New York Social Media Requirement Prevents Authorization of Permits

 

Image from wikimedia commons by Shaunfrombrooklyn, cropped and scaled by Dean Weingarten

 

The New York State anti-Second Amendment law, enacted under an extraordinary session brought about by Governor Hochel, is blatantly unconstitutional under the terms of the recent Bruen decision by the Supreme Court. Several provision of the law are likely to be struck down. This essay focuses on the requirement to provide social media accounts, and the practical mechanisms which mean very few permits will be approved under this provision.

Those which are approved are likely to take an unconstitutional amount of time. From Bruen, page 30 of the opinion, footnote 9:

 And they likewise appear to contain only “narrow, objective, and definite standards” guiding licensing officials, Shuttlesworth v. Birmingham, 394 U. S. 147, 151 (1969), rather than requiring the “appraisal of facts, the exercise of judgment, and the formation of an opinion,” Cantwell v. Connecticut, 310 U. S. 296, 305 (1940)—features that typify proper-cause standards like New York’s. That said, because 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.

Here is Section IV of the bill:

(IV) A LIST OF FORMER AND CURRENT SOCIAL MEDIA ACCOUNTS OF THE APPLICANT FROM THE PAST THREE YEARS TO CONFIRM THE INFORMATION REGARDING THE APPLICANTS CHARACTER AND CONDUCT AS REQUIRED IN SUBPARA-GRAPH (II) OF THIS PARAGRAPH; AND

Section IV appears to directly require the formation of an opinion, rather than "narrow, objective, and definite standards", as required by Bruen. Bruen states if times to process are "lengthy" or if fees are "exorbitant", shall issue regimes are likely to fail a Second Amendment test.

Authorities who are empowered by New York State law to issue permits face extreme danger if they approve of permits under the recently passed scheme. Section IV is a nearly impossible task for one person who is required to process dozens or hundreds of applications.  This appears to be by design.

Not many people who have the authority to approve a permit will be able to take the time to meticulously go through three years of social media data to determine if there is one off-color or politically incorrect post among tens of thousands.  The process is necessarily subjective and lengthy.

The risk for the approving authority, if they do not do this, will be perceived as very high.

If one of hundreds of permit applicants who are approved, becomes involved in a shooting, even if fully justified, of someone in a government approved "victim" class, their career will be in jeopardy. Consider what happened to the police officers in Minneapolis, who followed written policy, and ended with a prison sentence or undergoing trial.

The incentive to deny permits en mass is extreme. An alternative would be to delay permit approval by months or years.

The social media requirement is a blatant wrench thrown into the gears of the approval process.

Johnathan Corbett, Esq. has made a compelling case of how the law
specifically violates the Second Amendment rights of people in New York
City by imposing the requirements in Section IV and others.  The lawsuit was filed on July 11, 2022, against Governor Hochel and NYS.  Corbett uses well thought out arguments to show how three of the law's sections are obviously unconstitutional. He appears to have standing.

Several other lawsuits have been filed against the law passed in extraordinary session.

Will the Federal Courts in New York State side with the Supreme Court?

Will the Second Circuit openly defy the Supreme Court?

We should know shortly. It does not take much time to grant or deny a request for an injunction to stop enforcement of the new law.

©2022 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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