New York Can’t Get Away With This

posted on December 23, 2022
court house
Hans Pennink/AP

In response to the U.S. Supreme Court’s Bruen decision, striking down New York’s “may-issue” licensing system, the state passed a law that is perhaps even worse.

When I am asked what alterations I would make to the United States Constitution if I could travel back in time and persuade the Framers to my cause, I often joke that I would add the words, “and we really mean it” into the margins of every section of the document. “All legislative Powers herein granted shall be vested in a Congress of the United States—and we really mean it.” “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people—and we really mean it.” “The right of the people to keep and bear arms shall not be infringed—and we really mean it.” 

And so on.

In one sense, this is the best way to understand what the U.S. Supreme Court did in its majority opinion in New York State Rifle & Pistol Association v. Bruen (2022). In 2008, in D.C. v. Heller, and in 2010, in McDonald v. Chicago, the Court made it abundantly clear that the Second Amendment protects an individual right to keep and bear arms, and that this right serves to limit the power of both the federal government and the states. And yet, in the years since those decisions, many of the nation’s courts have proceeded as if those decisions were never issued. In Bruen, Justice Thomas’ majority opinion sought to end this widespread defiance. Going forward, Thomas explained, “when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct.” Heller, he added, “did not invoke any means-end test such as strict or intermediate scrutiny, and it expressly rejected any interest-balancing inquiry akin to intermediate scrutiny,” and, going forward, neither approach may be used.

Or, to put it another way: “and we really mean it.”

In some parts of the country, this message has been received loud and clear. Already, recalcitrant states are bringing themselves into compliance, and the lower courts are reexamining their cases according to the new rules. Except—astonishingly enough—New York, the state whose flatly unconstitutional laws were struck down in Bruen in the first place. On the contrary: instead of heeding the Supreme Court’s instructions, New York is engaged in open rebellion against the rule of law, and has passed a new set of statutes that are just as bad—if not worse—than the ones that were ruled illegal earlier this year.

New York Gov. Kathy Hochul, Justice Clarence Thomas
New York Gov. Kathy Hochul (D) pushed through much harsher restrictions on concealed carry after Justice Clarence Thomas’ majority opinion in Bruen struck down a New York law by ruling that the right to keep and bear arms does indeed extend outside of the home.

Before Bruen, New York required applicants for concealed-carry permits to show that they had “good cause” to want to bear arms. In Bruen, Justice Thomas concluded that this approach was unconstitutional because it amounted to the subjective recognition of a core liberty. “The constitutional right to bear arms in public for self-defense,” Thomas explained, “is not ‘a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.’” Practically speaking, this meant that, while states are permitted to pass laws that deny carry-permit applications to citizens whose characteristics have long been held to exclude them from owning a gun—to violent felons, for example—they are not allowed to arbitrarily exclude anyone whom the government happens to dislike. Under the Second Amendment, Thomas concluded, “authorities must issue concealed-carry licenses whenever applicants satisfy certain threshold requirements, without granting licensing officials discretion to deny licenses based on a perceived lack of need or suitability.”

In response, New York removed its “good cause” requirement and replaced it with a new factor—“good moral character”—that is just as problematic as the first.

Quite obviously, the “good moral character” test violates Thomas’ prohibition against criteria that rely on a “perceived lack of need or suitability.” New York has not created classes of people who are unable to obtain carry permits; it has created a vague category into which literally anybody in the state could plausibly be denied. Questions abound.

What is “good”? “What is “moral”? What is “character”? In free countries such as the United States, we do not pass laws that make it illegal to be of “bad moral character,” and then let the government determine what that implies in practice; we write down precisely what our terms mean, and demand that the government stay within the lines it had drawn. But New York’s new law provides no such guidelines. Alarmingly, it does not apply only to people who have done something concrete—been convicted of murder by a jury, for example—but to anyone whose conduct is distasteful to a licensing official. This approach is wholly subjective, unacceptably vague and, as a result, unconstitutional.

The most specific that New York’s new law gets is in the section that requires applicants to share all of their former or current social-media accounts with the agency that is adjudicating their claim. Per the statute, this process is designed to weed out anyone who has “made any statements that suggest they are likely to engage in conduct that would result in harm to themselves or others.” Again, though: what does that mean? “That suggest they are likely” is astonishingly broad phrasing, and, in our present era of political polarization, it is all but guaranteed to lead to mischief. In effect, New York has handed its state government a means by which to deny, or at least to delay, every single concealed-carry-permit application it receives. All the determining officer has to do is claim that a tweet he found from five years ago “suggests” that its author is “likely” to harm himself, and the game will be over.

Equally imprecise is the phrase “result in harm to themselves or others.” We currently live in a culture in which all sorts of quotidian political debates are deemed “harmful” by the powers that be. In America, in 2022, words are often equated with “violence”; disagreement is recast as “hate”; dissent is labeled as “insurrection.” A reasonable person would assume that, by “harm,” New York’s law means physical damage. But New York’s law does not say physical damage, it just says “harm.” Are we convinced that those who have been tasked with enforcing this law will read its terms in a sensible manner? Are we convinced that they were supposed to?

Besides, it is often extremely difficult to determine the intent of a person’s social-media output without spending a great deal of time around that person and their friends. In the wrong light, in-jokes can seem threatening or violent. Without context, hyperbole can resemble anger. Absent broader knowledge, the rote repetition of rap lyrics or lines from famous movies can be misconstrued. And all this is before we get to the deliberate misuse of applicants’ online words. Human beings are fallible and often corrupt; the inevitable temptation toward malfeasance is why we tend to insist upon being a government of laws and not of men.

