{"id":105737,"date":"2024-11-23T02:56:57","date_gmt":"2024-11-23T08:56:57","guid":{"rendered":"https:\/\/milesfortis.com\/?p=105737"},"modified":"2024-11-23T02:59:12","modified_gmt":"2024-11-23T08:59:12","slug":"105737","status":"publish","type":"post","link":"https:\/\/milesfortis.com\/?p=105737","title":{"rendered":""},"content":{"rendered":"

Federal Appeals Court Upholds Most of Restrictive New York Concealed Carry Gun Law; Next Stop SCOTUS<\/a>
\nFederal Second Circuit Court of Appeals upholds \u201cgood moral character\u201d requirement of New York\u2019s concealed carry gun law, setting up expected showdown at the U.S. Supreme Court<\/em><\/p>\n

We have been following the twists and turns of litigation battles associated with New York\u2019s most recent concealed carry gun law. This is important, not only because it affects the constitutional rights of millions of law-abiding New York State citizens, but also because this case could be a bellwether for the country, should the U.S. Supreme Court decide to review the case and provide further guidance on the gun rights of citizens nationwide.<\/p>\n

You may recall that it all started, as we\u00a0reported<\/a>, when SCOTUS struck down New York\u2019s previous concealed carry gun law, which required citizens to make a showing of \u201cspecial need\u201d when applying for a carry permit, as violative of the U.S. Constitution\u2019s Second Amendment, in the seminal\u00a0New York State Rifle & Pistol Association, Inc. v. Bruen<\/a>\u00a0<\/em>case:<\/p>\n

We\u2026now hold, consistent with\u00a0Heller<\/em>\u00a0and\u00a0McDonald<\/em>, that the Second and Fourteenth Amendments protect an individual\u2019s right to carry a handgun for self-defense outside the home.<\/span><\/p>\n

The parties nevertheless dispute whether New York\u2019s licensing regime respects the constitutional right to carry handguns publicly for self-defense. In 43 States, the government issues licenses to carry based on objective criteria.<\/span><\/p>\n

But in six States, including New York, the government further conditions issuance of a license to carry on a citizen\u2019s showing of some additional special need. Because the State of New York issues public-carry licenses only when an applicant demonstrates a special need for self-defense, we conclude that the State\u2019s licensing regime violates the Constitution.<\/span><\/p><\/blockquote>\n

So after\u00a0Bruen<\/em>, as the case is typically called, New York\u00a0could not<\/em><\/strong>\u00a0require citizens to show a special need to get a concealed carry permit. And boy was Kathy Hochul, the far-left governor of New York, pissed:\u00a0NY Gov. Hochul Loses Her Mind Over SCOTUS Ruling Striking Down Conceal Carry Law<\/a>.<\/p>\n

So pissed, in fact, that she rapidly called a special session of the New York legislature, and immediately passed a new concealed carry gun law even more restrictive than the previous one:\u00a0New York Democrats Undermine Supreme Court 2nd Amendment Ruling In New Legislation<\/a>.<\/p>\n

<\/p>\n

We provided a good\u00a0summary<\/a>\u00a0of the new law\u2019s provisions:<\/p>\n

This new law, \u201cintended to thwart the SCOTUS decision,\u201d prohibits concealed carry in \u201c<\/span>sensitive places<\/a>\u201d such as \u201chealth care facilities; houses of worship; colleges and universities; places where children gather, such as schools, day care centers, playgrounds, parks and zoos; public transportation; places where alcohol or cannabis is consumed; and theaters, concerts, casinos and other entertainment venues.\u201d It also prohibits concealed carry \u201cin<\/span>\u00a0any business that does not post a sign saying it\u2019s OK<\/a>.\u201d<\/span><\/p>\n

Additionally, although \u201cSCOTUS struck down the prior law as giving too much discretion to the state,\u2026the new legislation has plenty of fuzzy, judgmental standards that reestablish discretion,\u201d such as\u2026add[ing] new requirements for New Yorkers to receive a concealed carry permit, including 16 hours of training on how to handle a handgun, two hours of firing range training, an in-person interview and a written exam, as well as a<\/span>\u00a0review of social media accounts<\/a>.\u201d<\/span><\/p>\n

As we concluded when the new law was passed, these requirements, taken as a whole mean that \u201cbasically<\/span>,\u00a0you cannot actually carry<\/a>. The entire scheme is a willful and knowing evasion of a constitutional right.\u201d<\/span><\/span><\/p><\/blockquote>\n

The new law also requires New Yorkers to prove that they are of \u201cgood moral character\u201d before qualifying for a concealed carry permit, which sounds suspiciously like the \u201cspecial need\u201d requirement that SCOTUS had just struck down, and when litigation ensued, federal judge Glen Suddaby found exactly that in striking down most of the new law:\u00a0Federal Judge Finds Key Parts of New York\u2019s Gun Law Unconstitutional<\/a>:<\/p>\n

