Summary
This Second Circuit opinion addresses a pre-enforcement Second Amendment challenge to New York State’s concealed carry licensing regime, including restrictions on carrying firearms in “sensitive locations,” a ban on open carry, and a requirement for a city-specific permit. Applying the Supreme Court’s framework from New York State Rifle & Pistol Ass’n v. Bruen, the court examines whether these regulations align with the nation’s historical tradition of firearm regulation. Concluding that the government has demonstrated such a historical tradition for each challenged provision, the court affirms the district court’s denial of the plaintiffs’ motion for a preliminary injunction.
Topics
Practice areas
Questions Presented
- Whether the district court abused its discretion by denying a preliminary injunction against New York's prohibition on carrying firearms in Times Square and New York City and Metro-North public transportation systems.
- Whether plaintiffs had standing to bring a pre-enforcement challenge to New York's open-carry ban.
- Whether New York's prohibition on open public carry is consistent with the Second Amendment.
- Whether New York City's requirement that holders of state concealed-carry licenses obtain a City-specific special permit to carry within the City violates the Second Amendment.
Holdings
- Plaintiffs were unlikely to succeed on their Second Amendment challenge because New York's prohibitions on carrying firearms in Times Square, the New York City subway system, and the Metro-North rail system are consistent with the Nation's historical tradition of regulating firearms in quintessentially crowded public places.
- Plaintiffs had standing to bring a pre-enforcement challenge to New York's open-carry ban because they alleged an intent to engage in constitutionally protected conduct, that the conduct was proscribed by the challenged law, and a credible threat of prosecution. A plaintiff need not plead highly particularized dates and plans when the plaintiff is deterred from engaging in the conduct solely by fear of prosecution.
- Plaintiffs were unlikely to succeed on their claim that the Second Amendment guarantees an uninhibited choice between open and concealed public carry. New York may eliminate open carry while allowing concealed carry because historical laws and decisions establish that government may prohibit one manner of public carry without altogether prohibiting public carry.
- Plaintiffs were unlikely to succeed on their challenge to New York Penal Law § 400.00(6). A state concealed-carry license holder's need to obtain a City-specific permit does not, without a showing that the process is abusive, excessively burdensome, or unavailable to qualified applicants, overcome the presumptive constitutionality of a shall-issue licensing regime.
Key quotations
“we conclude that Plaintiffs are unlikely to succeed on the merits because, based on the preliminary record before us, the government has demonstrated that each of the challenged provisions falls within our Nation’s historical tradition of gun regulations and, thus, does not violate the Second Amendment.” (at 2)
“Those laws and court decisions together evince a strong historical tradition of regulating, and often criminalizing, one manner of public carry, so long as the government does not “altogether prohibit public carry.”” (at 41)
“These laws establish that “city people have long had a different relationship with guns than their rural neighbors, a relationship generally marked by greater concern about interpersonal violence.”” (at 49)
Factual background
New York requires a license to carry a firearm in public and generally authorizes only concealed public carry of a pistol or revolver. After the Supreme Court invalidated New York's former proper-cause requirement in New York State Rifle & Pistol Ass'n, Inc. v. Bruen, the State enacted the Concealed Carry Improvement Act, which prohibited firearm possession in specified sensitive locations, including Times Square and public transportation systems. Plaintiffs Jason Frey and William Sappe held concealed-carry licenses issued outside New York City, lacked valid City special permits, and alleged that they intended to carry firearms openly or concealed in the City, Times Square, and public transportation systems but were deterred by the challenged laws.
Procedural history
Plaintiffs filed suit in 2021 and later filed a second amended complaint challenging provisions of New York's Concealed Carry Improvement Act and related licensing laws. The district court construed plaintiffs' request for emergency relief as a motion for a preliminary injunction and denied it on March 13, 2023, finding that plaintiffs were unlikely to succeed on the merits of their sensitive-location and special-permit challenges and lacked standing to challenge the open-carry ban. The Second Circuit held that plaintiffs did have standing to challenge the open-carry ban but affirmed the denial of preliminary relief on the merits as to all challenged provisions, then remanded for further proceedings.
Remand instructions
Remanded for further proceedings consistent with the opinion.