IVAN ANTONYUK, COREY JOHNSON, ALFRED TERRILLE, JOSEPH MANN, LESLIE LEMAN, LAWRENCE SLOANE, Plaintiffs-Appellees, v. STEVEN G. JAMES, in his official capacity as the Superintendent of the New York State Police, MATTHEW J. DORAN, in his official capacity as the Licensing Official of Onondaga County, JOSEPH CECILE, in his Official Capacity as the Chief of Police of Syracuse, Defendants-Appellants, KATHLEEN HOCHUL, in her official capacity as the Governor of the State of New York, WILLIAM FITZPATRICK, in her official capacity as the Onondaga County District Attorney, EUGENE CONWAY, in his official capacity as the Sheriff of Onondaga County, P. DAVID SOARES, in his official capacity as the District Attorney of Albany County, GREGORY OAKES, in his official capacity as the District Attorney of Oswego County, DON HILTON, in his official capacity as the Sheriff of Oswego County, JOSEPH STANZIONE, in his official capacity as the District Attorney of Greene County, Defendants.
Docket Nos. 22-2908(L), 22-2972(Con)
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
August Term, 2022 Argued: March 20, 2023 Decided: December 8, 2023
Remanded by S. Ct.: June 21, 2024 Decided on Remand: October 24, 2024
In this case, originally heard and decided in tandem with three other cases, Plaintiffs raise First and Second Amendment challenges to many provisions of New York’s laws regulating the public carriage of firearms. Below, the U.S. District Court for the Northern District of New York (Suddaby, J.) enjoined enforcement of more than a dozen such provisions. In the three related cases, 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 in all four cases pending appeal, expedited the appeals, and in light of the substantial overlap among the cases, heard argument in tandem on March 20, 2023.
On December 8, 2023, in a lengthy and detailed opinion, we AFFIRMED the injunctions in part, VACATED them in part, and REMANDED the cases for further proceedings consistent with that opinion. In summary, we upheld the district courts’ injunctions with respect to
On June 21, 2024, the Supreme Court decided United States v. Rahimi, 602 U.S. ----, 144 S. Ct. 1889 (2024), upholding the facial constitutionality of
ESTER MURDUKHAYEVA, Deputy Solicitor General, New York State Office of the Attorney General, New York, NY (Barbara D. Underwood, Philip J. Levitz, Alexandria Twinem, Eric Del Pozo, Sara Coco; Letitia James, Jonathan D. Hitsous, New York State Office of the Attorney General, Albany, NY, on the briefs), for Defendants-Appellants Steven G. James and Matthew A. Doran.
TODD M. LONG, (Danielle R. Smith, on the briefs), City of Syracuse Office of the Corporation Counsel, Syracuse, NY, for Defendant-Appellant Joseph Cecile.
STEPHEN D. STAMBOULIEH, Stamboulieh Law, PLLC, Olive Branch, MS (Robert J. Olson, William J. Olson, William J. Olson, PC, Vienna, VA, on the briefs), for Plaintiffs-Appellees.
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.
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
Janet Carter, William J. Taylor, Jr., Everytown Law, New York, NY for Amicus Curiae Everytown for Gun Safety, in support of Defendants-Appellants.
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.
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.
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.
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 Amici Curiae Professors of Property Law, in support of Defendants-Appellants.
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.
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 Northern Mariana Islands, in support of Defendants-Appellants.
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
Stephen R. Klein, Barr & Klein PLLC, Washington, DC, for Amicus Curiae New York State Firearms Association, in support of Plaintiffs-Appellees.
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.
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.
BACKGROUND .............................................................................................................. 13
I. Regulatory Background ...................................................................................... 14
A. Licensing ........................................................................................................... 16
B. Sensitive Locations .......................................................................................... 18
C. Restricted Locations......................................................................................... 19
II. Procedural History .............................................................................................. 20
III. Legal Standards Governing the Right to Keep and Bear Arms .................... 27
A. Heller .................................................................................................................. 27
B. McDonald ........................................................................................................... 30
C. Post-Heller and -McDonald Circuit Precedent .............................................. 32
D. Bruen .................................................................................................................. 35
E. Rahimi ................................................................................................................. 40
F. History and Tradition ..................................................................................... 45
LICENSING REGIME .................................................................................................... 61
I. Overview ............................................................................................................... 61
II. Standing ................................................................................................................ 65
III. Merits ..................................................................................................................... 75
A. The Character Requirement ........................................................................... 75
1. Facial Second Amendment Challenge..................................................... 78
2. Historical Challenge to Licensing Officer Discretion ............................ 91
3. Bruen-Based Challenge to Licensing-Officer Discretion ..................... 108
B. The Catch-All .................................................................................................. 119
C. The Cohabitant Requirement ....................................................................... 123
D. The Social Media Requirement .................................................................... 128
SENSITIVE LOCATIONS ............................................................................................ 133
I. Treatment Centers ............................................................................................. 142
B. Merits ............................................................................................................... 145
1. District Court Decision ............................................................................ 145
2. The State’s Historical Analogues ........................................................... 147
a. Well-Established and Representative ................................................. 147
b. Consistency with Tradition ................................................................. 150
3. Proper Analysis of Proffered Analogues .............................................. 154
II. Places of Worship .............................................................................................. 156
A. Standing and Mootness ................................................................................. 157
B. Vacatur of Preliminary Injunctions ............................................................. 159
III. Parks and Zoos ................................................................................................... 160
A. Standing ........................................................................................................... 161
B. Merits ............................................................................................................... 164
1. District Court Decision ............................................................................ 164
a. Public Parks............................................................................................ 167
b. Zoos ......................................................................................................... 168
2. Analysis of the Historical Analogues — Public Parks ........................ 170
a. Well-Established and Representative ................................................. 172
b. Consistency with Tradition ................................................................. 183
3. Analysis of the Historical Analogues — Zoos ..................................... 189
a. Well-Established and Representative ................................................. 189
b. Consistency with Tradition ................................................................. 189
IV. Premises Licensed for Alcohol Consumption ............................................... 192
A. District Court Decision .................................................................................. 193
B. The State’s Historical Analogues ................................................................. 195
1. Well-Established and Representative .................................................... 198
2. Consistency with Tradition ..................................................................... 201
A. Justiciability .................................................................................................... 205
B. Merits ............................................................................................................... 215
1. District Court Decision ............................................................................ 215
2. The State’s Historical Analogues ........................................................... 218
VI. First Amendment Gatherings .......................................................................... 223
A. Mann ................................................................................................................ 224
B. Terrille.............................................................................................................. 228
RESTRICTED LOCATIONS ........................................................................................ 230
I. Standing .............................................................................................................. 231
II. Merits ................................................................................................................... 232
A. The District Court Decision .......................................................................... 232
B. Merits Analysis ............................................................................................... 235
1. Scope of Second Amendment ................................................................. 235
2. The State’s Analogues on Appeal .......................................................... 238
CONCLUSION .............................................................................................................. 245
In this case, heard and originally decided in tandem with three related cases, Plaintiffs raise First and Second Amendment challenges to many provisions of New York’s laws regulating the public carriage of firearms. Below, the U.S. District Court for the Northern District of New York (Suddaby, J.) enjoined enforcement of more than a dozen such provisions. In the three related cases, 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 in all four cases pending appeal, expedited the appeals, and in light of the substantial overlap among the cases, heard argument in tandem on March 20, 2023.
On December 8, 2023, in a lengthy and detailed opinion, we AFFIRMED the injunctions in part, VACATED them in part, and REMANDED the cases to the district courts for further proceedings consistent with that opinion. In summary, we upheld the district courts’ injunctions with respect to
On June 21, 2024, the Supreme Court decided United States v. Rahimi, 602 U.S. ----, 144 S. Ct. 1889 (2024), and upheld the facial constitutionality of
As further detailed below, Rahimi involved a regulation of firearms that is quite different from any of those at issue in the present case, and thus has little direct bearing on our conclusions. Specifically, the complaint before us does not
However, the Court’s analysis of the considerations and methodology bearing on the constitutionality of the statute before it, and in particular its explication of the role of history in interpreting the Second Amendment, clarified to some degree the meaning and effect of its prior decision in New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022). For the most part, the methodology adopted in Rahimi is consonant with the one that we applied in our prior consolidated opinion, and the Court’s analysis in Rahimi therefore supports our prior conclusions. In any event, we have conscientiously followed the Court’s mandate and have reconsidered all of our conclusions in light of Rahimi, after receiving supplemental briefing from the parties on that decision. In
Accordingly, we AFFIRM the injunction in part, VACATE it in part, and REMAND the case to the district court for further proceedings consistent with the present opinion.
BACKGROUND
Plaintiffs are six individuals who raise numerous challenges to provisions of New York’s Concealed Carry Improvement Act (“CCIA”), primarily on Second Amendment grounds. We begin with a description of that statute and then outline the Plaintiffs’ challenges in the district court and the issues on appeal. Because the Second Amendment dominates this appeal, we conclude this background section with a discussion of the Supreme Court’s four 21st-century precedents addressing that Amendment: District of Columbia v. Heller, 554 U.S. 570 (2008); McDonald v. City of Chicago, 561 U.S. 742 (2010); Bruen, 597 U.S. 1; and Rahimi, 144 S. Ct. 1889.