Suddaby<\/span>\u00a0blocked<\/a>\u00a0the part where applicants must prove \u201cgood moral character\u201d and allow authorities to review their social media profiles. The move comes a few months after SCOTUS overturned \u201ca prior licensing regime, which required applicants prove a need for self-protection\u201d and good moral character. The justices found it \u201ctoo subjective.\u201d<\/span><\/span><\/p>\n

Suddaby<\/span>\u00a0found<\/a>\u00a0the new \u201cgood moral character\u201d provision \u201cwas no better\u201d than the original:<\/span><\/span><\/p>\n

However, instead, the CCIA expressly prohibits the issuance of a license unless the licensing officer finds (meaning unless the applicant persuades him or her through providing much information, including \u201csuch other information required by review of the licensing application that is reasonably necessary and related to the review of the licensing application\u201d) that the applicant is of \u201cgood moral character,\u201d which involves undefined assessments of \u201ctemperament,\u201d \u201cjudgment\u201d and \u201c[]trust[].\u201d<\/span><\/p>\n

Setting aside the subjective nature of these assessments, shouldering an applicant with the burden of showing that he or she is of such \u201cgood moral character\u201d (in the face of a de facto presumption that he or she is not) is akin to shouldering an applicant with the burden of showing that he or she has a special need for self-protection distinguishable from that of the general community, which is prohibited<\/strong>\u00a0under NYSRPA.<\/span><\/p>\n

In essence, New York State has replaced its requirement that an applicant show a special need for self-protection with its requirement that the applicant rebut the presumption that he or she is a danger to himself or herself, while retaining (and even expanding) the open-ended discretion afforded to its licensing officers.<\/span><\/p><\/blockquote>\n

\u201cSimply stated,\u00a0instead of moving toward becoming a shall-issue jurisdiction, New York State has further entrenched itself as a shall-not-issue jurisdiction<\/strong>,\u201d wrote the judge. [emphasis added]<\/span><\/p><\/blockquote>\n

So the case went up to the federal Second Circuit U.S. Court of Appeals, which, after\u00a0hearing oral argument<\/a>\u00a0that I attended in Manhattan,\u00a0upheld<\/a>\u00a0much of the New York concealed carry law, reversing a good deal of Judge Suddaby\u2019s opinion, including the \u201cgood moral character\u201d requirement, although the court did strike down some of the law:<\/p>\n

The Court\u2019s 261-page opinion invalidates requirement to provide social media to reviewing officials and bans on concealed carry in businesses open to the public and houses of worship, but lets some other provisions stand, such as the required showing of \u201cgood moral character\u201d and the ban on concealed carry in \u201csensitive\u201d public places.<\/span><\/p><\/blockquote>\n

Because the Second Circuit upheld the \u201cgood moral character\u201d requirement, the Plaintiffs in the case filed a Petition with SCOTUS asking the Court to review the case:\u00a0Second Circuit\u2019s Partial Upholding of New York\u2019s Gun Carry Law Appealed to SCOTUS<\/a>:<\/p>\n

Read the<\/span>\u00a0whole thing<\/a>\u00a0to get a good flavor of what it takes to get the Court to take a case, a<\/span>\u00a0truly daunting task<\/a>\u00a0(\u201cthe Court accepts 100-150 of the more than 7,000 cases that it is asked to review each year.\u201d)<\/span><\/span><\/p>\n

The<\/span>\u00a0key part<\/a>\u00a0of the Petition is its discussion of the New York law\u2019s requirement that New Yorkers prove that they have \u201cgood moral character\u201d before obtaining a concealed carry permit:<\/span><\/span><\/p>\n

[T]his case would allow this Court the opportunity to clarify that government may not selectively disarm law-abiding members of \u201cthe people\u201d whenever licensing officials feel they are of poor character, potentially dangerous, or otherwise unworthy of enjoying the natural right to self-defense with which they were endowed by their Creator\u2026.<\/span><\/p>\n

In\u00a0Bruen<\/em>, this Court rejected New York\u2019s requirement that, to be authorized to bear arms in public, citizens first must demonstrate \u201cproper cause\u201d \u2014 defined as \u201ca special need for self-protection.\u201d Here, the panel sanctioned New York\u2019s stand-in requirement that citizens convince licensing officials of their \u201cgood moral character\u201d prior to licensure. As the district court explained, New York simply \u201creplaced\u201d proper cause with good moral character, \u201cwhile retaining (and even expanding) the open-ended discretion afforded to its licensing officers<\/strong>\u2026.\u201d<\/span><\/p>\n

New York\u2019s \u201cgood moral character\u201d standard is\u2026a prohibited \u201csuitability\u201d determination and, as the district court noted, is merely a surrogate for the \u201cproper cause\u201d standard that was struck down in\u00a0Bruen<\/em>\u2026Indeed, under the CCIA,\u00a0New York officials decide<\/strong>\u00a0whether a person \u201cha[s] the essential character, temperament and judgement necessary to be\u00a0entrusted<\/em>\u00a0with a weapon\u2026.\u201d<\/span><\/p>\n

