Litigation Update: Antonyuk v. Bruen
We previously summarized the preliminary injunction briefing in Antonyuk v. Bruen, a challenge to New York’s amended gun laws. Following a hearing on August 23, Chief Judge Glenn T. Suddaby of the Northern District of New York denied the preliminary injunction motion and dismissed the case for lack of standing in an August 31 decision.
After reviewing the allegations, briefing, and oral argument, the court first found that Kevin Bruen (superintendent of the New York State police) was a proper defendant only as to New York’s 18-hour training requirement for new or renewed licenses, the sensitive-locations ban, and the restricted-locations provision. The court then determined that the individual plaintiff, Ivan Antonyuk, failed to plausibly allege both the intent to engage in a course of action outlawed by New York’s law, and a credible threat of prosecution under that law. Therefore, the court held that Antonyuk lacked Article III standing to challenge the law. In a separate section, the court found that the entity plaintiffs—Gun Owners of America, Inc., Gun Owners Foundation, and Gun Owners of America New York, Inc.—failed to establish organizational or associational standing under various theories.
Despite dismissing the case for lack of standing, Chief Judge Suddaby included a 22-page evaluation of the plaintiffs’ likelihood of success on the merits—noting that this section was dictum but was
include[d] . . . out of an abundance of caution, because at least a conceivable chance exists that Plaintiffs may take an immediate appeal of this Decision and order to the Second Circuit and be found to, in fact, possess standing, in which case what follows would constitute the Court’s holding.
In this section, the court turned first to the “good moral character” requirement in New York’s law. New York added the following definition of “good moral character,” previously a requirement that was undefined: “having the essential character, temperament and judgement necessary to be entrusted with a weapon and to use it only in a manner that does not endanger oneself or others.”
The court excoriated New York’s legislative drafting, stating that the law “reads less like a measured response [to Bruen] than a wish list of exercise-inhibiting restrictions glued together by a severability clause in case some of the more fanciful restrictions were struck down.” The definition of “good moral character” was unconstitutional, the court said, because (read literally) it would prevent those who might endanger others through legitimate defensive use of firearms from obtaining a license. The court canvassed other state good-character or suitability requirements and found that “[n]one require a condition that is literally impossible to achieve: the use of a firearm in a manner that does not endanger oneself or others.” Although New York indicated at oral argument that the word “danger” did not mean “a reactive danger to someone else who is a danger to you,” the express language of the provision was unconstitutional in the court’s view. Perhaps more consequentially, the court also agreed with the plaintiffs’ argument that this part of the law improperly grants discretion to licensing officers to make decisions “based on vague, subjective criteria,” in violation of Bruen.
As to the substantive requirements and submissions required of applicants, the court would have upheld the in-person interview, requirement to submit four character references, and training requirements. However, the court would have struck down the mandate to submit a list of social media accounts. The court concluded that, among other problems, this requirement grants too much discretion to licensing officers and might compel applicants “to disclose self-incriminating statements on a social-media posting” in violation of the Fifth Amendment.
Next up was New York’s list of sensitive places where guns are banned. After reviewing Bruen’s discussion of sensitive places, the court found that New York’s list “includes numerous locations that are nonsensitive in nature” and that the state’s “expansion is unsupported by any historical examples that are actual analogues.” The court found that New York had used public congregation and access to law enforcement as the only criteria for designating places as sensitive—which Bruen rejected in its discussion of whether Manhattan itself could be a sensitive place. Further, despite the presence of certain potential historical analogues, “the vast majority of the other states . . . did not have statutes restricting firearms at those very locations.” Rather than go through the list individually, the court suggested that New York’s entire list was suspect because the state “d[id] not cite any historical analogs for restricting firearms at all of the [] listed locations.”
Finally, the court considered New York’s approach to “restricted locations,” which flips the default in privately-owned areas to make guns prohibited unless explicitly permitted by the owner. The court would have held that this provision improperly “usurp[s] . . . the rights of property owners to decide things for themselves” and that New York’s proposed analogues applied only to “inclosed” or fenced-in outside areas, not buildings.
While the court was clear that its evaluation of the merits was dictum, it is still notable in that it suggests most of New York’s law might be unconstitutional. It is also likely that the plaintiffs here will appeal, and that other legal challenges will be brought where the plaintiff’s standing is less suspect.
First, the court’s evaluation of the “good moral character” requirement might be well-taken as a matter of strict linguistic interpretation. But it’s important to remember that New York drafted the language after Bruen was decided and stated at oral argument that the language was intended to capture only affirmative endangerment. This seems to simply be a matter of amending the statute slightly to add a reference to self-defense or to cover only unlawful endangering. As the court notes, it’s essentially the same issue that arose in Heller—where Washington, D.C. argued that its requirement that handguns be rendered inoperable even while kept in the home should be read with an implicit exception for self-defense.