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 concealed firearms. 597 U.S. at 11. Beginning with passage of the Sullivan Law in 1911 and its subsequent amendments, see 1911 N.Y. Laws ch. 195, § 1, p. 443; 1913 N.Y. Laws ch. 608, § 1, p. 1629, New York conditioned the right to carry a concealed firearm in public on a license that could be obtained only if the applicant demonstrated “good moral character” and a “proper cause” to carry the firearm “without regard to employment or place of possession,”
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. 597 U.S. at 34–35, 70. “We know of no other constitutional right,” the Supreme Court explained, whose exercise depends on an individual “demonstrating to government officers some special need.” Id. at 70.
Following the decision in Bruen, New York Governor Kathy Hochul convened an Extraordinary Legislative Session, see
A. Licensing
Under the CCIA, applicants for both in-home and concealed-carry licenses must have “good moral character” to obtain a license.
The CCIA added other relevant requirements that are particular to the issuance of concealed-carry licenses. An applicant for a concealed-carry license
The applicant must also provide the licensing officer with a certificate verifying that he has completed certain required training.
B. Sensitive Locations
The CCIA makes it a crime to carry a firearm in several “sensitive locations,” even for individuals with concealed-carry licenses.
More relevant to this appeal, an individual may not carry a firearm in “any location providing health, behavioral health, or chemical depend[e]nce care or services,”
C. Restricted Locations
In addition to prohibiting the carriage of firearms in any designated sensitive location, the CCIA makes it a crime to possess firearms in a “restricted location”:
A person is guilty of criminal possession of a weapon in a restricted location when such person possesses a firearm, rifle, or shotgun and enters into or remains on or
in private property where such person knows or reasonably should know that the owner or lessee of such property has not permitted such possession by clear and conspicuous signage indicating that the carrying of firearms, rifles, or shotguns on their property is permitted or has otherwise given express consent.
II. Procedural History
On September 20, 2022, six individual Plaintiffs sued several defendants in their official capacity in the United States District Court for the Northern District of New York, challenging aspects of the CCIA’s licensing, sensitive-locations, and restricted-locations provisions. The Plaintiffs are Ivan Antonyuk, Corey Johnson, Alfred Terrille, Joseph Mann, Leslie Leman, and Lawrence Sloane. Sloane, the only Plaintiff who does not already have a concealed-carry license, brought a Second Amendment challenge to the character, in-person interview, disclosure, and firearm-training requirements of the CCIA licensing regime. The
On September 22, 2022, Plaintiffs moved for preliminary injunctive relief. On November 7, 2022, the district court (Suddaby, J.) granted their motion in part
First, the court held that Sloane had standing to challenge the CCIA’s licensing requirements, id. at 261; that each Plaintiff had standing to challenge the restricted-locations provision, id. at 293–94; and that at least one Plaintiff had standing to challenge the following sensitive-location provisions: (1) any location providing behavioral health or chemical dependence care or services; (2) any place of worship; (3) public playgrounds, public parks, and zoos; (4) nursery schools and preschools; (5) buses and airports; (6) any place that is licensed for on-premise alcohol consumption; (7) theaters, conference centers, and banquet halls; and (8) any gathering of individuals to collectively express their constitutional rights to protest or assemble, id. at 266–67, 269–72, 275, 282–83, 285, 288, 291–92.7
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 that a Plaintiff had standing to challenge except for polling places, public areas restricted from general public access for a limited time by a governmental entity, public playgrounds, nursery schools, and preschools. Id. at 288, 327–28, 349. Plaintiffs do not challenge the court’s refusal to enjoin the CCIA’s enforcement as to those five places.
Fourth, and finally, the court enjoined the restricted-locations provision in its entirety on First Amendment compelled-speech and Second Amendment grounds. Id. at 340–47, 78–85.
Altogether, the district court enjoined the CCIA’s:
- licensing requirements that
- an applicant have good moral character and
- disclose to a licensing officer
- 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 officer may require;
- sensitive-locations provisions concerning
- locations providing behavioral health or chemical dependence care or services;
- places of worship;
- public parks and zoos;
- buses and airports;
places that are licensed for on-premise alcohol consumption; - theaters, conference centers, and banquet halls; and
- gatherings of individuals to collectively express their constitutional rights to protest or assemble; and
- restricted-locations provision.
The State timely appealed and moved this Court for a stay pending appeal, which was granted. The State challenged each aspect of the injunction except for the portion concerning the CCIA’s application to buses and airports. No Plaintiff cross-appealed or otherwise challenged any aspect of the district court’s decision adverse to them.
On December 8, 2023, we issued a consolidated opinion in this case and the three related cases—Spencer, Christian, and Hardaway, see supra note 3. As relevant to Antonyuk, we upheld the district court’s injunction with respect to
The Plaintiffs then petitioned the Supreme Court for certiorari. Their petition chiefly raised two issues: (1) whether, when conducting Bruen’s history and tradition analysis for Second Amendment challenges, see infra Background § III.F, courts must rely exclusively on historical evidence from the Founding; and (2) whether our vacatur of the injunction of the CCIA’s “good moral character” requirement contravened the Bruen framework. See generally Petition for Writ of Certiorari, Antonyuk, 144 S. Ct. 2709 (2024) (No. 23-910) (hereinafter, “Petition for Cert.”). After the Supreme Court decided Rahimi, it granted the Plaintiffs’ petition, vacated our prior judgment in this case, and remanded the case for further consideration in light of that opinion. Rahimi expressly declined to reach the first issue raised in Plaintiffs’ petition for certiorari. See Rahimi, 144 S. Ct. at 1898 n.1. As for the second issue, Rahimi adds to the relevant body of precedent to consider when analyzing Second Amendment challenges, and we have done so, as reflected in this amended opinion.
With that background, we now outline the Supreme Court’s quartet of 21st-century cases interpreting the right to keep and bear arms: District of Columbia v. Heller, 554 U.S. 570 (2008); McDonald v. City of Chicago, 561 U.S. 742 (2010); New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022); and United States v. Rahimi, 602 U.S. ----, 144 S. Ct. 1889 (2024). We also outline our former circuit precedent and the historical framework that we understand Supreme Court precedent requires be applied to Second and Fourteenth Amendment challenges asserting the right to keep and bear arms.
A. Heller
The Second Amendment provides: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
But that right, the Court twice cautioned, is “not unlimited,” just as no other right in the Bill of Rights is unlimited. Id. at 595, 626. Historically, “the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” Id. at 626. Nor has the right ever been understood to “protect those weapons not typically possessed by law-abiding citizens for lawful purposes.” Id. at 625. Stated differently, the Second Amendment protects the right to keep and bear “the sorts of weapons” that are “‘in common use’”—a “limitation [that] is fairly supported by the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.’” Id. at 627 (first quoting United States v. Miller, 307 U.S. 174, 179 (1939); then quoting 4
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 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
Heller did not offer much guidance to lower courts analyzing future Second Amendment claims. There would come a day, the Court explained, for it to “expound upon the historical justifications for the exceptions [it had] mentioned if and when those exceptions come before [it].” Id. But the Court ruled out the standard of rational-basis review, id. at 628 n.27, or an “interest-balancing inquiry” that assesses the proportionality of the law’s burden to the state’s interest, id. at 634, because no other enumerated constitutional right is subject to such standards, id. at 628 n.27, 634–35.
B. McDonald
Two years later came McDonald, which held that the Second Amendment is “fully applicable to the States.” 561 U.S. at 750. A plurality reached that
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 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.
C. Post-Heller and -McDonald Circuit Precedent
In the wake of Heller and McDonald, this Circuit, as well as every other regional circuit,10 employed a two-part test to assess Second Amendment challenges. E.g., Libertarian Party of Erie County v. Cuomo, 970 F.3d 106, 118 (2d Cir. 2020). At step one, we asked whether a challenged law burdened conduct that fell within the scope of the Second Amendment based on its text and history. Id. If so, we proceeded to step two, assessing whether the challenged law burdened the core of the Second Amendment, defined by Heller as self-defense in the home. Id. at 119. If the burden was de minimis, the law was subject to intermediate scrutiny; if the burden was substantial and affected the core of the right, the law was subject to strict scrutiny. Id. at 119, 128.
Later, in Libertarian Party of Erie County, we upheld New York’s character requirement, which at that time was statutorily undefined, against a facial challenge. 970 F.3d at 127–28. We acknowledged that the requirement “affect[ed] the core Second Amendment right” identified in Heller because it prohibited individuals lacking good moral character from possessing firearms for self-defense in the home. Id. at 127. But the requirement “d[id] not burden the ability of ‘law-abiding, responsible citizens to use arms in defense of hearth and home.’” Id. (quoting Heller, 554 U.S. at 635). We therefore applied intermediate scrutiny because “the conditions placed on the core Second Amendment right [we]re not onerous.” Id. at 127–28. Applying intermediate scrutiny, we found that the challenger’s complaint itself “reveal[ed] a close relationship between the licensing regime and the State’s interests in public safety and crime prevention—as well as solicitude for the Second Amendment rights of citizens who are responsible and law abiding.” Id. at 128.
