Litigation Highlight: Antonyuk v. Bruen

10 days after New York passed a set of revised licensing and gun laws post-Bruen (known colloquially as the Concealed Carry Improvement Act, or CCIA), those laws were challenged in federal court.  The case is Antonyuk et al. v. Bruen, Docket No. 1:22-cv-00734 in the Northern District of New York.  Chief Judge Glenn T. Suddaby is presiding over the case.

In a 37-page complaint, the plaintiffs—Ivan Antonyuk (who lives in Schenectady County, NY), Gun Owners of America, Inc., Gun Owners Foundation, and Gun Owners of America New York, Inc.—challenged most aspects of New York’s revised gun laws, including: the “good moral character” requirement (which long pre-dates Bruen); the requirement that applicants attend an in-person interview and submit character references and a list of social media accounts; New York’s sensitive-places prohibition; New York’s default rule that guns are prohibited on private property unless explicitly allowed; and the time and cost of New York’s training requirements.  The complaint asserts § 1983 claims under both the First and Second Amendments.

After filing their complaint on July 11, the plaintiffs moved for a preliminary injunction on July 20.  The state subsequently requested additional time to respond to the PI motion.  Judge Suddaby granted that motion in part and set the following briefing schedule, noting that the CCIA is set to take effect on September 1:  defendant’s response was due on August 15, plaintiffs’ reply is due on August 22, and the preliminary injunction hearing is set for August 23.  New York subsequently requested, and was granted, leave to file a response brief longer than the court’s default page limit.  

In their motion for a preliminary injunction, the plaintiffs first address the issue of standing:  they argue that Antonyuk has standing to challenge the sensitive-places list and private-property rule because these provisions restrict where he (a current NY permitholder) can carry his gun.  They argue that he may also challenge the application requirements because he is required to be recertified in 2023.  As to the likelihood of success on the merits, the plaintiffs state that: 

Under the Bruen test, then, it does not matter whether a government restriction “minimally” or “severely” burdens (infringes) the Second Amendment. There are no relevant statistical studies to be consulted. There are no sociological arguments to be considered. The ubiquitous problems of crime or the density of population do not affect the equation. The only appropriate inquiry, according to Bruen, is what the “public understanding of the right to keep and bear arms” was during the ratification of the Second Amendment in 1791, and perhaps during ratification of the Fourteenth Amendment in 1868.

The plaintiffs argue that New York’s “good moral character” requirement is contrary to Bruen because it still allows licensing officials to exercise substantial discretion.  The plaintiffs assert that the documentary submissions required of applicants improperly condition the right to keep and bear arms on a searching inquiry of protected conduct and “chill protected speech.”  Plaintiffs provide a laundry list of examples of how, in their view, New York’s inquiries might improperly reveal sensitive personal details to the government and allow officers to discriminate against applicants for improper reasons: 

For example, the vague nature of the CCIA’s standard begs the question whether someone who attends a BLM “parade” or “rally” that turns violent could be denied a permit. . . .  Does a person lack “good moral character” if he has multiple speeding tickets within school zones?  How about those who have engaged in quintessentially political speech that happens to be critical of the Governor, the local sheriff, a judge, or even the licensing official considering the application?

The plaintiffs offer a definition of “sensitive places” which limits the category to those where “the government as proprietor enjoys the power of exclusion just as [] any other private property owner would”; noting that, for many locations on New York’s list such as parks and public transit systems, “the government merely manages the property on behalf of the public.”  The plaintiffs contend that the private-property rule is a taking without compensation that “require[es] all property owners to engage in compelled speech in order to get around the state’s anti-gun agenda.”  The new training requirements, plaintiffs argue, are five times longer than New York’s prior requirements and could cost up to $400.

The plaintiffs devote only a short portion of their brief to Bruen’s historical-analogy test, comparing New York’s requirements to a hypothetical British licensing law that might have disqualified Alexander Hamilton from carrying a gun because of his political writings.  According to the plaintiffs, “because licensing for concealed firearms did not start until the 1890s, long after ratification, none of these absurd and imaginary analogues could have occurred in the first place.”

New York filed its 65-page response brief (attaching 54 exhibits) on August 15.  New York devotes about 10 pages of its brief to the issue of standing.  Most consequentially, the state asserts that “Plaintiff Antonyuk will not be required to have his license re-issued or renewed, and therefore will never be subject to any of these application requirements (the interview, social media disclosure, and training provisions).”

Addressing the likelihood of success on the merits, New York first contends that its “good moral character” requirement is identical to those employed by states that the Court in Bruen approved as “shall issue.”  New York then argues that this requirement, and associated submissions such as character references, are consistent with historical laws “disarming those whose associations, reputation, or conduct suggested they posed a danger to others or to the public order.”  The state cites militia-mustering laws, which contemplated that some members “would be found personally unfit to bear arms,” and Revolutionary-War-era loyalty oaths.

New York next addresses the social media submission and argues that this “disclosure requirement imposes a comparable burden to traditional disqualifications for dangerousness and based on a comparable individualized assessment of a person’s character.”  The state also contends this requirement is permissible under the First Amendment as a content-neutral law that meets intermediate scrutiny.

