists. The complaint and affidavits focus on firearms carried by
church leadership and security volunteers, but also state that ordinary members
of the congregation carry firearms pursuant to a religious calling—and,
importantly, are encouraged to do so by Spencer. The complaint states that
“numerous church members who hold New York concealed-carry licenses . . .
would like to carry firearms on the Church’s New York campuses as a means of
self-defense,” Spencer J.A. 56 ¶ 46, and that the Plaintiffs invite this conduct as
part of the Plaintiffs’ “sincere religious beliefs,” id. at 61 ¶ 61. Spencer’s
declaration avers that he “allowed security volunteers and other churchgoers” to
carry firearms “as an application of” his and the Church’s religious beliefs. Id. at
74 ¶ 24.
The New York legislature’s decision to authorize the Spencer Plaintiffs and
other church leaders to appoint “persons responsible for security” who may
carry firearms in the church therefore gives the Plaintiffs only partial relief.
While they may now arm themselves and their security volunteers, they still
cannot give general license to their congregants to bring firearms into the church
158 unless they are willing to designate every congregant as “responsible for
security.” The need to make this designation is not an obstacle faced by secular
establishments that wish to authorize the carriage of firearms. Many members of
the congregation may feel unwilling to carry firearms in the church if they are
required to take such a responsibility, and Spencer and the Church cannot invite
congregants to carry firearms without exhorting them to take up a responsibility
to protect not only themselves or their families but also the congregation as a
whole.
The State argues that the place of worship provision does not meaningfully
burden the Plaintiffs’ religious practice. Spencer Appellants’ Br. at 19–20. In
direct examination during a hearing before the district court, counsel for the State
asked Spencer whether he felt that other pastors that he supervises were “failing
their religious obligation to protect the flock” by not carrying weapons; Spencer
replied: “Each person, I believe, has their right to believe as they will. I don’t
dictate even to my staff.” Spencer J.A. 237–38. The State takes this, and some
similar exchanges in which Spencer acknowledged that he did not police the
firearm-carrying practices of his congregants or fellow pastors, to be an
159 admission that “carrying firearms is not necessary to fulfill a [purported]
religious obligation to protect congregants.” Spencer Appellants’ Br. at 20.
The State does not dispute, however, that Spencer used to carry a firearm
in the church because of a personal religious belief and encouraged his
congregants to do the same. Nor does it dispute that Spencer no longer did so
after the CCIA was passed. This is all that is required; the burden element is
fulfilled when an individual plaintiff is prevented from engaging in a religious
practice by state action. The practice need not form part of an orthodox religious
doctrine or be pursued collectively or uniformly. See Ford v. McGinnis, 352 F.3d
582, 593 (2d Cir. 2003) (“Neither the Supreme Court nor we . . . have ever held
that a burdened practice must be mandated . . . . To confine the protection of the
First Amendment to only those religious practices that are mandatory would
necessarily lead us down the unnavigable road of attempting to resolve intra-
faith disputes over religious law and doctrine.”). Spencer’s decision not to verify
which members of his congregation carry firearms does not impeach his religious
beliefs any more than a pastor’s failure to check the tax returns of his
congregation-members would impeach his belief in the religious virtues of
charity.
160 The State relies on this Court’s decision in Green Haven, which concerned a
constitutional challenge brought by a group of Quakers whose meetings with
imprisoned coreligionists had been rescheduled from Saturday to Friday. Green
Haven Prison Preparative Meeting of the Religious Soc’y of Friends v. N.Y. State Dep’t
of Corr. & Cmty. Supervision, 16 F.4th 67, 85 (2d Cir. 2021). The Green Haven
plaintiffs failed to show a burden on the group’s religious practice because,
notwithstanding allegations that rescheduling had caused them
“inconveniences,” the plaintiffs “failed to establish that scheduling the Quarterly
Meetings on Saturdays (as opposed to any other day) bears any religious
significance whatsoever.” Id. at 85–86. Importantly, the state action “did not
forbid” the group’s meetings. Id. at 85. Here, however, Spencer has alleged he
places a religious significance in encouraging his congregation to carry firearms
in his church, and this encouragement has been made at least partially unlawful
by the CCIA. Moreover, Green Haven is inapposite because it arises in the setting
of a prison, where security and penological concerns impose limits on prisoners’
rights that would not be countenanced as to the non-incarcerated population.
To the extent the State disputes the sincerity of Spencer’s beliefs, we
decline to consider vacatur on these grounds. To assess the sincerity of a
161 plaintiff’s religious belief, “[t]he need for a full exposition of facts is profound,”
because “determining a man’s state of mind is ‘an awesome problem,’ capable of
resolution only by reference to a panoply of subjective factors,” including “a
litigant’s state of mind, motive, sincerity or conscience.” Patrick v. LeFevre, 745
F.2d 153, 159 (2d Cir. 1984) (quoting Sittler v. United States, 316 F.2d 312, 325 (2d
Cir. 1963) (Kaufman, J., concurring)). Because “a sojourn into an adherent’s
mind-set will inevitably trigger myriad factual inferences, as to which reasonable
persons might differ in their resolution,” we have demanded that “this
function . . . be[] entrusted to the jury.” Id.
The district court accepted the sincerity of Spencer’s beliefs, see Spencer, 648
F. Supp.3d at 462, and at this preliminary stage we will not supplant its view
based on our construction of a few excerpts from Spencer’s testimony in a cold
record. Affirming this preliminary injunction does nothing to foreclose the
parties’ dispute as to the Plaintiffs’ religious beliefs. It is the State’s right to
oppose the allegations in the complaint and to make its case—to the factfinder at
trial—that Spencer does not genuinely believe in the importance of firearms in
his church. At this stage, however, Plaintiffs have sufficiently alleged that the
CCIA burdens their sincerely held religious practice.
162 2. Neutrality & General Applicability
However, even if a law burdens a religious practice, it is not
constitutionally suspect if it is “neutral” and “generally applicable.” Kennedy,
142 S. Ct. at 2422 (citing Smith, 494 U.S. at 879–81). “The State ‘fails to act
neutrally when it proceeds in a manner intolerant of religious beliefs or restricts
practices because of their religious nature.’” We the Patriots USA, Inc. v. Hochul,
17 F.4th 266, 281 (2d Cir. 2021) (quoting Fulton v. City of Philadelphia, 141 S. Ct.
1868, 1877 (2021)). A law is “not generally applicable if it is substantially
underinclusive such that it regulates religious conduct while failing to regulate
secular conduct that is at least as harmful to the legitimate government interests
purportedly justifying it.” Cent. Rabbinical Congr. of U.S. & Canada v. N.Y.C. Dep’t
of Health & Mental Hygiene, 763 F.3d 183, 197 (2d Cir. 2014).
In Roman Catholic Diocese of Brooklyn v. Cuomo, the Supreme Court held that
a law fails the Smith test of neutrality when it “single[s] out houses of worship for
especially harsh treatment.” 141 S. Ct. at 66. In that case, the Court held that
certain COVID-motivated occupancy restrictions were not neutral because they
limited the number of people who could gather for religious services but left
undisturbed several categories of businesses that were designated as essential.
163 The Court observed that “essential” locations such as “factories and schools” had
“contributed to the spread of COVID-19”—the state’s rationale for proscribing
religious exercise—but that these locations were nonetheless “treated less
harshly than the [parties’] churches and . . . synagogues.” Id. at 67.
Similarly, in Tandon v. Newsom, 141 S. Ct. 1294 (2021), the Supreme Court
granted an injunction pending appeal against a California law that prohibited at-
home gatherings of more than three households. The plaintiffs in Tandon wanted
to gather at home to worship, and the Supreme Court faulted the law for
“treat[ing] some comparable secular activities more favorably than at-home
religious exercise” by “permitting hair salons, retails stores, personal care
services, movie theaters, private suites at sporting events and concerts, and
indoor restaurants to bring together more than three households at a time.” Id. at
1297. The Court was emphatic that strict scrutiny applies under the Free Exercise
Clause whenever laws “treat any comparable secular activity more favorably
than religious exercise;” it is therefore “no answer that a State treats some
comparable businesses or other activities as poorly or even less favorably than
the religious exercise at issue.” Id. at 1296.
164 These cases decide the Spencer Plaintiffs’ challenge to the place of worship
provision. The State argues that the CCIA regulates neutrally because it equally
prohibits “those who carry firearms into places of worship as . . . those who carry
firearms into any of the other enumerated sensitive locations,” and because it
“does not exempt persons based on their asserted justification [religious or
otherwise] for carrying a firearm,” Spencer Appellants’ Br. at 24. However,
Tandon demands that the state cannot regulate “any comparable secular activity”
less restrictively, 141 S. Ct. at 1296. “[W]hether two activities are comparable for
purposes of the Free Exercise Clause must be judged against the asserted
government interest that justifies the regulation at issue.” Id. at 1297.
The State argues that the place of worship designation is justified because
such places are (i) loci of constitutionally protected activity, gathering (ii)
vulnerable people and (iii) crowds. Spencer Appellants’ Br. at 25–26. It
emphasizes that a heightened risk of gun violence in places of worship makes the
secular locations referenced by the district court—“hair salons, retail stores,
shopping malls, gas stations, office buildings, garages, and countless other
private actors hosting secular activities,” 648 F. Supp. 3d at 463,—poor
comparators for purposes of the First Amendment analysis.
165 In reply, the Spencer Plaintiffs offer the shopping mall as a paradigmatic
location—not designated as sensitive under the CCIA—that (like places of
worship) has been targeted by shootings and is, at times, a site for
constitutionally protected free speech at which both vulnerable persons and
children may gather. Spencer Appellees’ Br. at 28–30. That example alone would
perhaps be enough to subject the place of worship provision to strict scrutiny
under Tandon.
But more broadly, 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. By adopting a law that
applies differently as to places of worship (alongside the other enumerated
sensitive places) than to most other privately owned businesses and properties,
the CCIA is, on its face, neither neutral nor generally applicable. See Roman Cath.
Diocese, 141 S. Ct. at 66 (regulations that “single out houses of worship for
especially harsh treatment” will “violate the minimum requirement of neutrality
to religion” (internal quotation marks omitted)).
166 3. Strict Scrutiny
“A law burdening religious practice that is not neutral or not of general
application must undergo the most rigorous of scrutiny.” Church of the Lukumi
Babalu Aye, 508 U.S. at 546.
No party disputes that “the State has a compelling interest in protecting
the public against gun violence.” Spencer Appellants’ Br. at 32. Nor do we. The
question is whether the place of worship provision is the “least restrictive
means” available to achieve the State’s compelling interest. Thomas v. Rev. Bd. of
Ind. Emp. Sec. Div., 450 U.S. 707, 718 (1981). When a plaintiff has demonstrated
that a law burdens religious activity in a non-neutral way, “narrow tailoring
requires the government to show that measures less restrictive of the First
Amendment activity could not address its interest.” Tandon, 141 S. Ct. at 1296–
97; see also Fulton, 141 S. Ct. at 1881 (“[S]o long as the government can achieve its
interests in a manner that does not burden religion, it must do so.”).
The State asserts that categorically prohibiting weapons in places of
worship “is the least restrictive means of reducing gun violence within this
sensitive location” because “many clerical leaders have no desire to jeopardize
their safety and undermine their relationships with congregants by attempting to
167 eject persons carrying firearms.” 65 Spencer Appellants’ Br. at 32. But the State’s
focus must be on the “applicant’s proposed religious exercise” and its impact on
the State’s compelling interest, rather than “assert[ing] that certain risk factors
‘are always present in worship, or always absent from other secular activities’ the
government may allow.” Tandon, 141 S. Ct. at 1296 (quoting S. Bay United
Pentecostal Church v. Newsom, 141 S. Ct. 716, 718 (2021)).
The State provides no explanation for why leaders of religious groups in
general, and the Plaintiffs specifically, are less able to “eject persons carrying
firearms” than any other property owner who is permitted to make a free choice
whether to allow firearms on their premises. Spencer Appellants’ Br. at 32. A
place of worship that prohibits guns will be equally reliant on the police and the
criminal law to eject a person carrying a firearm, whether it does so pursuant to a
sensitive place designation or a church policy. Either way, someone will have to
call the cops. And if the State has determined that places of worship must be
designated as sensitive places because criminal trespass law is not enough to
keep out guns, then the decision to regulate places of worship more assiduously
than other locations amounts to an unequal pursuit of the interest in preventing
We put aside the fact that the New York legislature has since adopted a less restrictive 65
approach to places of worship.
168 gun violence. Such an approach is understandable, but unconstitutional. See
Church of the Lukumi Babalu Aye, 508 U.S. at 546 (“The proffered objectives are not
pursued with respect to analogous non-religious conduct . . . . The absence of
narrow tailoring suffices to establish the invalidity of the ordinances.”); Espinoza
v. Mont. Dep’t of Revenue, 140 S. Ct. 2246, 2261 (2020) (“A law does not advance an
interest of the highest order when it leaves appreciable damage to that
supposedly vital interest unprohibited.” (internal quotation marks omitted)).
And if New York has elected to “permit[] other activities to proceed” with
less stringent regulation of firearms, “it must show that the religious exercise at
issue is more dangerous than those activities even when the same precautions
are applied.” Tandon, 141 S. Ct. at 1297. At this stage, the State has not
demonstrated that allowing church leaders to regulate their congregants’
firearms is more dangerous than allowing other property owners to do the same.
It hard to see how the law advances the interests of religious organizations, as a
whole, by denying them agency to choose for themselves whether to permit
firearms. Cf. Espinoza, 140 S. Ct. at 2260 (“An infringement of First Amendment
rights . . . cannot be justified by a State’s alternative view that the infringement
advances religious liberty.”). The State advances an unsubstantiated assertion
169 that “there is no way for the State to accommodate those who wish to carry
firearms for religious reasons without rendering the entire sensitive-place statute
unworkable,” Spencer Appellants’ Br. at 33–34, but does nothing to explain why
the assuredly few religious organizations in New York that genuinely believe in
armed worship—which we take to include the Plaintiffs in Spencer —cannot be
accommodated without eviscerating the CCIA. 66
For these reasons, Plaintiffs have shown a likelihood of success in
demonstrating that the place of worship provision is not the most narrowly
tailored means to address the State’s compelling interest.
4. Irreparable Harm & Balance of Equities
We now turn to the remaining preliminary injunction factors. Plaintiffs
have shown that they will suffer irreparable harm if the place of worship
provision is enforced against them. “The loss of First Amendment freedoms, for
66 Plaintiffs observe that several states have enacted statutes that allow places of worship to establish their own policies about carrying firearms, and criminalize the carriage of weapons in violation of such policy. Spencer Appellees’ Br. at 33 (citing, inter alia, ARK. CODE § 5-73- 306(15)(B); LA. CODE § 40:1379.3(N)(8); MICH. COMP. LAWS § 28:425o(1)(e); MO. STAT. § 571.107(1)(14); N.D. CODE § 62.1-02-05(2)(m); OHIO REV. CODE § 2923.126(B)(6); S.C. CODE § 23- 31-215(M)(8); UTAH CODE § 76-10-530). Of course, New York is not required by the Constitution to adopt the same approach to firearm regulation as other states. But insofar as these states have adopted an approach that would entail little or no burden to Plaintiffs’ religious practice, it is incumbent on the State to better demonstrate why this alternative is not acceptable.
170 even minimal periods of time, unquestionably constitutes irreparable injury.”
Elrod v. Burns, 427 U.S. 347, 373 (1976).
As for the balance of equities, because the State has not demonstrated that
public safety would be harmed by allowing the Spencer Plaintiffs to permit
congregants to carry firearms within the church, “it has not been shown that
granting the [injunction] will harm the public.” Roman Cath. Diocese, 141 S. Ct. at
68.
For the reasons set forth above, we VACATE the district courts’ preliminary
injunctions in Antonyuk and Hardaway against enforcement of § 265.01-e(2)(c) but
AFFIRM the preliminary injunction issued by the district court in Spencer, which
prohibits enforcement of § 265.01-e(2)(c) against “Pastor Spencer, the [Tabernacle
Family] Church, its members, or their agents and licensees.” 648 F. Supp. 3d at
471. 67
As the Spencer Plaintiffs did not cross-appeal to broaden the scope of the relief granted 67
by the district court, we affirm the injunction as entered.
171 III. Parks and Zoos
New York also criminalizes possession of a gun in “public parks[] and
zoos.” N.Y. Penal L. § 265.01-e(2)(d). Plaintiffs challenge the constitutionality of
this prohibition. We first address standing and then the merits of this challenge.