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.” 597 U.S. at 19. Thus, a court must now consider whether “the Second Amendment’s plain text covers an individual’s conduct.” Id. at 24. If so, “the Constitution presumptively protects that conduct.” Id. To 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 19. Bruen therefore sets out a two-step framework, with the first step based on text and the second step based on history.11
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, 597 U.S. at 32–33. Like the challengers in Heller and McDonald, the petitioners were “ordinary, law-abiding, adult citizens” and “part of ‘the people’ whom the Second Amendment protects,” id. at 31–32 (quoting Heller, 554 U.S. at 580), and they wished to carry handguns that were “weapons ‘in common use’ today for self-defense,” id. at 32 (quoting Heller, 554 U.S. at 627). The Court also held that the Second Amendment protected their right to carry those firearms outside the home: the Second Amendment does not draw a “home/public distinction”; the word “‘bear’ naturally encompasses public carry” because even though people “keep” firearms in their homes, they do not typically “‘bear’ (i.e., carry) them in the home beyond moments of actual confrontation”; and “confining the right to ‘bear’ arms to the home would make
Second, New York failed to demonstrate that the proper-cause requirement was consistent with the Nation’s historical tradition of firearm regulation. Id. at 70. 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 arms for defense’ in public.” Id. at 66 (quoting Heller, 554 U.S. at 632). The overwhelming weight of the historical evidence revealed that legislatures did not require a showing of special need to exercise the right to public carry but instead enacted laws that “limited the intent for which one could carry arms, the manner by which one carried arms, or the exceptional circumstances under which one could not carry arms, such as before justices of the peace and other government officials.” Id. at 70. Thus, the Second Amendment does not tolerate a “may
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 38 n.9. In “‘shall issue’ jurisdictions,’” licensing “authorities must issue concealed-carry licenses whenever applicants satisfy certain threshold requirements.” Id. at 13. “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 38 n.9 (quoting Heller, 554 U.S. at 635). “Rather, it appears that these shall-issue regimes, which often require applicants to undergo a background check or pass a firearms safety course, are designed to ensure only that those bearing arms in the jurisdiction are, in fact, ‘law-abiding, responsible citizens.’” Id. (quoting Heller, 554 U.S. at 635). And those regimes do so by applying “‘narrow, objective, and definite standards’ guiding licensing officials.” Id. (quoting Shuttlesworth v. Birmingham, 394 U.S. 147, 151 (1969)).
The 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 13, suggests that States cannot grant or deny licenses based on
E. Rahimi
In Rahimi, the Supreme Court addressed the constitutionality of a federal statute,
In Rahimi, the Court reiterated its statement in Heller that the right embodied in the
Despite the absence of a specific precedent directly analogous to the challenged statute, the Court found “ample evidence that the
The Court reached that conclusion primarily by analogy to two types of 18th-century weapons regulations that were “relevantly similar” but “by no
Neither of those sets of laws “precisely match[ed]” a criminal prohibition of possession of firearms by a particular class of person based on a prior civil imposition of a protective order. Id. at 1898. Nonetheless, the Court concluded that
Although the Court noted that the specific statute before it, like the surety laws (but unlike the “going armed” laws), disarmed the person subject to the protective order only for a delimited period and applied only to persons found by a court to pose a danger to a particular other person, the Court “[did] not suggest that the
Finally, the Court provided additional guidance to the lower courts as to the proper scope of the
F. History and Tradition
Bruen requires courts to engage in two analytical steps when assessing
That conclusion carries several implications. First, when used to interpret text, “not all history is created equal.” Id. at 34. While ancient practices and postenactment history remain “critical tool[s] of constitutional interpretation,” Heller, 554 U.S. at 605, they must be examined with some care because while history and tradition shed light on the meaning of the right to keep and bear arms, they do not create it. “Constitutional rights are enshrined with the scope they were understood to have when the people adopted them.” Bruen, 597 U.S. at 34 (quoting Heller, 554 U.S. at 634–35). Thus, historical practices that long predate or postdate codification of the relevant constitutional provision may not have much bearing on the provision‘s scope if the practices were obsolete or anomalous. See id.. For example, a one-off and short-lived territorial law, military decree, or local law, while no doubt relevant, will not carry the day if it contradicts the overwhelming weight of other evidence. See id. at 63 n.26, 67–68. What matters is “our whole experience as a Nation.” Chiafalo, 591 U.S. at 593 (quoting NLRB v. Noel Canning, 573 U.S. 513, 557 (2014)).
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 time or place is in the record, it must be because the legislators then or there deemed such a regulation inconsistent with the right to bear arms.14 There are many reasons why the historical record may not evidence statutory prohibitions on a given practice. For example, lawmakers are not often moved to forbid behavior that is governed by custom, universal practice, or private warning. No legislation is needed to forbid zoo patrons from entering the lion‘s enclosure; similarly, a town with only a single daycare facility that privately bans firearms from its premises has no need to pass a regulation prohibiting guns in daycare centers. Thus, “[t]he paucity of eighteenth century gun control laws might have reflected a lack of
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. The
Fifth, under the more nuanced approach, the “historical inquiry that courts must conduct will often involve reasoning by analogy.” Id. at 28. When reasoning by analogy, a court should ask whether the challenged regulation and the proposed historical analogue are “relevantly similar.” Id. at 29 (quoting Cass Sunstein, On Analogical Reasoning, 106 HARV. L. REV. 741, 773 (1993)). In making that determination, a court must identify an appropriate metric by which to compare the two laws. Id.. Without “provid[ing] an exhaustive survey of the
Bruen emphasized that “analogical reasoning . . . is neither a regulatory straightjacket nor a regulatory blank check.” Id. at 30. 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 historical “sensitive place” regulations regarding legislative assemblies, polling places, and courthouses:
Consider, for example, Heller‘s discussion of “longstanding” “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings.” 554 U.S. at 626. Although the historical record yields relatively few 18th- and 19th century “sensitive places” where weapons were altogether prohibited—e.g., legislative assemblies, polling places, and courthouses—we are also aware of no disputes regarding the lawfulness of such prohibitions. See D. Kopel & J. Greenlee, The “Sensitive Places” Doctrine, 13 CHARLESTON L. REV. 205, 229–236, 244–247 (2018); see also Brief for Independent Institute as Amicus Curiae 11–17. We therefore can assume it settled that these locations were “sensitive places” where arms carrying could be prohibited consistent with the
Second Amendment . And courts can use analogies to those historical regulations of “sensitive places” to determine that modern regulations prohibiting the carry of firearms in new and analogous sensitive places are constitutionally permissible.
The Supreme Court‘s more recent decision in Rahimi further illustrates this point. The Court upheld a criminal prohibition of firearm possession by individuals with civil protection orders resulting from domestic violence against intimate partners. 144 S. Ct. at 1903. That prohibition was an extremely recent addition to the federal criminal code, having been enacted in 1994 under the Violent Crime Control and Law Enforcement Act of 1994.
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 “‘contradic[ted] the overwhelming weight’ of other, more contemporaneous historical evidence.” Bruen, 597 U.S. at 67–68 (quoting Heller, 554 U.S. at 632). Outside such exceptional contexts jurisdictions’ silence does not command the inference that legislators there deemed some other jurisdiction‘s regulation
Consider, for example, Bruen‘s reference to legislative assemblies, polling places, and courthouses. In finding the constitutionality of laws restricting possession of firearms in 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
Seventh, as we noted above, the right to keep and bear arms is applicable to the States through the
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.16 See Bruen,
”McDonald confirms” that understanding. Ezell, 651 F.3d 684, 702 (7th Cir. 2011). As some scholars urged the Court to do,18 the McDonald plurality looked to evidence of the pre-Civil War and Reconstruction Eras to hold that right to keep and bear arms was a fundamental right fully applicable to the States. See 561 U.S. at 770–78 (plurality opinion). In so holding, the plurality gave particular emphasis to how “the Framers and ratifiers of the
We therefore agree with the decisions of our sister circuits—emphasizing “the understanding that prevailed when the States adopted the
We respectfully part ways with the Third Circuit, which held in Lara v. Commissioner Pennsylvania State Police, 91 F.4th 122, 134 (3d Cir. 2024), cert. granted, judgment vacated, 2024 WL 4486348 (U.S. Oct. 15, 2024), that “the
While we recognize that evidence nearest to 1791 can differ from that nearest to 1868, such discrepancy does not mean that the right to keep and bear arms was calcified in either 1791 or 1868. Rather, 1791 and 1868 are both fertile
LICENSING REGIME
I. Overview
Plaintiffs’ first set of challenges address provisions of New York’s law governing licensure of firearms. “New York maintains a general prohibition on 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.
Before us are facial Second Amendment challenges to four components of New York’s firearm licensing regime:
N.Y. Penal L. § 400.00(1)(b) — To receive a firearm license, the applicant must be “of good moral character.” Following the enactment of the CCIA, “good moral character” means “having the essential character, temperament and judgment necessary to be entrusted with a weapon and to use it only in a manner that does not endanger oneself or others.” We refer to this provision as the “character requirement” or “character provision.” “Good moral character” appears to be a prerequisite for all types of firearm licenses, but since both the district court and the Plaintiffs discuss the character requirement only with respect to concealed carry licenses, and since the sole Plaintiff claiming he is injured by the licensing regime asserts a desire to 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.
