Well, this
is Legal, and in the weeds is generally presumed.
From the analysis, B. Substantial Likelihood of Success on the Merits, 1. Good Moral Character:
Simply stated, instead of moving toward becoming a shall-issue jurisdiction, New York State has further entrenched itself as a shall-not-issue jurisdiction. And, by doing so, it has further reduced a first-class constitutional right to bear arms in public for self-defense (which,
during the 19 th and 18th centuries in America, generally came with an assumption that law-abiding responsible citizens were not a danger to themselves or others unless there was specific ground for a contrary finding) into a mere request
Ouch. That's stating it rather strongly. And, to my thinking, appropriately.
From 2. List of Four Character References (footnote removed for clarity):
The Court begins its analysis of this provision by acknowledging the apparent dearth of historical analogues requiring a responsible, law-abiding citizen to provide character references in order to be permitted to carry a gun. However, just as lacking, it appears, are historical
analogues requiring a responsible, law-abiding citizen to even apply to be able to carry a gun.
The Court imagines that historically this application requirement was not common only because the need to restrict gun possession in a geographical area rarely existed. In any event, in those instances where the need did exist (for whatever reason), it is difficult to imagine the absence of
an accompanying need to verify the statements made in the application (through one or more character references). Indeed, in each of these three historical analogues cited above in note 22 of this Decision, a reference requirement accompanied the application requirement. For these
reasons, the Court lets this provision stand.
So, it appears the Judge is saying, well, it's thin sauce, more water than oatmeal, but, you did include a packet of dehydrated notes, if only the one.
Which leads us to 3. List of Family and Cohabitants (emphasis added):
Far more invasive and onerous than a demand for a list of character references, however, appears to be a demand for the “names and contact information for the applicant's current spouse, or domestic partner, any other adults residing in the applicant's home, including any adult
children of the applicant, and whether or not there are minors residing, full time or part time, in the applicant's home” (as set forth in Section 1 of the CCIA). Indeed, none of the three historical analogues cited above in note 22 of this Decision contain such a demand. Moreover, the Court
finds that no such circumstances exist under which this provision would be valid (other than a circumstance in which the provision was not enforced, which of course is no circumstance at all).
As a result, the Court orders its enforcement temporarily restrained.
Now, that could be read that as the requirement for cohabitant and familial references has no basis, then the Character Reference requiermwnt is on equally poor ground.
4. List Social Media Accounts for Past Three Years (emphasis added; footnotes removed)
Based on the briefing so far in this action (and the briefing in Antonyuk I), the Court finds that an insufficient number of historical analogues exists requiring a list of social media accounts for the past three years, for purposes of Section 1 of the CCIA. For example, Defendants have
adduced no historical analogues requiring persons to disclose the pseudonyms they have used while publishing political pamphlets or newspaper articles (which might be considered to be akin to requiring the disclosure of all one’s social-media accounts). Moreover, the Court finds that
no such circumstances exist under which this provision would be valid (other than a circumstance in which the provision was not enforced).
As a result, the Court orders its enforcement temporarily restrained.
The counter-argument that there cannot be historical analogues for "social media" due to their limited historicity is a real one. Like as not, though, the declaration of need is just one more tied to "provide references" requirements enjoined above.
5. “Such Other Information Required by the Licensing Officer” (emphasis added):
Although the Court can find no historical analogues supporting this requirement (other than perhaps the three historical analogues cited above in note 22 of this Decision), and although this requirement certainly appears to exacerbate the open-ended discretion referenced above in
Part III.B.1. of this Decision, the Court can imagine a set of circumstances in which it is constitutionally valid (other than non-enforcement): for example, if the licensing officer were to require only very minor follow-up information from an applicant (such as identifying information). As a result, the Court will let this provision stand for now, although it is willing to revisit the issue during the briefing and hearing on Plaintiffs’ motion for a Preliminary Injunction.
I have seen some grumbling about this item. However, this appears to be couched very carefully. That the "open-ended discretion" noted above was on extremely shaky ground, and potentially a deliberate repudiation of Bruen. Note, too, how the notion is also limited, as in "only those required things not submitted"--rather than the presumed--in other locations--"anything we can dream up that was not submitted." That latter cynicism may be mete in our modern times, but is not generally the stuff of legal discourse.
From 6. Eighteen Hours of Firearm Training:
The Court has been persuaded by Defendants that historically Americans’ familiarity with firearms was far more common than it is today; and it is has not yet been persuaded by Plaintiffs that the CCIA’s firearm-training requirements are so onerous as to fall within the scope of what the Supreme Court in Bruen called “exorbitant.” NYSRPA, 142 S. Ct. at 2138, n.9 said, because any permitting scheme can be put toward abusive ends, we do not rule out constitutional challenges to shall-issue regimes where, for example, lengthy wait times in processing license applications or exorbitant fees deny ordinary citizens their right to public carry.”) (emphasis added). As a result, the Court lets that provision stand for now.
