The Empire Strikes Back

New York thumbs its nose at the Supreme Court with new gun control legislation.

This is the second in a series of articles co-written by Shipwreckedcrew and F.X. Regan. Shipwrecked is an attorney who spent 22 years as an Assistant United States Attorney, and for the past 9 years has been a defense attorney in private practice. F.X. Regan is a former police officer and retired FBI agent, who went on to work as a VP for corporate security for two national corporations for several years. Currently, he is a licensed private investigator and a full-time author. Follow him at @fxregan on Twitter, or www.fxregan.com. 

State legislators in New York — the Empire State — took up the U.S. Supreme Court’s challenge to “Do your jobs” this past week by crafting a new law arguably more restrictive toward gun rights than the law struck down by the Supreme Court’s recent decision in New York State Rifle & Gun Club, Inc. v. Bruen. 

In three momentous decisions, this past term the Court observed Congress and state legislators were failing to fulfill their governing responsibilities. On gun rights, the Supreme Court ruled against a New York law that restricted concealed carry permits only to persons who demonstrated “proper cause” as determined by state officials. The effect of the law was that most New Yorkers who did not have a compelling reason to carry a firearm (such as carrying large amounts of cash for a business, or in some cases were not celebrities — many celebrities and journalists are among those who bragged they had permits) were unable to legally carry firearms on their persons.

The Court ruled in a 6-3 decision in New York State Rifle & Pistol Club v. Bruen. that states could not engage in application schemes that effectively denied rights guaranteed to citizens under the Second Amendment.  No other right enumerated in the Bill of Rights it said, required a citizen to demonstrate a “proper cause” upon which to claim said right. The Court noted that the Second Amendment specifically guaranteed a right to “bear arms” and that New York’s law abridged that right as it was written and applied. In prior terms, the Court had held in District of Columbia v. Heller (2008) and McDonald v. City of Chicago (2010), that the first part of the Second Amendment – the right to “keep arms” – was a personal right belonging to all citizens.

But NY Governor Kathy Hochul wasted no time after the Supreme Court’s decision in summoning the New York’s Legislature back to an “extraordinary session” to -- in her words -- “make sure that we’ve done everything we can to protect the citizens of this state.” We’ll leave it for a future article to debate whether the citizens of New York, particularly those in New York City, which is under a rash of exploding violent crime, were adequately “protected” while New York’s prior gun laws were in place prohibiting the lawful carrying of firearms.

Our analysis of the new legislation the Governor signed into law on July 1st is that it is unserious and merely a new regulatory scheme designed to invite years of litigation to overcome new obstacles that obstruct lawful gun possession.  The goal seems to be freezing the status quo in place while awaiting a more favorable Supreme Court somewhere down the road.

Let’s review some of the unconstitutional aspects of the new law:

The first is probably the most reasonable, but not without problems. It requires conceal carry applicants to complete sixteen hours of training before a permit is issued. It’s always helpful with Second Amendment laws to ask the same questions about other rights contained in the Constitution -- none requires any training prior to their exercise.

The law requires a background check for purchasing ammunition. This is onerous and designed to just make it more difficult since federal law already requires a background check to buy the firearm itself. But what function do such efforts really serve?  Department of Justice statistics show “lie and try” prosecutions of those who illegally attempted to purchase firearms numbered only 12 in 2017 – out of 112,000 reported attempts to illegally purchase a firearm.  Hunter Biden immediately comes to mind in this regard.  He famously lied about not being a drug user and then illegally purchased a weapon in 2018. Violations of the new New York law constitute a felony.  Is there any reason to believe it would be more enthusiastically prosecuted than the federal law?  Or is the only purpose of the new law to create yet another bureaucratic hurdle for lawful purchasers of ammunition?

Moving up the absurdity scale, the law requires that applicants provide four references who can vouch for their character. Again, we find no other Constitutional right requiring letters from friends.  Consider the Supreme Court’s Dobbs decision ruling last week overturning Roe v. Wade: Imagine if for fifty years the right to an abortion was conditioned on first providing letters from four friends stating that you should be allowed to have an abortion.   