It is quite difficult to understand\u00a0Bruen\u2019s<\/em>\u00a0criticism of \u201csuitability\u201d not to include \u201cgood moral character.\u201d And it is even more difficult to believe that this Court would approve the\u00a0discretionary power to deny carry licenses to \u201call Americans\u201d unless they first \u201cconvince a \u2018licensing officer\u2019\u201d of their general morality<\/strong>.<\/span><\/p>\n

[bold added; italics in original]<\/span><\/p><\/blockquote>\n<\/blockquote>\n

I\u00a0predicted<\/a>\u00a0that SCOTUS would\u00a0not<\/em>\u00a0take the case, based on how difficult it is to get the Court to take\u00a0any case<\/em>, but suspected it might GVR the case based on\u00a0Rahimi<\/em><\/a>, a case involving whether a federal statute taking someone\u2019s guns away when they have a domestic violence restraining order against them is unconstitutional (it\u2019s not):<\/p>\n

Another possibility is that the Supreme Court might \u201cGVR\u201d the case, or at least the \u201cgood moral character\u201d provision, in light of\u00a0Rahimi<\/em>. GVR stands for \u201cgrant, vacate, and review,\u201d and basically in this case would tell the Second Circuit to redo the opinion\u2019s good moral character section in light of what the Supreme Courts says in\u00a0Rahimi<\/em>, assuming\u00a0Rahimi\u00a0<\/em>has something to say about moral character, which it might since it concerns those subject to domestic violence restraining orders.<\/span><\/p><\/blockquote>\n

That is exactly what SCOTUS did, essentially asking the Second Circuit to take another look based on\u00a0Rahimi<\/em>. So the Second Circuit did so, and reached the same conclusion that they did initially. You can read the whole thing\u00a0here<\/a>, and at the end of this post, but here is the key part concerning the requirement that a concealed carry applicant prove that they have \u201cgood moral character\u201d:<\/p>\n

First, the requirement is not facially invalid because it is not unconstitutional in\u00a0all<\/em>\u00a0its applications. The CCIA\u2019s definition of \u201ccharacter\u201d 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.<\/span><\/p>\n

And \u201c[s]ince the founding, our Nation\u2019s firearm laws have included provisions preventing individuals who threaten physical harm to others from misusing firearms.\u201d\u00a0Rahimi<\/em>, 144 S. Ct. at 1896. We therefore cannot conclude that\u00a0every<\/em>\u00a0denial on grounds of \u201cgood moral character\u201d as defined by New York will violate the Second Amendment, though various avenues lie open for as-applied challenges.<\/span><\/p>\n

Next, we disagree with the district court\u2019s conclusion that affording licensing officers a modicum of discretion to grant or deny a concealed carry permit is inconsistent with the Nation\u2019s 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.<\/span><\/div>\n
<\/div>\n
Licensing that includes discretion that is bounded by defined standards, we conclude, is part of this Nation\u2019s history and tradition of firearm regulation and therefore in compliance with the Second Amendment.<\/span><\/div>\n
<\/div>\n

Finally,\u00a0Bruen<\/em>\u00a0does not forbid discretion in licensing regimes\u2014on the contrary, the\u00a0Bruen<\/em>\u00a0Court 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.\u00a0597 U.S. at 38 n.9.<\/span><\/p>\n

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\u2019s scheme on a facial challenge.<\/span><\/p><\/blockquote>\n

Basically, the court made much of the fact that New York\u2019s gun law is being challenged as part of a \u201cfacial\u201d challenge, i.e. based solely on the text of the statute, and not as an as-applied challenge, i.e. based on how licensing officials actually apply the law.<\/p>\n

That seems like a dodge to me, setting up the inevitable clash at the U.S. Supreme Court.<\/p>\n

We\u2019ll keep you posted.<\/p>\n

<\/div>\n","protected":false},"excerpt":{"rendered":"

Federal Appeals Court Upholds Most of Restrictive New York Concealed Carry Gun Law; Next Stop SCOTUS Federal Second Circuit Court of Appeals upholds \u201cgood moral character\u201d requirement of New York\u2019s concealed carry gun law, setting up expected showdown at the U.S. Supreme Court We have been following the twists and turns of litigation battles associated … Continue reading “”<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[23,11,50,8,74],"tags":[],"class_list":["post-105737","post","type-post","status-publish","format-standard","hentry","category-courts","category-crap-for-brains","category-goobermint","category-rkba","category-scratch-a-lib-find-a-tyrant"],"_links":{"self":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/105737","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=105737"}],"version-history":[{"count":1,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/105737\/revisions"}],"predecessor-version":[{"id":105738,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/105737\/revisions\/105738"}],"wp:attachment":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=105737"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=105737"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=105737"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}