Before: J ACOBS , L YNCH , and L EE , 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 *4 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.
____________________
E STER M URDUKHAYEVA , 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 .
T ODD M. L ONG , (Danielle R. Smith, on the briefs ), City of Syracuse Office of the Corporation Counsel, Syracuse, NY, for Defendant- Appellant Joseph Cecile .
S TEPHEN D. S TAMBOULIEH , 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.
J OHN D. O HLENDORF , 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 . B RIAN P. C ROSBY , (Melissa M. Morton, Claude A. Joerg, on the briefs ), Gibson, McAskill & Crosby, LLP, Buffalo, NY, for Defendant- Appellee Brian D. Seaman .
P ETER A. P ATTERSON , 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.
E RIN E. M URPHY , 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 .
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 *7 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 *8 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, *9 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 .
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, *11 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. *12 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 .................................................................... *13 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 ..................................... *14 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 .............................................................................................................. *15 D ENNIS J ACOBS , G ERARD E. L YNCH , AND E UNICE C. L EE , 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 *16 concluded either that the district court lacked jurisdiction or that the challenged laws do not violate the Constitution on their face.
BACKGROUND
P laintiffs 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 P laintiffs’ 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
,
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.
§ 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).
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.
Following the decision in Bruen , New York Governor Kathy Hochul convened an Extraordinary Legislative Session, see N.Y. C ONST . 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.”
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) ( e ffective 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 re ferences who can attest to the applicant’s *20 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)(i ii). 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
,
C. Restricted Locations In addition to prohibiting the carriage of firearms in any designated sensitive location, the CCIA makes it a crime to possess firearm s 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 *23 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 P laintiffs 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 P laintiffs are Ivan Antonyuk, Corey Johnson, Alfred Terrille, Joseph Mann, Leslie Leman, and Lawrence Sloane. Sloane, the only P laintiff 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 P laintiffs challenged certain of the CCIA’s sensitive-locations provisions on Second Amendment grounds. All six P laintiffs challenged the CCIA’s restricted -locations provision on First Amendment compelled-speech and Second Amendment grounds. Altogether, the P laintiffs 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 O nondaga 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.
On September 22, 2022, the P laintiffs 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
,
First, the court held that Sloane had standing to challenge the CCIA’s licensing requirements, id. at 261 ; that each P laintiff had standing to challenge the restricted-locations provision, id. at 293– 94 ; and that at least one P laintiff 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, –92. [5]
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 P laintiff 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 Heal th; (11) any building or grounds of any educational institutions, colleges, school districts, and private schools; and (1 2) the area commonly known as Times Square. Antonyuk , 639 F. Supp. 3d at , 267, 273– , 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 P laintiffs do not challenge the court’s refusal to enjoin the CCIA’s enforcement as to the se fi ve 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 – , 78–85.
B. Hardaway
In Hardaway , the P laintiffs 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 Buff alo, New York. Both possess concealed- carry licenses. On October 13, 2022, those P laintiffs 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 D istrict Attorney of Erie County. The P laintiffs 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
,
C. Christian
In Christian , the P laintiffs are Brett Christian, an individual licensed to carry a concealed firearm, and FPC and SAF, the same two organizational P laintiffs as in Hardaway . On September 13, 2022, those Pl aintiffs 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 P laintiffs 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
,
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 – . Spencer
D. Finally, in Spencer , the P laintiffs are Pastor Mich eal 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 P laintiffs 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 P laintiffs 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 P laintiffs’ 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 – .
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 P laintiff 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
,
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. C ONST . 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.
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
,
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.
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 enum erated 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.”
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
,
C.
In the wake of
Heller
and
McDonald
, this Circuit, as well as every other
regional circuit, employed a two-part test to assess Second Amendment
*37
challenges.
E.g.
,
Libertarian Party of Erie County v. Cuomo
,
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.
37
that the Second Amendment protects the right to keep and bear arms outside the
home.
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.
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
,
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.”
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
,
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
,
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
*42
arms for defense’ in public.”