Defendant Joseph Cecile, Chief of the Syracuse Police Department,
disputes the district court’s conclusion that Plaintiff Corey Johnson has standing
with respect to the zoo prohibition, arguing that Johnson (1) did not adequately
allege his intention to visit a zoo; and (2) has not shown a credible threat of
enforcement by Cecile (as opposed to by other law enforcement officials). 68
Johnson averred in his declaration that he and his wife “frequently visit
the Rosamond Gifford Zoo in Syracuse, at least once or twice every fall, so that
my wife can see the otters and wolves, which are her favorites.” J.A. 139–40
(Johnson Decl. ¶ 17). He then estimated that they would “visit the zoo this fall as
well, at least once, within the next 90 days.” Id. And since he “intend[s] to carry
[his] firearm when [they] visit the Rosamond Gifford Zoo,” id., he alleges that he
faces a credible threat of being prosecuted for violating paragraph (2)(d).
68 The State defendants do not challenge the district court’s holding that various Plaintiffs had standing as to public parks, and we see no impediment to standing.
172 Johnson’s averments are in line with the kinds of allegations that the
Supreme Court has found sufficient to support pre-enforcement standing. In
Babbitt v. United Farm Workers National Union, the plaintiff organization did not
even allege an intention to violate the law: it merely stated its “intention to
continue to engage in [lawful] boycott activities” and that an erroneous
statement criminalized by the statute is “inevitable in free debate.” 442 U.S. at
301 (internal quotation marks omitted). The Court has also recognized that
plaintiffs who intend to comply with the law solely to avoid prosecution (i.e.,
who have been deterred) have standing to bring a pre-enforcement challenge.
See Holder v. Humanitarian L. Project, 561 U.S. 1, 15–16 (2010) (finding standing
based on allegation that plaintiffs would resume proscribed conduct “if the
statute’s allegedly unconstitutional bar were lifted”); Steffel v. Thompson, 415 U.S.
452, 456 (1974) (“Petitioner alleged in his complaint that, although he desired to
return to the shopping center to distribute handbills, he had not done so because
of his concern that he, too, would be arrested.”). Johnson’s averments, while
short of pleading the time and date of his intended visit to the zoo, are more
specific than the allegations found sufficient in Babbitt, Holder, and Steffel. He has
therefore adequately pled his “intention to engage in a course of conduct
173 arguably affected with a constitutional interest, but proscribed by a statute.”
Driehaus, 573 U.S. at 159.
As to a credible threat of enforcement by Defendant Cecile (or, by
extension, the Syracuse Police Department), Cecile adduces two arguments. He
argues first that he has made no “concrete and particularized statement to the
general public regarding the imminence of anyone’s arrest, let alone [regarding]
Plaintiff Johnson . . . ,” Antonyuk Cecile Br. at 14 (internal quotation marks
omitted), and thus that Johnson’s fear of arrest by the Syracuse Police is unduly
speculative. But (as explained above) the bar for stating a credible threat of
enforcement is “low” and “quite forgiving.” Hedges, 724 F.3d at 197. It is not
necessary that a plaintiff be specifically threatened with prosecution. Moreover,
far from “disavow[ing] any intention of invoking” the challenged law, Babbitt,
442 U.S. at 302, Cecile has expressly stated that he and his officers will enforce the
CCIA, albeit not proactively. J.A. 24 (Compl. ¶ 24); see also J.A. 237 (“‘It will be
complaint-driven,’ [Cecile] said.”). A lack of enthusiasm or initiative does not
rebut the presumption “that the government will enforce the law as long as the
relevant statute is recent and not moribund.” Cayuga Nation, 824 F.3d at 331
174 Second, Cecile argues that the Rosamond Gifford Zoo is on county (rather
than city) land and thus falls under the jurisdiction of the Onondaga County
Sheriff and Park Rangers. But this fact is not fatal to Johnson’s standing: Cecile
has conceded that Syracuse police are not barred from responding to complaints
at the Zoo. See Cecile Mem. of L. in Opp. to Mot. to Dismiss at 9, Antonyuk, No.
22-cv-986, ECF No. 47-9. Like the district court, we “ha[ve] little doubt that, if
there were a gun incident reported at the zoo, the Syracuse Police Department
would promptly respond (in addition to any County Park Ranger available).”
639 F. Supp. 3d at 272. While the County’s primary jurisdiction over the zoo
might alleviate somewhat Johnson’s fear of arrest by the Syracuse Police, it does
not render the threat of enforcement by Cecile or the Syracuse Police “imaginary
or wholly speculative,” Babbitt, 442 U.S. at 302, and is therefore not of
constitutional moment. Accordingly, Johnson has standing with respect to
Cecile’s threatened enforcement of the zoo prohibition.
B. Merits
Having determined that the conduct proscribed by § 265.01-e(2)(d), i.e.,
carriage in public parks and zoos, was within the plain text of the Second
175 Amendment, the district court placed the burden on the State to establish the
regulation’s consistency with the Nation’s history and tradition. The district
court considered the following analogues: (1) an 1870 Texas law prohibiting
firearms in “place[s] where persons are assembled for educational, literary or
scientific purposes,” J.A. 602 (1870 Tex. Gen. Laws 63, ch. 46); (2) an 1883
Missouri Law prohibiting carriage in places where people assembled for
“educational, literary or social purposes” and “any other public assemblage of
persons met for any lawful purpose,” J.A. 611 (1883 Mo. Sess. Laws 76); (3) an
1889 Arizona law and 1890 Oklahoma law prohibiting carriage in any “place
where persons are assembled for amusement or for educational or scientific
purposes,” J.A. 617 (1889 Ariz. Sess. Laws 17, § 3), see also J.A. 621 (1890 Okla.
Terr. Stats., Art. 47, § 7); (4) ordinances in New York City, Philadelphia, St. Paul,
Detroit, Chicago, Salt Lake City, St. Louis, and Pittsburgh adopted between 1861
and 1897 prohibiting carriage in public parks; 69 and (5) the tradition of
prohibiting firearms in schools.
69 See FOURTH ANNUAL REPORT OF THE BOARD OF COMMISSIONERS OF THE CENTRAL PARK (Jan. 1861); FIRST ANNUAL REPORT OF THE COMMISSIONERS OF FAIRMOUNT PARK (PHILADELPHIA), Supplement § 21(II) (1869); RULES AND REGULATIONS OF THE PUBLIC PARKS AND GROUNDS OF THE CITY OF SAINT PAUL (1888); 1895 Mich. Pub. Acts 596; CHICAGO MUNI. CODE art. 43 (1881); SALT LAKE CITY, REVISED ORDINANCES ch. 27 (1888), Tower Grove Park Bd. of Comm’rs, Rules
176 Before proceeding to the individual history and analogue test for public
parks and zoos, 70 the district court noted that it would afford little weight to
territorial laws and city ordinances that did not correspond to sufficiently similar
state laws. Likewise, it discounted laws from the last decade of the 19th century
because of their distance from the Founding and Reconstruction. Given these
parameters, the district court considered: the 1870 Texas law, 1883 Missouri law,
and “to a lesser extent” the New York, Philadelphia, Chicago, St. Louis, and St.
Paul ordinances. Antonyuk, 639 F. Supp. 3d at 324.
The purpose of the analogous regulations, per the district court, “appears
to have been to protect people from the danger and disturbance that may
accompany firearms.” Id. The statutes and ordinances accomplished this
purpose and accordingly burdened Second Amendment rights by “prohibiting
the carrying of firearms (1) where people are assembled for educational or
literary purposes, or (2) to a lesser extent, when people frequent an outdoor
and Regulations, in DAVID H. MACADAM, TOWER GROVE PARK OF THE CITY OF ST. LOUIS (1883); Pittsburgh Gen. Ordinances, Bureau of Parks, p. 496 (2d ed. 1897). 70 The district court determined that § 265.01-e’s prohibition on carriage in playgrounds was consistent with history and tradition and did not issue an injunction as to that aspect of the regulation. That determination is not on review in this appeal. No Plaintiff has appealed from that ruling, so it is not before us for review.
177 location for purpose of recreation or amusement (or travel through such a
location), especially when children are present.” Id.
a. Public Parks
The district court rejected the State’s arguments that its historical
analogues supported banning carriage in public parks. As an initial matter, the
court determined that the 1870 Texas and 1883 Missouri laws demonstrated
neither an established tradition — because they were only two statutes — nor a
representative one — because the combined population of those two states was
only 6.6 percent of the American population at the time. Beyond that, the district
court noted that neither statute specifically prohibited carriage in public parks.
Because both states “[p]resumably . . . contained at least some public parks” at the
time of the statutes’ passing, the district court found that this lack of a specific
prohibition weighed against finding a tradition of firearm regulation in public
parks. Antonyuk, 639 F. Supp. 3d at 325. The court also observed that statutes
banning firearms in analogous places such as “commons” or “greens” were also
absent from the historical record. Id. Given this, the district court did not take
the Texas and Missouri statutes to support a tradition of banning carriage in
public parks.
178 Nor did the city ordinances establish such a tradition, according to the
district court. First, the district court stated that, to the extent such ordinances
established any tradition of regulation at all, they would do so only for “public
parks in a city” not those outside of cities. Id. Next, notwithstanding the support
that the numerous ordinances did lend to prohibiting carriage in urban public
parks, the district court determined that they did not set forth a well-established
or representative tradition because the total population of the five cities in
question accounted for only 6.8 percent of the population of the Nation at the
time.
Finally, the district court dismissed the idea that the ordinances, when
combined with the state statutes, could together demonstrate a well-established
and representative tradition of prohibiting firearms in urban public parks,
because the combined populations of the cities and states (13.4 percent) was
under 15 percent of the national population.
b. Zoos
As with public parks, the district court held that the State’s analogues
failed to establish a tradition of regulating firearms in zoos. The court began by
noting that the State did not offer any statutes explicitly prohibiting carriage in
zoos, an absence deemed conspicuous by the district court, given that cities
179 throughout the country appeared to have opened zoos in the latter half of the
19th century between 1864 to 1883. The district court also rejected the State’s
argument that, because three of these zoos were located within city parks, the
city ordinances prohibiting firearms in public parks also supported regulations
in zoos. According to the district court, the coverage of zoos by public park
regulations indicated that zoos did not merit “more protection,” and therefore
actually cut against finding a tradition of regulating firearms in zoos. Id. at
327.The court reiterated that, in any event, there was no well-established and
representative history of regulating firearms in public parks, and thus no such
tradition could be extended to zoos by virtue of their location in public parks.
The district court also rejected the State’s attempt to liken zoos to
playgrounds because of the presence of children. It found that the regulation in
zoos is “more burdensome than the regulation in playgrounds, because adults
more commonly frequent zoos without children than they frequent playgrounds
without children.” Id.
Having found that the State failed to locate § 265.01-e’s prohibition on
carriage in public parks and zoos within the Nation’s tradition of firearm
180 regulation, the district court enjoined the regulation’s enforcement in both
locations.
2. Analysis of the Historical Analogues — Public Parks
On appeal, the State offers three arguments for why its analogues show a
history and tradition consistent with § 265.01-e. First, it argues that the
regulation aims to protect the spaces where individuals often gather to express
“their constitutional rights to protest or assemble” Antonyuk Nigrelli Br. at 61
(quoting § 265.01e(2)(s)). Thus, according to the state, the well-established
tradition of regulating firearms in quintessential public forums, such as fairs and
markets, justifies regulating firearms in public parks, which today often serve as
public forums. 71 As examples of this tradition, the State reaches as far back as a
1328 British statute forbidding going or riding “armed by night []or by day, in
fairs, markets.” Statute of Northampton 1328, 2 Edw. 3 c.3 (Eng.). The State
adduces evidence that at least two Founding-era states and several
Reconstruction-era states replicated this type of law, see J.A. 670 (1786 Va. Acts
71 See Darrell A.H. Miller, Constitutional Conflict and Sensitive Places, 28 WM. & MARY BILL RTS. J. 459, 475–76 (2019) (noting that “First Amendment institution[s]” are designed for the “right to peaceably assemble” and that regulations to ensure such peaceable assembly have both “a long history in Anglo-American jurisprudence,” and have historically been “bolstered by general prohibitions on armaments in places like fairs and markets—places one would think part of the ‘immemorial’ custom of public forums”).
181 35, Ch. 49); Collection of Statutes of the Parliament of England in Force in the
State of North Carolina, pp. 60–61, ch. 3 (F. Martin Ed. 1792) (North Carolina
Statute), as well as Reconstruction-era states, see J.A. 602 (1870 Tex. Gen. Laws 63,
ch. 46); 611 (1883 Mo. Sess. Laws 76), 605–06 (1869 Tenn. Pub. Acts 23–24); 616–18
(1889 Ariz. Sess. Laws 16–18); 621 (1890 Okla. Terr. Stats., Art. 47, § 7), and that,
where challenged, these laws and subsequent amendments were upheld as
constitutional by state courts. See, e.g., State v. Shelby, 2 S.W. 468, 469 (Mo. 1886),
English v. State, 35 Tex. 473, 478–79 (1871); Andrews v. State, 50 Tenn. 165, 182
(1871). And, as it did below, the State offers the same eight city ordinances
prohibiting firearms in city parks and notes that these ordinances were passed
shortly after the time that parks emerged as municipal institutions.
Second, the State relies on the same state laws establishing a tradition of
firearm regulation in public forums to argue that § 265.01-e(2)(d) is within the
tradition of regulating firearms in “quintessentially” crowded places such as fairs
and markets. Antonyuk Nigrelli Br. at 63.
Third, and finally, the State explains that § 265.01-e(2)(d) endeavors to
protect children who often frequent public parks from firearms and is thus
182 consistent with the tradition of regulating firearms in areas frequented by
children.
We agree with the State that § 265.01-e is within the Nation’s history of
regulating firearms in quintessentially crowded areas and public forums, at least
insofar as the regulation prohibits firearms in urban parks, though not necessarily
as to rural parks. Considering, then, that the law has a plainly legitimate sweep
as to urban parks, the facial challenge fails notwithstanding doubt that there is
historical support for the regulation of firearms in wilderness parks, forests, and
reserves.
Contrary to the district court’s conclusion, the State has made a robust
showing of a well-established and representative tradition of regulating firearms
in public forums and quintessentially crowded places, enduring from medieval
England to Reconstruction America and beyond. 72 See Darrell A.H. Miller,
Constitutional Conflict and Sensitive Places, 28 WM. & MARY BILL RTS. J. 459, 475–76
(2019) (noting that regulations ensuring peaceable assembly have “a long history
72Insofar as the State relies on the tradition of regulating firearms in places frequented by children as an analogue for § 265.01-e(2)(d), Bruen tells us that tradition is well-established and representative. See 142 S. Ct. at 2133.
183 in Anglo-American jurisprudence” and noting a history of “general prohibitions
on armaments” in public forums).
Though “[s]ometimes, in interpreting our own Constitution, it is better not
to go too far back into antiquity,” that is distinctly not the case where “evidence
shows that medieval law survived to become our Founders’ law.” Bruen, 142 S.
Ct. at 2136 (internal quotation marks omitted). Here, the State has shown that at
least two states—Virginia and North Carolina—passed statutes at the Founding
that replicated the medieval English law prohibiting firearms in fairs and
markets, 73 i.e., the traditional, crowded public forum. 74 See J.A. 670 (1786 Va. Acts
73 Our own research reveals another such jurisdiction. See, e.g., An Act for Punishment of Crimes and Offences, within the District of Columbia, § 40 (1816), available at https://rb.gy/7q0cv [https://perma.cc/88PB-Y654] (prohibiting going or riding “armed by night nor day, in fairs or markets, or in other places, in terror of the county”). 74 Two observations regarding these Founding-era statutes are warranted. First, while the Virginia statute differed from the medieval English Northampton statute in that it prohibited conduct and not simply carriage, i.e., bearing arms in “terror” of the county, the North Carolina statute, like the Northampton statute, appears to have prohibited firearm carriage in general at fairs and markets regardless of conduct. And, as we will elaborate below, the tradition of regulating firearms in quintessentially crowded places evolved in the direction of the North Carolina statute, i.e., the prohibition of carriage without any reference to conduct. Thus, despite the Virginia law’s “in terror of the county” language, we do not interpret the National tradition of regulating firearms in quintessentially crowded places to require a conduct element. Second, though Bruen rejected the medieval Northampton statute, it did so within the context in which that statute was offered: as an analogue supporting a carriage ban in public generally. See Bruen, 142 S. Ct. at 2139 (explaining that the state had offered the Northampton statute as a “sweeping restriction on public carry of self-defense weapons”). In sum, Bruen addressed the statute in a different context; nor was the statute discounted by Bruen for the analogical purpose for which we rely upon it here. See id. at 2142 (noting that historical evidence establishes that the Northampton statute was “no obstacle to public carry for self-
184 35, Ch. 49) (prohibiting going or riding “armed by night []or by day, in fairs or
markets, . . . in terror of the county”); Collection of Statutes of the Parliament of
England in Force in the State of North Carolina, pp. 60–61, ch. 3 (F. Martin Ed.
