In July, I filed suit against New York’s new social media, references, and training requirements for gun license applicants, created after the U.S. Supreme Court ruled that the state’s policy of allowing gun rights only to those whom the state believed had shown a “good reason” to exercise them. Four months later, the court today orally denied a motion to preliminarily enjoin those requirements. (A written opinion will be forthcoming.)
As to the social media and references requirement, the state argued that these requirements will not apply to those who submitted their applications before the law took effect, as I had done, thus negating my “standing” to sue. That is, the law doesn’t directly affect me (yet), so I can’t challenge it (yet). To be fair, assuming the government is going to process my pending application without giving effect to those requirements, the court got this one right. I am skeptical that they will process my application in this way, but the claims can be re-asserted if and when they “change their mind.”
As to the training requirement, the government needed to demonstrate a historical analog — in other words, a tradition of similar restrictions from the time the Second and Fourteenth Amendments were passed. The government argued that since everyone had to be in the state militia, and the militia had substantial training requirements, there is indeed an analog. The court was persuaded; however, on this issue, I believe the court made a mistake. Militia service and training requirements were not connected with gun ownership. One who was not male, or in the right age range, was not required to serve, but also not precluded from having a gun. Neither was one who simply disobeyed the service requirement. The Supreme Court has been clear that the rights conferred by the Second Amendment are not connected to militia membership, yet here we are with yet another ruling trying to connect them.
I intend to appeal the decision on the training requirement to the U.S. Court of Appeals for the Second Circuit. As almost 8 months has passed since I filed a license application without any indication of processing, I also intend to add a claim of unconstitutional delay to the case. I know that, for many, this ruling is disappointing, but it is a step towards the ultimate resolution, and sets up a scenario where the Second Circuit either upholds a law based on re-connecting the right to militia membership — something that the Supreme Court plainly will not tolerate — or fixes this issue. And, regarding the social media and references requirement, if you or someone you know has applied for a carry license in New York after August 2022 and they would like representation, please be in touch and perhaps we can get these issues back on the board sooner rather than later.