First, we conclude that at least one Plaintiff has presented a justiciable challenge to the licensing regime. The cohabitants, social media, and “catch-all” requirements have deterred Plaintiff Lawrence Sloane from obtaining a concealed carry license, which is a cognizable injury traceable to the enforcement of those provisions and redressable by an injunction. And given the close relationship between the disclosure requirements and the character requirement, Sloane’s injury is attributable to the character provision itself and redressable by an injunction against enforcement. Although a plaintiff who challenges a rule that renders him ineligible to receive a license must first either seek a license or
Second, on the merits, we affirm the district court’s injunction in part and vacate it in part. We reject Sloane’s challenges to the character, catch-all, and cohabitants requirements. The character requirement, we conclude, is not facially 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.
But we affirm the preliminary injunction against enforcement of the social media requirement: although the review of public social media posts by a licensing officer poses no constitutional difficulties, requiring applicants to disclose even pseudonymous account 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.
II. Standing
We must first consider our jurisdiction. E.g., Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 430–31 (2007).
Lawrence Sloane is the sole Plaintiff in this case 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); and to “turn over [his] ‘social media’ . . . to the government[] as a condition of applying for a license,” lest he be forced to “self-
Sloane has standing to challenge the disclosure requirements (which for standing purposes we assume to be unconstitutional) based on those 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’
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 Sloane’s interest in carrying a firearm surely is), a plaintiff suffers an injury-in-fact if the defendant’s allegedly unlawful conduct impairs that interest, even if it does so by deterring the plaintiff due to his individual, but reasonable, sensibilities. In Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167 (2000), members of an environmental organization had standing to sue the operator of a wastewater treatment plant for discharging contaminants. Plaintiffs who wanted to visit the river for recreation had become unwilling to do so because of their own anxiety about the defendant’s pollution. See id. at 181–83. The Court explained that the plaintiffs had a cognizable interest in their enjoyment and use of the river, and “Laidlaw’s discharges . . . directly affected those affiants’ recreational, aesthetic, and economic interests” by way of their “reasonable concerns about the effects of those discharges.”
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. 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. Nigrelli Br. at 29.20 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
Unsurprisingly, the State sees things differently. Relying on our decisions in United States v. Decastro, 682 F.3d 160 (2d Cir. 2012), and Libertarian Party of Erie County, the State contends that a litigant who wishes to challenge a licensing regime must either apply for a license and be denied or make a substantial showing that his application would be futile. But challenging a rule that limits eligibility for a license is different from challenging a component of the application process itself. This case is an example of the latter, while the Decastro rule governs only the former.
In Decastro, the criminal defendant challenged his conviction for unlawful transport of a firearm across state lines: New York’s licensing regime was so restrictive, he argued, that the only way he could exercise his Second
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, 597 U.S. at 15–16. Since the plaintiff’s injury in such a case stems from his personal ineligibility for a license, the plaintiff must prove up that premise either by applying for a license or by making a substantial showing of futility. In this context, then, “futility” refers to the outcome of the contemplated application, i.e., whether the result is preordained. See Decastro, 682 F.3d at 164 (sufficiency of a futility showing is judged on whether plaintiff has shown that his application would have been denied); Bach v. Pataki, 408 F.3d 75, 82–83 (2d Cir. 2005) (application was futile
Sloane’s challenge, however, is of a different type. Rather than challenge eligibility criteria, Sloane argues that a portion of the application process is unconstitutional. His injury flows from the application itself, not from his asserted ineligibility for a license. Indeed, he pleads the opposite: “Lawrence Sloane . . . is a law-abiding person . . . and is (aside from not having a license) eligible to possess and carry firearms in the state of New York.” J.A. 19 (Compl. ¶ 7). The State’s reliance on Decastro is thus premised on its misapprehension of the nature of Sloane’s claim. The State even asserts that “the license application ‘denial . . . is [the] distinct injury’” whenever a plaintiff challenges a licensing
By eliding the distinction between challenges to eligibility rules and to the application process, the State in effect argues that the only way a plaintiff can challenge an application process is to do exactly what the plaintiff claims that he may not be required to do. Such a rule contravenes common sense. An applicant who challenges an application itself is not required to first comply with the objected-to component before bringing suit. Therefore, Sloane may challenge the disclosure requirements without first making the required disclosures.
III. 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.”
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 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
Next, we disagree with the district court’s conclusion that affording licensing officers a modicum of discretion to grant or deny a concealed carry 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
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,” 597 U.S. at 17, and this threshold inquiry requires courts to consider three issues: whether the conduct at issue is protected, whether the weapon concerned is “in 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 31–32 (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.
But we may resolve this appeal without opining on a tricky question with wide-ranging implications. The character requirement has not been enforced against a Plaintiff, nor has any Plaintiff alleged that he would be denied a license on character grounds—Sloane therefore brings only a facial challenge to the character provision. See N.Y. State Rifle & Pistol Ass’n, Inc. v. Cuomo, 804 F.3d 242, 265 (2d Cir. 2015) (“Because plaintiffs pursue this ‘pre-enforcement’ appeal before they have been charged with any violation of law, it constitutes a ‘facial,’ rather than ‘as-applied,’ challenge.”). And even assuming that the character
“[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. 119, 138 (2019). To mount a successful facial challenge, the plaintiff “must ‘establish that no set of circumstances exists under which the [law] would be valid,’ or show that the law lacks ‘a plainly legitimate sweep.‘” Ams. for Prosperity Found. v. Bonta, 594 U.S. 595, 615 (2021) (alteration in original) (first quoting United States v. Salerno, 481 U.S. 739, 745 (1987); then quoting Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449 (2008)). In other words, “[a] facial challenge is really just a claim that the law or policy at issue is unconstitutional in all its applications.” Bucklew, 587 U.S. at 138; accord Cmty. Hous. Improvement Program v. City of New York, 59 F.4th 540, 548 (2d Cir. 2023). For this reason, facial challenges are “the most difficult to mount successfully.” City of Los Angeles v. Patel, 576 U.S. 409, 415 (2015) (alteration adopted and quotation omitted).
There are applications of the character provision that would be constitutional. The Second Amendment does not preclude states from denying a concealed-carry license based on a reasoned determination that the applicant, if permitted to wield a lethal weapon, would pose a danger to himself, to 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, 597 U.S. at 17. Indeed, the Supreme Court has repeatedly admonished
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
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
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 would be highly unlikely that the Court would upend longstanding
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,” 597 U.S. at 31, can be prohibited from carrying a gun if they lack a good reason to do so) was unsupported by history and thus violated the Second Amendment. How that rule was applied in particular cases was irrelevant given its facial constitutional flaw.
We recognize that “good moral character“—at least if untethered from the CCIA‘s limiting definition—may be seen as a spongy concept susceptible to abuse, but such abuses, should they become manifest, can still be corrected 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,”
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 is no historical basis.35 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
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 “threaten to short circuit the democratic process by preventing laws embodying the will of the people from being implemented in a manner consistent with the Constitution.” Wash. State Grange, 552 U.S. at 450-51 (quoting Sabri v. United States, 541 U.S. 600, 609 (2004)). These principles confirm that a facial injunction against the character provision is inappropriate at this stage.
The district court deemed the character requirement facially invalid for a further reason: that the statutorily bounded discretion baked into the provision is inconsistent with the history of firearm regulation in the United States and thus violates the Second Amendment. See Antonyuk, 639 F. Supp. at 301-02. We disagree as a matter of historical fact. For as long as American jurisdictions have issued concealed-carry-licenses, they have permitted certain individualized, discretionary determinations by decisionmakers.
It is important at the outset to be clear about the possible meanings of the term “discretion.” Professor Ronald Dworkin long ago distinguished between strong and weak senses of the term. He emphasized that discretion “does not exist except as an area left open by a surrounding belt of restriction. It is therefore a relative concept. It always makes sense to ask ‘Discretion under which standards?‘” Ronald Dworkin, Taking Rights Seriously 31 (1977). A 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
The State has identified firearm licensing schemes from the years immediately following ratification of the Fourteenth Amendment that authorized local officials to issue permits in their limited discretion without the kind of objective criteria the district court deemed necessary.36 There are a lot of them.37
Many schemes omit criteria altogether, requiring only “written permission from the mayor,”38 or a “special written permit from the Superior Court.”39 See, e.g., Helena, Mont., Ordinance No. 43: Concealed Weapons, § 1 (June 14, 1883), in The Charter and Ordinances of the City of Helena, Montana 103-04 (Alexander C. Botkin ed., 1887); Fresno, Cal., Ordinance No. 6, § 25 (Nov. 5, 1885), printed in The Fresno Weekly Republican, Nov. 7, 1885, at 3; Monterey, Cal., Ordinance No. 49: To Prohibit the Carrying of Concealed Weapons, § 1 (Jan. 5, 1892), printed in The Ordinances of the City of Monterey 112 (1913).