1792) (North Carolina law prohibiting “to go nor ride armed by night nor by day,
in fairs, markets”).
The tradition of regulating firearms in quintessentially crowded places was
continued throughout the history of our Nation. In Reconstruction, three states
(Texas, Missouri, and Tennessee) passed laws prohibiting weapons in public
forums and crowded places such as assemblies for “educational, literary or
scientific purposes, or into a ball room, social party or other social gathering.”
J.A. 602 (1870 Tex. Gen. Laws 63, ch. 46); see also id. at 605 (1869 Tenn. Pub. Acts
23) (Tennessee law prohibiting the carriage of deadly weapons by “any person
attending any fair, race course, or other public assembly of people”); id. at 611
(1883 Mo. Sess. Laws 76) (Missouri law prohibiting weapons “where people are
assembled for educational, literary or social purposes”). The territories of
Oklahoma and Arizona did the same. See id. at 617 (1889 Ariz. Sess. Laws 17)
defense” generally but not addressing the more specific prohibitions in the statute such as carriage in fairs and markets). We therefore do not take Bruen’s observations regarding the Northampton statute to run contrary to our more limited conclusions here.
185 (Arizona law prohibiting dangerous weapons “where persons are assembled for
amusement or for educational or scientific purposes, or into any circus, show or
public exhibition of any kind, or into a ball room, social party or social
gathering”); id. at 621 (1890 Okla. Terr. Stats., Art. 47, § 7) (Oklahoma law
prohibiting carriage in places “where persons are assembled for . . . amusement,
or for educational or scientific purposes, or into any circus, show or public
exhibition of any kind, or into any ball room, or to any social party or social
gathering”).
This “long, unbroken line,” Bruen, 142 S. Ct. as 2136, beginning from
medieval England and extending beyond Reconstruction, indicates that the
tradition of regulating firearms in often-crowded public forums is “part of the
‘immemorial’ custom” of this nation, Miller, 28 WM. & MARY BILL RTS. J. at 476.
Of particular note, the state courts of all three states that had such laws
upheld this type of statute as constitutional. See Bruen, 142 S. Ct. at 2155 (stating
that where state courts have passed on the constitutionality of a statute, we
“know the basis of their perceived legality”). Holding an 1871 amendment to the
1870 Texas statute constitutional in English v. State, the Texas Supreme Court
observed that “it appears [] little short of ridiculous, that any one should claim
186 the right to carry upon his person” a firearm “into a peaceable public assembly,
as for instance, into a church, a lecture room, a ball room, or any other place
where ladies or gentleman are congregated together.” 75 35 Tex. at 478–79. The
same year, the Tennessee Supreme Court upheld Tennessee’s statute by noting
that “the private right to keep and use” arms “is limited by the duties and
proprieties of social life” and that “[t]herefore, a man may well be prohibited
from carrying his arms” to a “public assemblage.” Andrews, 50 Tenn. at 181–82.
See also Shelby, 2 S.W. at 469 (holding that 1883 Mo. law prohibiting carriage
“where people are assembled for educational, literary, or social purposes” was
constitutional). English and Andrews tell us that the Nation not only tolerated
the regulation of firearms in public forums and crowded spaces, but also found it
aberrational that a state would be unable to regulate firearms to protect the “the
duties and proprieties of social life” in such spaces. See Miller, 28 WM. & MARY
75 Though the Supreme Court discounted English as an outlier in Bruen, it did so only insofar as English held that the state could lawfully restrict carriage to those with “reasonable grounds for fearing an unlawful attack.” Bruen, 142 S. Ct. at 2153 (quoting 1871 Tex. Gen. Laws ch. 34). New York had offered English and the underlying statute as an analogue to the special need requirement at issue in Bruen. Id. Accordingly, we do not understand Bruen to have cast doubt on English’s holding as to the 1871 Texas statute’s separate restriction relating to public assembly. Nor do we find independent reason to doubt that English’s holding as to public assembly restrictions is consistent with the Nation’s tradition. Whereas Texas’s historical “reasonable grounds” requirement was an outlier in that it went against the tradition of a majority of the Nation and was only replicated by one other state, see id., the public assembly restriction is consistent with the national tradition and existed in many states.
187 BILL. RTS. J. at 475 (“The idea of a right to peaceably assemble presumes . . . that
such assemblages must be peaceable, as opposed to disorderly.”)
The number of states and territories with such statutes makes clear that
this tradition has also been consistently representative of the Nation as a whole.
At the time in which they were passed in 1791, Virginia’s and North Carolina’s
statutes prohibiting firearms in fairs and markets applied to over a quarter of the
Nation’s population. 76 By 1891, an additional three states and two territories had
passed similar laws, meaning that such statutes applied to nearly 10 million
Americans, a figure equivalent to about 15.3 percent of the Nation’s population
at that time. 77 Cf. Bruen, 142 S. Ct. at 2154 (determining that the proffered
analogues were not representative where they applied to only “about two-thirds
of 1% of the population”).
In addition to showing that there existed a well-established and
representative state tradition of such regulation, the State points to eight
76 The 1790 Census counted approximately 3.3 million Americans, of whom 747,610 lived in Virginia and 393,751 in North Carolina. DEPT. OF INTERIOR, COMPENDIUM OF ELEVENTH CENSUS: 1890, 3 tbl. 1 (1892). 77 The 1890 Census counted approximately 62.6 million Americans. DEPT. OF INTERIOR, COMPENDIUM OF ELEVENTH CENSUS: 1890, 2 tbl. 1 (1892). The combined population of Virginia, North Carolina, Texas, Missouri, Tennessee, Oklahoma, and Arizona was approximately 9.3 million. Id.
188 examples (Chicago, Detroit, New York City, Philadelphia, Pittsburgh, Salt Lake
City, St. Paul, St. Louis) establishing a municipal tradition of regulating firearms
in urban public parks specifically. The proliferation of these urban public park
regulations between 1861 and 1897 coincides with the rise of public parks as
municipal institutions over the latter half of the 19th century. 78 While only 16
parks were created before 1800, 79 “[f]ollowing the success of [New York’s]
Central Park, cities across the United States began building parks to meet
recreational needs of residents[;] and during the second half of the 19th century,
[Frederick Law] Olmsted and his partners [who planned Central Park] designed
major parks or park systems in thirty cities.” 80 David Schuyler, Summary of
Parks in Urban America, OXFORD RESEARCH ENCYCLOPEDIA OF AMERICAN HISTORY
(Nov. 3, 2015). As urban public parks took root as a new type of public forum,
cities continued the tradition of regulating firearms in historical public forums,
such as fairs and markets, to likewise keep these new public spaces, urban parks,
78 Though the historical analogues here are “relatively simple to draw,” the relative novelty of public parks as institutions also justifies a flexible approach under Bruen. See Bruen, 142 S. Ct. at 2132 (explaining that historical and societal “changes may require a more nuanced approach”). See MARGARET WALLS, PARKS AND RECREATION IN THE UNITED STATES: LOCAL PARK 79
SYSTEMS 1, Resources for the Future (June 2009). See also FREDERICK LAW OLMSTED, A CONSIDERATION OF THE JUSTIFYING VALUE OF A 80
PUBLIC PARK 7–8 (1881) (“Twenty-five years ago we had no parks, park-like or otherwise”).
189 peaceable. 81 None of those city ordinances were invalidated by any court;
indeed, we have not located any constitutional challenges to any of them. In
other words, the ordinances were not merely adopted by legislative bodies in the
respective cities in which they applied – they were apparently accepted without
any constitutional objection by anyone. See Bruen, 142 S. Ct. at 2133–34 (“We
therefore can assume it settled that these locations were ‘sensitive places’ where
arms carrying could be prohibited” where we are “aware of no disputes
regarding the lawfulness of such prohibitions.”).
The district court mistakenly discounted these city laws because they were
not accompanied by state laws, relying on the Bruen majority’s statement that
“the bare existence of these localized restrictions cannot overcome the
overwhelming evidence of an otherwise enduring American tradition.”
Antonyuk, 639 F. Supp. 3d at 323–24 (quoting Bruen, 142 S. Ct. at 2154). We think
this is an overreading of Bruen. Bruen’s pronouncement addressed an isolated set
of territorial laws, whose transient and temporary character does not correlate to
81 See DAVID SCHUYLER, THE NEW URBAN LANDSCAPE: THE REDEFINITION OF CITY FORM IN NINETEENTH-CENTURY AMERICA 1–8 (1988) (describing the emergence of a “new urban landscape” whose proponents urged establishment of public parks to “create[] communal spaces” where “rural scenery might sooth the ‘nerves and mind’ of visitors’”); see also Everytown for Gun Safety Br. at 26–27.
190 the enduring municipal governments whose enactments are before us now.
Bruen, 142 S. Ct. at 2154. And while Bruen also relied on the “miniscule”
populations who were governed by the territorial statutes at issue, by 1897, fully
eight percent of the entire population lived in one of the urban areas governed by
the state’s analogues here. 82 See Dept. of Interior, Compendium of Eleventh
Census: 1890, 2-452 tbls. 1–5 (1892). Moreover, the appropriate figure in this
instance is not the percentage of the nation’s total population that was affected by
city park firearms restrictions, but rather the percentage of the urban population
that was governed by city park restrictions. By 1890, four of the five most
populous cities prohibited firearms in their urban parks, and Brooklyn’s
incorporation into New York City in 1896 would result in all five of the most
populous cities having such prohibitions. Id., Table 5 (New York, Chicago,
Philadelphia, Brooklyn, and St. Louis). Those cities alone numbered over 4.9
million people, at a time when only 14 million Americans lived in a city with
82 By 1897, approximately 5.2 million Americans lived in one of these eight cities under municipal regulations that would have prohibited carriage of firearms in a city’s public parks. See DEPT. OF INTERIOR, COMPENDIUM OF ELEVENTH CENSUS: 1890, 442–52 tbl. 5 (1892). And, as amici point out, see Everytown for Gun Safety Br. at 21–22, it is likely that even more urban park regulations will emerge at a later point in the litigation regarding the CCIA. See Christian v. Nigrelli, No. 22-cv-695 (W.D.N.Y.), ECF Nos. 33, 34, 35 (exhibiting over sixty 19th- and early 20th-century park regulations). See also The City of New York Br. at 15 n.22 (listing additional city ordinances prohibiting firearms in public urban parks).
191 more than 25,000 inhabitants, resulting in at least 37.7% of the urban population
living in cities where firearms were prohibited in their parks.
The upshot of the State’s wealth of evidence is a well-established,
representative, and longstanding tradition of regulating firearms in places that
serve as public forums and, as a result, tend to be crowded. This tradition comes
down to us from medieval England; it was enshrined in the law books of the
largest (Virginia) and third largest (North Carolina) Founding-era states, and
built on throughout and beyond Reconstruction. With the rise of urban America,
cities continued this tradition and began regulating firearms in a newly emerging
public forum: the urban park.
We differ with the district court as to the conventionality and
representativeness of the State’s analogues as to firearm regulation in urban
parks because the district court erroneously discounted many of the State’s
proffered analogues. Critically, the court failed to consider the medieval English
law and Founding era laws. 83 This initial error tainted the rest of the district
court’s analysis by obscuring that the later territorial and municipal laws, far
83 It also failed to consider the 1869 Tennessee Law prohibiting deadly weapons in any “fair, race course, or public assembly of people.” J.A. 605 (1869 Tenn. Pub. Acts. 23). Thus the only state laws it considered were the 1870 Texas and 1883 Missouri laws.
192 from being outliers, were consistent with a “long, unbroken line of common-law”
and Founding-era precedent. Bruen, 142 S. Ct. as 2136. Given the continuity of
the tradition of regulating firearms in crowded public forums, there was no
reason for the district court to discount territorial laws, municipal laws (insofar
as the states in which the cities were located did not have identical state law
counterparts), or laws from the late 19th century. Once situated within the line
of the English, Founding-era, and Reconstruction state statues cited by the State,
the territorial and municipal laws are exactly the opposite of the “few late-19th-
century outlier jurisdictions” offered and discounted in Bruen and should have
been considered by the district court. Id. at 2156.
It is not enough for the State to point to well-established and
representative analogues; the contemporary regulation it seeks to defend must
also be “consistent” with the tradition established by those analogues. Bruen, 142
S. Ct. at 2135. We now turn to this aspect of the inquiry.
Whether § 265.01-e’s prohibition on firearms in urban parks is consistent
with this Nation’s tradition is a straightforward inquiry. It is obvious that
§ 265.01-e burdens Second Amendment rights in a distinctly similar way (i.e., by
193 prohibiting carriage) and for a distinctly similar reason (i.e., maintaining order in
often-crowded public squares) as do the plethora of regulations provided by the
State, many of which specifically applied to urban public parks. This
demonstrates § 265.01-e’s consistency with the Second Amendment. 84 Cf. Bruen,
142 S. Ct. at 2135 (“[W]hen a challenged regulation addresses a general societal
problem that has persisted since the 18th century, the lack of a distinctly similar
historical regulation addressing that problem is relevant evidence that the
challenged regulation is inconsistent with the Second Amendment.”).
We are unconvinced by the Plaintiffs’ argument that the former use of
Boston Common and similar spaces as gathering grounds for the militia
undermines a tradition of regulating firearms in urban public parks. Though
Plaintiffs urge that Boston Common was the Nation’s first urban public park, it
appears to have gained that distinction only in retrospect. “The modern idea of
the park emerged in the nineteenth century,” before which “open spaces that
were not privately owned . . . consisted of grazing areas open to all,” with Boston
Common being the “most famous example for this kind of [grazing] park space.”
84 Because the tradition of regulating firearms in often-crowded public squares supports the State’s burden as to § 265.01-e’s regulation of firearms in urban parks, we need not rely on the tradition of regulating firearms in places frequented by children.
194 Nadav Shoked, Property Law’s Search for a Public, 97 Wash. U. L. Rev. 1517, 1556–
57 (2020); see also Address of L. E. Holden, Cleveland, O., Bulletin of the American
Park and Outdoor Association 3 (Volume 5 Rep. of the Am. Park and Outdoor Art
Ass’n, June 1901), available at rb.gy/0flfx [https://perma.cc/FCU7-V2JW] (noting
that at Boston Common’s origin in 1633 there “was little if any idea that it would
ever be a park . . . [i]t was kept and occupied as a common till a very recent date,
and it was not until 1859 that the question was finally settled . . . that Boston
Common should be a public park”). Moreover, the use of the Boston Common
for organized and disciplined militia exercises and mustering hardly supports the
notion that public recreational parks (to the extent the Common can be so
characterized) were considered appropriate places for ordinary citizens to be
armed outside the context of such military purposes. Thus, though the history of
firearm regulation in the 17th-century Boston Common might tell us about the
National tradition of regulating firearms in militia mustering grounds and
“grazing areas open to all,” it tells us little about the history of firearm regulation
in the public square.
The district court committed this same analogical error when it faulted the
State for failing to produce historical statutes “banning the carrying of guns from
195 older-named places such as ‘commons’ or ‘greens.’” Antonyuk, 639 F. Supp. 3d at
325 (emphasis omitted). To today’s minds, commons, greens, and public parks
may seem alike; but, as we have just described, our 18th century forebears would
have considered commons and greens to be public grazing areas and not places
of social recreation. See Shoked, supra, at 1556–57. Accordingly, though
commons, greens, and public parks “are relevantly similar” if one’s metric is
green spaces in cities, they are not relevantly similar if the “applicable metric” is
gun regulation in spaces that, like urban parks do today, have historically acted
as public forums and places of social recreation. Bruen, 142 S. Ct. at 2132; see also
id. (“[B]ecause ‘everything is similar in infinite ways to everything else,’ one
needs ‘some metric enabling the analogizer to assess which similarities are
important and which are not[.]’” (first quoting Cass Sunstein, supra, at 773; then
quoting F. Schauer & B. Spellman, supra, at 254) (alterations adopted and internal
citations omitted).
The State’s justification for § 265.01-e appears to be the same for rural as
for urban parks, even though rural parks much more resemble the commons of
yore than to the historical and often-crowded public squares, i.e., fairs, markets,
196 and urban public parks, regulated under the State’s historical analogues. 85 Rural
parks do not as neatly resemble quintessential public squares in that they are not
primarily designed for peaceable assembly.