Id.
at 2153 (quoting
Heller
,
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
*43
(quoting
Heller
,
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
C ONN . G EN . S TAT . § 29- 28(b) (2021) ; then quoting
Dwyer v. Farrell
,
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]
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. C ONST . 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
,
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
,
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
*48
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
,
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 *49 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 fi rearms 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. R EV . 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
*50
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 speci al need.”
Bruen
,
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 H ARV . L. R EV . 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
,
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 *52 more historically precedented “sensitive place” regulations regarding legislative assemblies, polling places, and courthouses: for example, Heller ’s discussion of
Consider, “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 C HARLESTON L. R EV . 205, 229– 236, 244 – 247 (2018); see also Brief for Independent Institute as Amicus Curiae – 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
,
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
,
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
,
“
McDonald
confirms” that understanding.
Ezell
,
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
,
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
licensin g of firearms in New York State.’”
Kachalsky
,
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 P laintiffs discuss the character requirement only with respect to concealed carry licenses, and since the sole P laintiff 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.
First, we conclude that at least one P laintiff 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 li cense 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, o n 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 P laintiffs had not demonstrated
substantial likelihood of success on these claims and accordingly denied preliminary relief with
respect to those provisions.
See Antonyuk
,
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 *62 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.
,
62
Silva v. Farrish
,
Lawrence Sloane, a P laintiff in the Antonyuk case, is the sole P laintiff 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
*65
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.
,
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 – 7 (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 *67 are satisfied that Sloane i s 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
,
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
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.
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
,
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
,
69
manner.
See
A
ntonyuk
,
Sloane’s challenge is of a different type. Rather than challeng e 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.
Antonyuk
Nigrelli Br.
at 26 (alterations in original) (quoting
Parker v. District of Columbia
,
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 p laintiff 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 *72 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,” 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 *73 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 S econd 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 *75 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, it is far
*76
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
,
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 P laintiff, nor has any P laintiff 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
,
76
character provision.
See N.Y. State Rifle & Pistol Ass’n, Inc. v. Cuomo
,
“[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. ----,
77
difficult to mount successfully.”
City of Los Angeles v. Patel
,
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 *79 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 *80 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.
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
,
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 *82 licensing officer to deny a license un constitutionally is in sufficient 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,”
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.
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
*84
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
,
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
*85
“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
,
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
,
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 a bility 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 authorize d 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. 4 3 : 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).
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 S AN F RANCISCO M UNICIPAL R EPORTS 886 (1875); accord, e.g. , Sacramento, Cal., Ordinance No. 84: Prohibiting the Carrying of Concealed Deadly Weapons, Apr. 24, 1876, reprinted in C HARTER AND O RDINANCES OF THE C ITY OF S ACRAMENTO 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 G ENERAL M UNICIPAL O RDINANCES OF THE C ITY OF O AKLAND , C AL . (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 P ROCEEDINGS OF THE B OARD OF A LDERMEN OF THE C ITY OF N EW Y ORK – 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. 47 5 (Brooklyn, N.Y., Ordinance to Regulate the Carrying of Pistols, §§ 2, 4 ( Oct. 25, 1880), printed in B ROOKLYN D AILY E AGLE , Oct. 26, 1880 ) (“1880 Brooklyn Ordinance”) (similar); J.A. 482 ( Elmira, N.Y., Official Notice (July 18, 1892), printed in E LMIRA D AILY G AZETTE AND F REE P RESS , 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 T ENN . L. R EV . 679, 68 (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 *91 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
*92
Nation,”
Chiafalo
,
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 immediatel y 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
*94
*
*
*
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.”
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
*95
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
,
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
,
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 Y ALE 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] *98 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 D upuy, The Evolution of Weapons and Warfare 92, 286– 89 (1984).
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 C HI .-K ENT L. R EV . 103, 110 (2000).
[37] A LLEN S TEINBERG , T HE T RANSFORMATION OF C RIMINAL J USTICE : P HILADELPHIA 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 P ATRICK J. C HARLES , A RMED I N A MERICA : A H ISTORY O F G UN R IGHTS F ROM C OLONIAL M ILITIAS T O C ONCEALED C ARRY – 47 (2019)). See S AMUEL W ALKER & C HARLES M. K ATZ , T HE P OLICE IN A MERICA : A N I NTRODUCTION
33– 34 (9th ed., 2018); Eric H. Monkkonen, History of Urban Police , 15 C RIME & J UST . 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 *101 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 defi nition of ‘good moral character’ in terms of public safety, drawn from statutes that Bruen treats as likely constitutional, does not approach that point.