Other schemes placed limits on eligibility that embedded a certain amount of discretion. For instance, an influential scheme in California authorized “[t]he Police Commissioners [to] grant written permission to [certain] peaceable person[s] . . . to carry concealed deadly weapons for [their] own protection.” San Francisco, Cal., Order No. 1,226: Prohibiting the Carrying of Concealed Deadly Weapons § 1 (July 9, 1875), reprinted in SAN FRANCISCO MUNICIPAL REPORTS 886
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 depended on individualized assessments by local officials. See, e.g., J.A. 441-42 (New York, N.Y., An Ordinance to Regulate the Carrying of Pistols in the City of New York, § 2 (Feb. 12, 1878), printed in PROCEEDINGS OF THE BOARD OF ALDERMEN OF THE CITY OF NEW YORK 612-16 (1878)) (“1878 New York Ordinance“) (“Any person . . . who has occasion to carry a pistol for his protection, may apply of the officer in command at the station-house of the
These regimes were among the earliest concealed-carry-licensing schemes enacted in the Nation.40 For as long as licenses to carry concealed weapons have
The geographical breadth of licensing schemes that confer a measure of discretion likewise demonstrates their place in “our whole experience as a Nation,” Chiafalo v. Washington, 591 U.S. 578, 593 (2020) (quoting NLRB v. Noel Canning, 573 U.S. 513, 557 (2014)); see supra Background § III.F. Cities from across the country, from San
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 also lacks any challenges at all.
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
* * *
The district court discounted the evidence discussed above based on categorical rules it derived from Bruen. For instance, the district court relied on
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 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 reflect statutory prohibitions on a given practice. See
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 and concomitant shifts in norms of governance. The post-Civil War world was transformed by rapid urbanization.44 And city people have long had a different
That was true in the Reconstruction era as well: New York City‘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] 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
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
3. Bruen-Based Challenge to Licensing-Officer Discretion
Plaintiffs also attack the discretionary aspect of the character requirement on a different basis. They assert that Bruen announced a freestanding rule of constitutional law that requires states to determine eligibility for a gun license using only a checklist that wholly precludes individualized judgments. This claim is based on an overreading of one footnote in Bruen:
To be clear, nothing in our analysis should be interpreted to suggest the unconstitutionality of the 43 States’ “shall-issue” licensing regimes, under which a general desire for self-defense is sufficient to obtain a permit. Because these licensing regimes do not require applicants to show an atypical need for armed self-defense, they do not necessarily prevent law-abiding, responsible citizens from exercising their
Second Amendment right to public carry. Rather, it appears that these shall-issue regimes . . . are designed to ensure only that those bearing arms in the jurisdiction are, in fact, law-abiding, responsible citizens. And they likewise appear to contain only narrow, objective, and definite standards guiding licensing officials rather than requiring the appraisal of facts, the exercise of judgment, and the formation of an opinion—features that typify proper-cause standards like New York‘s.
Plaintiffs’ rule precluding all discretion cannot be squared with Bruen‘s discussion of “shall-issue” regimes, even if one thought that the Court would 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, 597 U.S. at 38 n.9, 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,
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 concern for public safety,”
As the district court pointed out, many 18th-century restrictions aimed at keeping firearms away from people perceived as dangerous were based on readily ascertainable—but overbroad and discriminatory—racial, religious, or political
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, 597 U.S. at 13 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, 597 U.S. at 38 n.9 (alteration adopted) (quoting Drake v. Filko, 724 F.3d 426, 442 (3d Cir. 2013) (Hardiman, J., dissenting)).56 And footnote 9 is appended to a sentence which faults New York‘s prior regime only for “limiting public carry only to those law-abiding citizens who demonstrate a special need for self-defense.” Id. at 38.
Finally, Rahimi helps to explain Bruen‘s endorsement of the constitutionality of “shall-issue” licensing regimes. As noted above, see supra note 40, licensing schemes as such developed after the Civil War, and thus could be argued to lack precedent at the time of the adoption of the
Rahimi held that the criminal law there at issue is consistent with the
Those statutes did not utilize anything like the modern civil protective order that triggered the prohibition of
The pre-modern surety laws, like the modern shall-issue licensing regimes (approved in Bruen) on which New York‘s CCIA was modeled, aimed to deny firearms to those for whom there is “probable ground to suspect of future misbehavior,” id. at 1899 (quoting 4 Blackstone 251), and the “going armed” laws similarly disarmed those with a past record of such dangerous misuse of weapons. Moreover, in the former case, the magistrates who administered the law had considerable discretion—in Dworkin‘s weaker sense of the word—to
Though the form of the licensing statute is different, its substance is analogous. The New York statute mandates the issuance of a license to anyone except those found to present a danger to the community. That standard requires the exercise of judgment by the licensing authorities (subject to administrative appeals and judicial review) that is no less precise than the “probable ground to suspect . . . future misbehavior” standard of the surety laws. Id. at 1899.
In sum, Bruen does not require that New York‘s character requirement be struck down by virtue of the limited discretion it affords to licensing officers. Given the patent incompatibility between Plaintiffs’ proffered reading of footnote 9 and the remainder of the Court‘s opinion, especially in light of Rahimi‘s reliance on the surety laws, 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
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.
However, as the district court recognized in a previous opinion in this litigation, it surely does not violate the Constitution for a licensing officer to request “only very minor follow-up information from an applicant (such as identifying information).” Antonyuk v. Hochul, 635 F. Supp. 3d 111, 137 (N.D.N.Y. 2022). There seems to be statutory authority in subparagraph (1)(o)(v) for licensing authorities to request the kind of information that one would find required by any government form, such as a driver‘s license number, social
The district court struck down this provision (as it did the character requirement) as providing licensing officials with “unbridled discretion.” Antonyuk, 639 F. Supp. 3d at 312. But neither the history of licensing regimes nor Bruen itself supports the conclusion that the conferral of some discretion to a 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.
Federal courts generally should be wary about granting facial challenges, which deny the opportunity for agency officials and state 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
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 and state and federal judicial 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.
C. The Cohabitant Requirement
The district court itself recognized the existence of a “sufficiently established and representative . . . tradition of firearm regulation based on reputation (for example, by a reasonable number of character references).” Antonyuk, 639 F. Supp. 3d at 306. It accordingly upheld New York‘s requirement that applicants provide “four character references who can attest to the
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
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 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,”
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
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, school forms, adoption paperwork, applications for driver‘s license or passport, and U.S. census forms.” Antonyuk, 639 F. Supp. 3d at 307. At the outset, we have our doubts that the relevant agencies would willingly hand over adoption records, census forms, or school paperwork to licensing officers without objection. That aside, we draw the opposite conclusion from the fact that the State will usually already possess the requested information due to the disclosure requirements of its various other agencies: that there is only a minimal
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, 597 U.S. at 38 n.9 (suggesting that “lengthy wait times in processing license applications” may “deny ordinary citizens their right to public carry“). Background investigations should be quick and efficient, and should not require licensing officers to engage in burdensome cross-checks with other government records to learn relevant information that would result in unnecessary delays and backlogs in processing applications, especially where that information is routinely disclosed to the government in other contexts and is readily available to the applicant.
For these reasons, we conclude that Plaintiffs are not likely to succeed in their challenge to the cohabitants requirements and VACATE the district court‘s preliminary injunction against enforcing that provision.
Under
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,”
On the other hand, compelled disclosure of pseudonymous social media handles to a licensing officer is no small burden. It is uncontroversial that the First Amendment protects the right to speak anonymously. Cornelio v. Connecticut, 32 F.4th 160, 169–70 (2d Cir. 2022) (reiterating a speaker‘s First Amendment interest in anonymity and holding that a requirement that a sex offender report all online “communication identifier[s]” burdened protected speech); see generally McIntyre v. Ohio Elections Comm‘n, 514 U.S. 334, 341–43 (1995); Talley v. California, 362 U.S. 60, 64–65 (1960). Anyone familiar with most social media platforms knows that nearly all handles are pseudonymous, at least to the extent that the poster‘s identity is not immediately apparent. To require disclosure of handles is thus to demand that applicants effectively forfeit their right to pseudonymous speech on social media (where so much speech now takes place).
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
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.” 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
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.” Nigrelli Br. at 44 (citing Bruen, 597 U.S. at 27); see also supra Background § III.F. Social media is of course revolutionary because of the ease with which individuals can disseminate their thoughts to a large audience without the traditional barriers to publishing. That
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. 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
In sum, we agree with the district court that Plaintiffs are likely to succeed on the merits of their constitutional challenge to this provision, and we AFFIRM the district court‘s preliminary injunction as it applies to the social media requirement.
SENSITIVE LOCATIONS
We now consider the Plaintiffs’ challenges to assorted subsections of
Standing is a significant issue with respect to many of the sensitive location challenges. No plaintiff has been arrested or prosecuted under
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 imaginary or wholly speculative.” Hedges v. Obama, 724 F.3d 170, 196 (2d Cir. 2013) (quoting Babbitt v. United Farm Workers Nat‘l Union, 442 U.S. 289, 302 (1979)). And a credible threat is missing where “plaintiffs do not claim that they have ever been threatened with prosecution, that a prosecution is likely, or even that a prosecution is remotely possible.” Knife Rights, 802 F.3d at 384.