As opposed to fairs, markets, or the new, urban parks of the mid-19th
century, i.e., quintessential and often-crowded public spaces, the more proper
analogue for rural parks based on the record before us appears to be “commons”
and “wilderness areas.” New York describes its Adirondack Park, which
encompasses “one-third of the total land area of New York State,” as containing
“vast forests, rolling farmlands, towns and villages, mountains and valleys, lakes,
ponds and free-flowing rivers, private lands and public forest.” Parks,
Recreation and Historic Prevention, Adirondack Region, New York State, available
at https://parks.ny.gov/regions/adirondack/default.aspx [https://perma.cc/ZNZ2-
Z97B]. This description echoes that of the “New England commons . . . spaces
held by the community for shared utilitarian purposes,” 86 much more than it
85The State does not seriously argue that the tradition of regulating firearms in places frequented by children justifies § 265.01-e’s applicability to rural parks. ROY ROSENZWEIG AND ELIZABETH BLACKMAR, THE PARK AND THE PEOPLE: A HISTORY 86
OF CENTRAL PARK 4 (1992).
197 does the “communal spaces” 87 and “quintessential public space[s]” 88 embodied
by urban parks.
But we need not resolve this line-drawing issue on a facial challenge.
Although we doubt that the evidence presently in the record could set forth a
well-established tradition of prohibiting firearm carriage in rural parks, we are
mindful that this litigation is still in its early stages and that the State did not
distinguish between rural and urban parks in its arguments to this Court or
below. All told, the State’s proffered analogues, which set forth a well-
established and representative tradition of firearm regulation in often-crowded
public squares such as urban parks, are sufficient to survive a facial challenge. 89
See Bonta, 141 S. Ct. at 2387 (To mount a successful facial challenge, the plaintiff
“must ‘establish that no set of circumstances exists under which the [law] would
DAVID SCHUYLER, THE NEW URBAN LANDSCAPE: THE REDEFINITION OF CITY FORM IN 87
NINETEENTH-CENTURY AMERICA 1–8 (1988) 88 SHOKED, supra, at 1556—57. 89 Effective May 3, 2023, the New York legislature amended § 265.01-e(2)(d) by adding the following limiting language: “provided that for the purposes of this section a ‘public park’ shall not include (i) any privately held land within a public park not dedicated to public use or (ii) the forest preserve as defined in subdivision six of section 9-0101 of the environmental conservation law.” Although we express no opinion on whether the provision as amended conforms with the Second Amendment principles we have articulated here, we note that the legislature has considered the constitutional implications of the public parks provision and has taken affirmative steps to address them.
198 be valid,’ or show that the law lacks ‘a plainly legitimate sweep.’” (first quoting
Salerno, 481 U.S. at 745; then quoting Wash. State Grange, 552 U.S. at 449)).
As § 265.01-e(2)(d) applies to urban parks, the State has carried its burden
by placing the regulation within a National tradition of regulating firearms in
often-crowded public squares, including, specifically, city parks. Accordingly,
we VACATE the district court’s preliminary injunction as to § 265.01-e(2)(d).
3. Analysis of the Historical Analogues — Zoos
To defend § 265.01-e’s regulation of firearms in zoos, the State relies on
two of the same analogical categories as for public parks: prohibiting firearms in
crowded places and in places where children congregate. The State also points
out that, contrary to the district court’s assertion, nearly 70 percent of visitors to
zoos are parties with children. See Visitor Demographics, Ass’n of Zoos and
Aquariums, available at https://www.aza.org/partnerships-visitor-demographics
[https://perma.cc/A6FH-W774].
For the reasons laid out in our discussion of public parks, the State’s
evidence demonstrates a well-established and representative tradition of
199 regulating firearms in densely trafficked public forums. We rely on Bruen for the
proposition that the tradition of regulating firearms in spaces frequented by
children is also well-established and representative. See Bruen, 142 S. Ct. at 2133.
b. Consistent with Tradition
Section 265.01-e’s firearm ban in zoos is consistent with the State’s
analogues that establish a history of regulating firearms in crowded places and
locations frequented by children. Although zoos are relatively modern
institutions, 90 the Bruen analysis remains valid and useful, subject to the more
“nuanced approach” announced in Bruen. 142 S. Ct. at 2132.
Given that 70 percent of zoo visitors come accompanied by children, the
tradition of prohibiting firearms in places frequented by children
straightforwardly supports the regulation of firearms in zoos. For its part, the
history of regulating firearms in often-crowded public spaces supports the
firearm restriction in zoos in two additional ways. First, the statutes adduced by
90 The Philadelphia Zoo, which bills itself as the first public zoo in the United States, was chartered in 1859, but due to the intervening Civil War, did not open until 1874. See About the Zoo, Philadelphia Zoo, available at https://www.philadelphiazoo.org/about-the-zoo/ [https://perma.cc/7795-NX2A]. A few other urban zoos, including New York’s Central Park Zoo, have claims to have opened sooner than 1874, but we nonetheless have identified no public zoo that claims to have opened before the Civil War. The drafters of the Second Amendment presumably had no particular intentions with respect to the right to carry firearms in any place remotely resembling today’s Bronx Zoo.
200 the State prohibited firearms not only in crowded “public squares” such as fairs,
markets, and 19th century urban parks, but also more generally in ballrooms and
social gatherings. See J.A. 602 (1870 Tex Gen. Laws 63, ch. 46); 605–06 (1869 Tenn.
Pub. Acts 23–24); 611 (1883 Mo. Sess. Laws 76); 617 (1889 Ariz. Sess. Laws 17); 621
(1890 Okla. Terr. Stats., Art. 47, § 7). Accordingly, these laws indicate that a high
population density in discrete, confined spaces, such as quintessential public
squares, has historically justified firearm restrictions. State court cases from this
era confirm as much. See, e.g., English, 35 Tex. at 478–79 (“it appears [] little short
of ridiculous, that any one should claim the right to carry upon his person” a
firearm into “a ball room, or any other place where ladies or gentleman are
congregated together”). Second, these same laws support firearm restrictions
because zoos are spaces that provide educational opportunities. See J.A. 602
(1870 Tex Gen. Laws 63, ch. 46); 605–06 (1869 Tenn. Pub. Acts 23–24); 611 (1883
Mo. Sess. Laws 76); 617 (1889 Ariz. Sess. Laws 17); 621 (1890 Okla. Terr. Stats.,
Art. 47, § 7). That the same laws restricting firearms in public forums would also
do so in spaces hosting educational and scientific opportunities makes sense.
Both public squares and educational and scientific spaces inherently presume
orderly and peaceable assembly.
201 Contrary to the district court’s conclusion, the location of some zoos within
public parks, and their consequent automatic coverage by those parks’ firearm
regulations, does not cut against the State. The district court’s conclusion was
based on its erroneous notion that the zoos’ “enjoy[ment of] their surrounding
parks’ protections . . . shows that zoos were in need of no more protection than
the parks in which they were located.” Antonyuk, 639 F. Supp. 3d at 327. But the
State was under no burden to demonstrate that zoos are especially deserving of
firearm regulation, only that such regulation is consistent with Second
Amendment tradition. That zoos were unproblematically covered by the firearm
regulations of their surrounding parks tends to show that our forebearers took
no Second Amendment issue with the regulation of firearms at zoos.
Because the State has demonstrated that prohibiting firearms at zoos is
consistent with the country’s tradition of regulating firearms in places of
educational and scientific opportunity, places heavily trafficked by children, and
places that are densely crowded, we reverse the district court’s order
preliminarily enjoining New York from enforcing § 265.01-e in zoos.
202 For the reasons set forth above, we VACATE the district court’s
preliminary injunction enjoining enforcement of § 265.01-e(2)(d) as applied to
zoos and public parks.
IV. Premises Licensed for Alcohol Consumption
Section 265.01-e(2)(o) prohibits possession of a firearm in “any
establishment holding an active license for on-premise consumption [of alcoholic
beverages] . . . where alcohol is consumed.” The State does not challenge the
district court’s determination that one or more Plaintiffs had standing to
challenge this provision of the CCIA, and we see no impediment to standing.
Accordingly, we proceed directly to reviewing the district court’s holding that
the State failed to place § 265.01-e(2)(o) within the Nation’s history of firearm
regulation and vacate the preliminary injunction.
A. District Court Decision
As with the other regulations at issue in this appeal, the district court first
determined that the conduct proscribed by § 265.01-e(2)(o) was within the plain
text of the Second Amendment and placed the burden on the State defendants to
prove the regulation’s consistency with our Nation’s history and tradition. The
State argued that § 265.01-e(2)(o) is aimed at reducing the threat of gun violence
resulting from “intoxicated persons gathered in large groups in confined spaces,”
203 Antonyuk, 639 F. Supp. 3d at 331, and directed the district court to seven
historical analogues: (1) an 1867 Kansas law prohibiting carriage by “any person
under the influence of intoxicating drink”; (2) an 1881 Missouri law prohibiting
the same; (3) an 1889 Wisconsin law prohibiting “any person in a state of
intoxication to go armed with any pistol or revolver”; (4) an 1878 Mississippi law
prohibiting sale of “any weapon” to “any . . . person intoxicated, knowing him to
be . . . in a state of intoxication”; (5) an 1890 Oklahoma law barring carriage by a
public officer “while under the influence of intoxicating drinks” and also barring
firearms in “any ball room . . . social party or social gathering”; (6) an 1870 Texas
law barring firearms in “a ball room, social party or other social gathering
composed of ladies and gentlemen”; and (7) an 1889 Arizona law barring
firearms in any “place where persons are assembled for amusement . . . or into a
ball room, social party or social gathering.” Id. at 332.
The district court discounted the Oklahoma and Arizona statutes as
coming from territories and the 1889 Wisconsin law as being too removed from
either the Founding or Reconstruction. The district court then noted that the five
remaining analogues appear “to have been aimed at denying the possession of
guns to persons who were likely to pose a danger or disturbance to the public”
204 and did so either by prohibiting carriage to those who were intoxicated or those
who were likely to disturb a social party or gathering. Id. It then assumed,
without deciding, that the five analogues it was considering were both
sufficiently well-established and representative to constitute a tradition but held
that the tradition established by those laws was not sufficiently analogous to
justify § 265.01-e(2)(o).
In the district’s court view, “[t]he problem” with § 265.01-e(2)(o) is that it
“is not limited to persons who have been served and/or who are consuming
alcohol,” nor “is it even limited to persons intoxicated in establishments,” but
rather it “broadly prohibits concealed carry by license holders . . . who will be
merely eating at the establishments.” Id. While the court “acknowledge[d] the
historical support” in the State’s analogues “for a law prohibiting becoming
intoxicated while carrying a firearm,” it concluded that those analogues did not
justify criminalizing “mere presence” at a liquor-licensed establishment. Id at
333. (emphasis removed). This is because the State’s historical analogues
governed behavior, while § 265.01-e(2)(o) governs places. Meanwhile, the
district court appears to have rejected the State’s analogues prohibiting the
carriage of firearms at social gatherings on the basis that the State had
205 “adduce[d] no evidence of the approximate number of disturbances to ‘social
gatherings’ at restaurants that were caused each year by those licensed
individuals who carry concealed there.” Id at 332.
B. The State’s Historical Analogues
On appeal, the State relies largely on the same analogues as it did below to
argue that § 265.01-e(2)(o) is in harmony with the tradition of regulating firearms
in locations frequented by “concentrations of vulnerable or impaired people,”
here intoxicated individuals, “who either cannot defend themselves or cannot be
trusted to have firearms around them safely.” Antonyuk Nigrelli Br. at 62. The
State also argues that the tradition of regulating firearms in “quintessentially
crowded places,” which they argue liquor-licensed establishments generally are,
supports § 265.01-e(2)(o).
As a preliminary matter, we address the district court’s erroneous decision
to afford little weight to the Arizona and Oklahoma statutes because they were
territorial laws, and to the 1889 Wisconsin statute because of its distance from
Reconstruction and the Founding.
As we have already explained, the district court’s repeated and automatic
rejection of any territorial laws and statutes from the latter half of the nineteenth
206 century is not compelled by Bruen. True, Bruen counseled that evidence “that
long predates either date may not illuminate the scope of the right if linguistic or
legal conventions changed in the intervening years,” and that “[s]imilarly, we
must also guard against giving postenactment history more weight than it can
rightly bear.” 142 S. Ct. at 2136 (emphasis added). That observation, however,
does not require courts to reflexively discount evidence from the latter half of the
19th century absent indications that such evidence is inconsistent with the
National tradition. Likewise, the district court made too much of the fact that
Bruen gave “little weight” to territorial laws. Id. at 2155. Not only did New York
offer only one state law in support of its proper-cause requirement in Bruen, the
territorial laws on which it relied in Bruen were “short lived” and some “were
held unconstitutional shortly after passage,” 91 while another “did not survive a
Territory’s admission to the Union as a State.” Id.
91 The only case cited in Bruen for the proposition that “some” territorial laws were held unconstitutional is In re Brickey, 8 Idaho 897, 70 P. 609 (1902). That one-paragraph opinion invalidated a statute that apparently prohibited the carriage of deadly weapons within the limits of a city, town, or village (the statute is only paraphrased, not quoted, in the brief decision). Far from suggesting the unconstitutionality even of New York’s Sullivan law, let alone laws addressing sensitive places, the Idaho Supreme Court merely noted that the state legislature had the power to regulate arms-bearing, but not totally to prohibit it, specifically stating that “[a] statute prohibiting the carriage of concealed deadly weapons [which the court characterized as ‘a pernicious practice’] would be a proper exercise of the police power of the state.” 70 P. at 609 (emphasis added).
207 The circumstances leading to the Court’s cautions in Bruen are not present
here and did not require the district court to discount the territorial laws of
Arizona and Oklahoma nor the 1889 Wisconsin law. Unlike in Bruen, there is no
evidence in the record before us that the territorial laws were short-lived, did not
survive admission to the Union, or were later held unconstitutional. Nor were
these territorial laws aberrant to the National tradition. As discussed below,
these territorial laws were consistent with five state laws already on the books
when the territorial laws were enacted. Similarly, Wisconsin’s 1889 law was not
a late-term aberration from the National tradition, but an addition consistent
with the older state laws from Kansas, Missouri, and Mississippi. All three
statutes should have been considered by the district court.
1. Well-Established and Representative
We now hold what the district court assumed, that the State’s historical
analogues establish a consistent and representative tradition of regulating access
to firearms by people with impaired self-control or judgment, specifically those
who are intoxicated. Three of the State’s analogues—the 1867 Kansas law, 1889
Wisconsin law, and 1883 Missouri law—prohibited intoxicated persons from
carrying firearms. J.A. 691 (1867 Kan. Sess. Laws Ch. 12, p. 25) (“any person
208 under the influence of intoxicating drink . . . who shall be found . . . carrying on
his person a pistol . . . shall be subject to arrest”); id. at 694 (WIS. STAT. ANN. §
4379b (1889)) (“It shall be unlawful for any person in a state of intoxication to go
armed with any pistol or revolver.”); id. at 611 (1883 Mo. Sess. Laws 76)
(prohibiting carriage by any person “when intoxicated or under the influence of
intoxicating drinks”). The State’s three other analogues included a law that
prohibited selling firearms to intoxicated persons, id. at 633 (1878 Miss. Laws
175); a law that required the keepers of “drinking saloon[s] to keep posted up in
a conspicuous place in his bar room . . . a plain notice to travelers to divest
themselves of their weapons,” id. at 617 (1889 Ariz. Sess. Laws 17); and a law that
prohibited carriage in “any place where intoxicating liquors are sold,” id. at 621
(1890 Okla. Terr. Stats., Art. 47, § 7). These six analogues, which applied to nine-
and-a-half percent of Americans by 1889, 92 establish a consistent and
representative National tradition of regulating firearms due to the dangers posed
by armed intoxicated individuals. This tradition was carried out in various
forms: either by disarming intoxicated persons (as in Kansas, Wisconsin, and
92 All of the State’s analogues were still in effect in 1889, and the population of the six states from which the State draws its historical analogues was approximately 6 million. DEPT. OF INTERIOR, COMPENDIUM OF ELEVENTH CENSUS: 1890, 2 tbl. 1 (1892). The population of the United States that same year was approximately 62.6 million. Id.
209 Missouri), prohibiting the sale of firearms to intoxicated persons (as in
Mississippi), or prohibiting firearms in liquor-serving or -selling establishments
(as in Arizona and Oklahoma).
