Litigation Update: Antonyuk Round 4, the Second Circuit Weighs In
On December 8, a panel of the Second Circuit Court of Appeals issued a 261-page decision in a major Second Amendment case, Antonyuk v. Chiumento. The Second Circuit consolidated four separate cases challenging New York’s Bruen response legislation—the Concealed Carry Improvement Act, or CCIA—under the First and Second Amendments. We covered earlier developments in the headline case, Antonyuk, here, here, here, and here. Antonyuk was a far-reaching challenge to most portions of the New York law; other cases, including Hardaway (which is discussed here and here) and Christian (summarized in this prior post), were narrower and dealt only with certain of the CCIA’s locational restrictions. District judges in those cases had invalidated a number of provisions in New York’s law, including provisions governing the application process for concealed carry licenses and restricting where license-holders may carry their guns. The Second Circuit panel heard oral argument in March and, as was generally expected, the panel affirmed the district court rulings in some respects while also upholding certain portions of the New York law that had been struck down by the lower courts.
After reviewing the Supreme Court’s major Second Amendment decisions, the panel made a number of high-level observations about the Bruen test—three of which proved particularly important in the panel’s ultimate resolution of the issues. First, the panel took a strong stance that the absence of historical regulation should not be dispositive of (or even highly relevant to) modern-day constitutionality, observing that “[r]easoning from historical silence is . . . risky [because] it is not necessarily the case that, if no positive legislation from a particular place is in the record, it must be because the legislators there deemed such a regulation inconsistent with the right to bear arms.” The panel noted that, presumably, “[n]o legislation is needed to forbid zoo patrons from entering the lion’s enclosure”—in other words, there are many activities that go unregulated not because the government believes it is precluded from regulating due to the Constitution, but because there is simply no practical need or desire for regulation.
Second, the panel rejected a strict quantitative test for whether historical laws constitute a tradition of similar regulation, stating that “it is  not dispositive whether comparable historical regulations exist in significant numbers” and giving comparatively more weight to whether there is evidence that historical laws were challenged or rejected for constitutional reasons. Here, the panel read Bruen to say—in the sensitive places context—that only one historical analogue (for example, Virginia’s 1786 ban on carrying guns in courthouses) might be enough to uphold a similar modern law if that one law was well-established and there is no evidence it was thought constitutionally suspect. Thus, the panel determined that “comparable historical laws need not proliferate to justify a modern prohibition.”
Third, the panel fell strongly on the side of 1868 in terms of the relevant historical date for challenges to state laws under the incorporated Second Amendment. Specifically, the panel noted that “[i]t would be incongruous to deem the right to keep and bear arms fully applicable to the States by Reconstruction standards but then define its scope and limitations exclusively by 1791 standards.” While suggesting that the Reconstruction Era is perhaps more important for understanding the historical scope of the Second Amendment vis-à-vis the states, the panel ultimately concluded that “the prevailing understanding of the right to bear arms in 1868 and 1791 are both focal points of our analysis.” And the panel also appeared to take a relatively broad view of history surrounding those two dates, stating that “it is implausible that such public understanding would promptly dissipate whenever that era gave way to another.” These three doctrinal observations about Bruen’s historical-analogical inquiry set the stage for the panel’s lengthy analysis of the various challenged CCIA provisions.
The panel first evaluated the state’s appeal of district court determinations that certain New York licensing application requirements violated the Second Amendment. The panel generally reversed these findings and upheld New York’s concealed carry license application process, with the exception of the state’s requirement that applicants submit a list of social media accounts. Here, the panel made much of the fact that the plaintiffs had challenged the licensing provisions only on a facial (rather than an as-applied) basis. In other words, the plaintiffs had not actually applied for a license and been denied, and therefore they needed to show that the challenged provisions were unconstitutional in all possible applications to succeed on their claims. As the panel noted with respect to the “good moral character” requirement for license issuances under the CCIA, “[w]e do not foreclose as-applied challenges to particular character-based denials, but the provision is not invalid in all of its applications.” And the panel generally rejected challenges based on the discretion provided to licensing officials under the CCIA framework, noting that Bruen itself categorized licensing statutes that use some discretionary criteria as permissible “shall issue” jurisdictions and noting a tradition of laws (beginning around the mid-19th century, primarily at the municipal level) “that condition[ed] the ability to lawfully carry a concealed weapon on obtaining a permit based in part on individualized assessment by a local official.”
By contrast, the panel held that the “compelled disclosure of pseudonymous social media handles to a licensing officer” violates the Second Amendment and improperly requires applicants to sacrifice their First Amendment right to speak anonymously. Noting that “[t]he State points to no historical law conditioning lawful carriage of a firearm on disclosing one’s pseudonyms or, more generally, on informing the government about one’s history of speech,” the panel determined that this lack of historically similar restrictions was relevant because, “[w]hile social media writ large may have no historical analogue, social media handles do.” The panel affirmed the Antonyuk district court’s preliminary injunction of the state’s requirement that applicants for a concealed carry license submit a list of social media accounts.
The panel next addressed challenges to the state’s ban on carrying guns in certain sensitive locations (these challenges formed the bulk of the lower court analysis in Antonyuk). Here, the panel took a higher-generality approach to Bruen and reversed district court injunctions of the state’s ban on public carry in healthcare and drug treatment centers, parks and zoos, bars, and theaters and conference centers. Rather than requiring historical analogues that banned gun carriage in specific, analogous historical locations (as Judge Suddaby did in Antonyuk), the panel determined that a historical “tradition of restricting firearms in locations frequented by vulnerable populations such as children” supported the state’s ban on guns in health treatment centers. Similarly, the panel found that a historical tradition “of regulating firearms in quintessentially crowded areas and public forums” supported the bans in parks, zoos, bars, and conference centers. Here too the panel took a broad, inclusive view of history and criticized Antonyuk for failing to do so—noting, for example, that when the relevant tradition is continuous over time “there [i]s no reason . . . to discount territorial laws, municipal laws (insofar as the states in which the cities were located did not have identical state law counterparts), or laws from the late 19th century.” The panel also generally construed the language of the CCIA in favor of the state, finding that the sensitive-location bans do not define terms expansively (“banquet hall” does not mean any location where multiple people might share a meal, for example) and observing that, while “the legislature may have overreached in certain respects, . . . the general point was to revise New York’s gun laws to withstand Bruen, not to attempt exactly what it forbade.”