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
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.” Cecile Br. at 15–16. 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.60 But we rejected that very position in Vitagliano v. County of Westchester: “While evidence [that a plaintiff faced either previous enforcement actions or a stated threat of future prosecution] is, of course, relevant to assessing the credibility of an enforcement threat, none of these cases suggest that such evidence is necessary to make out an injury in fact.” 71 F.4th at 139 (citing Driehaus, 573 U.S. at 164); accord id. (“[R]equiring an ‘overt threat to enforce’ a criminal prohibition ‘would run afoul of the Supreme Court‘s admonition not to put the challenger to the choice between abandoning his rights or risking prosecution.‘” (some quotation marks omitted) (quoting Tong, 930 F.3d at 70)). Instead, we reiterated that, although “the presumption that the government will enforce its own laws ‘in and of itself, is not sufficient to confer standing,‘” id. (quoting Adam v. Barr, 792 F. App‘x 20, 23 (2d. Cir. 2019) (summary order)), “we ‘presume such intent [to enforce the law] in the absence of a disavowal by the
Babbitt and Vitagliano control this case. In Babbitt, the state of Arizona had not specifically threatened the plaintiff organization with criminal sanctions, had never prosecuted anyone under the challenged provision, and had acknowledged it might never do so. See 442 U.S. at 301–02. The plaintiff then averred an intention only to risk lawbreaking, and the state had not disavowed prosecution. If those facts alone are enough to render a fear of prosecution more than “imaginary or wholly speculative,” id. at 302, then so must the Plaintiffs’ allegations here. See Seegars v. Gonzales, 396 F.3d 1248, 1252 (D.C. Cir. 2005) (“[Babbitt] appeared to find a threat of prosecution credible on the basis that plaintiffs’ intended behavior is covered by the statute and the law is generally enforced. Courts have often found that combination enough[.]“). And like the plaintiff in Vitagliano, the Plaintiffs here challenge a law “enacted . . . just months before [they] brought this action” which is “designed to curb the very conduct in which [they] intend[] to engage“; “there is no indication that the [defendants] ha[ve] disavowed enforcement” of the challenged law; and we have “no reason
The Plaintiffs have surmounted the “low” and “quite forgiving” bar for pre-enforcement standing with respect to many of the CCIA‘s challenged provisions. Hedges, 724 F.3d at 197. While the statements by law enforcement officials cited by Plaintiffs may not directly threaten the specific Plaintiffs in these cases with arrest, those statements are, in the context of this case, evidence that Plaintiffs face a realistic threat of arrest and prosecution. Far from disavowing prosecution of Plaintiffs, multiple Defendants have announced their intention to enforce the CCIA,61 and the Superintendent of State Police has warned that his department will have “zero tolerance” for violations. Although prosecution is not certain, Plaintiffs articulate a plausible chain of events resulting in their arrest and prosecution: the “brazen nature of [their] intended defiance,” in the district court‘s words, makes it likely to be noticed by citizens and then by police. E.g.,
For those reasons, we conclude that the Plaintiffs here have adequately demonstrated a credible threat of enforcement—each Plaintiff will accordingly have standing if he can also show “an intention to engage in a course of conduct arguably affected with a constitutional interest” and “that the intended conduct is proscribed by the challenged law.” Vitagliano, 71 F.4th at 136 (quotation marks omitted). With that settled, we proceed to Plaintiffs’ various challenges to
A. Standing
The district court found that only Joseph Mann has standing to challenge paragraph (2)(b).63 Antonyuk, 639 F. Supp. 3d at 265. Mann, a pastor at Fellowship Baptist Church in Parish, NY, averred that his church “provides an addiction recovery ministry” through an organization called “RU Recovery.” J.A. 181 (Mann Decl. ¶ 28). This ministry “ha[s] brought persons in the program to church property for counseling and care.” Id. at 181–82 (Mann Decl. ¶¶ 28–29). It is not clear whether Mann personally provides counseling in these sessions, but Mann does allege that the church (his workplace) is a “location
In determining Mann‘s standing, we are not called on to offer a definitive or comprehensive interpretation of the CCIA.64 “[C]ourts are to consider whether the plaintiff‘s intended conduct is ‘arguably proscribed’ by the challenged statute, not whether the intended conduct is in fact proscribed.” Picard v. Magliano, 42 F.4th 89, 98 (2d Cir. 2022) (quoting Driehaus, 573 U.S. at 162). Thus, “if a plaintiff‘s interpretation of a statute is reasonable enough[,] and under that interpretation, the plaintiff may legitimately fear that it will face
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
B. Merits
1. District Court Decision
We now turn to the merits of Mann‘s challenge to
Assuming, without deciding, that the State‘s proffered analogues were sufficiently established and representative to constitute a national tradition, the district court nonetheless rejected the two groups of analogues as insufficiently similar to the challenged provision. For one, the district court determined that the purposes of the state militia laws were different from that of
Finally, because both medical establishments and gun violence existed in the 18th- and 19th-centuries, the district court considered the lack of evidence as to historical firearm bans “in places such as ‘almshouses,’ hospitals, or physician‘s offices,” as “evidence of th[e] regulation‘s inconsistency with the Second Amendment.” Antonyuk, 639 F. Supp. 3d at 318.
2. The State‘s Historical Analogues
a. Well-Established and Representative
Because the district court only assumed, without deciding, that the State‘s proposed analogues were representative and established, we begin there. “[A]nalogical reasoning requires only that the government identify a well-
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.66 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
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.67 Compare id. at 30 (“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 67 (“the bare existence of these localized restrictions cannot overcome the overwhelming evidence of an otherwise enduring American tradition permitting public carry” (emphasis added)). Disqualifying proffered analogues based only on strict quantitative measures such as population size absent any other indication of historical deviation would turn Bruen into the very “regulatory straightjacket” the Court warned against. Id. at 30; see also supra Licensing Regime § III.A.2 (rejecting view that percentage of population governed is dispositive and instead
b. Consistency with Tradition
Both sets of the State‘s proffered analogues place
The three militia laws and the tradition of prohibiting firearms in schools are each “relevantly similar” to
In this case, both analogues suffice to validate our finding of the likely constitutionality of
3. Proper Analysis of Proffered Analogues
In rejecting the State‘s evidence as to the tradition of regulating firearms in places frequented by vulnerable populations such as children, the district court misidentified the relevantly similar features of the State‘s proffered analogues. The district court found that the State failed to show that today‘s treatment centers contain more children than similar locales in the 18th- and 19th-centuries; but the relevantly similar feature of these analogues is the how and the why: firearm prohibition (how) in places frequented by and for the protection of vulnerable populations (why). The New York legislature need not have attempted to protect the exact same subset of vulnerable persons for its regulation to be relevantly similar to these historical analogues. Similarly, the district court discounted the state militia laws on the ground that they impose a lesser burden on Second Amendment rights than
Furthermore, contrary to the district court‘s conclusion, the State was not required to show that firearms were traditionally banned “in places such as ‘almshouses,’ hospitals, or physician‘s offices.” Antonyuk, 639 F. Supp. 3d at 318. For one, this requirement by the district court was a product of its erroneous conclusion that the State‘s evidence was insufficiently analogous. Properly construed, that evidence establishes a historical tradition of firearm regulation embracing
* * *
For the above stated reasons, the preliminary injunction is VACATED insofar as the State was enjoined from enforcing
II. Places of Worship
A. 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 Mann‘s claims.
We conclude that it has. Put simply, the amended statute does not prohibit Mann from doing what he seeks to do. “A case is moot when the issues
Plaintiff Mann alleges that his church “maintained a church security team, consisting of trusted church members . . . designated to carry their firearms to provide security and protection to the congregation,” and that he “intends to continue to possess and carry [his] firearm while on church property” notwithstanding the place of worship provision. J.A. 72 ¶¶ 182–83 (alteration in original) (quotation marks omitted). That is exactly what the amended statute allows Mann to do; he can freely designate himself and the church security team as “persons responsible for security,”
With the subsequent mooting of Plaintiffs’ request for a preliminary injunction, the question remains as to the nature of our mandate—whether to vacate or affirm the injunctions. “In considering whether vacatur is inappropriate, our primary concern is the fault of the parties in causing the appeal to become moot.” Russman v. Bd. of Educ. of Enlarged City Sch. Dist. of Watervliet, 260 F.3d 114, 121 (2d Cir. 2001). Vacatur is appropriate “in those cases where review is ‘prevented through happenstance’ and not through circumstances attributable to any of the parties.” Haley v. Pataki, 60 F.3d 137, 142 (2d Cir. 1995) (“Here, mootness resulted neither from happenstance nor from settlement from the entire action, but from the Governor‘s voluntary compliance with the preliminary injunction. Under the circumstances of this case, vacatur of the injunction is proper.“).
The amendment of the place of worship provision is not attributable to any named defendant in any of the cases on appeal; it is the product of the New York legislature‘s intervention. Most importantly, none of the New York officers
* * *
For the reasons set forth above, we VACATE the district court‘s preliminary injunction against enforcement of
III. Parks and Zoos
New York also criminalizes possession of a gun in “public parks[] and zoos.”
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).76
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, 442 U.S. 289 (1979), the plaintiff organization did not
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
B. Merits
1. District Court Decision
Having determined that the conduct proscribed by
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 location for purpose of recreation or amusement (or travel through such a location), especially when children are present.” Id.