There are public officials in the United States who have said aloud that those who vote Republican are “fascists,” that the National Rifle Association is a “terrorist organization” and that Christians are in a “cult.” To allow government employees to review the public declarations of each person who wishes to exercise their rights, and then to decide whether or not that person is of “good moral character,” is to invite all manner of inevitable abuse. Historically, “good moral character” was a way of weeding out people of a particular race. Today, it is more likely to be used to weed out people of a particular religious, political or cultural orientation. Neither can be acceptable.

Which is all to say that, in addition to the obvious Second Amendment problems with New York’s new law, there is a glaring First Amendment problem here as well. The United States Constitution features the most-comprehensive protections of free speech in the world. Under current Supreme Court precedent, Americans cannot even be prosecuted for suggesting that it would be a good idea if we had a revolution or a civil war; only specific threats that are likely to lead imminently to illegal action may be prosecuted or punished under our laws. If I wished to, I could say tomorrow, on television, that we should have a second American revolution, and there is nothing that anybody could do about it. I would not lose my liberty, and I would not lose my rights.

Bruen was a big win. But so was Heller. And yet, 14 years after Heller, we are still fighting to enforce its terms.

Nor under our Constitution are either the federal government or the state governments permitted to engage in viewpoint discrimination in the course of enforcing the law. The U.S. Bill of Rights is not only for Republicans or Democrats or independents. It’s not only for kind people or calm people or accomplished people. It’s not only for people of “good moral character,” either—unless the determination that someone is of poor moral character has been made by a jury of one’s peers in relation to a specific and generally applicable law.

New York’s new system blows straight past these realities. It allows presumptively innocent people to be deprived of their constitutional rights for having engaged in speech that is protected by the First Amendment, and it opens up an enormous opportunity for the state to treat its citizens differently based upon where they sit on the political, ideological or religious scale. In Bruen, Justice Thomas noted that New York’s “good cause” requirement “is not how the First Amendment works when it comes to unpopular speech or the free exercise of religion.” Indeed so. And, in turn, the Second Amendment must not be conditioned upon the refusal to engage in unpopular speech or the free exercise of religion. The right to keep and bear arms is just that: a right. And rights do not require capricious permission.

The rest of New York’s new law is equally disobedient. In addition to the restrictions on who may obtain a concealed-carry permit, the statute dramatically limits where permit-holders may lawfully take their firearms. As the Supreme Court affirmed, there is nothing intrinsically unconstitutional about the designation of “sensitive locations,” from which firearms are temporarily or permanently barred. At the time of the Founding, for example, some states prevented voters from carrying guns to the polls on election day. But, as Thomas noted, that does not mean that a jurisdiction can declare everywhere a sensitive location and be done with it. “Expanding the category of ‘sensitive places’ simply to all places of public congregation that are not isolated from law enforcement,” Thomas wrote, “defines the category of ‘sensitive places’ far too broadly.”

New York’s new law does precisely this. Under its terms, all private locations are presumed to be off-limits unless the owner explicitly opts in; all churches are off-limits, irrespective of the wishes of the clergy and the congregation; and highly populated areas such as Times Square are off-limits, too.

The good news is that, in October, the “sensitive places” portion of the law was blocked by a federal judge, who cited the standard laid out in Bruen and held that the provision was “inconsistent with the nation’s historical traditions, impermissibly infringing on the right to keep and bear arms in public for self-defense,” and, in November, a separate judge blocked the “good moral character” requirement, too. But then, just before this magazine was going to print, the U.S. Court of Appeals for the Second Circuit stayed these rulings. So the court battles over our freedom go on. New York’s behavior in this fight has made it clear that these court battles will continue.

Bruen was a big win. But so was Heller. And yet, 14 years after Heller, we are still fighting to enforce its terms. Ensuring that New York does not get away with its contumacy, and that every other state that is considering following its path is made aware of what will happen if they do, should be an ongoing priority for those of us who cherish the right of the people to keep and bear arms and do not want its exercise to be dependent upon which set of state lines Americans choose to cross.

NRA Office building

N R A Filed Suit in New York
In a challenge to New York’s unconstitutional “Concealed Carry Improvement Act” (C C I A), the N R A filed suit last August in the U. S. District Court for the Northern District of New York.

Just after the U. S. Supreme Court’s New York State Rifle & Pistol Association v. Bruen ruling last June, New York Gov. Kathy Hochul (D) held a special session of the state’s Assembly and Senate to counter the decision from the high court that citizens’ Second Amendment rights extend outside of their homes.

In the majority opinion, Justice Clarence Thomas wrote that the government cannot trample on our Second Amendment rights through an “abusive” permitting scheme, but this is precisely what a majority of New York’s legislators did.

According to the C C I A, people applying for their rights must first take a 16-hour training class, including a two-hour live-fire session. Then they must have an in-person interview with a licensing officer in which they must disclose several types of personal information, including all of their social-media accounts. The officer then reviews that information to determine if the applicant has “good moral character,” which is even more subjective than the unconstitutional “proper-cause” standard. The licensing officer then has up to six months—unless they want more time, which they will be granted indefinitely—to pore through the applicant’s information to determine if they are eligible for a license.

Even worse, the C C I A effectively bans carrying concealed by declaring just about everywhere to be a “sensitive” or “restricted” place. When Gov.  Hochul was asked where people could carry under the C C I A, she said, “probably some streets.”  

The NRA’s legal challenge to this unconstitutional law says, “The C C I A replaces one unconstitutional, discretionary law with another unconstitutional, discretionary law. The C C I A contains a slew of burdensome and discriminatory requirements for obtaining a Handgun Carry License—violating the First, Second, Fourth and Fourteenth Amendments—and an additional slew of restrictions on where and how Handgun Carry License holders may exercise their right to carry arms outside the home—in violation of the First, Second and Fourteenth Amendments.”  


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