December 13, 2023 – In a recent decision regarding four separate appeals before it challenging the constitutionality of New York State’s Concealed Carry Improvement Act (“CCIA”), the Second Circuit upheld injunctions prohibiting enforcement of certain parts of the CCIA. In another case, however, the Second Circuit also upheld New York State’s new licensing requirements for gun dealers.
A. New York’s CCIA
The Second Circuit’s Antonyuk decision struck down provisions of the CCIA requiring concealed carry permit applicants to disclose their social media accounts, banning possession by default on private property open to the public unless the lawful permit holder had the express permission of the landowner, and in places of worship.
However, the Court also vacated some of the injunctions and ruled that other provisions of the CCIA were not facially unconstitutional, such as those concerning a showing of good moral character to obtain a permit and a prohibition on carrying concealed in parks and zoos. Notably, the Court’s decision suggests it is possible that these provisions could still be unconstitutional if applied too broadly. For example, the Court acknowledged that the good moral character requirement could be abused, but the Court ‘trusted” that local officials would carry out their official duties properly. The Court also indicated that a ban on carry in “rural” parks will not pass a Constitutional challenge, but that specific bans in “urban” parks would likely be acceptable.
1. Social Media Account Disclosures
Under N.Y. Penal L. § 400.00(1)(o)(iv), an applicant for a concealed carry license must “submit … a list of former and current social media accounts of the applicant from the past three years to confirm the information regarding the applicant[’]s character and conduct.”
According to the Second Circuit, “although the review of public social media posts by a licensing officer poses no constitutional difficulties, requiring applicants to disclose even pseudonymous names under which they post online imposes an impermissible infringement on Second Amendment rights that is unsupported by analogues in the historical record and moreover presents serious First Amendment concerns.”
The Court stated that compelled disclosure of pseudonymous social media handles to a licensing officer is no small burden, and 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). 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. Requiring 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).
2. Private Property Open to the Public
N.Y. Penal L. § 265.01-d essentially made it unlawful to carry firearms on “private property” unless there is “clear and conspicuous signage” indicating that the carrying of firearms on the property is permitted.
According to the Second Circuit, “Given that most spaces in a community that are not private homes will be composed of private property open to the public to which § 265.01-d applies, the restricted location provision functionally creates a universal default presumption against carrying firearms in public places, seriously burdening lawful gun owners’ Second Amendment rights.” The Court reasoned that because over 91 percent of land in New York state is privately held, the restricted location provision would turn much of New York into a default no-carriage zone.
Because the State’s analogues failed to establish a national tradition motivated by a similar “how” or “why” of regulating firearms in private property open to the public in the manner attempted by § 265.01-d, the State had not carried its burden under Bruen and the Court affirmed the district court’s injunction.
This is a significant win for Second Amendment rights in New York. Previously, this law made it illegal for a licensed concealed-carry permit holder to go to the gas station or go through a drive-thru window on the way home from the range while carrying, unless the owners of those properties had expressly given permission to the permit holder to do so.
3. Places of Worship
Prior to the district court injunctions, Section 265.01-e(2)(c) criminalized possession of a firearm in “any place of worship or religious observation.” Subsequently, and due to pending litigation, this provision was amended to apply to “any place of worship, except for those persons responsible for security at such place of worship.”
According to the Second Circuit, this issue presented on appeal was mooted for some of the plaintiffs due to the amendments removing the phrase “religious observation” and providing exceptions for security personnel. However, the preliminary injunction was affirmed for other plaintiffs on First Amendment grounds. The Court indicated that the state violated the rights of plaintiff Pastor Michael Spencer and his congregation by not allowing them to decide for themselves whether guns could be carried on church property, and their resulting fear from attendance restricted their right to worship.
According to the Second Circuit, “the CCIA is not neutral because it allows the owners of many forms of private property, including many types of retail businesses open to the public, to decide for themselves whether to allow firearms on the premises while denying the same autonomy to places of worship. By adopting a law that applies differently as to places of worship (alongside the other enumerated sensitive places) than to most other privately owned businesses and properties, the CCIA is, on its face, neither neutral nor generally applicable.”
B. New York’s Licensing Requirements for Retailers
In the second case issued by the Second Circuit on the same day, retailers with state and federal firearms licenses challenged the requirements they must follow to sell firearms and ammunition in New York. The retailers challenged the licensing requirements based on derivative Second Amendment rights, federal preemption, the Fifth Amendment right against self-incrimination, and personal Second Amendment rights.
New York’s licensing requirements for firearm retailers include requiring retailers to secure their firearms in a locked fireproof safe or vault outside of business hours, install security alarm systems at each point of exit, entrance, and sale, provide State Police-developed training to their employees, perform monthly inventory checks, provide State Police with full access to their premises during periodic onsite inspections, prohibit minors from entering their stores without a parent or guardian, and only hire employees who are at least 21 years old.
Regarding the derivative Second Amendment rights, the retailers argued that the challenged laws could impose more than $1 billion in compliance costs on all FFLs in New York. The retailers argued that if they adhered to the regulations, they would be forced out of business, which would consequently deprive their customers of their Second Amendment rights. The Second Circuit agreed that these dealers had standing to make these claims on behalf of their customers, since the Second Amendment’s rights are gutted without the ability to acquire firearms. However, the Second Circuit indicated that, according to the record before it in the case, there is no evidence that New Yorkers currently lack, or will lack under the challenged statutes, relatively easy access to sellers of firearms. The Court found that the evidence before it was sparse as to the actual harm that the new laws would impose on these retailers, and without such evidence, an injunction was improper.
Regarding the remaining arguments, the Second Circuit rejected the retailers’ preemption claims because federal law expressly did not occupy the field of firearms regulations, and because federal and New York law were not in conflict as to these issues. States are allowed to supplement federal law, just not contradict it. For that same reason, the Court found no merit to the retailers’ self-incrimination claim, which is premised on their preemption theories. Finally, the Court found that the retailers would not suffer irreparable harm in the absence of an injunction because they failed to show that they would suffer a constitutional deprivation or anything more than lost profits.