The district court rejected the State‘s arguments that its historical analogues supported banning carriage in public parks. As an initial matter, the court determined that the 1870 Texas and 1883 Missouri laws demonstrated neither an established tradition—because they were only two statutes—nor a representative one—because the combined population of those two states was only 6.6 percent of the American population at the time. Beyond that, the district court noted that neither statute specifically prohibited carriage in public parks. Because both states “[p]resumably . . . contained at least some public parks” at the time of the statutes’ passing, the district court found that this lack of a specific prohibition weighed against finding a tradition of firearm regulation in public parks. Antonyuk, 639 F. Supp. 3d at 325. The court also observed that statutes banning firearms in analogous places such as “commons” or “greens” were also absent from the historical record. Id. Given this, the district court did not take the Texas and Missouri statutes to support a tradition of banning carriage in public parks.
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
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 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
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
On appeal, the State offers three arguments for why its analogues show a history and tradition consistent with
Second, the State relies on the same state laws establishing a tradition of firearm regulation in public forums to argue that
Third, and finally, the State explains that
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.80 See Darrell A.H. Miller, Constitutional Conflict and Sensitive Places, 28 WM. & MARY BILL RTS. J. 459, 475–76 (2019) (noting that regulations ensuring peaceable assembly have “a long history in Anglo-American jurisprudence” and noting a history of “general prohibitions on armaments” in public forums).
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
This “long, unbroken line,” Bruen, 597 U.S. at 35, beginning from medieval England and extending beyond Reconstruction, indicates that the tradition of regulating firearms in often-crowded public forums is “part of the ‘immemorial’ custom” of this Nation, Miller, 28 WM. & MARY BILL RTS. J. at 476.
Of particular note, the state courts of all three states that had such laws upheld this type of statute as constitutional. See Bruen, 597 U.S. at 68 (noting that where state courts have passed on the constitutionality of a statute, we “know the basis of their perceived legality“). Holding an 1871 amendment to the 1870
English and Andrews tell us that the Nation not only tolerated the regulation of firearms in public forums and crowded spaces, but also found it aberrational that a state would be unable to regulate firearms to protect the “the duties and proprieties of social life” in such spaces. See Miller, 28 WM. & MARY BILL. RTS. J. at 475 (“The idea of a right to peaceably assemble presumes . . . that such assemblages must be peaceable, as opposed to disorderly.“).
The number of states and territories with such statutes makes clear that this tradition has also been consistently representative of the Nation as a whole. At the time in which they were passed in 1791, Virginia‘s and North Carolina‘s statutes prohibiting firearms in fairs and markets applied to over a quarter of the Nation‘s population.84 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.85 Cf. Bruen, 597 U.S. at 67 (determining that the proffered analogues
were not representative where they applied to only “about two-thirds of 1% of the population“).
In addition to showing that there existed a well-established and representative state tradition of such regulation, the State points to eight examples (Chicago, Detroit, New York City, Philadelphia, Pittsburgh, Salt Lake City, St. Paul, St. Louis) establishing a municipal tradition of regulating firearms in urban public parks specifically. The proliferation of these urban public park regulations between 1861 and 1897 coincides with the rise of public parks as municipal institutions over the latter half of the 19th century.86 While only 16 parks were created before 1800,87 “[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
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. Accord Rahimi, 144 S. Ct. at 1901 (upholding firearm regulation given history of laws against “affrays,” including fighting in public or terroristic use of armaments, from medieval England through early 19th Century). With the rise of urban America, cities continued this
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.91 This initial error tainted the rest of the district court’s analysis by obscuring that the later territorial and municipal laws, far from being outliers, were consistent with a “long, unbroken line of common-law” and Founding-era precedent. Bruen, 597 U.S. at 35. 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
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. Id. at 34. We now turn to this aspect of the inquiry.
Whether
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.” Nadav Shoked, Property Law’s Search for a Public, 97 Wash. U. L. Rev. 1517, 1556–57 (2020); see also Address of L. E. Holden, Cleveland, O., Bulletin of the American Park and Outdoor Association 3 (Volume 5 Rep. of the Am. Park and Outdoor Art Ass’n, June 1901), available at rb.gy/0flfx [https://perma.cc/FCU7-V2JW] (noting that at Boston Common’s origin in 1633 there “was little if any idea that it would ever be a park . . . [i]t was kept and occupied as a common till a very recent date, and it was not until 1859 that the question was finally settled . . . that Boston Common should be a public park“). Moreover, the use of the Boston Common
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 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
The State’s justification for
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
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
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As
To defend
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 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, 597 U.S. at 30.
b. Consistency 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
Given that 70 percent of zoo visitors come accompanied by children, the tradition of prohibiting firearms in places frequented by children straightforwardly supports the regulation of firearms in zoos. For its part, the history of regulating firearms in often-crowded public spaces supports the firearm restriction in zoos in two additional ways. First, the statutes adduced by 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
Contrary to the district court’s conclusion, the location of some zoos within public parks, and their consequent automatic coverage by those parks’ firearm regulations, does not cut against the State. The district court’s conclusion was based on its erroneous notion that the zoos’ “enjoy[ment of] their surrounding parks’ protections . . . shows that zoos were in need of no more protection than the parks in which they were located.” Antonyuk, 639 F. Supp. 3d at 327. But the
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
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For the reasons set forth above, we VACATE the district court’s preliminary injunction enjoining enforcement of
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
A. District Court Decision
As with the other regulations at issue in this appeal, the district court first determined that the conduct proscribed by
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” and did so either by prohibiting carriage to those who were intoxicated or those who were likely to disturb a social party or gathering. Id. It then assumed, without deciding, that the five analogues it was considering were both sufficiently well-established and representative to constitute a tradition but held that the tradition established by those laws was not sufficiently analogous to justify
B. The State’s Historical Analogues
On appeal, the State relies largely on the same analogues as it did below to argue that
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 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.” Id. at 34–35 (emphasis added). That observation, however, does not require courts to reflexively discount evidence from the latter half of the
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
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 under the influence of intoxicating drink . . . who shall be found . . . carrying on his person a pistol . . . shall be subject to arrest“); id. at 694 (
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
We now turn to whether
Both categories of analogues burdened Second Amendment rights in a similar manner and for similar reasons as
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
The district court made two errors in reaching its holding that
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For the aforementioned reasons we VACATE the district court‘s preliminary injunction enjoining enforcement of
V. Theaters, Conference Centers, and Banquet Halls
A. Justiciability
The district court concluded that plaintiff Alfred Terrille had standing with respect to both conference centers and banquet halls, and that plaintiff Joseph Mann also had standing with respect to banquet halls. We disagree on both scores.
We consider first Terrille‘s claim as to conference centers and banquet halls (there is no dispute that, as the district court found, Terrille has standing with respect to theaters). See Antonyuk, 639 F. Supp. 3d at 286. His September 19, 2022, declaration averred that he “plan[s] to attend the . . . NEACA Polish Community Center Gun Show, to occur on October 8–9, 2022, in Albany,” and that he “intend[s] to carry [his] firearm” there. J.A. 191–92 (Terrille Decl. ¶ 16). The gun show‘s host—the Polish Community Center—“describes itself as a
This declaration was likely sufficient to establish Terrille‘s standing initially. But “[t]o qualify as a case fit for federal-court adjudication, ‘an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed.‘” Arizonans for Off. Eng. v. Arizona, 520 U.S. 43, 67 (1997) (quoting Preiser v. Newkirk, 422 U.S. 395, 401 (1975)). “[I]t is not enough that a dispute was very much alive when suit was filed . . . . The parties must continue to have a personal stake in the outcome of the lawsuit.” Lewis v. Cont‘l Bank Corp., 494 U.S. 472, 477–78 (1990) (internal quotation marks omitted). “When the plaintiff no longer has a legally cognizable interest in the outcome of the action, the case becomes moot and is no longer a ‘case’ or ‘controversy’ for the purposes of Article III.” Stagg, P.C. v. U.S. Dep‘t of State, 983 F.3d 589, 601 (2d Cir. 2020) (citing Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013)). “The question of standing bears close affinity to the question of mootness, which is whether the occasion for judicial intervention persists.” Chevron Corp. v. Donziger, 833 F.3d 74, 123 (2d Cir. 2016) (emphasis in original) (internal quotation marks omitted).
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,”105 Appellee Nigrelli Br. at 9 (emphasis removed),
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
Furthermore, “[o]ur sensitivity to [justiciability] concerns is particularly acute when a litigant invokes the power of judicial review, a power at once justified and limited by our obligation to decide cases.” Frank v. United States, 78 F.3d 815, 832 (2d Cir. 1996), vacated, 521 U.S. 1114 (1997), relevant portion re-adopted, 129 F.3d 273, 275 (2d Cir. 1997); see also Raines v. Byrd, 521 U.S. 811, 819–20 (1997) (The “standing inquiry has been especially rigorous when reaching the merits of the dispute would force us to decide whether an action taken by one of the other two branches of the Federal Government was unconstitutional.” ). Though a request for judicial review does not actually modify the requirements for justiciability, we reiterate that a court must be confident that it is deciding a
Plaintiffs make two further mootness arguments. First, they argue that any uncertainty as to what Terrille did on October 8th and 9th is the State‘s fault for declining to cross-examine Terrille at the evidentiary hearing in the district court. But it was not the State‘s job to adduce facts to sustain Terrille‘s injury. Plaintiffs also argue that Terrille should not be required to confess to the felony of going armed to a conference center. True, he “is not required to [confess to a crime] in order to establish standing.” Antonyuk, 639 F. Supp. 3d at 290; accord Driehaus, 573 U.S. at 163. But that was not his only option. If Terrille had averred that he wishes to attend gun shows (or other events) at conference centers or banquet halls while armed, with sufficient indicia to permit a plausible inference of future violations of this law, jurisdiction might have been proper. Or Terrille could have asserted that he wanted to attend other gun shows while armed but was deterred from doing so by the CCIA. But he did neither.
