Litigation Update: Antonyuk Round 3; Judge Grants Preliminary Injunction of Large Portions of New York’s Post-Bruen Law
On November 7, Judge Glenn Suddaby of the Northern District of New York issued a 184-page opinion granting in part and denying in part the plaintiffs’ motion for a preliminary injunction of New York’s post-Bruen gun regulations in Antonyuk v. Hochul. Judge Suddaby previously analyzed the same plaintiffs’ likelihood of success on these claims in an August 31 advisory opinion which dismissed a predecessor suit for lack of standing, and in an October 6 opinion granting in part their request for a temporary restraining order of New York’s law. We covered those prior decisions here and here. The state appealed Judge Suddaby’s TRO ruling to the Second Circuit, which granted an interim stay of the TRO on October 12 pending a decision on the motion to stay by a three-judge panel. The state also appealed the preliminary injunction decision, and the Second Circuit similarly granted a temporary stay of that decision, pending panel consideration, on November 15. New York withdrew its appeal of the TRO as moot in light of the ongoing appeal of the preliminary injunction decision.
In his November 7 preliminary injunction opinion, which came on the heels of a hearing held on October 25, Judge Suddaby enjoined the following requirements for concealed-carry license applicants: the requirement to show “good moral character”; the requirement to provide a list of family members and cohabitants; the requirement to submit a list of social media accounts; and the requirement to submit “other information” requested by the licensing officer. He also enjoined the state’s prohibition of guns in: healthcare facilities; places of worship; public parks; zoos; airplanes, airports, buses and vans; establishments with a liquor license where alcohol is consumed; theaters, conference centers, and banquet halls; and any gathering of individuals to collectively express their constitutional rights to protest or assemble. Finally, Judge Suddaby found the state’s default prohibition of guns on private property, when not explicitly permitted by the property owner, likely violated both the First and Second Amendments—and he enjoined that provision as well.
One notable aspect of the November 7 opinion is that Judge Suddaby reversed course from his earlier TRO decision in several areas. First, he found that the plaintiffs lacked standing to challenge several locations on the state’s sensitive-places list because they hadn’t actually alleged a concrete intention to carry guns there. The full list of locations where the judge found no standing to challenge the gun prohibition includes places such as government buildings; libraries; childcare facilities; summer camps; homeless and domestic violence shelters; building or grounds of any educational institution or college; public transportation outside of buses, vans, or airplanes; entertainment venues, racetracks and sporting events; and Times Square. As to Times Square, the judge further suggested that—even if plaintiffs had shown an intention to carry there—he would likely have upheld the prohibition based on “an American historical tradition of banning firearms in this unique regularly congested commercial area filled with expressive conduct.”
Second, Judge Suddaby reached the opposite result from his TRO opinion when analyzing the plaintiffs’ likelihood of success as to certain challenges. For example, Judge Suddaby struck down in their entirety the state’s good moral character requirement and its ban on guns in churches—previously, he had merely ordered the state to construe and apply those provisions to contain exceptions. He struck down the requirement to provide “other reasonably necessary” information requested by the licensing officer, which he previously suggested was constitutional. Judge Suddaby also found that the in-person interview requirement, which he previously temporarily restrained enforcement of, was equally or less burdensome than historical militia review laws and loyalty oaths, and therefore denied the plaintiffs’ motion as to those laws.
It is both normal and expected, to some extent, that the judge reconsidered aspects of his prior TRO ruling based on subsequent submissions and evidence presented during the preliminary injunction hearing. Judge Suddaby signaled in his earlier ruling that he might do so. And Judge Suddaby’s analysis of the plaintiffs’ standing to challenge locational restrictions, while unlikely to receive much attention, is both thorough and persuasive. It also illustrates an important point likely to arise in future sensitive-places litigation: it is crucial that judges closely scrutinize the plaintiff’s actual intention to carry guns in a prohibited location, lest courts allow the mere act of leaving one’s home with a weapon to automatically confer standing to challenge any location-based ban. One of the plaintiffs in Antonyuk, a volunteer firefighter, argued that he had standing to challenge most, if not all, of the state’s locational restrictions simply because he might be called to fight a fire at one of those locations. But Judge Suddaby properly rejected that argument, finding that the mere possibility of being called to one of those locations was not equivalent to a concrete intention to carry a gun there in the future. Legal challenges should not be allowed to proceed without evidence that a gunowner actually intends to carry in a specific location in the near future; if the dominant social practice today is not to carry guns in a given location in the first place, then litigation will be difficult regardless of whether there are historical laws restricting guns in similar locations.