*102 Bruen -Based Challenge to Licensing- Officer Discretion
3. 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 standar ds like New York’s.
Plaintiffs’ rule precluding all discretion cannot be squared with
Bruen
’s
discussion of “shall-issue” regimes, even if one thought that the Court would
*103
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.
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 C ONN . G EN . S TAT . § 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, *104 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. G EN .. L AWS § 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
,
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
*105
concern for public safety,” A LA . C ODE § 13A - 11 - 75(c)(11) (2021) ; “is likely to use a
weapon unlawfully,” I OWA C ODE A NN . § 724.8( 3) (West 2011) ; “likely . . . will
present a danger to self or others if the applicant receives a permit,” C OLO . R EV . S TAT . A NN . § 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,” A RK . C ODE A NN . § 5-73-309(7)(A) (2021) ;
*106
“suffer from a physical or mental infirmity that prevents the safe handling of a
handgun,” N.C. G EN . S TAT . A NN . § 14 - 415.12(a)(3) (West 2022); or exhibit a
“condition relating to or indicating mental instability or an unsound mind,”
O KLA . S TAT . A NN . 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
,
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]”— *107 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 21 23 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
,
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
,
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 P laintiffs’ 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 *110 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
*111
burden on the right to bear arms.
See, e.g.
,
Bucklew v. Precythe
,
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 s ubparagraph (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 . But neither the history of licensing regimes nor Bruen itself supports the conclusion that the conferral of some discretion to a *112 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
*113
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
,
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 *114 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
,
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.
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 . Put most simply, disclosing cohabitants is within the category of disclosures reasonably included in the kind of background check that has long been permissible.
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,
*117
school forms, adoption paperwork, applications for driver’s license or passport,
and U.S. census forms.”
Antonyuk
,
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
,
For these reasons, we conclude that P laintiffs 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
,
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 requirement s 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 *120 disclose publicly.”). And licensing officer s, 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
,
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 *122 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
,
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. *123 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 P laintiffs 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.
SENSITIVE LOCATIONS
We now consider the P laintiffs’ 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
,
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
*125
imaginary or wholly speculative.”
Hedges v. Obama
,
These statements could be overread to require a rigorous inquiry into the
chances that a given plaintiff will be prosecuted . B ut 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.”
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
,
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.
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.
*128
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.”
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
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
, 72
For those reasons, we conclude that the P laintiffs here have adequately
demonstrated a credible threat of enforcement—each P laintiff 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
,
*132 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
,
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
,
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).
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.
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 insufficient ly 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 ca rrying 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 heal th 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 *137 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
,
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
,
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 *139 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 213 3 (“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)). D isqualifying 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 *140 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 (M ASS . G EN . L AWS ch. *141 240, § 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. 6 21 (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 *142 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 behal f of Greater New York Hospital Assoc., at 14. 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 ).
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 *144 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 p laces 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
bee n considered a vulnerable population justifying firearm regulation. In
*145
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
,
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
,
* * *
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 suffi cient 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 .
• In Hardaway v. Chiumento , the P laintiffs 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
, P laintiffs Mich eal 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 o n Spencer’s individual right to carry firearms.
Id.
at 65– 66 ¶¶ 78 –86.
The district court (Sinatra,
J.
) held that the P laintiffs 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
,
The State now appeals from the grant of preliminary injunctions in each case. It does not dispute any P laintiff ’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 P laintiffs’ claims.
With respect to
Hardaway
and
Antonyuk
, it has. Put simply, the amended
statute prohibits none of the P laintiffs 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
,
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.
Nor have the two organizational P laintiffs 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.
,
This does not necessarily defeat the standing of the organizational
P laintiffs; 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 P laintiffs allege the following theory of direct
injury: the passage of the CCIA prompted them to “incur ongoing expenses” to
*151
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
P laintiffs 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
,
Compare this to
Centro de la Comunidad Hispiana de Locust Valley v. Town of
Oyster Bay
, which did find independent organizational standing.
