On Monday, March 25th, 2024, the Peace Officers’ Research Association of California, the California Association of Highway Patrolmen, the California State Sheriffs' Association and the Crime Prevention Research Center (CPPC) filed an amicus brief in support of a Petition for Certiorari to review the constitutionality of New York’s new concealed carry law, which severely restricts the places CCW permit holders may carry concealed handguns much like California’s Senate Bill 2 (SB 2).
The brief is in connection to the U.S. Supreme Court case of Ivan Antonyuk, et al. v. Steven James, the Acting Superintendent of the New York State Police, et al. The case challenges New York’s Concealed Carry Improvement Act (CCIA), a revised gun law adopted in New York in July 2022 – only days after the Supreme Court’s landmark ruling in New York State Rifle & Pistol Association Inc. v. Bruen (Bruen).
In Bruen, SCOTUS struck down as unconstitutional New York’s concealed carry law that required an individual to provide “proper cause” existed before a concealed carry license would be issued. The court held that this “proper cause” requirement violated the 14th Amendment because it prevented law-abiding citizens who have ordinary self-defense needs from exercising their 2nd Amendment right to keep and bear arms. Following Bruen, New York and California issued laws in an obvious attempt to evade the ruling.
In February, PORAC, the California Association of Highway Patrolmen (CAHP), the California State Sheriffs’ Association (CSSA), and the Crime Prevention Research Center (CPPC) filed an amicus brief in the Ninth Circuit Court of Appeals challenging California’s SB 2. The related amicus filed in Antonyuk similarly challenges the unconstitutional efforts to defy the mandates of Bruen. The brief seeks to enforce the Bruen ruling by safeguarding citizen’s self-defense rights in public.
New
York’s Revised Concealed Carry Law & Similarities to California’s Senate
Bill 2
Coined as the “Bruen Response
Bill,” the CCIA restricts gun access by making the licensing process more
onerous and expands the list of designated “sensitive places” where carrying
firearms is prohibited. In place of the “proper cause” standard that Bruen invalidated,
the CCIA requires an applicant to demonstrate “good moral character.” “Good
moral character” is defined as “having the essential character, temperament and
judgment necessary to be entrusted with a weapon and to use it only in a manner
that does not endanger oneself or others.” The CCIA demands character
references, information about cohabitants and adult children, a personal
“interview” with a licensing official, more than two full days of firearms
training, and a list of social media accounts.
For those that persevere through this process, the CCIA then restricts where in public a licensee may carry a firearm, declaring not just the “island of Manhattan” but virtually the entire landmass of New York a “sensitive place.” When asked where New Yorkers could carry under the CCIA, Governor Hochul responded “[p]probably some streets.” These so-called “sensitive locations” include 20 categories, including the most ordinary locations. Filling in the gaps, the CCIA also effectively names all private properties in New York as “restricted locations” unless the owner posts “clear and conspicuous signage” or gives “express consent.”
Like the CCIA, California’s SB 2
renders concealed carry permits effectively impossible to exercise by defining
nearly every location as a prohibited “sensitive place.” Both SB 2 and the CCIA
fail to adhere to the Bruen directive by expanding longstanding
sensitive place definitions to encompass nearly their entire states, other than
some streets and sidewalks.
Procedural History
Plaintiffs in the Antonyuk litigation
first challenged certain provisions of the CCIA in district court under the
First, Second, Fifth, and Fourteenth Amendments. The district court struck down
several provisions of the CCIA, barring enforcement of those provisions. The
Second Circuit then issued a stay effectively putting the district court’s
ruling on hold. And in December 2023, the Second Circuit vacated much of the
district court’s injunction, finding virtually all of the CCIA to be facially
constitutional under the 2nd Amendment.
In February 2024, petitioners filed
a petition for certiorari asking the U.S. Supreme Court to review the Second
Circuit’s December decision. The petition seeks review of two primary
questions: (1) the proper historical time period for Bruen analysis; and
(2) whether a “good moral character” requirement conflicts with Bruen.
Protecting Bruen & Public Safety
In Bruen, the Supreme Court
identified “settled” sensitive places (like legislative assembles, polling
places, and courthouses) where carrying a firearm is prohibited. The Court
concluded that laws restricting protected 2nd Amendment conduct must
be “consistent with the Nation’s historical tradition of firearm regulation.”
As to whether there are special places where the right to carry might be
restricted without infringing on 2nd Amendment rights, the Court
explained that the “historical record yields relatively few 18th and
19th century ‘sensitive places.’” Likewise, the Court cautioned that
“expanding the category of ‘sensitive places’ simply to all places of public
congregation that are not isolated from law enforcement” is too broad of a
category and would essentially eviscerate the general right to publicly carry
arms.
In addition to the constitutional
challenges presented by SB 2 and the CCIA, the laws themselves make little
sense from a law enforcement perspective and do little to address lawmakers’
purported public safety concerns. CCW permit holders are some of the most
highly vetted, trained, responsible, and law-abiding citizens. Violent
criminals do not bother with CCW permits and simply carry illegally, and
criminals intent on murder will not be deterred by these “sensitive place”
designations. In actuality, criminals intent on committing a mass murder will
likely choose to do so in a “sensitive place” where he or she is less likely to
encounter armed citizens.
Again, these interests align with the research findings of renowned CPPC President John Lott, Jr., Ph.D. The Antonyuk brief cites his research concluding that right to carry laws actually reduce violent crime, especially murder and rape, whereas expansive restrictions on CCW permits may actually induce more violence.
Laws such as SB 2 and the CCIA encourage gun violence by constricting self-defense options and reducing risks to criminals. States sincerely desiring to reduce gun violence and promote public safety could – instead of infringing on 2nd Amendment protections and defying Bruen directives – enact laws and fund enforcement to keep guns out of the hands of prohibited persons and to impose meaningful consequences when guns are used in violent crimes.
The constitutionality of restrictions
on where concealed carry may be prohibited is a serious national concern,
particularly for the Sheriffs who issue the permits and the officers that must
enforce constitutionally suspect laws.
Forcing officers to potentially violate citizens’ civil rights will subject
officers to section 1983 liability and damages public confidence in law
enforcement. Moreover, officers have a
direct interest in protecting their own right to self-defense and concealed
carry in their retirement.
Attorneys David E. Mastagni, Taylor Davies-Mahaffey, and Timothy Talbot authored the brief.