In addition to these statutory analogues, the State points to the Missouri
Supreme Court’s holding in State v. Shelby that the state’s prohibition of firearm
carriage by intoxicated persons was in “perfect harmony with the constitution”
given the “mischief to be apprehended from an intoxicated person going abroad
with fire-arms.” 2 S.W. at 469; see also id. (noting that if the state could
constitutionally regulate firearms in “time and place, . . . no good reason is seen
why the legislature may not do the same thing with reference to the condition of
the person who carries such weapons”). Thus, not only do the six statutory
analogues indicate that the Nation’s early legislatures understood prohibiting the
carriage of firearms by intoxicated persons and in liquor-serving establishments
to be constitutional, but at least one state court did so as well. See Bruen, 142 S.
Ct. at 2155 (explaining that state court decisions help today’s courts understand
“the basis” of a historical analogue’s “perceived legality”). 93
93As to the State’s reliance on the tradition of regulating firearms in crowded places, we have already addressed this regulatory tradition, see supra Sensitive Locations §§ III.B.2 & III.B.3, and found that it is well-established and representative. We further note here that the 1889
210 2. Consistency with Tradition
We now turn to whether § 265.01-e(2)(o) is consistent with the well-
established and representative tradition established by the State’s analogues. We
hold that it is consistent with both analogical categories established by the State,
as liquor-licensed establishments are both typically crowded milieus and are
frequented by intoxicated individuals who cannot necessarily be trusted with
firearms and who may also, due to their intoxication, be unable to defend
themselves effectively. 94
Both categories of analogues burdened Second Amendment rights in a
similar manner and for similar reasons as § 265.01-e(2)(o). Contemporaneous
state case law reveals that historical regulations prohibiting firearms at social
gatherings, parties, and ball rooms were justified by the “duties and proprieties
of social life.” Andrews, 50 Tenn. at 181–82; see id. at 170, 181–82 (upholding 1869
Tennessee statute that prohibited carriage at “fair[s], race course[s], or other
Arizona and 1890 Oklahoma statutes prohibiting carriage in liquor-serving and -selling establishments likewise prohibited firearms in social parties, gatherings, and ball rooms. J.A. 617 (1889 Ariz. Sess. Laws 17); id. at 621 (1890 Okla. Terr. Stats., Art. 47, § 7); see also id. at 602 (1870 Tex. Gen. Laws 73) (prohibiting carriage in social gatherings, parties, and ball rooms). 94Because the regulation is consistent with both categories, we need not decide whether the historical analogues for regulating firearms in crowded places would alone justify § 265.01- e(2)(o).
211 public assembl[ies]”); see J.A. 605 (1869 Tenn. Pub. Acts 23). In a similar vein, the
State explains that § 265.01-e(2)(o) is motivated by the need to protect those in
crowded social spaces.
And, though the State does not explicitly refer to historical statutes
regulating firearms in other crowded spaces such as fairs and markets, those too
provide support for regulating firearms in crowded places and keeping such
spaces peaceful, as we have already discussed, see supra Sensitive Locations
§ III.B. As to means, both § 265.01-e(2)(o) and its historical “crowded space”
analogues achieve their purpose by prohibiting carriage in heavily-trafficked
spaces. Likewise, contemporaneous state case law reveals that intoxicated-
persons statutes were motivated by the need to disarm intoxicated individuals
who could not be trusted with weapons. See Shelby, 2 S.W. at 469–70 (holding
that the “mischief” posed by intoxicated persons carrying weapons justified a
statute prohibiting as much). As we have noted, these statutes achieved their
objective in various ways. Some did so by disarming intoxicated individuals
themselves, others by prohibiting sale to intoxicated persons, and yet others by
prohibiting firearms in liquor-serving or -selling establishments altogether.
212 Section 265.01-e(2)(o), which operates by prohibiting firearms in liquor-serving
establishments, is directly parallel to the latter historical statutes.
When paired with the crowded space analogues, even absent the historical
statutes prohibiting carriage in liquor-serving establishments, the analogues
prohibiting intoxicated persons from carrying or purchasing firearms justify
§ 265.01-e(2)(o). Whereas the crowded space analogues justify prohibiting
firearms in heavily-trafficked places, the intoxicated-persons analogues justify
prohibiting firearms to intoxicated persons who cannot be trusted with weapons.
Together, these statutes justify regulating firearms in crowded spaces in which
intoxicated persons are likely present. See Bruen, 142 S. Ct. at 2133 (“[E]ven if a
modern-day regulation is not a dead ringer for historical precursors, it still may
be analogous enough to pass constitutional muster.”).
The district court made two errors in reaching its holding that § 265.01-
e(2)(o) was inconsistent with the Nation’s tradition. For one, as described above,
it erroneously declined to consider the analogues from Arizona, Oklahoma, and
Wisconsin. Like § 265.01-e(2)(o), the Arizona and Oklahoma statutes prohibited
firearms carriage in establishments serving liquor. These analogues provide the
(admittedly unnecessary) historical twins sought by the district court and
213 demonstrate that regulating firearms based on liquor-serving places rather than
intoxication is consistent with the National tradition. 95 Yet, even putting aside
the Arizona and Oklahoma statutes, the district court erred in rejecting the
State’s remaining behavior-based historical analogues in search of a place-based
“historical twin.” Bruen, 142 S. Ct. at 2133 (emphasis removed). For the reasons
we describe above, § 265.01-e(2)(o) is “analogous enough” to the State’s
behavior-based and crowded location historical analogues to “pass constitutional
muster.” Id.
For the aforementioned reasons we VACATE the district court’s preliminary
injunction enjoining enforcement of § 265.01-e(2)(o).
V. Theaters, Conference Centers, and Banquet Halls
N.Y. Penal L. § 265.01-e(2)(p) is a wide-ranging ban on gun carriage in
“any place used for the performance, art entertainment [sic], gaming, or sporting
events” that provides a long list of examples of such locations. The district court
95 In fact, though the district court made much of the distinction between regulating place versus behavior, 19th century case law reveals that at least some state courts analogized regulating behavior to regulating places in finding behavior-based regulations constitutional. See Shelby, 2 S.W. at 469 (observing that “no good reason” exists for distinguishing between the constitutionality of the legislature’s regulation of firearms in “time and place” and the regulation “of the person who carries such weapons”).
214 enjoined enforcement of § 265.01-e(2)(p) with respect to three of those locations:
“theaters,” “conference centers,” and “banquet halls.” We vacate that injunction,
concluding (1) that no plaintiff presented a justiciable challenge to the conference
center and banquet hall provisions (and thus that the district court’s injunction
was entered without subject-matter jurisdiction), and (2) that Plaintiffs have not
shown a likelihood that the ban on carrying guns in theaters violates the Second
Amendment.
A. Justiciability
The district court concluded that plaintiff Alfred Terrille had standing with
respect to both conference centers and banquet halls, and that plaintiff Joseph
Mann also had standing with respect to banquet halls. We disagree on both
scores.
We consider first Terrille’s claim as to conference centers and banquet halls
(there is no dispute that, as the district court found, Terrille has standing with
respect to theaters). See Antonyuk, 639 F. Supp. 3d at 286. His September 19,
2022, declaration averred that he “plan[s] to attend the . . . NEACA Polish
Community Center Gun Show, to occur on October 8–9, 2022, in Albany,” and
that he “intend[s] to carry [his] firearm” there. J.A. 191–92 (Terrille Decl. ¶ 16).
The gun show’s host — the Polish Community Center — “describes itself as a
215 conference center, banquet hall & wedding venue,” id., an unchallenged self-
description that we credit.
This declaration was likely sufficient to establish Terrille’s standing
initially. But “[t]o qualify as a case fit for federal-court adjudication, ‘an actual
controversy must be extant at all stages of review, not merely at the time the
complaint is filed.’” Arizonans for Off. Eng. v. Arizona, 520 U.S. 43, 67 (1997)
(quoting Preiser v. Newkirk, 422 U.S. 395, 401 (1975)). “[I]t is not enough that a
dispute was very much alive when suit was filed . . . . The parties must continue
to have a personal stake in the outcome of the lawsuit.” Lewis v. Cont’l Bank
Corp., 494 U.S. 472, 477–78 (1990) (internal quotation marks omitted). “When the
plaintiff no longer has a legally cognizable interest in the outcome of the action,
the case becomes moot and is no longer a ‘case’ or ‘controversy’ for the purposes
of Article III.” Stagg, P.C. v. U.S. Dep’t of State, 983 F.3d 589, 601 (2d Cir. 2020)
(citing Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013)). “The question of
standing bears close affinity to the question of mootness, which is whether the
occasion for judicial intervention persists.” Chevron Corp. v. Donziger, 833 F.3d 74,
123 (2d Cir. 2016) (emphasis in original) (internal quotation marks omitted).
216 Even though Terrille likely had standing at the outset of this suit, his claim
has become moot. Terrille’s alleged injury-in-fact was a threatened prosecution
for carrying a gun at a specific conference center/banquet hall on a specific date.
But October 8–9 came and went, and there is no record as to whether the gun
show took place, let alone whether Terrille attended it while armed. 96 A past but
unfulfilled intention to violate the law does not support pre-enforcement
standing, and nothing in the record here (or in district court, see Antonyuk, 639 F.
Supp. 3d at 286 n.52) shows that Terrille followed through on his intention to
violate § 265.01-e(2)(p) in October.
Nor did Terrille allege a future intention to visit a banquet hall or
conference center while armed—for a gun show or otherwise. Plaintiffs claim
that it is “evident from Terrille’s affidavit that he regularly attends gun shows,
which occur on a routine basis,” 97 Antonyuk Appellee Nigrelli Br. at 9 (emphasis
96 A showing that he had done so would likely have supported injury-in-fact: the statute of limitations on violating § 265.01-e will not run for several years, see N.Y. C.P.L. § 30.10(2)(b) (establishing five-year limitations period for felonies), so Terrille might still have claimed a credible threat of prosecution. But even though the State argued mootness here and in the district court, Terrille has done nothing to supplement his averments. 97 The district court seems to have accepted this characterization sub silentio. Antonyuk, 639 F. Supp. 3d at 286 (“Plaintiff Terrille has sworn that he has frequently carried concealed in . . . conference centers and banquet halls, and will do so again . . . .”). In fact, as discussed below, Terrille’s affidavit made no such statement.
217 removed), but that is not so. Terrille discussed his plans to attend conference
centers and banquet halls solely by reference to his desire to attend a specific gun
show, and did so in a short and discrete section of his declaration (set out in the
margin). 98 We do not see in that averment—or anywhere else, e.g., J.A. 69
(Compl. ¶ 173)—the supposedly “evident” indicia that Terrille regularly visits
banquet halls or conference centers while armed. In contrast, Plaintiff Johnson
makes precisely such an assertion in discussing his interest in zoos, by stating
that his and his wife’s plans to visit the zoo in the coming fall is part of their
regular practice of visiting the zoo “at least once or twice every fall.” J.A. 139–40
(Johnson Decl. ¶ 17).
Perhaps Plaintiffs ask us to construe Terrille’s declaration generously and
to infer from his stated intention to go to this gun show at a conference
center/banquet hall while armed an unstated intention to attend other, future
gun shows at conference centers/banquet halls while armed. But without more,
such an inference is not logically sound. A person with a ticket to a play next
98See J.A. 191–92 (Terrille Decl. ¶ 16) (“I plan to attend the upcoming NEACA Polish Community Center Gun Show, to occur on October 8-9, 2022, in Albany. The gun show is hosted by The Polish Community Center, which describes itself as ‘a conference center, banquet hall & wedding venue in Albany, NY.’ . . . I currently plan to attend the upcoming Albany gun show, and I intend to carry my firearm with me when I do, in violation of the CCIA[.]”).
218 week is not necessarily a theater-goer. Terrille could have alleged something
more—a longstanding interest in and habit of attending gun shows, perhaps—
but he did not, and we will not rewrite his declaration for him: As we have
previously noted, “‘a live controversy is not maintained by speculation’ that the
party might in the future be prevented from conducting an activity that it
‘currently asserts no plan to [conduct].’” Connecticut Citizens Def. League, Inc. v.
Lamont, 6 F.4th 439, 445 (2d Cir. 2021) (brackets in original) (quoting City News &
Novelty, Inc. v. City of Waukesha, 531 U.S. 278, 285 (2001)).
Furthermore, “[o]ur sensitivity to [justiciability] concerns is particularly
acute when a litigant invokes the power of judicial review, a power at once
justified and limited by our obligation to decide cases.” Frank v. United States, 78
F.3d 815, 832 (2d Cir. 1996), vacated, 521 U.S. 1114 (1997), relevant portion re-
adopted, 129 F.3d 273, 275 (2d Cir. 1997); see also Raines v. Byrd, 521 U.S. 811, 819–
20 (1997) (The “standing inquiry has been especially rigorous when reaching the
merits of the dispute would force us to decide whether an action taken by one of
the other two branches of the Federal Government was unconstitutional.” ).
Though a request for judicial review does not actually modify the requirements
for justiciability, we reiterate that a court must be confident that it is deciding a
219 true “case or controversy”—rather than issuing an advisory opinion—when
asked to invalidate the action of a co-ordinate branch or of a state. In such
circumstances, courts should be reluctant to draw tenuous inferences from
sparse declarations.
Plaintiffs make two further mootness arguments. First, they argue that any
uncertainty as to what Terrille did on October 8th and 9th is the State’s fault for
declining to cross-examine Terrille at the evidentiary hearing in the district court.
But it was not the State’s job to adduce facts to sustain Terrille’s injury. Plaintiffs
also argue that Terrille should not be required to confess to the felony of going
armed to a conference center. True, he “is not required to [confess to a crime] in
order to establish standing.” Antonyuk, 639 F. Supp. 3d at 290; accord Driehaus,
573 U.S. at 163. But that was not his only option. If Terrille had averred that he
wishes to attend gun shows (or other events) at conference centers or banquet
halls while armed, with sufficient indicia to permit a plausible inference of future
violations of this law, jurisdiction might have been proper. Or Terrille could
have asserted that he wanted to attend other gun shows while armed but was
deterred from doing so by the CCIA. But he did neither.
220 We are mindful that a plaintiff may fall between stools: allege future
conduct too imminent and the claim will become moot, but allege a generic or
distant intention and the injury will be insufficiently specific. But as we have
explained elsewhere in this opinion, it is simply not all that hard to allege a
plausible “intention to engage in a course of conduct arguably affected with a
constitutional interest,” Driehaus, 573 U.S. at 159 (quoting Babbitt, 442 U.S. at 159).
The Supreme Court has repeatedly found plausible allegations of injury based on
relatively vague future intentions. See supra Sensitive Locations § III.A
[(discussing Johnson’s allegations with respect to zoos)]. A gun owner who
alleges a prior visit to a venue, a reason or wish to visit again, and either a plan to
do so (thereby subjecting himself to arrest) or a decision to forgo doing so for fear
of prosecution will likely have adequately pled standing to seek a pre-
enforcement injunction. 99
Not so a plaintiff who alleges only a single occasion on which he intends to
violate the challenged law and then fails to indicate that he followed through,
that he was dissuaded by legal prohibition, or that past practice predicts a
99 This is why Terrille’s claim is moot but Corey Johnson’s claim is not. Johnson averred that he intended to visit the Rosamond Gifford Zoo “within the next 90 days” and that he and his wife regularly visit the zoo “once or twice every fall” in order to see certain creatures. J.A. 139–40 (Johnson Decl. ¶ 17).
221 violation in the future. Since Terrille has done none of the above, it is
insufficiently clear that the injunction he seeks with respect to banquet halls and
conference centers would affect him in any way. He has not demonstrated an
ongoing stake in the outcome of the litigation; his claim is—and was at the time
the district court issued its injunction—moot. Cf. Palmer v. Amazon.com, Inc., 51
F.4th 491, 503 (2d Cir. 2022) (“A case becomes moot when it is impossible for a
court to grant any effectual relief whatever to the prevailing party.” (quoting
Lamont, 6 F.4th at 444)). And since Terrille was the only plaintiff found to have
standing with respect to conference centers, we vacate that component of the
district court’s injunction as having been entered without jurisdiction.
The district court also concluded that Joseph Mann had standing to
challenge the CCIA’s prohibition on possessing a gun in banquet halls. Mann’s
declaration averred that his church “additionally [is] a ‘banquet hall’ as
[parishioners] often break bread together.” J.A. 183 (Mann Decl. ¶ 34). The
district court accepted Mann’s characterization and found that, given Mann’s
stated intention to carry a gun at the church, he had established injury-in-fact. See
222 Antonyuk, 639 F. Supp. 3d at 387. 100 We disagree. Notwithstanding that people
“break bread together” there, a church is not even arguably a “banquet hall”
within the meaning of § 265.01-e(2)(p).
