An Analysis of NYSPRA vs. Bruen and the counter

[GEM]

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4179896

A piece by David Kopel on decision, history and the NYS and CA counter legislation designed to make carry permits useless.

Will those new laws be overturned? What is the time line for it? As it stands on 9/1, NYS carry is so limited as to be almost useless.

 

[GEM]

PS - a very interesting read but depressing as real time relief of the NYS law or upcoming ones in CA will take the usual lengthy and circuitous routes through the courts. Up and back, then down again - rewrite with more attempts to use ambiguous language against the RKBA. Historical, sensitive, scrutiny - blah, blah. Basically, Kopel points out what many, including me, have said - the judges and justices have their socially determined positions and then wander through years of law and theory to justify what they already decided in their minds.

 

[mnash50259]

https://www.gunowners.org/wp-content/uploads/Complaint-with-exhibits.pdf
Hearing scheduled for 8/23, so far…

 

[JN01]

https://www.gunowners.org/wp-content/uploads/Complaint-with-exhibits.pdf
Hearing scheduled for 8/23, so far…

The hearing is with the US District Court?

 

[mnash50259]

Correct, northern federal district.

 

[Ks5shooter]

Wow and NJ will follow NY lead.

 

[CapnMac]

This ought to, in a just world, dispose of the notion of "dangerous and unusual arms" applied by modern legislatures (emphasis added):

25. Third, with respect to the term “arms,” the Court explained that “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.” Heller at 582. Indeed, the “arms” protected by the Second Amendment include “weapons of offence, or armour of defence... Arms are any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another.” Heller, at 581 (punctuation omitted).

The problem with modern Legislatures is very obvious here, where a single sentence, required to be struck out by SCOTUS, must needs be replaced by five paragraphs (color and strike-through in original):

S. 1 2
[ellipsis Lines 1 through 54]
55 ](n) concerning whom no good cause exists for the denial of the license.
56 (n) for a license issued under paragraph (f) of subdivision two of this

Case 1:22-cv-00734-GTS-CFH Document 1-3 Filed 07/11/22 Page 2 of 21
S. 1 3
1 section, that the applicant has not been convicted within five years of
2 the date of the application of any of the following: (i) assault in
3 the third degree, as defined in section 120.00 of this chapter; (ii)
4 misdemeanor driving while intoxicated, as defined in section eleven
5 hundred ninety-two of the vehicle and traffic law; or (iii) menacing, as
6 defined in section 120.15 of this chapter; and (o) for a license issued
7 under paragraph (f) of subdivision two of this section, the applicant
8 shall meet in person with the licensing officer for an interview and
9 shall, in addition to any other information or forms required by the
10 license application submit to the licensing officer the following infor-
11 mation: (i) names and contact information for the applicant's
12 current spouse, or domestic partner, any other adults residing in the
13 applicant's home, including any adult children of the applicant, and
14 whether or not there are minors residing, full time or part time, in the
15 applicant's home; (ii) names and contact information of no less than
16 four character references who can attest to the applicant's good
17 moral character and that such applicant has not engaged in any acts, or
18 made any statements that suggest they are likely to engage in conduct
19 that would result in harm to themselves or others; (iii) certification
20 of completion of the training required in subdivision nineteen of this
21 section; (iv) a list of former and current social media accounts of
22 the applicant from the past three years to confirm the information
23 regarding the applicants character and conduct as required in subpara-
24 graph (ii) of this paragraph; and (v) such other information required by
25 the licensing officer that is reasonably necessary and related to the
26 review of the licensing application.

 

[Madcap_Magician]

PS - a very interesting read but depressing as real time relief of the NYS law or upcoming ones in CA will take the usual lengthy and circuitous routes through the courts. Up and back, then down again - rewrite with more attempts to use ambiguous language against the RKBA. Historical, sensitive, scrutiny - blah, blah. Basically, Kopel points out what many, including me, have said - the judges and justices have their socially determined positions and then wander through years of law and theory to justify what they already decided in their minds.