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 P laintiffs 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 con tinue 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). A gain, this is exactly what the *153 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 P laintiffs’ 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
,
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 P laintiffs. Under these circumstances, vacatur of the district courts’ injunctions is warranted. Spencer
B. The P laintiffs 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 *155 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 P laintiffs 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
,
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 –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 P laintiffs.
* * *
We consider first whether P laintiffs 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
*157
applicable.’”
Kennedy v. Bremerton Sch. Dist.
,
1. Burden on Religious Practice
As with the P laintiffs in Hardaway and Antonyuk , whether the P laintiffs are injured by the place of worship provision must be reconsidered following the amendment to the statute.
The central argument advanced by the
Spencer
P laintiffs 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
,
Although the burden on the P laintiffs’ religious practice has been reduced by the intervening amendment, a remediable injury to the P laintiffs’ 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 P laintiffs invite this conduct as part of the P laintiffs’ “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 P laintiffs and other church leaders to appoint “persons responsible for security” who may carry firearms in the church therefore gives the P laintiffs 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 *159 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 P laintiffs’ 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 ca rrying weapons; Spencer replied: “Each person, I believe, has their right to believe as they will. I don’t dictate even to my sta ff.” 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 *160 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 necessa rily 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 re ligious 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.
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
,
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
*162
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
,
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 P laintiffs’ 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, P laintiffs have sufficiently alleged that the CCIA burdens their sincerely held religious practice.
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
,
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.”
Similarly, in
Tandon v. Newsom
,
These cases decide the
Spencer
P laintiffs’ 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 ,
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,”
In reply, the Spencer P laintiffs 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
,
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
,
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.
,
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 th eir relationships with congregants by attempting to
*168
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
,
The State provides no explanation for why leaders of religious groups in
general, and the P laintiffs 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
*169
gun violence. Such an approach is understandable, but unconstitutional.
See Church of the Lukumi Babalu Aye
,
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
,
For these reasons, P laintiffs 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
*171
even minimal periods of time, unquestionably constitutes irreparable injury.”
Elrod v. Burns
,
As for the balance of equities, because the State has not demonstrated that public safety would be harmed by allowing the Spencer P laintiffs 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]
*172 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.
A. Standing
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).
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
,
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]
Pl aintiff 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
,
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).”
B. Merits
1. District Court Decision
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 *176 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.
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
,
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 D AVID H. M AC A DAM , T OWER G ROVE P ARK OF THE C ITY OF S T . L OUIS (1883) ; Pittsburgh Gen. Ordinances, Bureau of Parks , p. 496 (2d ed. 1897). 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.
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 pr ohibited 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
,
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 tradi tion 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 *180 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 *181 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,
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 *183 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.
a. Well-Established and Representative 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 W M . & M ARY B ILL R TS . J. 459, 475 –76 (2019) (noting that regulations ensuring peaceable assembly have “a long history *184 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 *185 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.
(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 W M . & M ARY B ILL R TS . 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
,
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
,
In addition to showing that there existed a well-established and
representative state tradition of such regulation, the State points to eight
*189
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
regulation s 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
, O XFORD R ESEARCH E NCYCLOPEDIA OF A MERICAN H ISTORY (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,
*190
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
,
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
,
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 regu lating 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 *193 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 .
b. Consistency with Tradition 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
*194
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
,
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.” *195 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 Bost on 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
*196
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
,
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, *197 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 p ublic 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 *198 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 fi rearm regulation in often-crowded
public squares such as urban parks, are sufficient to survive a facial challenge.
[89]
See Bonta
,
* * * 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] .
a. Well-Established and Representative
For the reasons laid out in our discussion of public parks, the State’s
evidence demonstrates a well-established and representative tradition of
*200
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
,
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, the
Bruen
analysis remains valid and useful, subject to the more
“nuanced approach” announced in
Bruen
.
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 o ften-crowded public spaces supports the
firearm restriction in zoos in two additional ways. First, the statutes adduced by
*201
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 hi storically justified firearm restrictions. State court cases from this
era confirm as much.