The Plaintiffs’ interpretation of “banquet hall” does not comport with
ordinary meaning. See Manning v. Barr, 954 F.3d 477, 482 (2d Cir. 2020)
(“[W]ords will be interpreted as taking their ordinary, contemporary, common
meaning.” (quoting Arriaga v. Mukasey, 521 F.3d 219, 225 (2d Cir. 2008)). Just as
“banquet” is not a synonym for “meal,” 101 a “banquet hall” is not any place
people eat together. 102 Instead, the phrase ordinarily refers more specifically to a
commercial space made available for special events: weddings, reunions,
100 The district court appears to have slightly misunderstood Mann’s claim as being that his church contains a “banquet hall.” See Antonyuk, 639 F. Supp. 3d at 286. Instead, Mann alleged that the church itself constitutes a “banquet hall,” and Plaintiffs have not advanced the district court’s interpretation here. We do not decide whether a separate “hall” within a church might qualify under the statute. 101See Banquet, Merriam-Webster.com Dictionary, available at https://www.merriam- webster.com/dictionary/banquet [https://perma.cc/H3WV-LKBZ] (“a sumptuous feast, especially [] an elaborate and often ceremonious meal for numerous people often in honor of a person; a meal held in recognition of some occasion or achievement”) 102See Hall, Oxford English Dictionary, available at https://doi.org/10.1093/OED/6129098993 [https://perma.cc/G846-QK8V] (“[a] large room or building for the transaction of public business . . . or any public assemblies, meetings, or entertainments,” or in this case, banquets).
223 fundraisers, etc. Plaintiffs’ expansive definition of “banquet hall” would include
a cafe, picnic tables in the park, or the dining room of a private residence.
Our intuitive understanding is confirmed by an examination of the
company the phrase keeps. See, e.g., Homaidan v. Sallie Mae, Inc., 3 F.4th 595, 604
(2d Cir. 2021) (“[Noscitur a sociis] counsels that a word is given more precise
content by the neighboring words with which it is associated.” (quoting Freeman
v. Quicken Loans, Inc., 566 U.S. 624, 634–35 (2012)). As used in paragraph (2)(p),
“banquet hall” is only an example of a “place used for the performance, art
entertainment [sic], gaming, or sporting events.” A church—even one hosting
collective bread-breaking—is not such a place. The other listed examples
immediately preceding “banquet halls” in § 265.01-e(2)(p), such as theaters,
stadiums, concerts, amusement parks, and racetracks, further confirm our
understanding of the term. Context thus tells us that the legislature could hardly
have intended for “banquet hall” to cover all sites of group meals, including
churches.
For these reasons, we conclude that Mann’s proffered interpretation of the
statute is not “reasonable enough” that he “may legitimately fear that [he] will
face enforcement of the statute.” Picard, 42 F.4th at 98 (quoting Pac. Cap. Bank,
224 542 F.3d at 350). He has therefore not alleged an intention to engage in conduct
which is “arguably proscribed by the law” he challenges, Driehaus, 573 U.S. at
162 (internal quotation marks omitted), and has failed to establish injury-in-fact
with respect to § 265.01-e(2)(p)’s application to banquet halls. Given the
mootness of Terrille’s challenge to the banquet hall provision, the district court
lacked jurisdiction to enjoin enforcement of § 265.01-e(2)(p) with respect to
banquet halls, and we vacate for that reason.
The State, on the other hand, does not challenge the district court’s finding
that Plaintiffs Terrille, Mann, and Johnson had standing as to theaters, and we see
no impediment to standing. Accordingly, we now turn to the merits of the district
court’s preliminary injunction of § 265.01-e(2)(p) as applied to theaters.
The State once again bore the burden of proving that § 265.01-e(2)(p), the
purpose of which is to reduce the threat of gun violence toward large groups in
confined locations, was consistent with the National tradition. To carry this
burden, the State offered five analogues below, all of which we have already
seen: (1) a 1786 Virginia law barring persons from “go[ing] []or rid[ing] armed”
225 in “fairs or markets, or in other places, in terror of the county”; (2) an 1869
Tennessee law barring carriage in “any fair, race course, or other public assembly
of the people”; (3) an 1870 Texas law barring carriage in “a ball room, social party
or other social gathering composed of ladies and gentleman”; (4) an 1889 Arizona
law and (5) an 1890 Oklahoma law, both of which prohibited carriage in “any
places where persons are assembled for amusement . . . or into any circus, show
or public exhibition of any kind, or into a ball room, social party or social
gathering.” Antonyuk, 639 F. Supp. 3d at 333.
As it did elsewhere, the district court discounted the Oklahoma and
Arizona statutes as coming from territories and the latter half of the 19th century.
So, it considered only the first three analogues. These laws, determined the
court, “appear to have been aimed at denying the possession of guns to persons
who were likely to pose a danger or disturbance to the public.” Id at 334. Per the
district court, they did so by denying firearms to persons who were either
“riding in terror of the county” or “likely to disturb those attending a gathering
of people (usually but not always outdoors) containing a dense population.” Id.
The district court concluded that neither set of analogues sustained the
State’s burden. Virginia’s law prohibiting “riding in terror” was not on point
226 because its regulation of “horseback-riding terrorists through fairs or markets”
was not analogous to the “modern need to regulate law-abiding New York State
citizens” wishing to carry concealed firearms. Id. (alterations adopted and
internal quotation marks omitted). And whereas the “horseback riders
referenced in the Virginia law were, by definition, brandishing arms and not
carrying them concealed,” noted the court, “the modern regulation is not limited
to instances in which the concealed carry licensees are ‘terrorizing’ others.” Id.
Nor did the remaining two laws—the 1869 Tennessee and 1870 Texas statutes—
carry the State’s burden because those laws, by virtue of the relatively small
portion of the American population they covered, were neither representative
nor established. Yet, even assuming these statutes were representative and
established, the district court refused to accept that these two statutes were
analogous because the State had not demonstrated “that the modern need for
this regulation is comparable to the need for its purported historical analogues”
given the CCIA’s licensing requirements. Id. at 335.
Having determined that none of the State’s offered analogues carried its
burden of placing § 265.01-e(2)(p) within the Nation’s history of firearm
regulation, the district court enjoined its enforcement.
227 2. The State’s Historical Analogues
On appeal, the State argues that § 265.01-e(2)(p) is consistent with the
Nation’s tradition of regulating firearms in quintessentially crowded social
places. As we have already laid out, supra Sensitive Locations §§ III.B.2 & IV.B.2,
the State points to the following analogues to establish a tradition of crowded-
place regulations: (1) a 1382 British statute forbidding going or riding “armed by
night []or by day, in fairs, markets,” Statute of Northampton 1328, 2 Edw. 3 c.3
(Eng.); (2) a 1792 North Carolina statute replicating the 1328 British statute and
prohibiting firearms in fairs or markets, Collection of Statutes of the Parliament
of England in Force in the State of North Carolina, pp. 60–61, ch. 3 (F. Martin Ed.
1792); (3) a 1786 Virginia law prohibiting “go[ing] []or rid[ing] armed by night
[]or by day, in fairs or markets, or in other places, in terror of the county,” J.A.
670 (1786 Va. Acts 35, ch. 49); (4) laws from 1869 Tennessee, 1870 Texas, 1883
Missouri, 1889 Arizona, and 1890 Oklahoma prohibiting firearms in crowded
places such as assemblies for “educational, literary or scientific purposes, or into
a ball room, social party or social gathering,” J.A. 602 (1870 Tex. Gen. Laws 63,
228 ch. 46); 103 and (5) Missouri, Tennessee, and Texas state court opinions upholding
those states’ regulations as constitutional, see Shelby, 2 S.W. at 469; English, 35 Tex.
at 478–79; Andrews, 50 Tenn. at 182.
We have already held that the above analogues set forth both a well-
established and representative tradition of regulating firearms in quintessentially
crowded places, supra Sensitive Locations § III.B.2.a. The question to which we
turn, therefore, is whether § 265.01-e(2)(p) is consistent with that tradition, supra
Sensitive Locations § III.B.2.b. We hold that it is and, accordingly, vacate the
preliminary injunction.
The State’s proffered analogues set forth a tradition of regulating firearms
in quintessentially crowded places, particularly those spaces that are (1) discrete
in the sense that they contain crowds in physically delineated or enclosed spaces,
e.g., circuses, ball rooms, fairs, and markets, and (2) “where persons are
103 J.A. 605–06 (1869 Tenn. Pub. Acts 23–24) (1869 Tennessee law prohibiting carriage of deadly weapons by “any person attending any fair, race course, or other public assembly of people”); id. at 611 (1883 Mo. Sess. Laws 76) (1883 Missouri law prohibiting weapons “where people are assembled for educational, literary or social purposes”); id. at 617 (1889 Ariz. Sess. Laws 17) (1889 Arizona law prohibiting dangerous weapons “where persons are assembled for amusement or for educational or scientific purposes, or into any circus, show or public exhibition of any kind, or into a ball room, social party or social gathering”); id. at 621 (1890 Okla. Terr. Stats., Art. 47, § 7) (1890 Oklahoma law prohibiting carriage in places “where persons are assembled for . . . amusement, or for educational or scientific purposes, or into any circus, show or public exhibition of any kind, or into any ball room, or to any social party or social gathering”).
229 assembled for amusement,” J.A. 617 (1889 Ariz. Sess. Laws 17), or for
“educational [or] literary purposes,” id. at 602 (1870 Tex. Gen. Laws 63, ch. 46).
We need not stretch the analogy far to see that § 265.01-e(2)(p) is consistent with
this tradition in both senses. It regulates firearms in discrete, densely crowded
physical spaces wherein people assemble for amusement, educational, or literary
purposes, which fairly describes theaters. 104
The district court failed to properly appreciate the National tradition of
which § 265.01-e(2)(p) is a part for several reasons.
First, the court improperly discounted the Oklahoma and Arizona statutes
based on their origins as territorial laws from the late 19th Century. Second, it
improperly discounted the laws from Tennessee and Texas based on those states’
populations relative to that of the Nation at the time. 105 For the reasons we have
already described, supra Sensitive Locations § III.B.2, this was error.
104We do not take the “silence” of the historical record, as it has so far been developed, on carriage restrictions specific to theaters to indicate that regulating firearms in theaters is unconstitutional. For one, the record also lacks any affirmative evidence that gun regulations in theaters were considered unlawful. Second, such regulations may not have been necessary given that the statutes prohibiting carriage at social, amusement, literary, or educational gatherings appear to have naturally covered theaters. 105 Even if the Tennessee and Texas laws were the only laws cited by the State at this point in the litigation, it is not clear to us that the relative populations of those states would support the district court’s conclusion that the laws were neither well-established nor representative. As we have mentioned elsewhere, Bruen discounted analogical statutes that
230 Third, the court dismissed the 1786 Virginia law prohibiting “go[ing[ []or
rid[ing] armed by night nor by day, in fairs or markets, or in other places, in
terror of the county,” J.A. at 670 (1786 Va. Acts 35, ch. 49), as insufficiently
analogous because the Virginia law was aimed at “terrorists” and not the type of
lawful gun-owners covered by § 265.01-e(2)(p). Antonyuk, 639 F. Supp. 3d at 338–
39. Even if we accept that the Virginia law was solely aimed at people who
terrorize, the district court failed to appreciate that the Founding-era North
Carolina statute prohibited firearms in fairs and markets with no reference to
terroristic conduct. 106 It also failed to consider that the tradition beginning with
the Virginia and North Carolina laws evolved over the years between the
Founding and Reconstruction toward the North Carolina model, i.e., to prohibit
firearms in quintessentially crowded places notwithstanding behavior. See, e.g.,
statutes cited supra at III.B.2.a n.74. Thus, in the context of regulating firearms in
covered less than 1 percent of the American population and ran directly contrary to a majority of the country at the time. See Bruen, 142 S. Ct. at 2155. According to the district court itself, the historical analogues from Tennessee and Texas covered 5.3 percent of the population. 106The district court considered the North Carolina statute in a footnote and dismissed it for “similar reasons (i.e., the lack of a reasonable analogy to terroristic behavior . . . .).” Antonyuk, 639 F. Supp. 3d at 334 n.117. Yet, unlike the Virginia statute, the North Carolina statute did not ban firearms based on terroristic conduct, it banned all carriage in fairs and markets. See Collection of Statutes of the Parliament of England in Force in the State of North- Carolina, pp. 60–61, ch. 3 (F. Martin Ed. 1792).
231 discrete, crowded places, the Virginia law’s “terroristic” conduct requirement is
the outlier among the national tradition. 107 In any event, even without the
Virginia law, the State’s remaining historical analogues, and state case law
finding three of those analogues constitutional, are enough.
Fourth, the district court improperly dismissed the remaining two
analogues it did consider—the statutes from Tennessee and Texas—because the
State failed to show that the need for gun-regulation in crowded places today is
comparable to the need for such traditional regulations in the past given the
CCIA’s extensive background check requirements. But that was not the State’s
burden. 108 The State’s burden was to prove that § 265.01-e(2)(p) is consistent
with a National tradition. It did so.
107As we discussed supra Sensitive Locations § III.B.2.a, Bruen’s discussion of the Northampton statute is not relevant here because it considered that law when offered as an analogue for a broad prohibition on public carriage generally, not as offered here for a specific prohibition on carriage in confined, crowded spaces. Bruen, 142 S. Ct. at 2139–43. 108The district court’s logic suggests that, because enhanced licensure requirements purportedly diminish the need for carriage restrictions, carriage restrictions are inconsistent with their historical analogues if those analogues were enacted at times with lesser licensing requirements. By this logic, a state must choose between regulating licensure and regulating carriage even if both carriage and licensure requirements are constitutional. By its own terms, Bruen does not so tie states’ hands. See 142. S. Ct. at 2133 (“[T]he Second Amendment is [not] a regulatory straightjacket[.]”).
232 For the aforementioned reasons, the order of the district court
preliminarily enjoining the State from enforcing § 265.01-e(2)(p) is VACATED.
VI. First Amendment Gatherings
Section 265.01-e(2)(s) makes it a crime to possess a gun at “any gathering
of individuals to collectively express their constitutional rights to protest or
assemble.” The district court found that Plaintiffs Terrille and Mann both had
standing to challenge this restriction. The State has not argued otherwise, but “it
is well established that the court has an independent obligation to assure that
standing exists, regardless of whether it is challenged by any of the parties.”
Summers v. Earth Island Inst., 555 U.S. 488, 499 (2009); accord In re Clinton
Nurseries, Inc., 53 F.4th 15, 22 (2d Cir. 2022). Fulfilling that obligation here, we
conclude that neither Terrille nor Mann has presented justiciable constitutional
challenges to paragraph (2)(s).
A. Mann
The district court concluded that Mann has standing because paragraph
(2)(s) applies to Sunday worship at Mann’s church—“expressive religious
assemblies,” in the district court’s words. Antonyuk, 639 F. Supp. 3d at 291. Since
Mann intends to carry a gun during worship services, the district court found
that Mann had alleged a credible threat of prosecution for violating paragraph
233 (2)(s). Id.; see also J.A. 182 (Mann Decl. ¶ 32). However, as a matter of statutory
interpretation, neither a worship service nor other “expressive religious
assemblies” are even arguably covered by paragraph (2)(s).
The inquiry depends on the provision’s purpose: guns are banned only
when people gather “to collectively express their constitutional rights to protest
or assemble.” It is unreasonable to interpret this text to include every gathering
or even every “expressive gathering.” For one thing, that would render wholly
superfluous § 265.01-e(2)(c), which specifically prohibits guns in “any place of
worship.” Other portions of § 265.01-e would also be swallowed by paragraph
(2)(s). “Theaters” and “performance venues”—included in paragraph (2)(p)—do
little else but host gatherings involving expression. Likewise, many events
hosted at “exhibits, conference centers, [and] banquet halls” can be categorized
as “expressive gatherings.” See N.Y. Penal L. § 265.01-e(2)(p). The CCIA may be
broad, but we will not read it to be redundant.
Paragraph (2)(s)’s placement within § 265.01-e confirms that it was aimed
at protests and other demonstrations rather than at an undifferentiated category
of gatherings that would include worship services. Related sensitive locations
tend to be grouped together in § 265.01-e(2): childcare and other youth programs
234 appear back-to-back with “nursery schools, preschools, and summer camps,”
N.Y. Penal L. § 265.01-e(2)(e)–(f); and programs for the vulnerable—persons
suffering from addiction, mental illness, poverty, disability, and homelessness—
all appear in sequence, see id. §§ 265.01-e(2)(g)–(k). It is thus probative that
paragraph (2)(s) immediately follows a ban on guns at:
any public sidewalk or other public area restricted from general public access for a limited time or special event that has been issued a permit for such time or event by a governmental entity, or subject to specific, heightened law enforcement protection . . . .