Or imagine being on trial for a criminal offense and the prosecutor calling you to the witness stand to testify. You invoke your Fifth Amendment Right against self-incrimination. “Sorry,” the court rules, “you have not provided the four references required to invoke this right.”

The New York law bans those who do successfully jump through these hurdles from carrying a firearm at dozens of locales it deems “sensitive.” These include among other places; schools, government buildings, courthouses, zoos, entertainment venues, parks, places children gather, houses of worship, health and medical facilities, subways - and our personal favorite --any place of business that does not put up a sign affirming they do approve of carrying a weapon. Let’s call that “The Merchant’s Veto”.  This is simply an end-run around the Supreme Court’s decision, creating a de facto ban on carrying a firearm pretty much anywhere a New Yorker would find themselves, except the middle of the street -- but not the middle of the street in Times Square as it’s on the list too.

The next ludicrous requirement is that the names of all persons in an applicant’s household be turned over so they too can be subjected to a background check. We’ll just leave it at your ne’er-do-well nephew’s character, even if he lives with you, should have no bearing on your ability to avail yourself of any constitutional right you possess.

Our favorite requirement is that applicants for a permit to carry a firearm are required to submit three years’ worth of social media activity to “verify character and conduct.” This presupposes that New York has a legion of bureaucrats ready to pour over social media data in search of information that discerns “character.”  What kind of “conduct” are they looking for?

Let’s start with the fact that many people have a dozen or more social media accounts. Actually, let’s start by defining what a social media platform is. We get Facebook, Twitter, and Instagram are naturals. What about subscription services, apps, podcasts, or streaming services?  What about text messages stored in your “cloud account”? What about those in foreign languages?  

Social media, for all its technology, is just a metaphor for the high-tech public square. It’s a place where people gather to exercise the constitutional right appropriately named, the First Amendment. It is truly Un-American to imagine government bureaucrats having the lawful authority to vet the past exercise of free speech rights as a condition for granting a “permit” to exercise other constitutional rights. If the years of public debate and Congressional hearings have taught us anything about social media companies, it is that they themselves are horrible at vetting and censoring speech that appears on their platforms. What makes us think the State of New York will be better at this? (See also the Department of Homeland Security’s short-lived attempt at establishing a “Disinformation Governance Board.”)

Finally, Governor Hochul telegraphed her antipathy to New York citizens lawfully carrying firearms the day before she signed the legislation when answering a reporter’s question. WRGB anchor Anne McCloy asked her,

“Do you have numbers to show that it’s the concealed carry permit holders that are committing crimes? Because the lawful gun owner will say that you’re attacking the wrong person, it’s really people that are getting these guns illegally that are causing the violence - not the people going and getting the permit legally. And that’s the basis for the whole Supreme Court argument. Do you have the numbers?”

The Governor’s snarky response?

“I don’t need to have numbers. I don’t have to have a data to point to say this.” (Sic)

The Supreme Court ruling only addressed the nine states that had “may issue” laws. i.e., the right to carry a concealed weapon was conditioned upon approval based on factors the state deemed important (NY, CA, HI, RI, CT, NJ, MA, DE, and MD.) Twenty-five states are known as “Constitutional Carry” states that don’t require any permit to carry a concealed weapon. Anyone deemed eligible to own a gun can carry it, with very few exceptions. The number of Constitutional Carry states has expanded significantly over the last twenty years. Nobody in these states, the Governor, the legislators, or the police know who is carrying concealed weapons, where, and in what numbers.

Is there any doubt that had gun crimes in the Constitutional Carry states risen in any significant way over twenty years, the gun control advocates would have made sure the rest of the country knew that with the data proving that to be true?  Horchul and others objecting to the Supreme Court’s recent decision, including many in the media, would be shouting the “numbers and the data” from the rooftops to justify their positions if such data existed. This is a clear case where the absence of evidence, is evidence of absence.

Our prediction is that the New York gun legislation signed last week will last significantly shorter than the 112 years the Sullivan Act survived – the law overturned by the Supreme Court. The new law signed on July 1st was a rush to thwart the Supreme Court’s recent ruling and will be swiftly overturned, maybe even by courts in New York. If they actually read the ruling in New York State Rifle & Pistol Club v. Bruen.