Wednesday, November 09, 2022

Federal Court: New York Gun Law Unconstitutiional


On October 6, 2022, Judge Glenn T. Suddaby issued a Temporary Restraining Order (TRO)to prevent New York State from enforcing the new infringements on the exercis of Second Amendment rights to keep and bear arms. 

The restraining order was issued after a first  lawsuit by the Plaintiff failed on August 1, for lack of standing. A new lawsuit remedying that condition was filed on September 22 of 2022. The new lawsuit contained the proper conditions for standing.

Judge Suddaby found New York State substituted one unconstitutional infringement for another. From the opinion:

However, instead, the 21 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 “such other information required by review of the licensing application that is reasonably necessary and related to the review of the licensing application”) that the applicant is of “good moral character,” which involves undefined assessments of “temperament,” “judgment” and “[]trust[].” Setting aside the subjective nature of these assessments, shouldering an applicant with the burden of showing that he or she is of such “good moral character” (in the face of a de facto presumption that he or she isnot) 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 under NYSRPA. 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.

The Judge expanded on how the State of New York failed to show its new infringements met historical standards, by showing how the requirement for character references law lack historical analogues.  Judge Suddaby mentioned, in passing, there are no historical analogues requiring a responsible, law-abiding citizen to apply for a permit to carry a gun. From the opinion:

The Court begins its analysis of this provision by acknowledging the apparent dearth of historical analogues requiring a responsible, law-abiding citizen to provide character references in order to be permitted to carry a gun.22 However, just as lacking, it appears, are historical analogues requiring a responsible, law-abiding citizen to even apply to be able to carry a gun.

The Judge allowed, for now, pending the actual arguments, these requirements to temporarily apply:

  • 16 hours of training, including two hours of live fire;
  • No "in person" meeting may be required;
  • The broad list of "sensitive places" was rejected, the below  areas may be argued in the case:
    • government buildings, 
    • polling places
    • places of worship with an exception for those how have a duty to protect (private parties explicitly asked to protect), 
    • public areas restricted from general public access for a limited time by a Government Entity where a permit has been granted, with clear and conspicuous signage.
    • schools 
    • fenced in farmland or hunting preserves.

Places summarily rejected as sensitive include:

  • public transportation
  • private property
  • places of entertainment or amusement (including where alcohol is served)
  • Times Square

Judge Suddaby rejected the concept the State of New York could require private property owners to ban firearms on their property *unless* they put up a sign saying "firearms are allowed". He noted the State of New York was making their decision for the private property owners, and rejected that provision in the new law. He wrote it appeared to be a First Amendment violation.

The Judge found the balance of equities favored the plantiffs, against the State of New York, and there would be irreparable harm if no restraining order were put in place. He found the public interest was not disserved by the temporary restraining order.

With three business days to file an appeal, the State of New York is expected to appeal the temporary restraining order on Monday, October 10, 2022, to the Federal Second Circuit Court of Appeals.


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

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