Id. § 256.01-e(2)(r). This pattern of grouping by affinity suggests that
subparagraph (s) deals with “assemblies” similar to those on a sidewalk or on a
road closed by police.
Although some court decisions have suggested broad First Amendment
protection for “assemblies,” see Coates v. City of Cincinnati, 402 U.S. 611, 615 (1971)
(suggesting a First Amendment right to “gather in public places for social or
political purposes”); De Jonge v. Oregon, 299 U.S. 353, 365 (1937) (stating that
“peaceable assembly for lawful discussion cannot be made a crime” in part
because of the Assembly Clause), the “constitutional right to assemble” is more
usually discussed as being “cognate to those of free speech and free press,” De
Jonge, 299 U.S. at 364, and “intimately connected both in origin and in purpose[]
235 with the other First Amendment rights of free speech and free press,” United
Mine Workers of Am., Dist. 12 v. Illinois State Bar Ass’n, 389 U.S. 217, 222 (1967).
And the legislature’s pairing of “assembl[y]” with “protest” in § 265.01-
e(2)(s) strongly suggests that the legislature was concerned with protest-type
demonstrations rather than attempting to reach any assembly conceivably
protected by the First Amendment. Cf. McDonnell v. United States, 579 U.S. 550,
569 (2016) (“[Noscitur a sociis] is often wisely applied where a word is capable of
many meanings in order to avoid the giving of unintended breadth to the Acts of
Congress.” (quoting Jarecki v. G.D Searle & Co., 367 U.S. 303, 307 (1961)). It is
implausible that the New York legislature meant for paragraph (2)(s) to apply
wherever people gather for social or political purposes (which is everywhere), or
whenever people engage in lawful discussion (which is all the time). It is highly
unlikely that the legislature would slip in a prohibition of such sprawling
breadth as one of many entries in an enumeration of twenty sensitive locations.
Such a sweeping bar would also offend the Supreme Court’s admonition against
“expanding the category of ‘sensitive places’ simply to all places of public
congregation that are not isolated from law enforcement.” Bruen, 142 S. Ct. at
2134. The CCIA is in conversation with Bruen: the legislature may have
236 overreached in certain respects, but the general point was to revise New York’s
gun laws to withstand Bruen, not to attempt exactly what it forbade.
Moreover, it is easy to infer what the legislature had in mind. Peaceful
demonstrations petitioning the government to take or desist from particular
actions are a vital part of democratic discourse; demonstrations by armed mobs
are something else. Similarly, counter-demonstrations often lead to dangerous
confrontations; how much more so if a peaceful protest is met by counter-
demonstrators who are armed. It is thus reasonable to assume that the
legislature was concerned that carrying firearms in connection with such protests
conveys intimidation rather than free expression, a concern that would not
extend to ordinary religious or social gatherings at which people exercise their
rights to gather and speak with each other.
Accordingly, we conclude that worship services at Mann’s church are not
arguably “gathering[s] of individuals to collectively express their constitutional
rights to protest or assemble” and that he has thus not alleged injury-in-fact with
respect to § 265.01-e(2)(s).
B. Terrille
The district court found that Alfred Terrille had standing to challenge the
constitutionality of paragraph (2)(s) based on his intention to attend the Polish
237 Community Center Gun Show on October 8–9, 2022. But for the reasons
explained above with respect to conference centers and banquet halls, Terrille’s
failure to demonstrate that he attended the gun show while armed, was
dissuaded by law from doing so, or intends to attend another gun show in the
future means that Terrille’s challenge to paragraph (2)(s) is now moot.
Moreover, a gun show is not arguably a “gathering of individuals to
collectively express their constitutional rights to protest or assemble” under
paragraph (2)(s). Though Terrille states that “one of [his] main reasons for
attending [the Polish Community Center Gun Show], and a huge part of any gun
show, is the conversations with fellow gun owners, which invariably includes
discussion of New York State’s tyrannical gun laws,” J.A. 191–92 (Terrille Decl.
¶ 16), that does not on its own bring a gun show within paragraph (2)(s). A gun
show is a commercial exhibition: that attendees might also engage in speech,
including on politically-charged topics, does not make it a gathering for the
purpose of expressing participants’ “constitutional right to protest or assemble.”
As discussed, the challenged law does not cover every gathering where
expression might occur. A book fair is not a qualifying gathering even if
238 attendees anticipate conversations about censorship. So, even if Terrille’s claim
was not moot, it still would not be justiciable.
Since neither Mann nor Terrille present justiciable challenges § 265.01-
e(2)(s), the district court was without jurisdiction to enjoin its enforcement. 109 We
accordingly VACATE that portion of the district court’s preliminary injunction.
RESTRICTED LOCATIONS
Under § 265.01-d of the CCIA, a “person is guilty of criminal possession of
a weapon in a restricted location when such person possesses a firearm, rifle, or
shotgun and enters into or remains on or in private property where such person
knows or reasonably should know that the owner or lessee of such property has
not permitted such possession by clear and conspicuous signage indicating that
the carrying of firearms, rifles, or shotguns on their property is permitted or by
otherwise giving express consent.” The effect of this “restricted location”
provision is to create a default presumption that carriage on any private property
is unlawful —whether property is open or closed to the public—unless the
109 Plaintiffs Johnson and Terrille alleged an intention to attend political protests in the future, but the district court found those allegations insufficiently specific and/or imminent for Article III standing. See Antonyuk, 639 F. Supp. 3d at 389–91. Since Plaintiffs do not challenge this determination on appeal, the argument is forfeited and we do not consider it.
239 property owner has indicated by “clear and conspicuous signage” or express
verbal consent that carriage is allowed.
As discussed above, the Antonyuk and Christian Plaintiffs each moved in
their respective cases to preliminarily enjoin enforcement of the restricted
locations provision. In Antonyuk, all six individual Plaintiffs challenged the
provision as violative of the First Amendment and Second Amendment. After
finding that each of these Plaintiffs had standing to challenge this provision, the
district court enjoined the restricted-locations provision in its entirety on both
First Amendment compelled speech and Second Amendment grounds. See
Antonyuk, 639 F. Supp. 3d at 294, 339–47.
In Christian, one individual Plaintiff, Brett Christian, along with two
organizational Plaintiffs, FPC and SAF, brought a Second Amendment challenge
to the restricted locations provision “with respect to private property ‘open to the
public.’” Christian, 642 F. Supp. 3d at 399 n.5. In its order, the district court held
that the individual Plaintiff had standing while the organizational Plaintiffs did
not, and proceeded to find that the restricted locations provision facially violated
the Second Amendment. Accordingly, the Christian court granted the relief
240 requested by Christian and enjoined enforcement of that provision “with respect
to private property open to the public.” Id. at 411.
In assessing standing, we need only consider the Second Amendment
challenge.
The State argues that none of the Plaintiffs in Antonyuk or Christian has
standing to bring a Second Amendment challenge to § 265.01-d. “[A]n injunction
against defendants cannot vindicate plaintiffs’ asserted desire to carry guns onto
others’ property,” the State contends, because that “inability . . . would flow not
from defendants’ enforcement of the CCIA, but rather from decisions by
property owners or lessees about whether to allow guns on the premises.”
Antonyuk Nigrelli Br. at 70.
We disagree. Whether or not a property owner or lessee has decided to
allow guns on their premises, the relevant injury for standing purposes is the
credible threat of arrest and prosecution that Plaintiffs face if they do so without
first receiving permission for armed entry, as they claim a right (and willingness)
to do. See, e.g., J.A. 140–41 (Johnson Decl. ¶¶ 18–21). Under § 265.01-d, an armed
entry without explicit prior permission would be prosecutable even if the
241 property owner or lessee later discovers the entrant is armed and consents to his
carriage. And that injury is clearly redressable by an injunction against
enforcement of the private-property restriction. Further, although the State
contends that this injury is not traceable to the State (and thus not redressable)
because Plaintiffs’ exclusion occurs due to a decision by a third-party to deny
consent, that argument ignores the provision’s criminally enforceable
presumption against carriage. In other words, absent § 265.01-d, a licensed gun
owner could bring his concealed firearm into, for example, a privately owned
department store if the store owner did not clearly communicate to the public (or
to the gun owner directly) any position on whether guns were permitted, but the
passage of the law makes carrying a licensed gun into that store a crime even
though no such prohibition had been posted or communicated. That change in
the gun licensee’s rights is affected by the statute, not by any action of the private
property owner. Accordingly, Plaintiffs have standing to challenge § 265.01-d as
violating the Second Amendment.
242 II. Merits
A. The District Court Decisions
1. Antonyuk
The district court began its analysis of the restricted location provision by
noting that the provision applies both to “all privately owned property that is not
open to the public (and that is not a ‘sensitive location’ under Section 4 of the
CCIA)” as well as to “all privately owned property that is open for business to
the public (and that is not a ‘sensitive location’ under Section 4 of the CCIA).”
Antonyuk, 639 F. Supp. 3d at 339. The court focused its analysis on those
restricted locations open to the public, concluded that the CCIA’s restriction of
firearms in such locations “finds little historical precedent,” id. at 340, and
enjoined enforcement.
The district court rejected the State’s eight proffered analogues, of which
six were state laws ranging from the early 18th-century to late 19th-century that
prohibited carrying firearms onto private property for the purpose of hunting
game. Id. at 340-41. The remaining two proffered statutes, a 1771 New Jersey
statute and an 1865 Louisiana statute, prohibited the carriage of firearms
generally on private property without the owner’s consent.
243 The court found that the six “anti-poaching” statutes were inapposite.
They were “aimed at preventing hunters (sometimes only hunters who are
convicted criminals) from taking game off of other people’s lands (usually
enclosed) without the owner’s permission.” Id at 340. Barring “some people from
openly carrying rifles on other people’s farms and lands in 19th century
America,” concluded the court, “is hardly analogous to barring all license holders
from carrying concealed handguns in virtually every commercial building now.” Id.
at 341. Moreover, the anti-poaching statutes served a disparate purpose.
According to the district court, “poaching was a specific and pernicious
problem” in each of the six states with anti-poaching laws, whereas § 265.01-d is
aimed at “ensu[ring] that property owners and lessees can make informed
decision.” Id. (internal quotation marks omitted). In sum, the court concluded
that the need to restrict poaching “appears of little comparable analogousness to
the need to restrict law-abiding responsible license holders in establishments that
are open for business to the public today.” Id.
The district court also rejected the State’s remaining analogues—the 1771
New Jersey and 1865 Louisiana laws. Even assuming, arguendo, that they were
well-established, the court found that they were not representative, given that the
244 populations of New Jersey and Louisiana together was 4.2 percent of the Nation
at that time.
As to § 265.01-d’s firearm restrictions on private property closed to the
public, the district court agreed with the State. With no merits analysis, the court
was persuaded “that the Second Amendment is not the best place to look for
protection” of carriage rights on property closed to the public because “thus far
the Second Amendment has been found to protect the right to keep and bear
arms for self-defense only in one’s own home or in public.” Id. at 343. Having
concluded that regulations of firearms on private property closed to the public
are outside the scope of the Second Amendment, the court did not analyze this
aspect of the regulation under Bruen.
Following its analysis of the Plaintiffs’ First Amendment challenge to the
restricted locations provision, the district court enjoined § 265.01-d in all of its
applications, i.e., as applied to private property that is both open and closed to
the public. Importantly, the district court explained that “even if its First
Amendment challenge were flawed,” the Second Amendment grounds alone
were sufficient to “preliminary enjoin all of” § 265.01-d. Id. at 347. As discussed
below, that was error.
245 2. Christian
Christian’s pre-enforcement challenge to the restricted location provision
was limited to private property open to the public, and the district court’s
injunction was also so limited. Notwithstanding language in the district court
opinion that purports to analyze the entire provision, i.e., as it applies to private
property open and closed to the public alike, and the State’s defense of the entire
provision in the district court, the district court’s order is limited to enjoining the
provision only as it applies to private property open to the public. Accordingly,
our review on appeal is likewise limited. See Jennings v. Stephens, 574 U.S. 271,
277 (2015) (“This Court, like all federal appellate courts, does not review lower
courts’ opinions, but their judgments.”); see also Chevron, U.S.A., Inc. v. Nat. Res.
Def. Council, Inc., 467 U.S. 837, 842 (1984) (“[S]ince this Court reviews judgments,
not opinions, we must determine whether the Court of Appeals’ legal [reasoning]
error resulted in an erroneous judgment” (emphasis added; footnote omitted)).
The district court in Christian began its analysis by holding that the
restricted location provision fell within the plain text of the Second Amendment
by infringing on the right—first announced in Bruen—to carry firearms outside
246 the home. Accordingly, the district court placed the burden on the State to prove
§ 265.01-d’s consistency with the Nation’s tradition of regulation.
To carry its burden, the State cited the same analogues as it did in
Antonyuk: (1) a 1715 Maryland law barring people with certain convictions from
hunting or carrying on other peoples’ land without their permission, J.A. at 108
(1715 Md. Laws, No. 73 (An Act for the Speedy Tryal of Criminals, and
Ascertaining their Punishment, in the County-Courts, when Prosecuted there;
and for Payment of Fees due from Criminal Persons)); (2) a 1721 Pennsylvania
law and 1722 New Jersey law prohibiting carriage or hunting “on the improved
or inclosed lands of any plantation other than his own, unless have license or
permission,” id. at 113 (1721 Pa. Laws, ch. 246 (An Act to prevent the killing of
deer out of season, and against carrying of guns, or hunting, by persons not
qualified)); id. at 119 (1722 N.J. Laws, ch. 35 (An Act to prevent the killing of deer
out of season, and against carrying of guns and hunting by persons not
qualified)); (3) a 1763 New York law prohibiting “carry[ing], shoot[ing] or
discharg[ing]” any firearm on private land without permission from the
proprietor, id. at 124 (1763 N.Y. Laws, ch. 1233 (An Act to prevent hunting with
Fire-Arms in the City of New-York, and the Liberties thereof)); (4) an 1865
247 Louisiana law and 1866 Texas law prohibiting carriage on plantations without an
owner’s permission, id. at 137 (1865 La. Acts 14); id. at 144 (1866 Tex. Gen. Laws
ch. 90); and (5) an 1893 Oregon law prohibiting “being armed . . . or trespass[ing]
upon any enclosed premises or lands without the consent of the owner,” id. at
151 (1893 Or. Laws 79).
The Christian court, primarily by reference to the reasoning in Antonyuk,
held that the State’s analogues failed to establish a tradition consistent with
§ 265.01-d. As previously described, Antonyuk rejected the State’s analogues
because they were “aimed at preventing hunters (sometimes only hunters who
are convicted criminals) from taking game off of other people’s land (usually
enclosed) without the owner’s permission.” Antonyuk, 639 F. Supp. 3d at 340.
And barring “some people from openly carrying rifles on other people’s farms and
lands in 19th century America,” concluded the court, “is hardly analogous to
barring all license holders from carrying concealed handguns in virtually every
commercial building now.” Id. at 341.
In addition to adopting Antonyuk’s rationale, the Christian court made a
few of its own observations. Though “property owners have always had the
right to exclude others from their property and, as such, may exclude those
248 carrying concealed handguns,” the Christian court emphasized that “that right
has always been one belonging to the private property owner—not to the State.”
Christian, 642 F. Supp. 3d at 407. The district court concluded that “the scope of
the right codified in the Second Amendment demonstrates that this society—this
nation—has historically” had the default arrangement that carrying firearms on
private property is generally permitted absent the owner’s prohibition. Id. at 408
(emphasis removed). Finally, the court observed that because “the vast majority
of land in New York is held privately” the effect of the restricted location
provision is to render most of the state “presumptively off limits.” Id.
B. Merits Analysis of Christian and Antonyuk
We begin our analysis of the two cases in reverse and first address the
narrower injunction issued by the Christian court.
1. Christian
a. Scope of Second Amendment
We agree with the district court that, to the extent the restricted location
provision applies to private property open to the public, the regulated conduct
falls within the Second Amendment right to carry firearms in self-defense
outside the home. See Bruen, 142 S. Ct. at 2135 (“the Second Amendment
guarantees a general right to public carry”). Otherwise, as the district court
249 observed, because over 91 percent of land in New York state is privately held, the
restricted location provision would turn much of the state of New York into a
default no-carriage zone. 110 We need not and do not decide, however, whether
the Second Amendment includes a right to carry on private property not open to
the public. See Bruen, 142 S. Ct. at 2134 (explaining that though there is a general
right to public carriage “we do not undertake an exhaustive historical analysis of
the full scope of the Second Amendment” (ellipses omitted) (quoting Heller, 554
U.S. at 626).”