New York defends its sensitive-places list by drawing analogies to Founding-era gun bans in “fairs or markets,” on university campuses, and in public parks, as well as to 19^th-century laws prohibiting guns in places of public assembly more generally:

Times Square, for instance, is analogous to the “fairs and markets,” protected in English and Colonial law, while the CCIA’s ban on guns in “amusement parks, performance venues, concerts, exhibits, conference centers, banquet halls, and gaming facilities” is analogous to Texas’ 1870 ban on guns in a “ball room, social party, or other social gathering composed of ladies and gentlemen.”

In support of the private-property default prohibition, the state cites colonial statutes prohibiting the carrying of guns on plantations or lands without the owner’s permission, similar 19^th-century laws, and modern criminal trespass statutes.  Finally, New York relies on militia-mustering laws and the 1792 Militia Act to argue that, “[n]ext to the dozens of hours of training, marching, and drilling required annually of every citizen during the Founding era, the training requirements of the CCIA pale in comparison.”  The state also asserts that requiring payment for such training is consistent with how the militia functioned historically.

A few quick observations about the briefing thus far:

• We can expect other post-Bruen challenges to arise in the same preliminary injunction context. While Bruen is unclear about which party bears the initial burden of showing that conduct is protected by the Second Amendment, it places the burden on the government to put forward historical analogues for gun regulations.  As here, the challenger will likely make textual arguments about the amendment’s scope but has no incentive initially to comb through the historical record and do the government’s work for it—rather, it’s likely that challengers will simply argue (as the plaintiffs did here) that it is facially absurd to imagine that any close analogues to the modern law exist.  But that strategy could backfire, to some extent.  Reply briefs are normally subject to relatively short page limits, which might make it difficult for the plaintiff to fully address and distinguish the state’s proposed historical analogues on reply. 
• The briefs illustrate a fundamental disagreement over Bruen’s stance on shall-issue regimes that retain some discretionary elements. Bruen says that shall-issue states do not “grant[] licensing officials discretion to deny licenses based on a perceived lack of need or suitability.”  But the Court’s list of shall-issue states (whose licensing laws remain constitutional) includes Delaware, Connecticut and Rhode Island, all of which employ “good character” or “suitable person” requirements.  And, indeed, the Court recognizes this fact and blesses these regimes as ones that “have discretionary criteria but appear to operate like ‘shall issue’ jurisdictions.”  The Court doesn’t provide much guidance on whether its endorsement of these licensing frameworks turns on the fact that the character requirements are not applied in a manner equivalent to demanding “proper cause,” or the fact that they are applied objectively (without any discretion by the licensing officer).  My reading of Bruen is that it blesses these frameworks so long as they don’t operate in a way that imposes a proper-cause-like threshold for obtaining a license.
• New York’s reliance on Founding-era laws that sought to disarm disfavored groups such as Native Americans and religious minorities is sure to garner attention. But, of course, this isn’t a novel idea.  In a dissent from the Seventh Circuit’s 2019 decision in Kanter v. Barr, then-Judge Amy Coney Barrett posited that the U.S. historical tradition of gun regulation—including laws disarming “[s]laves and Native Americans,” although obviously unconstitutional today—supports laws “based on present-day judgments about categories of people whose possession of guns would endanger the public safety” (such as, potentially, those who have posted online about a desire to commit violent acts).  The plaintiffs’ challenge here ultimately seems to be more about licensing-officer discretion than the state’s ability to restrict possession by dangerous individuals, even though categorical bans seem more likely to be over-inclusive.
• The plaintiffs focus almost exclusively on Founding-era history, and will likely seek to the distinguish the mid-19^th-century public assembly bans in Texas and other states as too late in time to show a tradition of deeming such places sensitive. This seems like a sensible approach given Bruen’s statement that “late-19th-century evidence cannot provide much insight into the meaning of the Second Amendment when it contradicts earlier evidence.”  That said, it’s difficult to square the plaintiffs’ government-as-proprietor theory of sensitive places with the Court’s acceptance of schools as modern-day sensitive places.  By narrowing the category to only places “used for a designated and specific governmental purpose,” plaintiffs would presumably also argue that locations such as airplanes and stadiums cannot be deemed sensitive.  What about a location that is privately-owned but subject to strict government oversight and regulation due to its sensitive nature, such as a commercial nuclear power plant?
• On the private-property-default prohibition, there is likely to be spirited debate on the specific nature of some of New York’s proposed comparators.  There is, of course, a difference between saying that a private property owner has the absolute right to exclude (at his or her prerogative) someone with a gun from coming onto the property, and mandating (as New York has) that guns are banned even when they owner takes no action at all.  As laid out in New York’s brief, however, there are historical laws—especially from the colonial era, but also from the 19^th century—that permitted guns to be carried on private land only with the owner’s express permission.  New York also cites criminal trespass provisions which contain enhanced penalties if the trespass is conducted with a firearm, but which appear to also require that the entry itself be “unlawful.”  In other words, these laws would likely not apply if an individual was invited onto private property by the owner (because the entry itself would be lawful), even if the owner was unaware at the time that the guest had a gun and did not want the guest to bring a gun onto the property.  As with the historical public-carry statutes at issue in Bruen, the result depends entirely on the level of generality at which a judge analogizes to history.