However, the panel affirmed one district court’s injunction of the state’s ban on carrying guns in places of worship under the First Amendment. The panel determined that the CCIA is a law that burdens religious practice in a non-neutral manner and thus is subject to strict scrutiny under the First Amendment. The panel found the law wanting and affirmed the injunction issued in Spencer, noting that “the State has not demonstrated that allowing church leaders to regulate their congregants’ firearms is more dangerous than allowing other property owners to do the same.”
Finally, the panel affirmed district court injunctions of the state’s ban on carrying firearms on private property without consent of the owner (also called the “restricted locations” provision). The panel held that this provision implicated the Second Amendment and that the state failed to demonstrate a historical tradition of establishing a “default presumption against carriage on private property open to the public” because its analogues only showed a tradition of default bans (often related to hunting) on private property closed to the general public. Observing that “the restricted location provision functionally creates a universal default presumption against carrying firearms in public places, seriously burdening lawful gun owners’ Second Amendment rights,” the panel affirmed the injunction in Christian invalidating the restricted-location provision as to private property that is open to the public.
The Second Circuit decision appears to take a middle-of-the-road approach: affirming the district court injunctions as to provisions in the CCIA that have received the most attention and backlash (such as the private-property default rule, as applied to businesses and other properties open to the public), the social media requirement, and the “place of worship” ban, while reversing injunctions as to most licensing requirements and sensitive-places restrictions. In general, the panel’s inclusive approach to historical-analogical reasoning strikes me as more coherent than the various district court approaches, especially in the Antonyuk case itself. As the panel seemed to recognize, the constitutionality of modern-day locational or licensing restrictions should not turn solely on whether historical state or municipal governments used nearly-identical processes or banned guns in nearly-identical locations. That method is contrary to Bruen, not convincing given the level of societal change that has taken place since the Founding, and leads to decisions that turn on odd historical distinctions such as when parks first emerged as a location for engaging in leisure activities. Rather, the panel opts for a more flexible approach that focuses on the rationale behind the modern and historical laws (as Bruen directs) and does not attempt to force the analysis through a quantitative lens.
The decision also likely lowers the odds that the Supreme Court will choose this case to make its first broad pronouncement on sensitive places, if the challengers do seek certiorari as to the CCIA provisions that the Second Circuit allowed to remain in effect. It’s worth noting here that Antonyuk ultimately found that the plaintiffs in that case lacked standing to challenge a number of sensitive-places restrictions in the CCIA, including the much-publicized ban on carrying guns in the area surrounding Times Square and the ban on carrying guns at sporting events. Therefore, the district court did not reach the merits on those challenges. The Second Circuit decision suggests, however, that those prohibitions are permissible by crediting a historical tradition of banning guns in especially crowded areas (how far that rationale stretches, especially with regard to the Times Square ban, remains up for debate).
Finally, some of the issues that doomed certain provisions of the New York law before the Second Circuit likely could have been avoided in the first instance with better legislative drafting. By acting quickly, the state made drafting mistakes that have caused problems in subsequent litigation. For example, New York has now amended the CCIA in several ways—including paring back the “place of worship” ban and modifying the ban on guns in parks to exclude certain forest preserves. Greater clarity in drafting the social-media requirement might also have avoided the outcome here, as the state could presumably have instituted a process to preserve the anonymity of applicants’ pseudonymous social media handles from all but the relevant licensing official. That doesn’t necessarily mean the CCIA itself is suspect, but it does warrant a probing judicial inquiry and, perhaps, greater skepticism toward the state’s intentions than evinced by the Antonyuk panel in some instances. The Antonyuk decision thus might provide lessons for other states that have, or are considering, licensing reform post-Bruen.
 The opinion was issued jointly by all three judges on the panel: Judge Eunice Lee (a Biden appointee) and Senior Judges Dennis Jacobs (George H.W. Bush) and Gerard Lynch (Obama).
 The New York law, as originally enacted, required each applicant to submit “a list of former and current social media accounts of the applicant from the past three years.”
 The state challenged the Antonyuk injunction as to each location where the court enjoined the state’s prohibition, except for the ban on public carry of guns in buses and airports. There, Antonyuk granted a limited injunction of the law only in “airports to the extent the license holder is complying with all federal regulations . . . , and [in] buses and vans.”
 As to bars, the panel also found that a separate set of “analogues justify prohibiting firearms to intoxicated persons who cannot be trusted with weapons.”
 The other injunctions were vacated because the panel found that the state’s subsequent amendment of the law to permit those tasked with maintaining security within a church to carry firearms mooted the challenges.
 With certain exceptions, this provision makes it a crime to carry a gun onto “private property where [the gunowner] knows or reasonably should know that the owner or lessee of such property has not permitted such possession by clear and conspicuous signage indicating that the carrying of firearms, rifles, or shotguns on their property is permitted or has otherwise given express consent.”
 The panel reversed, however, the broader injunction issued in Antonyuk that invalidated the restriction as to both open and closed private property, noting that even the district court had “accepted the State’s argument that there was at least one set of circumstances in which the statute could be valid under the Second Amendment” and that this was fatal to a facial challenge.