This item, too has had some on edge. This, from my understanding, is due to the difference between the requirements that did issue before and the new requirement for training.
That becomes meat to be debated in the future arguing of the case. And, the different
nature of the training will likely be broached at that point.
From 7. In-Person Meeting
Unlike an application without character references, the Court can easily imagine an application without an in-person meeting. Indeed, in only one of the three historical analogues cited above in note 22 of this Decision was a reference requirement accompanied by an in-person-meeting requirement. Moreover, that analogue was a city statute, the general reliance on which the Supreme Court has expressed disapproval. See NYSRPA, 142 S. Ct. at 2154 (“[T]he bare existence of these localized restrictions cannot overcome the overwhelming evidence of an otherwise enduring American tradition permitting public carry.”). Moreover, the Court finds that no such circumstances exist under which this provision would be valid (other than a circumstance in which the provision was not enforced).
As a result, the Court orders this provision’s enforcement temporarily restrained.
Pretty clear, here.
8. Prohibition in “Sensitive Areas" gets deep into the weeds of each of the areas so declared. The Court also makes specific instructions on a per each basis. Which seems to chafe at some NY firearm owners, who, presumably, expected a more blanket expungement of the limitation, more in keeping with Thomas' written decision in Bruen. Such are verisimilitudes of legal code.
This seems to settle most of the issue (emphasis added):
Setting aside the lack of historical analogues supporting these particular provisions, in the Court’s view, the common thread tying them together is the fact that they all regard locations where (1) people typically congregate or visit and (2) law-enforcement or other security professionals are--presumably--readily available. This is precisely the definition of “sensitive locations” that the Supreme Court in NYSRPA
considered and rejected:
In [Respondents’] view, ‘sensitive places’ where the government may lawfully disarm law-abiding citizens include all ‘places where people
typically congregate and where law-enforcement and other public-safety professionals are presumptively available.’ . . . It is true that people
sometimes congregate in ‘sensitive places,’ and it is likewise true that law enforcement professionals are usually presumptively available in those
locations. But expanding the category of ‘sensitive places’ simply to all places of public congregation that are not isolated from law enforcement
defines the category of ‘sensitive places’ far too broadly. Respondents’ argument would in effect exempt cities from the Second Amendment and
would eviscerate the general right to publicly carry arms for self-defense. NSYRPA, 142 S. Ct. at 2133-34.
Although historical analogues certainly exist prohibiting carrying firearms in specific places, no historical analogues have been provided prohibiting carrying firearms virtually everywhere, as the CCIA does.
As a result, the Court orders the enforcement of these remaining provisions temporarily restrained.
This is rather sharp, from C. Strong Showing of Irreparable Harm (original edited for clarity, emphasis added):
Plaintiffs have made a strong showing that they will likely experience irreparable harm if the Temporary Restraining Order is not issued for the reasons stated in their motion papers and declarations, and the reasons stated in the Court’s Decision and Order in Antonyuk I, 2022 WL
3999791, at *36.
Granted, due to the comparative lengths of time involved, a stronger likelihood exists that Defendants would be charged with violating the CCIA during the period between the Court’s Decision on Plaintiffs’ motion for a Preliminary Injunction and the final disposition of this action than during the period of the Court’s Decision on Plaintiffs’ motion for a Temporary Restraining Order and a decision on their motion for a Preliminary Injunction. However, a presumption of irreparable harm ordinarily arises from a strong showing of a constitutional deprivation “even when the violation persists for ‘minimal periods’ of time.” A.H. v. French, 985 F.3d 165, 176,
This means (among other things) that the presumption arises regardless of when during the litigation that deprivation occurs (i.e., before a decision on a motion for a preliminary injunction or before the final disposition of an action). Here, the Court has found that Plaintiffs have made such a strong showing of a constitutional injury for the reasons stated above in Part III.B. of this Decision.
Moreover, this presumption has not been rebutted. Four of the six Plaintiffs have alleged and sworn a concrete intention to violate the law in the immediate future. ... They have also alleged and sworn most if not all of the Defendants’ expressed willingness (to varying degrees) to enforce the challenged provisions of the CCIA. ... Finally, a fifth Plaintiff has alleged and sworn that applying for such a license in Onondaga County would be futile in the future (including the period of time before the Court decides Plaintiffs’ motion for a Preliminary Injunction). ... Defendants have not controverted these factual assertions.
Under the circumstances, the fact that Plaintiffs may stand an even greater chance of being arrested (or having an application ignored) later (during the period of time between a hearing on their motion for a Preliminary Injunction and the final disposition of this action) than now (during the period of time between now and when their motion for a Temporary Restraining Order) in no way diminishes the fact that they stand a sufficient chance of being arrested or having their application ignored now.
I had wondered just when and how those comments so eagerly made by political types in NYS would "come home to roost."
So, I found it a good read, a glimmer of hope in a darkened world, that State actors cannot simply say "Not in My State!" and go against SCOTUS so blatantly and obviously.