See, e.g., English
,
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
,
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 *203 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 N ation’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
,
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” *205 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 ju stify § 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,” i t concluded that those analogues did not justify criminalizing “mere presence” at a liquor-licensed establishment. Id at . (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 ga therings 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.”
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 consis tent 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 ( W IS . S TAT . A NN . § 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, 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 *210 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. 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
,
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
,
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 fir earms in crowded spaces in which
intoxicated persons are likely present.
See Bruen
,
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 § 26 5.01 -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
*214
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
,
* * *
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 *215 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
,
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
,
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 wheth er 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 *218 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 eve ry 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
*219
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
,
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
,
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 wa s 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
,
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
,
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
*222
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 reli ef whatever to the prevailing party.” (quoting
Lamont
,
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 to gether.” 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
,
The Plaintiffs’ interpretation of “banquet hall” does not comport with
ordinary meaning.
See Manning v. Barr
,
Our intuitive understanding is confirmed by an examination of the
company the phrase keeps.
See, e.g.
,
Homaidan v. Sallie Mae, Inc.
,
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
,
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 pre liminary injunction of § 265.01 -e(2)(p) as applied to theaters.
B. Merits
1. District Court Decision
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
,
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 “like ly 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 No rthampton 1328,
228
ch. 46); and (5) Missouri, Tennessee, and Texas state court opinions upholding
those states’ regulations as constitutional,
see Shelby
,
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 *230 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.
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
,
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.
* * *
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.
,
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
,
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 *235 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
,
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
,
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
,
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 connecti on 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. -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 i ntends 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 wit hin 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. 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 *240 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
,
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
,
I. Standing
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 permi ssion for armed entry, as they claim a right (and willingness) to do. See, e.g., J.A. 140 – 41 (Johnson Decl. ¶¶ – 21). Under § 265.01 -d, an armed entry without explicit prior permission would be prosecutable even if the *242 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 du e 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 pri vate property owner. Accordingly, Plaintiffs have standing to challenge § 265.01 -d as violating the Second Amendment.
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
,
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.
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 *245 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 o n 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. *246 Christian
2. 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
,
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 *247 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 Ac t to prevent hunting with Fire-Arms in the City of New-York, and the Liberties thereof) ); (4) an 1865 *248 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
,
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
*249
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
,
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. Christian
1. 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
,
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 pu t 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 *251 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
,
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. 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 *253 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 sign ificantly lesser extent than § 265.01 -d. See Bruen , 142 *255 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”). Similarly, the 1715 Maryland statute prohibited only convicted criminals from carrying a firearm on *256 “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. 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 *258 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
,
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
,
* * *
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)). 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]
Notes
[*] 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.
[1] Some P laintiffs raise claims based on other constitutional provisions. The law governing those claims will be described in connection with those particular claims.
[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) (e ffective 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).
[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
[4] By 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.
[5] The Antonyuk P laintiffs 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
[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
,
[7]
Gould v. Morgan
,
[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
,
[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.
[10] See Jacob D. Charles, The Dead Hand of a Silent Past: Bruen , Gun Rights, and the Shackles of History , 73 D UKE L.J. 67, 153 (2023) (criticizing such an inference because it “elevates mere unregulated conduct to the status of inviolate constitutional right”).
[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.
[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
[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 G EO . J.L. & P UB . P OL ’ 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 T EX . L. R EV . 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 bu t instead by the meaning those texts and the Fourteenth Amendment had in 1868.”). 56
[14] Plaintiffs 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
[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
[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
,
[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
[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
,
[19] See 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
[20]
See Heller
,
[21]
See Heller
, 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
,
[22]
Bruen
,
[23]
Compare Kanter
,
[25] It 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
,
[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
,
[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 . L aws 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
,
[29] T HE M UNICIPAL C ODE OF S T . L OUIS § 8 (1881 ).
[30] Spokane, Wash., Ordinance No. A544, § 1 (Jan. 2, 1895), reprinted in T HE M UNICIPAL C ODE OF THE C ITY OF S POKANE , W ASHINGTON 309– 10 (Rose M. Denny ed., 1896). 87
[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 H ASTINGS C ONST . L.Q . 145, 168 – 71 (2022). See also infra . 90
[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.”
