A Federal District Judge today issued a temporary restraining order against New York’s enforcement of the so-called Concealed Carry Improvement Act (CCIA). The State of New York has three business days in which to consult the 2nd Circuit Court of Appeals before the order takes effect. The law was challenged on behalf of six plaintiffs by Gun Owners of America (GOA) and the Gun Owners Foundation (GOF).
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Judge Glenn T. Suddaby granted the temporary restraining order in part and denied it in part. Yet it represents a major victory over New York’s attempt to circumvent the Supreme Court’s Bruen Decision earlier this year. Unless preempted by the 2nd Circuit, the order will extend longer than the normal 14 days in anticipation of a preliminary injunction hearing.
What the Restraining Order Says
Briefly, the order blocks enforcement of the CCIA’s following provisions:
- Disclosing the applicant’s social media accounts to the reviewing officer
- Requiring the applicant to provide “the names and contact information for the applicant’s current spouse, or domestic partner, any other adults residing in the applicant’s home, including any adult children of the applicant, and whether there are minors residing, full or part time, in the applicant’s home.”
- In-person interviews with law enforcement
- Requiring homeowners and businesses to openly state that they allow concealed carry on their property
- Prohibiting concealed carry in most so-called “sensitive places,” including restaurants, entertainment venues, doctors’ offices, public transportation, and Times Square.
The following restrictions were allowed to stand:
- The applicant must provide four character references on the application
- The applicant will be required to complete 18 hours of approved training, though the judge qualified this by saying the provision stands “for now.”
- The applicant will be required to provide “such other information required by the licensing officer.” The judge, however, noted this provision’s potential for abuse and noted that he is willing to revisit the provision in the preliminary injunction hearing.
The “Good Moral Character” Argument
The “Good Moral Character” requirement is perhaps the CIAA’s most controversial provision. How can a licensing officer objectively make such a judgment? Certainly, known criminals would fail the test, but the potential for abuse is enormous.
Judge Suddaby analyzed the conundrum like this:
Simply stated, instead of moving toward becoming a shall-issue jurisdiction, New York State has further entrenched itself as a shall-not-issue jurisdiction. And, by doing so, it has further reduced a first-class constitutional right to bear arms in public for self-defense (which, during the 19th and 18th centuries in America, generally came with an assumption that law-abiding responsible citizens were not a danger to themselves or others unless there was specific ground for a contrary finding) into a mere request (which is burdened with a presumption of dangerousness and the need to show “good moral character”).
(“The constitutional right to bear arms in public for self-defense is not a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.”) The CCIA, on the other hand, as stated above, provides that people are not entitled to carry concealed unless they can persuade a licensing officer (who possesses enormous discretion) that they are not such a danger.
Simply put, the state cannot require an applicant to prove their “good moral character” in the absence of evidence to the contrary. Judge Suddaby ruled that the state can only enforce this provision with specified changes.
The “Good Moral Character” provision currently reads as follows:
No license shall be issued or renewed except for an applicant…of good moral character, which…shall mean having the essential character, temperament, and judgement necessary…to use [the weapon entrusted to the applicant] only in a manner that does not endanger oneself or others.
That doesn’t seem subjective at all, does it? Judge Suddaby changed the language to the following. The changes are in bold type:
A license shall be issued or renewed except for an applicant…who has been found, by a preponderance of the evidence based on his or her conduct, to not be of good moral character, which…shall mean having the essential character, temperament, and judgement necessary…to use [the weapon entrusted to the applicant] only in a manner that does not endanger oneself or others, other than in self-defense.
Makes a big difference, doesn’t it? Can you see a licensee forced to defend himself being charged because the old phrasing said he couldn’t use his firearm to endanger others? I sure can. New York can only enforce this provision if it adopts Judge Suddaby’s changes.
The Bruen Decision’s Influence
Bruen’s most influential provision has been the requirement that gun control statutes must follow the history and tradition of such laws in the United States. Judge Suddaby followed that provision in every part of his decision, while also citing the 1st, 2nd, 5th, and 14th Amendments. Space prohibits our examining each part here, but the entire decision is available to view or download at gunowners.org.
Bruen has truly shaken up gun control laws across the country, but nowhere so thoroughly as New York. The CCIA was enacted in response to Bruen’s invalidating the state’s draconian carry laws. Instead of complying, the state legislature and Governor Kathy Hochul doubled down and made the laws even more onerous.
The restraining order will take effect on Tuesday, October 11, barring intervention by the 2nd Circuit. It will remain in effect until the outcome of a preliminary injunction hearing, which will seek to permanently block the law’s provisions. We will follow this story and keep you up to date.
If you’d like more information on the Supreme Court’s Bruen Decision and New York’s response to it, you can read up on it here:
Bruen Decision Fuels Legal Challenges Nationwide – The Mag Life (gunmagwarehouse.com)
Dick Heller Beats DC Again – The Mag Life (gunmagwarehouse.com)
Is the NFA Unconstitutional? – The Mag Life (gunmagwarehouse.com)
Bruen Strikes Again: Part of Form 4473 Ruled Unconstitutional (gunmagwarehouse.com)