I wonder if it's going to take another ten years to force CA, NY, and HI to stop slow-walking and sabotaging carry laws. Survey says... YES.

 

[GEM]

Yes, as Scotus cannot write a clear, definitive opinion without some qualifying blather. This allows loopholes and lower court interpretations or misinterpretations. Heller was like that. Given Heller and then the long delays for new cases, one doesn't know when or if, they would decide to deal with the matter again.

 

[mnash50259]

https://www.reddit.com/r/NYguns/comments/vxp6p3/stickied_post_of_active_lawsuits/

 

[lilguy]

I asked in a post a while ago what power does the SCOTUS have to enforce its rulings. It was locked quickly without an answer. This helps a bit to answer my question.

 

[MEHavey]

See https://www.britannica.com/topic/Worcester-v-Georgia
That ought to give you some perspective of what happens when there's a disconnect between ruling & enforcement.
(Some lessons not just in the past, but for today)

"John Marshall has made his decision, now let him enforce it."

.

 

[mnash50259]

NYS objection to the injunction hearing noted in my post above:
https://storage.courtlistener.com/recap/gov.uscourts.nynd.133602/gov.uscourts.nynd.133602.19.0.pdf
Next court date 8/23

 

[mnash50259]

Copy of a post from Reditt from someone who attended today’s hearing…wait and see I guess.

Bottom line up front: The judge did not rule on the motion at the hearing, we continue to wait for a decision. The standing of the plaintiffs and Bruen as the proper defendant is an important consideration beyond the constitutionality of the challenged law.

Here are a few key points that stood out. I'm not a lawyer and I didn't understand the technicalities of what was happening and the hearing went on for quite a while so please forgive the unstructured nature and vagueness of these points. These points are recalled from memory so please excuse any inaccuracies that may exist.

• There was witness testimony from Antonyuk, Pratt (GOA), and Robinson (GOA). Much of this was later made relevant during arguments in questioning the plaintiff's standing.
  
  
• Bruen was not present for the hearing.
  
  
• There were questions about the tax statuses of GOA and GOA-NY. 501c3 vs 501c4 may be relevant when addressing the standing question as far as GOA is involved.
  
  
• Antonyuk conceded that the 4 character references he complied with in 2009 was not arduous. Antonyuk conceded that explicitly asking permission to carry in a private establishment would not be a burden. Update: GOA's lawyer made this clarification.
  
  
• The judge took issue with the language of "endanger oneself or others" in the licensing qualification, bringing up the obvious case of self-defense that requires at intent to endanger others.
  
  
• The judge didn't seem hostile towards the default ban of guns on private property but he pointed out that it flips the status quo and asks for a response. One part of Bruen's lawyer's response was citing a Georgia church case from the 11th Circuit court of appeals where affirmative consent was required by the church. Antonyuk/GOA's lawyer pointed out that CCIA doesn't even permit this as churches are sensitive places. Much of the discussion was focused on the private property issue rather than the enumerated sensitive locations. Sensitive locations were brought up toward the end of arguments.
  
  
• The judge seems unhappy with 1A implications of the social media review. He seems to prefer the state having the power to check social media but not requiring applications to hand over social media. The ambiguity of what counts as social media was questioned by the judge as the law doesn't define it.
  
  
• Plaintiff's lawyers brought up the issue of NYSP not having training material until April 2023 and the requirement for such training beginning Sept 2022.
  

 

[toivo]

The judge didn't seem hostile towards the default ban of guns on private property but he pointed out that it flips the status quo and asks for a response. One part of Bruen's lawyer's response was citing a Georgia church case from the 11th Circuit court of appeals where affirmative consent was required by the church.

I looked it up and found this legal opinion:
https://www.paulding.gov/DocumentCenter/View/4975/weapons-in-church-r140528?bidId=

It appears that the case in Georgia is far from clear-cut, especially regarding signage. Also, correct me if I'm wrong but it looks like the Georgia statue considers violations to fall under trespass law, meaning you can be asked to leave and will only be arrested if you fail to comply. The new law in NY State makes unauthorized carry on private property a felony.