[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
– , 26
C ONTEMP . E CON . P OL . 198, 200 (2008);
see also
Robert J. Spitzer,
Gun Law History in the United
States and Second Amendment Rights
, 80 L. & C ONTEMP . P ROBS . 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
,
[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.
[35] In 1790, the nation’s largest urban area (New York City) had a population of 3 3,000. 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. E RIC H. M ONKKONEN , A MERICA B ECOMES U RBAN – 5 (1988). 97
[36] Similarly, 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
[39] See 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 F ORDHAM U RB . 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 C HARLESTON L. R EV . 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.”).
[42] Cornell, supra at 171 (citing E RIC H. M ONKKONEN , A MERICA B ECOMES U RBAN 98– 108 (1988)).
[43] Tellingly, 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 U NIV . F LA . J. L. & P UB . P OL ’ Y 227, 230 n.23, 23 7 (2021).
[44] See also G A . C ODE A NN . § 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”); M E . R EV . S TAT . A NN ., TIT . 25, § 2003(1) (2022) (“good moral character”); M INN . S TAT . § 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”); M ONT . C ODE A NN . § 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”); M O . R EV . S TAT . § 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 P A . S TAT . AND C ONS . S TAT . A NN . § 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”); T EX . G OV ’ T C ODE A NN . § 411.172(a)(7) (West 2021) (“not incapable of exercising sound judgment with respect to the proper use and storage of a handgun”); U TAH C ODE A NN . § 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); W YO . S TAT . A NN . § 6-8- (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”); V A . C ODE . A NN . § 18.2 - 308.09(13) (West 2021) (“likely to use a weapon unlawfully or negligently to endanger others”).
[45] See also F LA . S TAT . A NN . § 790.06 (2023); I DAHO C ODE A NN . § 18 - 3302(11)(f) (West 2020); L A . S TAT . A NN . § 40:1379.3(C)(8) (2023); M ISS . C ODE . A NN . § 45 -9- 101 (2)(e), (f) (West 2023); N.M. S TAT . A NN . § 29- - 4(A)(9) (West 2023); 18 P A . S TAT . AND C ONS . S TAT . A NN . § 6109(e)(1)(v) – (vii); T EX . G OV ’ T C ODE A NN . § 411.172(a)(8); W YO . S TAT . A NN . § 6-8- 104(b)(vi) . Many of these statutes include rebuttable presumptions or other guidance for the licensing officers’ determination, e.g. , L A . S TAT . A NN . § 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), bu t all ultimately require some exercise of discretion.
[46] Justice Kavanaugh’s concurrence can be read to posit a categorically anti-discretion
view.
See Bruen
,
[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
,
[48] The 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
,
[49] Cecile relies on
Does 1- 10 v. Suffolk C ounty, N.Y.
, No. 21 - 1658,
[50] Many 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.
[51] Some P laintiffs 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, P laintiffs have stated a credible threat of prosecution.
[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
,
[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.
[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
,
[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.”).
[56] The 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
,
[57] Though 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.
[58] Again, though taking issue with their fit as analogues for § 265.01 -e(2)(b), Appellees do not dispute that 18 th- and 19 th-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.
[59] We 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
[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”).
[62] The 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
,
[63] In any event, the injunction in Hardaway was premised on the standing of the two individual P laintiffs. See Hardaway J.A. 14 – .
[64] The Antonyuk P laintiffs’ 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 –2, ECF No. 378.
[65] We put aside the fact that the New York legislature has since adopted a less restrictive approach to places of worship.
[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 , A RK . C ODE § 5-73- 306(15)(B); L A . C ODE § 40:1379.3(N)(8); M ICH . C OMP . L AWS § 28:425o(1)(e); M O . S TAT . § 571.107(1)(14); N.D. C ODE § 62.1 -02-05(2)(m); O HIO R EV . C ODE § 2923.126(B)(6); S.C. C ODE § 23- - 215(M)(8); U TAH C ODE § 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 P laintiffs’ religious practice, it is incumbent on the State to better demonstrate why this alternative is not acceptable.
