June 10, 2023
NYC Defies Supreme Court, Creates Times Square "Gun-Free Zone" iStock-1421061908
Second Circuits Review of Cases Challenging New York’s Concealed Carry Improvement Act iStock-1421061908

On Monday, March 20, a three-judge panel from the Second Circuit Court of Appeals heard five cases challenging New York State’s Concealed Carry Improvement Act (CCIA).

The CCIA was passed shortly after the landmark Supreme Court opinion in New York State Pistol Rifle Association v. Bruen. The Bruen case knocked down the Empire State’s Sullivan-era concealed carry law. Before the law was knocked down, gun owners would have to show “proper cause” before New York would grant them a concealed carry permit. The court ruled that Americans had a Constitutional right to carry a firearm outside the home, and all states had to become “shall issue.” The court also knocked down the interest balancing test (intermediate scrutiny), which weighed the state’s interest against a citizen’s Constitutional gun rights. SCOTUS stated that judges could only use the original text, history, and traditions of the Second Amendment when making decisions.

The court stated that some sensitive places, such as government buildings, could ban firearms, but the designation had to be used sparingly. The Supreme Court noted that just because people gathered in a location is not a reason to designate the place as “sensitive.” New York’s Governor, Kathy Hochul, railed against the high court’s decision and demanded that the New York legislature act. In less than a month, Governor Hochul had a bill on her desk that made most of the state “sensitive,” including Time Square, because people gather there. Many saw this move as the state thumbing its nose at the SCOTUS decision.

The law set off a flurry of legal challenges to the law with varying success. Five of the cases reached a panel of three judges from the Second Circuit Court of Appeals.

The panel consisted of Obama, Biden, and George H.W. Bush appointees. The panel’s makeup was not what gun owners would want, but Bruen still binds the court. The hostility to the plaintiffs was evident from two of the three judges, especially from Judge Eunice C. Lee, who President Joe Biden appointed to the bench. The oral arguments to these cases can be heard here.

The first case heard was Brett Christian, Firearms Policy et al v. Steven A. Nigrelli. This case challenged specific provisions of the CCIA that designated areas such as parks and public transportation as sensitive locations. The lawsuit also attacks the restricted area clause in the law that makes private property “gun-free zones” unless a property post signs explicitly welcoming guns. Judge Dennis Jacobs, the Bush appointee, was critical of the state’s reasonings that they do not need to find the laws from the founding era. Two of the three judges seem to be okay with the restricted locations clause.

“The plain text gives the plaintiffs the right to carry. There is no locational distinction in the plain text,” Judge Gerald Lynch, an Obama appointee, said.

The second case the judges considered was Jimmie Hardaway, Jr. Larry A. Boyd, et al Brian D. Seaman v. Steven A. Nigrelli, et al. This case deals with the designation of places of worship as sensitive areas. Judge Lynch was incredibly hostile to the idea of guns being allowed in churches and other religious sites. Judge Lee was hostile to the idea of religious leaders being able to enable people to carry guns in a house of worship. Judge Jacobs could see why a religious leader would want to allow his flock to carry firearms. New Yorke argued that laws banning guns in churches from the early 20th century could be cited.

The third case was Michael Spencer, His Tabernacle et al v. Steven A. Nigrelli. This case is similar to Hardaway’s. It takes on the CCIA, but instead of arguing that the CCIA violates the Second Amendment, it makes an argument that the CCIA is unconstitutional by citing the First Amendment protections on the practice of religion. The Plaintiffs argued that a pastor protecting his congregation is part of the religious leader’s freedom of religion. Judge Lee rejects the plaintiff’s argument because guns are not part of their religious beliefs. Judge Jacobs appears to be more open to the plaintiff’s argument.

The fourth case was Ivan Antonyuk, Corey Johnson, et al v. Steven A. Nigrelli Joseph Cecile. This legal challenge is the Gun Owners of America (GOA) case challenging the CCIA. GOA’s attorneys got a preliminary injunction against the law from the District Court before the Second Circuit stayed the injunction. The lawsuit challenges almost every aspect of the CCIA. The two liberal judges made it clear that they did not like the Supreme Court’s decision in Bruen. Judge Lee also seemed to argue that turning over social media accounts was okay because she believed the state could get the plaintiffs’ social media accounts by running a web search. She claimed that turning over the plaintiff’s social media accounts just speeds up the process. The GOA lawyer pointed out that some social media accounts are anonymous. Judge Lee didn’t seem persuaded by the argument.

The final case for the day was Nadine, Seth Gazzola, et al v. Kathleen Hochul, et al. This case deals with the new requirements put on federal firearms licensees (FFL). New York enacted new regulations requiring particular storage and security requirements for FFLs. This change made it significantly more expensive to operate a gun store within the state. The plaintiffs failed to get an injunction from a lower court. The plaintiffs asked for relief from SCOTUS, but the court refused to step in. The lawyers in Antonyuk also went to SCOTUS with the same result.

From an outside observer’s standpoint, it looks like the judges already made up their minds before even hearing the case. Judge Lee especially seems to want to rely on the ratification date of the Fourteenth Amendment instead of the ratification date of the Second Amendment to look at historical firearms laws. This choice is something we saw in a three-judge panel in the Eleventh Circuit that was ruling on the Constitutionally of Florida’s age limit for firearms taken. The decision to use the 1868 ratification date of the Fourteenth Amendment should be troubling to gun owners because, after the Civil War, a slew of gun laws were passed to prevent formerly enslaved people from acquiring firearms.

Looking at the judges’ line of questions and comments, these judges will defy Bruen.

Luckily SCOTUS has already encouraged the plaintiffs to return to Supreme Court if the court does not act appropriately. Will the panel rule against the plaintiffs? Even though we have a good idea of what the panel will do, nothing is certain until a decision is reached. There is no timeline for that decision.

Regardless of the outcome of the cases, the plaintiffs could seek an en banc hearing from the Second Circuit, meaning the entire bench will hear the case in the panel’s decision will be vacated. The plaintiffs could also petition SCOTUS to hear the cases. But for now, New Yorkers from around the states await the panel’s decision.

About John Crump

John is a NRA instructor and a constitutional activist. John has written about firearms, interviewed people of all walks of life, and on the Constitution. John lives in Northern Virginia with his wife and sons and can be followed on Twitter at @crumpyss, or at www.crumpy.com.

John Crump

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