On appeal, the State argues that because the district court failed to
consider whether there is a Second Amendment right to carry firearms on private
property not open to the public, it short-circuited the first step of the analysis and
thus erroneously put the burden on the State to establish § 265.01-e’s consistency
with the National tradition. However, the Christian Plaintiffs bring an as-applied
pre-enforcement challenge to the restricted location provision only insofar as it
applies to private property open to the public, so they were only required to
show, and the district court was only required to consider, whether carrying a
See Ruqaiyah Zarouk, Mapping Private vs. Public Land in the United States, Am. 110
Geographical Soc’y, available at https://ubique.americangeo.org/map-of-the-week/map-of-the- week-mapping-private-vs-public-land-in-the-united-states/ [https://perma.cc/4GFS-UPJL].
250 firearm for self-defense on private property open to the public was within the
plain text of the Second Amendment. This is what the district court did. Guided
by Bruen’s holding that the Second Amendment protects the right to bear arms
for self-defense outside the home, the district court concluded that the conduct
regulated by § 265.01-d and challenged by Plaintiffs—carriage on private
property open to the public—fell within the Second Amendment’s plain text.
We likewise reject the State’s argument in reliance on the Eleventh
Circuit’s pre-Bruen decision in GeorgiaCarry.Org, Inc. v. Georgia, 687 F.3d 1244
(11th Cir. 2012), that the conduct regulated by the restricted locations provision is
not within the Second Amendment’s plain text. GeorgiaCarry.Org involved “both
a facial and an as-applied challenge in pre-enforcement review.” Id. at 1244. Yet,
because the plaintiffs “ha[d] not included sufficient allegations to show how the
[Georgia law] would be applied in their specific case,” i.e., to bring an as-applied
pre-enforcement challenge, the GeorgiaCarry.Org court addressed only the
plaintiff’s facial challenge. Id. at 1260 & 1260 n.34. As such, the GeorgiaCarry.Org
plaintiffs were required to advocate for a facial challenge, “tak[ing] the position
that the Second Amendment protects a right to bring a firearm on the private
property of another against the wishes of the owner.” Id. at 1261. It was against
251 this background that the Eleventh Circuit concluded that “the Second
Amendment does not give an individual a right to carry a firearm on [private
property] against the owner’s wishes.” Id. at 1266.
GeorgiaCarry.Org has no bearing on the scope of the Second Amendment as
it is invoked by Plaintiffs in this case, because these Plaintiffs, unlike those in
GeorgiaCarry.Org, have properly pleaded an as-applied, pre-enforcement
challenge to the restricted location provision’s default presumption against
carriage on private property open to the public. 111 See J.A. 25 (Christian Compl.
at ¶ 37) (challenging the “default anti-carry rule” with “respect to places open to
the public”). Accordingly, they are not required to show that carriage on private
111Plaintiffs’ complaint pleads that the restricted location provision’s default rule prevents them from exercising their Second Amendment rights because “the property owner who does not know about the new presumption will fail to post clear and conspicuous signage permitting the carrying of firearms or otherwise fail to give the express consent that the property owner does not know is needed,” that an “indifferent” property owner “will fail to post clear and conspicuous signage or provide express consent, even though before the enactment, he would have allowed individuals to carry as a result of being indifferent to ban it,” or that “a property owner, who would like to allow the carry of firearms, will fail to post the required signage or give the required consent for fear of stigma.” J.A. 33–34 (Christian Compl. ¶ 40e). Thus, the Plaintiffs challenge the provision’s application only in those cases where the property owner would, were it not for the regulation’s default, invite or consent to carriage. Further, the Plaintiffs have sufficiently alleged how the provision would apply in their specific cases. See id. at 35–37 (Christian Complaint ¶¶ 42, 44); see, e.g., id. at 36–37 (Christian Compl. ¶ 44) (“Christian typically brings his firearm with him on private property open to the public, such as weekly visits to gas stations and monthly visits to hardware stores, and he intended to continue to do so, but for the enactment and enforcement of [the restricted locations provision]”).
252 property against a property owner’s expressed wishes is within the Second
Amendment’s plain text, and GeorgiaCarry.Org’s holding is inapplicable.
Because the conduct at issue in this appeal regulated by § 265.01-d is
within the plain text of the Second Amendment, the district court properly
placed the burden on the State to demonstrate § 265.01-d’s consistency with a
well-established and representative National tradition. We now turn to this
analysis.
b. The State’s Analogues on Appeal
The State relies on the same analogues here as it did in the district court:
(1) the 1715 Maryland law barring people “convicted of [certain crimes] . . . or . . .
of evil fame, or any vagrant, or dissolute liver,” from “shoot[ing], kill[ing], or
hunt[ing], or . . . carry[ing] a gun, upon any person’s land, whereon there shall be
a seated plantation, without the owner’s leave,” J.A. 108 (1715 Md. Laws, No. 73);
(2) the 1721 Pennsylvania law and 1722 New Jersey law prohibiting carriage or
hunting “on the improved or inclosed lands of any plantation other than his
own, unless have license or permission,” id. at 113 (1721 Pa. Laws, ch. 246); see
also id. at 119 (1722 N.J. Laws, ch. 35); (3) the 1763 New York law prohibiting
“carry[ing], shoot[ing] or discharg[ing]” any firearm in any “Orchard, Garden,
Corn-Field, or other inclosed Land . . . without License” from the proprietor, id.
253 at 124 (1763 N.Y. Laws, ch. 1233); (4) the 1865 Louisiana law and 1866 Texas law
prohibiting carriage on the “premises plantations of any citizen, without the
consent of the owner or proprietor,” id. at 137 (1865 La. Acts 14); see also id. at 144
(1866 Tex. Gen. Laws ch. 90); and (5) the 1893 Oregon law prohibiting anyone
“other than an officer on lawful business, [from] being armed . . . or trespass[ing]
upon any enclosed premises or lands without the consent of the owner,” id. at
151 (1893 Or. Laws 79). The State urges that the restricted locations regulation is
consistent with these historical statutes. We disagree.
We assume without deciding that the State’s analogues demonstrate a
well-established and representative tradition of creating a presumption against
carriage on enclosed private lands, i.e., private land closed to the public. But we
do not agree that these laws support the broader tradition the State urges. These
analogues are inconsistent with the restricted location provision’s default
presumption against carriage on private property open to the public.
The State fails to place § 265.01-d within a National tradition because at
least three of its proffered analogues burdened law-abiding citizens’ rights for
different reasons than § 265.01-d, and all of its analogues burden Second
Amendment rights to a significantly lesser extent than § 265.01-d. See Bruen, 142
254 S. Ct. at 2133 (identifying “how and why the regulations burden a law-abiding
citizen’s right to armed self-defense” as central considerations in the history-and-
analogue test). We address each issue in turn.
At least three of the State’s proffered analogues were explicitly motivated
by a substantially different reason (deterring unlicensed hunting) than the
restricted location regulation (preventing gun violence). As the State’s own brief
concedes, the 1721 Pennsylvania statute, 1722 New Jersey statute, and 1763 New
York statute were all aimed at preventing the “damages and inconveniencies”
caused “by persons carrying guns and presuming to hunt on other people’s land.”
J.A. at 113 (1721 Pa. Laws, ch. 246) (emphasis added); id. at 119 (1722 N.J. Laws)
(1722 New Jersey statute driven by the “great Damages and Inconveniences
arisen by Persons carrying of Guns and presuming to hunt on other Peoples
Land); id. at 123–24 (1763 N.Y. Laws, ch. 1233) (1763 New York statute intended
to “more effectually [] punish and prevent” the “Practice of Great Numbers of
idle and disorderly persons . . . to hunt with Fire-Arms”). 112 Similarly, the 1715
Maryland statute prohibited only convicted criminals from carrying a firearm on
Though the remaining statutes are not by their own terms aimed at deterring 112
poaching, the State has placed no evidence in the record regarding whether the motivation behind these statutes was in line with the motivation behind § 265.01-d.
255 “any person’s land, whereon there shall be a seated plantation, without the
owner’s leave,” id. at 108 (1715 Md. Laws, No. 73). No matter how expansively
we analogize, we do not see how a tradition of prohibiting illegal hunting on
private lands supports prohibiting the lawful carriage of firearms for self-defense
on private property open the public.
What is more, none of the State’s proffered analogues burdened Second
Amendment rights in the same way as § 265.01-d. All of the State’s analogues
appear to, by their own terms, have created a default presumption against
carriage only on private lands not open to the public. The three analogues just
cited above, as well as the 1715 Maryland statute, prevented guns on “land,” J.A.
at 108 (1715 Md. Laws, No. 73), “improved or inclosed lands,” id. at 133 (1721 Pa.
Laws, ch. 246) and id. at 119 (1722 N.J. Laws, ch. 35) (prohibiting same), or on any
“Orchard, Garden, Cornfield, or other inclosed Land,” id. at 124 (1763 N.Y. Laws,
ch. 1233). Meanwhile, even those statutes that were not limited by their terms to
hunting prevented carriage on “any Lands not [one’s] own,” id. at 127 (1771 N.J.
Laws, ch. 540 (An Act for the Preservation of Deer and other Game, and to
prevent trespassing with Guns)), “the premises or plantations of any citizen,” id.
at 137 (1865 La. Acts 14) and id. at 144 (1866 Tex. Gen. Laws ch. 90) (1866 Texas
256 statute), or the “enclosed premises or lands” of another, id. at 151 (1893 Or. Laws
79). As it has been developed thus far, the historical record indicates that “land,”
“improved or inclosed land” and “premises or plantations” would have been
understood to refer to private land not open to the public. 113 The State has
produced no evidence that those terms were in fact otherwise understood to
apply to private property open to the public or that the statutes were in practice
applied to private property open to the public. Given that most spaces in a
community that are not private homes will be composed of private property
open to the public to which § 265.01-d applies, the restricted location provision
functionally creates a universal default presumption against carrying firearms in
public places, seriously burdening lawful gun owners’ Second Amendment
rights. That burden is entirely out of step with that imposed by the proffered
113 See State v. Hopping, 18 N.J.L. 423, 424 (1842) (“improvements is a legal and technical word, and means inclosures, or inclosed fields: lands fenced in, and thus withdrawn and separated from the wastes or common lands”); Land, WEBSTER’S AM. DICTIONARY OF THE ENGLISH LANG. (1828), available at https://webstersdictionary1828.com/Dictionary/land [https://perma.cc/3A9Y-SKWQ] (“Any small portion of the superficial part of the earth or ground. We speak of the quantity of land in a manor. Five hundred acres of land is a large farm.”); Plantation, WEBSTER’S AM. DICTIONARY OF THE ENGLISH LANG. (1828), available at https://webstersdictionary1828.com/Dictionary/plantation [https://perma.cc/6DG8-QTFQ] (“In the United States and the West Indies, a cultivated estate; a farm.”); Premises, WEBSTER’S AM. DICTIONARY OF THE ENGLISH LANG. (1828), available at https://webstersdictionary1828.com/Dictionary/premises [https://perma.cc/AKG7-DEL7] (“In law, land or other things mentioned in the preceding part of a deed.”).
257 analogues, which appear to have created a presumption against carriage only on
private property not open to the public.
In sum, the State’s analogues fail to establish a National tradition
motivated by a similar “how” or “why” of regulating firearms in property open
to the public in the manner attempted by § 265.01-d. Accordingly, the State has
not carried its burden under Bruen.
Because the State has failed to situate § 265.01-d’s prohibition on carriage on
private property open to the public, we affirm the district court’s injunction.
2. Antonyuk
We now turn to Antonyuk, in which the district court issued a broader
injunction that enjoined enforcement of § 265.01-d as applied to both private
property open to the public and private property not open to the public. For
their facial challenge to support the blanket injunction that was issued, the
Antonyuk Plaintiffs were required to show that § 265.01-d was unconstitutional in
all of its applications. See United States v. Hansen, 599 U.S. 762, 769 (2023)
(“[L]itigants mounting a facial challenge to a statute normally must establish that
no set of circumstances exists under which the statute would be valid” (internal
quotation marks omitted and alterations adopted)). Yet, per the district court’s
258 own analysis, the Plaintiffs secured a blanket injunction without making this
necessary showing below.
The district court accepted the State’s argument that § 265.01-d could,
consistent with the Second Amendment, be applied to restrict carriage on private
property closed to the public. Antonyuk, 639 F. Supp. 3d at 343 (“[T]o the extent
to which [§ 265.01-d] restricts concealed carry on privately owned property that
is not open to the public . . . the Second Amendment is not the best place to look for
protection from that restriction, because thus far the Second Amendment has
been found to protect the right to keep and bear arms for self-defense only in
one’s own home or in public.”) (emphasis in original). Having accepted the
State’s argument that there was at least one set of circumstances in which the
statute could be valid under the Second Amendment, it was error for the district
court to subsequently enjoin § 265.01-d in all its applications. 114 See Wash. State
114 The State’s apparent willingness to adopt the district court’s approach, by declining to draw a distinction in § 265.01-d or the Second Amendment between property open to the public and property not open to the public, does not alter our analysis. The State cannot waive the rule that courts cannot facially invalidate a statute unless it is unconstitutional in all of its applications because this rule is a necessary “exercis[e] of judicial restraint” without which a facial challenge would “run contrary to the fundamental principle of judicial restraint.” Wash. State Grange, 552 U.S. at 450. This requirement of total facial invalidity is a salutary and necessary limit on judicial power, not a protection for the defendant in constitutional litigation. See id. (“[J]udicial restraint in a facial challenge frees the Court not only from unnecessary pronouncement on constitutional issues, but also from premature interpretations of statutes in
259 Grange, 552 U.S. at 449–50 (“[A] plaintiff can only succeed in a facial challenge by
establishing that no set of circumstances exists under which the [statute] would
be valid, i.e., that the law is unconstitutional in all of its applications” (internal
quotation marks omitted and alterations adopted)). 115
For the reasons stated above, we AFFIRM the Christian court’s preliminary
injunction enjoining enforcement of § 265.01-d’s with respect to private property
open to the public; we MODIFY and AFFIRM the injunction issued in Antonyuk
to conform to that issued in Christian, enjoining enforcement of § 265.01-d with
respect to private property open to the public; and REMAND the preliminary
areas where their constitutional application might be cloudy” (internal quotation marks omitted)). 115 Because we conclude that the restricted locations provision of the CCIA violates the Second Amendment, we need not address Plaintiffs’ contention that the provision violates the First Amendment by requiring owners of private property generally open to the public who wish to welcome visitors carrying concealed firearms to say so. We confess to a certain skepticism about that claim. If private property owners are free either to grant or refuse access to visitors, a default rule that consent is presumed would compel speech on the part of proprietors to forbid firearms just as much as the CCIA requires speech from those who would welcome them. That someone will need to express his wishes regardless of the chosen default rule is just a fact of life, and not a violation of the First Amendment. Plaintiffs’ argument, however, points up a further reason why the restricted location default rule impinges on the Second Amendment. If that Amendment grants a presumptive right to carry firearms in public places, and the State must — even by its silence — create a default rule as to the presumption to be applied when the owner of property open to the public does not express a preference, the choice of a default rule that discriminates against the Second Amendment right is inherently problematic.
260 injunction as to § 265.01-d with respect to private property not open to the public
for further merits analysis consistent with this opinion.
CONCLUSION
For the reasons stated above, we 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 because no plaintiff had Article III standing to challenge the laws or
that the challenged laws do not violate the Constitution on their face. 116
116 We emphasize that we are here reviewing facial challenges to these provisions at a very early stage of this litigation. A preliminary injunction is not a full merits decision, but rather addresses only the “likelihood of success on the merits.” Salinger v. Colting, 607 F.3d 68, 79 (2d Cir. 2010) (emphasis added); see also Amoco Prod. Co. v. Vill. of Gambell, AK, 480 U.S. 531, 546 n.12 (1987) (“The standard for a preliminary injunction is essentially the same as for a permanent injunction with the exception that the plaintiff must show a likelihood of success on the merits rather than actual success.”). Our affirmance or vacatur of the district courts’ injunctions does not determine the ultimate constitutionality of the challenged CCIA provisions, which await further briefing, discovery, and historical analysis, both in these cases as they proceed and perhaps in other cases.
Related
Cite This Page — Counsel Stack
Antonyuk Hardaway Christian Spencer v. Chiumento, Counsel Stack Legal Research, https://law.counselstack.com/opinion/antonyuk-hardaway-christian-spencer-v-chiumento-ca2-2023.