[67] As the Spencer P laintiffs did not cross -appeal to broaden the scope of the relief granted by the district court, w e affirm the injunction as entered.
[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.
[69] See F OURTH A NNUAL R EPORT OF THE B OARD OF C OMMISSIONERS OF THE C ENTRAL P ARK (Jan. 1861) ; F IRST A NNUAL R EPORT OF THE C OMMISSIONERS OF F AIRMOUNT P ARK (P HILADELPHIA ), Supplement § 21(II) (1869) ; R ULES AND R EGULATIONS OF THE P UBLIC P ARKS AND G ROUNDS OF THE C ITY OF S AINT P AUL (1888) ; 1895 Mich. Pub. Acts 596 ; C HICAGO M UNI . C ODE art. 43 (1881) ; S ALT L AKE C ITY , R EVISED O RDINANCES ch. 27 (1888), Tower Grove Park Bd. of Comm’rs, Rules
[71] See Darrell A.H. Miller, Constitutional Conflict and Sensitive Places , 28 W M . & M ARY B ILL R TS . 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”).
[72] Insofar 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
[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 regula ting 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
,
[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
,
[76] The 1790 Census counted approximately 3.3 million Americans, of whom 747,610 lived in Virginia and 393,751 in North Carolina. D EPT . OF I NTERIOR , C OMPENDIUM OF E LEVENTH C ENSUS : 1890 , 3 tbl. 1 (1892).
[77] The 1890 Census counted approximately 62.6 million Americans. D EPT . OF I NTERIOR , C OMPENDIUM OF E LEVENTH C ENSUS : 1890, 2 tbl. 1 (1892). The combined population of Virginia, North Carolina, Texas, Missouri, Tennessee, Oklahoma, and Arizona was approximately 9.3 million. Id.
[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
,
[79] See M ARGARET W ALLS , P ARKS AND R ECREATION IN THE U NITED S TATES : L OCAL P ARK S YSTEMS 1 , Resources for the Future (June 2009).
[80] See also F REDERICK L AW O LMSTED , A C ONSIDERATION OF THE J USTIFYING V ALUE OF A P UBLIC P ARK 7– 8 (1881) (“Twenty - five years ago we had no parks, park -like or otherwise”).
[81] See D AVID S CHUYLER , T HE N EW U RBAN L ANDSCAPE : T HE R EDEFINITION OF C ITY F ORM IN N INETEENTH -C ENTURY A MERICA – 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.
[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 D EPT . OF I NTERIOR , C OMPENDIUM OF E LEVENTH C ENSUS : 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).
[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 .
[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.
[85] The 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.
[86] R OY R OSENZWEIG AND E LIZABETH B LACKMAR , T HE P ARK AND THE P EOPLE : A H ISTORY OF C ENTRAL P ARK 4 (1992).
[87] D AVID S CHUYLER , T HE N EW U RBAN L ANDSCAPE : T HE R EDEFINITION OF C ITY F ORM IN N INETEENTH -C ENTURY A MERICA 1 – 8 (1988)
[88] S HOKED , 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.
[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
[91] The
only
case cited in
Bruen
for the proposition that “some” territorial laws were held
unconstitutional is
In re Brickey
,
[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. D EPT . OF I NTERIOR , C OMPENDIUM OF E LEVENTH C ENSUS : 1890, 2 tbl. 1 (1892). The population of the United States that same year was approximately 62.6 million. Id. 209
[93] As 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
[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
,
[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
,
[98] See 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[.]”).
[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. – 40 (Johnson Decl. ¶ 17).
[100] The district court appears to have slightly misunderstood Mann’s claim as being that
his church
contains
a “banquet hall.”
See Antonyuk
,
[101] See 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”)
[102] See 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
[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
[104] We 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 evi dence 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
[107] As 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 s paces.
Bruen
,
[108] The 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
[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
,
[110] See Ruqaiyah Zarouk, Mapping Private vs. Public Land in the United States , Am. 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
[111] Plaintiffs’ 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
[112] Though the remaining statutes are not by their own terms aimed at deterring 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
[113]
See State v. Hopping
,
[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
,
[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
,