 

[mnash50259]

Fyi…
https://www.courtlistener.com/docket/63585683/antonyuk-v-bruen/?filed_after=&filed_before=&entry_gte=&entry_lte=&order_by=desc

 

[mnash50259]

Fyi…
https://www.courtlistener.com/docke...d_before=&entry_gte=&entry_lte=&order_by=desc

better link
https://storage.courtlistener.com/recap/gov.uscourts.nynd.133602/gov.uscourts.nynd.133602.49.0.pdf

 

[GEM]

So usable concealed carry was destroyed in NYS by an ill considered lawsuit. It wasn't that the plaintiffs weren't warned of the risk.

The plaintiffs in their county couldn't get a carry permit due to the reason principle used against them. Now they have a useless one

 

[toivo]

The plaintiffs in their county couldn't get a carry permit due to the reason principle used against them. Now they have a useless one

Their permits are useless, and so is everybody else's in this state -- like mine. I'm hoping this gets back up to the SC sooner rather than later --"sensitive areas" and "opt-in" in particular.

I do a lot of bicycling in the summer, both on the road and on rail trails, nature preserves, etc. The latter two are "sensitive areas" because they're public parks. So I can pedal my ass down a public road with a concealed handgun in my fanny pack, but as soon as I turn off onto a trail, I become a menace to society? What logic-starved idiot thought that up? It's just a thinly-veiled attempt to make legal concealed carry impossible.

I watched the press conference today, where the governor and the NYC mayor introduced all this crap. Seeing them try to answer reporters questions would have been laughable if it weren't so painful. Here's a taste, if you can stomach it:

 

[old lady new shooter]

Guns and Gadgets reports that the GOA case was lost because the court held GOA didn't have standing. Whereupon NYSRPA filed a new case:

 

[BryanDavis]

Finally finished reading the Bruen vs NYSRPA majority opinion.

Kathy Hochul is thumbing her nose at all of SCOTUS.

Bruen specifically disallowed declaring pretty much everywhere a "sensitive place". (pg 28 of 135 in the PDF)

Hochul did exactly this in her "Concealed Carry Improvement Act" with her long list of "sensitive places" and it feels like this was done deliberately to me.

If the lower courts continue to do what this judge in NYS did to this request for a temporary injunction they will be shooting themselves in the foot. People will lose all respect for judges of all stripes and will simply do as they please. This includes cops, civil servants and politicians at every level as well as the general populace.

I mean, why bother following the law if the law no longer matters and any time in front of a judge is a toss-up?

The bottom-line is our Nation becomes less safe and in a worst case scenario, less stable. This concerns the hell out of me both as a New Yorker and as an American.

 

[MEHavey]

worst case scenario, less stable

'Rule of Law' has always been human (good & bad) in actual application.
That Law belonging to a People's legislative & judicial process, rather than the ruler du jour,
was held as the Western cultural ideal ... and basis for Consent of the Governed.

Lose that (COG), and you're in trouble.

.

 

[F-111 John]

Finally finished reading the Bruen vs NYSRPA majority opinion.

Kathy Hochul is thumbing her nose at all of SCOTUS.

Bruen specifically disallowed declaring pretty much everywhere a "sensitive place". (pg 28 of 135 in the PDF)

Hochul did exactly this in her "Concealed Carry Improvement Act" with her long list of "sensitive places" and it feels like this was done deliberately to me.

Don't forget that the main argument in NYSRPA v. Bruen was that New York's "proper cause" requirement was subjective not objective, and the Supreme Court agreed.

New York has now replaced "proper cause" with a subjective 'good moral character' requirement that attempts to ascertain the moral character of the applicant by including a review of the applicant's social media history.

 

[mnash50259]

https://storage.courtlistener.com/recap/gov.uscourts.nynd.134829/gov.uscourts.nynd.134829.1.0.pdf
Refiled, same judge but with “standing “ this time