While it’s not surprising that Judge Suddaby revisited certain aspects of his prior order, it is interesting that he weighed historical laws under a different framework in the preliminary injunction opinion. Specifically, he introduced the concept that “more weight is  generally given to historical laws governing a larger percentage of the Nation’s population at the time, according to the nearest decennial census.” Judge Suddaby didn’t use that metric at all in the TRO opinion—in fact, the word “population” doesn’t appear once in that 53-page order. But, when evaluating the motion for a preliminary injunction, Judge Suddaby relied extensively on historical population figures. He found, for example, that four historical laws restricting guns at churches and religious assemblies were not “representative” because “they came from states that contained only about 12.9 percent of the national population” (the same analysis applied to laws restricting guns at “public assemblies,” even though the states comprised 13% of the national population in 1870). Laws covering 31.9% of the population as of 1791, however, would “shed some light on the public meaning of the words ‘keep and bear arms,’” in Judge Suddaby’s view.
It’s not clear to me that the use of historical population figures comes from Bruen itself or is consistent with the Court’s reasoning in that case. While Judge Suddaby cited Bruen’s discussion of population in the territorial context (territorial laws were not representative, in part because they only applied to less than 1% of the national population at the time), Bruen didn’t use the same analysis for state laws. It’s possible to read this portion of Bruen as suggesting that population is only one fact relevant to analysis of territorial laws, where it confirms that these laws generally can’t indicate a tradition of regulation—notwithstanding that, as I’ve written previously, the Bill of Rights applied directly to the territories in the Founding Era and the 19th century. Moreover, Bruen’s contemporary analysis of New York’s law (which the concurrence by Justice Kavanaugh and Chief Justice Roberts called an “outlier”) relied solely on state-counting and made no reference to population. Had the Court considered population, it would have found that the “seven jurisdictions [with may-issue laws] comprise about 84.4 million people and account for over a quarter of the country’s population,” as Justice Breyer observed. That’s very close to the threshold Judge Suddaby appears to use for when a law is sufficiently widespread that it constitutes part of the country’s tradition.
Finally, Judge Suddaby observed in a footnote that he does not believe a “court-appointed expert historian” would be helpful in resolving the claims, in stark contrast to the recent order issued by Judge Reeves in the Southern District of Mississippi (which I covered here). I don’t believe there’s anything wrong with judges relying on adversarial presentation to resolve disputes about the historical record—indeed, Bruen itself suggests that approach. But it is worth noting that Judge Suddaby has not merely relied on adversarial presentation in this case. He noted in the preliminary injunction order that he “has (given the importance of the issues presented) tried to find analogous laws to the extent the State Defendants may have not provided them.” And certain portions of his most recent opinion contain historical analysis and observations from outside of the briefing. When analyzing the state’s ban on guns in zoos, Judge Suddaby observed that “the Court can imagine some of the more trepid zoogoers of the time demanding to be armed in the presence of the more dangerous creatures.” And a section of the opinion speculates that “during the years before and after 1791, persons published under pseudonyms controversial writings that, if identified as having been authored by them, could have indicated their likelihood do harm to themselves or others” because of the culture of dueling at the time. Perhaps those observations are accurate characterizations of history, perhaps not. But there is no suggestion in the opinion that the parties raised these arguments themselves; and Judge Suddaby also does not provide outside citations for these propositions.
 The order also dismissed Governor Hochul as a defendant, which means the case will likely be re-captioned as Antonyuk v. Nigrelli. Steven Nigrelli is the Acting Superintendent of the New York State Police, who replaced Kevin Bruen on October 7.