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 violation in the future. Since Terrille has done none of the above, it is
The district court also concluded that Joseph Mann had standing to challenge the CCIA‘s prohibition on possessing a gun in banquet halls. Mann‘s declaration averred that his church “additionally [is] a ‘banquet hall’ as [parishioners] often break bread together.” J.A. 183 (Mann Decl. ¶ 34). The district court accepted Mann‘s characterization and found that, given Mann‘s stated intention to carry a gun at the church, he had established injury-in-fact. See Antonyuk, 639 F. Supp. 3d at 387.108 We disagree. Notwithstanding that people
The Plaintiffs’ interpretation of “banquet hall” does not comport with ordinary meaning. See Manning v. Barr, 954 F.3d 477, 482 (2d Cir. 2020) (“[W]ords will be interpreted as taking their ordinary, contemporary, common meaning.” (quoting Arriaga v. Mukasey, 521 F.3d 219, 225 (2d Cir. 2008))). Just as “banquet” is not a synonym for “meal,”109 a “banquet hall” is not any place people eat together.110 Instead, the phrase ordinarily refers more specifically to a commercial space made available for special events: weddings, reunions, fundraisers, etc. Plaintiffs’ expansive definition of “banquet hall” would include a cafe, picnic tables in the park, or the dining room of a private residence.
For these reasons, we conclude that Mann‘s proffered interpretation of the statute is not “reasonable enough” that he “may legitimately fear that [he] will face enforcement of the statute.” Picard, 42 F.4th at 98 (quoting Pac. Cap. Bank, 542 F.3d at 350). He has therefore not alleged an intention to engage in conduct which is “arguably proscribed by the law” he challenges, Driehaus, 573 U.S. at 162 (internal quotation marks omitted), and has failed to establish injury-in-fact with respect to
The State, on the other hand, does not challenge the district court‘s finding that Plaintiffs Terrille, Mann, and Johnson had standing as to theaters, and we see no impediment to standing. Accordingly, we now turn to the merits of the district court‘s preliminary injunction of
B. Merits
1. District Court Decision
The State once again bore the burden of proving that
As it did elsewhere, the district court discounted the Oklahoma and Arizona statutes as coming from territories and the latter half of the 19th century. So, it considered only the first three analogues. These laws, determined the court, “appear to have been aimed at denying the possession of guns to persons who were likely to pose a danger or disturbance to the public.” Id. at 334. Per the district court, they did so by denying firearms to persons who were either “riding in terror of the county” or “likely to disturb those attending a gathering of people (usually but not always outdoors) containing a dense population.” Id.
The district court concluded that neither set of analogues sustained the State‘s burden. Virginia‘s law prohibiting “riding in terror” was not on point 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
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
On appeal, the State argues that
We have already held that the above analogues set forth both a well-established and representative tradition of regulating firearms in quintessentially crowded places, see above Sensitive Locations § III.B.2.a. The question to which we turn, therefore, is whether
The district court failed to properly appreciate the national tradition of which
First, the court improperly discounted the Oklahoma and Arizona statutes based on their origins as territorial laws from the late 19th Century. Second, it
Third, the court dismissed the 1786 Virginia law prohibiting “go[ing] []or rid[ing] armed by night nor by day, in fairs or markets, or in other places, in terror of the county,” J.A. at 670 (1786 Va. Acts 35, ch. 49), as insufficiently analogous because the Virginia law was aimed at “terrorists” and not the type of lawful gun-owners covered by § 265.01-e(2)(p). Antonyuk, 639 F. Supp. 3d at 338–39. Even if we accept that the Virginia law was solely aimed at people who terrorize, the district court failed to appreciate that the Founding-era North Carolina statute prohibited firearms in fairs and markets with no reference to terroristic conduct.114 It also failed to consider that the tradition beginning with
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
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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
A. Mann
The district court concluded that Mann has standing because paragraph (2)(s) applies to Sunday worship at Mann‘s church—“expressive religious assemblies,” in the district court‘s words. Antonyuk, 639 F. Supp. 3d at 291. Since Mann intends to carry a gun during worship services, the district court found that Mann had alleged a credible threat of prosecution for violating paragraph (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
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. Within § 265.01-e(2), related sensitive locations tend to be grouped together: childcare and other youth programs appear back-to-back with “nursery schools, preschools, and summer camps,”
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.
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
Moreover, it is easy to infer what the legislature had in mind. Peaceful demonstrations petitioning the government to take or desist from particular actions are a vital part of democratic discourse; demonstrations by armed mobs are something else. Similarly, counter-demonstrations often lead to dangerous confrontations; how much more so if a peaceful protest is met by counter-demonstrators who are armed. It is thus reasonable to assume that the legislature was concerned that carrying firearms in connection with such protests conveys intimidation rather than free expression, a concern that would not
Accordingly, we conclude that worship services at Mann‘s church are not arguably “gathering[s] of individuals to collectively express their constitutional rights to protest or assemble” and that he has thus not alleged injury-in-fact with respect to § 265.01-e(2)(s).
B. Terrille
The district court found that Alfred Terrille had standing to challenge the constitutionality of paragraph (2)(s) based on his intention to attend the Polish Community Center Gun Show on October 8–9, 2022. But for the reasons explained above with respect to conference centers and banquet halls, Terrille‘s failure to demonstrate that he attended the gun show while armed, was dissuaded by law from doing so, or intends to attend another gun show in the future means that Terrille‘s challenge to paragraph (2)(s) is now moot.
Moreover, a gun show is not arguably a “gathering of individuals to collectively express their constitutional rights to protest or assemble” under paragraph (2)(s). Though Terrille states that “one of [his] main reasons for attending [the Polish Community Center Gun Show], and a huge part of any gun show, is the conversations with fellow gun owners, which invariably includes
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Since neither Mann nor Terrille present justiciable challenges § 265.01-e(2)(s), the district court was without jurisdiction to enjoin its enforcement.117 We accordingly VACATE that portion of the district court‘s preliminary injunction.
Under
As discussed above, the Plaintiffs moved to preliminarily enjoin enforcement of the restricted locations provision. Specifically, all six Plaintiffs challenged the provision as violative of the
I. Standing
In assessing standing, we need only consider the
We disagree. Whether or not a property owner or lessee has decided to allow guns on their premises, the relevant injury for standing purposes is the credible threat of arrest and prosecution that Plaintiffs face if they do so without first receiving permission for armed entry, as they claim a right (and willingness) to do. See, e.g., J.A. 140–41 (Johnson Decl. ¶¶ 18–21). Under
II. Merits
A. The District Court Decision
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
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
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 populations of New Jersey and Louisiana together was 4.2 percent of the Nation at that time.
As to
Following its analysis of the Plaintiffs’
B. Merits Analysis
1. Scope of Second Amendment
At the outset, to the extent the restricted location provision applies to private property open to the public, the regulated conduct falls within the
On appeal, the State argues that because the district court failed to consider whether there is a
2. 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. 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
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
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“).122 Similarly, the 1715 Maryland statute prohibited only convicted criminals from carrying a firearm on
What is more, none of the State‘s proffered analogues burdened
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
Because the State has failed to situate
The district court accepted the State‘s argument that
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For the reasons stated above, we MODIFY and AFFIRM the district court‘s injunction as to
CONCLUSION
For the reasons stated above, we AFFIRM the injunction 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
Notes
The fact that this statement in Rahimi was dictum does not mean that we may disregard it, any more than we may disregard the portion of the Bruen majority‘s historical analysis that went beyond what was necessary to decide the case, or the Court‘s references to gun possession in schools and courthouses in Bruen and Heller, which addressed matters beyond the issues raised in those cases. As the Court persuasively observed, “[ir]responsible is a vague term.” Id. (quotation marks omitted). Still, the Court did not face, and therefore did not definitively rule on, the constitutionality of a licensing regime that adopted some specific and narrow definition of “responsibility.”
The district court appears to have based its conclusion that purely objective licensing schemes are required by history on Bruen‘s statement that non-discretionary licensing regimes are dominant now. See Antonyuk, 639 F. Supp. 3d at 302. But Bruen made no historical claim about discretionary licensing; the fact that a given form of regulation is popular now is irrelevant to whether a different regulation is part of the Nation‘s tradition of firearm regulation. In any event, as we explain below, we count at least twenty-three licensing regimes that still call for discretionary judgments by licensing officers.
ERIC H. MONKKONEN, AMERICA BECOMES URBAN 4–5 (1988).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.
Jack N. Rakove, The Second Amendment: The Highest State of Originalism, 76 CHI.-KENT L. REV. 103, 110 (2000).[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 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.