The bigger point here is about licensing discretion, and it’s difficult to parse the court’s statement that “licensing officers may not arbitrarily abridge [the Second Amendment right] based on vague, subjective criteria.” Is arbitrary enforcement or subjective criteria the real problem? There’s (as of yet) no evidence of arbitrary enforcement, so it seems like this opinion would find all subjective licensing criteria unconstitutional on their face. But that can’t be right, given Bruen’s endorsement of licensing regimes that “have discretionary criteria but appear to operate like ‘shall issue’ jurisdictions,” including Connecticut’s statute that mirrors the language New York passed, only without the “endanger oneself or others” phrase. Indeed, throwing out all subjective criteria is a thoroughly odd position to take given the fact that many states (states where the constitutionality of the licensing scheme has never been in much doubt) accord licensing officers discretion to deny a permit application in the extraordinary scenario when they have reason to believe the applicant would pose a danger to themselves or others. See, e.g., Va. Code Ann. § 18.2-308.09(13) (disqualifying “[a]n individual who the court finds, by a preponderance of the evidence, based on specific acts by the applicant, is likely to use a weapon unlawfully or negligently to endanger others.”); Colo. Rev. Stat. § 18-12-203(2) (“Regardless of whether an applicant meets the criteria specified in subsection (1) of this section, if the sheriff has a reasonable belief that documented previous behavior by the applicant makes it likely the applicant will present a danger to self or others if the applicant receives a permit to carry a concealed handgun, the sheriff may deny the permit.”). There’s no suggestion that permits are being denied in these states because someone might be harmed by a lawful defensive firearm use.
The Supreme Court seems to be saying that what matters is how the regime works in practice, and not necessarily that one iota of subjective discretion is unconstitutional. No matter how closely a state ties the dangerousness determination to specific acts proven by a quantum of evidence, it’s still ultimately a subjective determination by the licensing officer as to whether those acts do or do not indicate that the applicant will be dangerous in the future.
Second, the court’s discussion of sensitive places is a bit of a head-scratcher. The court agrees with the plaintiffs’ argument that “the Supreme Court in NYSRPA effectively barred the expansion of sensitive locations beyond schools, government buildings, legislative assembles, polling places, and courthouses.” But if so, why would the Court explicitly mention the “use of analogies to those historical regulations of ‘sensitive places’ to determine that modern regulations prohibiting the carry of firearms in new and analogous sensitive places are constitutionally permissible”? If there are, in fact, no other modern-day analogues to historical sensitive places, that passage of Bruen would be odd indeed. It’s also not clear why the court in Antonyuk seems to believe that New York’s list must rise or fall in its entirety. It has to be that sensitive places are evaluated individually, and that the items on New York’s list explicitly sanctioned by the Supreme Court (or any “new” places that meet Bruen’s test) should be upheld as a first step in the analysis—the alternative view would likely create massive inefficiency by requiring states to re-legislate ad nauseum until they got the list exactly right.
The court’s assessment of analogues for the sensitive-places ban appears to adopt a “majority of states” standard for determining when there is a historical tradition of regulation: only when there were analogous laws in place in more than half of the states at the relevant time (presumably, 1791) is there a historical tradition of regulating in this manner. It’s not clear where this standard comes from—it might be one way to read Bruen, and the Northern District of Texas decision in McGraw appeared to take a similar approach—but it is at odds with the actual historical analysis that the majority opinion in Bruen conducted. Why spend 30 pages analyzing a handful of historical laws here and a handful there, if the standard is that a majority of the states must have had analogous regulations in place? Presumably, if the Court intended to adopt such a standard, it could have simply observed that none of the potential analogues for New York’s licensing law were in force in anywhere close to a majority of states at the relevant time, and decided the case on that basis. What Bruen suggests, to me at least, is a much more nuanced inquiry under which a handful of analogous laws can constitute a historical tradition.
Finally, the court’s approach to evaluating potential analogues for New York’s private-property rule seems like a clear example of what Bruen says is not required: the court would have discarded potential analogues on the basis that the historical prohibitions applied to farmland and not to enclosed buildings. Not all private property consists of enclosed buildings, so it’s not clear why that fact alone should be determinative. But perhaps more importantly, this doesn’t seem like the type of analysis Bruen contemplates. As the Court says, “even if a modern-day regulation is not a dead ringer for historical precursors, it still may be analogous enough to pass constitutional muster.” Where is the analysis of how these historical enclosed-land laws were justified, and whether that justification is comparable to New York’s legislative rationales? It seems to be enough, in the court’s view, to simply observe that the potential analogues are not dead ringers and then throw them out the window.
On August 30, just one day before the Antonyuk decision, the New York State Rifle and Pistol Association, Robert Nash, and Brandon Koch (the same set of plaintiffs from June's Supreme Court case) filed their own challenge to the new New York law in the Northern District of New York. The court determined that the new case was not a "related case" to Antonyuk and randomly re-assigned it to District Judge Mae A. D'Agostino.