Last week, the state Court of Appeals ruled on six cases concerning the illegal possession of firearms. In each case, plaintiffs tried to argue that New York’s gun licensure system had nullified by New York State Rifle & Pistol Association, Inc. v. Bruen, the Supreme Court case from last year that struck down some of the state’s previous gun laws. The Court of Appeals largely avoided the question of what the Bruen decision meant for the state’s current gun laws, leaving advocates on both sides of the gun control debate unsure of where the state’s gun regulation will go from here.
State Attorney General Letitia James took credit for defending New York's gun laws against the Second Amendment challenges. Her office successfully argued that the Court of Appeals should not even consider the Second Amendment arguments since the plaintiffs had not made them when the case was heard by lower courts. But convincing the court not to consider the Second Amendment claims in these particular cases is not the same as convincing the court that the Second Amendment claims are wrong, and both gun rights advocates and judges on the court expect that they will have to consider in future cases whether New York's gun regulations conflict with the Supreme Court's Bruen decision.
In a dissenting opinion in one of the six cases, Associate Judge Jenny Rivera addressed the Second Amendment question and the idea that Bruen nullified New York’s regulations.
“We are in uncharted and dangerous territory, waiting to see how the law will develop in this post-Bruen era,” Rivera wrote. “But with or without the Supreme Court’s introspection, it falls to the rest of the federal and state judiciary to determine what legislatures may do to curb gun violence. For now, the majority has merely delayed resolution of these first Bruen-spawned challenges to our State’s gun laws.”
For her part, Rivera wrote that she believed the plaintiffs had overreached by suggesting that the Supreme Court’s decision in Bruen invalidated all of New York’s gun licensing laws. She argued that Bruen was only meant to rein in arbitrary gun licensing guidelines.
“Defendant’s facial challenge that the entirety of New York’s gun licensing regime is unconstitutional is without merit. The petitioners in Bruen did not challenge Penal Law § 265.03 (3)—the section defendant was convicted of violating,” she wrote. “More to the point, the Bruen majority struck down only the ‘proper cause’ provision of the regulatory scheme, which required that an applicant for a public carry license establish that they had a reason other than self-defense protection to possess a gun in public (Bruen at 2125).”
At the same time, Rivera indicated that she would be willing to strike down one controversial element of New York’s gun possession laws – the presumption that a defendant has criminal intent just because they possess a firearm in public. “There simply cannot be a criminal statutory presumption that mere public possession—not just unlicensed public possession—can be presumed to indicate an intent to use unlawfully,” she wrote.
When the Supreme Court struck down New York’s gun licensing regime last year, the state’s solution was to draw up new concealed carry laws. Unlike the old laws, the new licensing laws no longer require gun license applicants to demonstrate proper cause for why they need a gun in order to get one – but they do still require applicants to prove their good moral character.
State Senate Minority Whip Patrick Gallivan, a Republican from Elma, told City & State that many gun rights advocates believe the state’s regulations are still arbitrary and unconstitutional. “Somebody's got to render an opinion on whether you have good merit (and) moral character or not. It's not an arbitrary decision whether or not you're a convicted felon,” he said.
Gallivan said that the Court of Appeals’ most recent decisions in gun law cases will not preclude more legal challenges to New York’s gun laws from being filed. “I would say I think one thing that's certain is we'll continue to see lawsuits,” he said. “We know that the Supreme Court ruled in the Bruen decision and then New York state – I don't want to necessarily be harsh to the governor – but New York state changed their laws in response to the growing decision, essentially openly challenging the Supreme Court. I did not support those changes, but putting all that aside, I think because of that, it was controversial and we'll continue to see court cases.”
Tom King, president of the New York Rifle & Pistol Association, said that gun rights advocates definitely planned to file more lawsuits, especially given their past success in the Supreme Court. “Oh, I think they are going to come, I mean, there's probably four or five others, including a suit that we have in the Second Circuit Court of Appeals,” he said.
But Rebecca Fischer, executive director of New Yorkers Against Gun Violence, said that she was pleased with last week’s Court of Appeals decision and does not think gun rights activists should feel emboldened. “Ultimately, the majority of the court did reach a determination on procedural grounds,” Fischer said. “The fact that they didn't address it as much on the merits does not mean in any way that this particular decision would not necessarily be upheld in substance and the takeaway, regardless, is that, New Yorkers need to continue to go through the licensing process to obtain a gun, both in terms of possessing one in their home or for public carry.”
Fischer said that she and other proponents of gun control are concerned about broad interpretations of the Bruen decision. Some of the cases that the Court of Appeals decided last Tuesday concerned plaintiffs who had been denied gun licenses after allegedly threatening violence or being convicted of similar crimes in the past.
“Part of the concern when the Bruen decision was issued, was that it would be misinterpreted, misconstrued and manipulated to not only make arguments that could invalidate our laws more broadly but also to confuse the public about what laws remain on the books, when in fact, the Bruen decision did overhaul our prior licensing law in (only) one specific area, as it pertained to the discretion in terms of proper cause,” she said.
According to Fischer, law-abiding gun owners have nothing to worry about from New York’s gun licensing laws. “This (regulation) is in no way impeding on their ability to actually have the license if they can lawfully carry in the first place,” she said.
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