Skirting SCOTUS: New York’s New Gun Laws

On 06 June 2022, New York Governor Kathy Hochul signed into law Senate Bill S51001 which, in response to the recent Supreme Court decision New York State Rifle & Pistol Association, Inc., v. Bruen, dramatically alters the state’s laws concerning pistol permits, among other things. Bruen states, basically, that individuals applying for permits do not have to show a need or, “proper cause,” as the previous NY law, which stood for 100 years, required. Most of the media attention on this bill, which will go into effect on 01 September 2022, has focused on the issue of social media accounts.

It is my view that this law is intended to do, primarily, two things: 1.) Act as virtue signaling to Democrat voters in the state that something is being done to combat mass shootings in particular and gun violence in general, and 2.) Slow-roll approval of applications statewide. It will be challenged, and it will almost certainly be struck down by this Supreme Court. I believe Democratic leadership knows this.

Author’s Comment: Before I get any further, I need to be clear on a couple of things. In full disclosure, I do exercise my Second Amendment rights, almost every single day. But I do not object to some regulations. Exercising rights comes with responsibility. I have the responsibility to know how my firearm works, and how to operate it safely. I also have the responsibility to not engage in murder, mass or otherwise. That is not the point of the Second Amendment. Therefore, I do not intrinsically object to somewhat more rigorous burdens, such as enhanced/universal background checks. Additionally, it is irrefutable that many of the perpetrators of mass shootings do telegraph their intent on social media. There are, unquestionably, people who should not own firearms, either because they have shown a history of violence or because they pose an imminent threat to themselves or others. My concerns here rest with the implementation of these burdens and unforeseen implications for otherwise law-abiding citizens. There’s a fine line between helping to prevent gun violence and impeding a citizen’s right to bear arms. [End Comment]

This law does a couple of things. Actually, it does a lot of things and, if you’re a New York resident, you should read it closely. Firstly, as already mentioned, it requires that applicants provide a list of all current and former social media accounts going back three years. This, I think, is the most important, contentious, and intrusive element, and it raises a few concerns, some obvious and others not. What happens when someone forgets, in good faith, one account or another? People, especially young people, often create multiple accounts, deleting one and opening another. How would ostensibly anonymous accounts be reported? What about accounts on which the user shares sensitive information, such as nudity or descriptions of their sexual preferences and kinks, things, for example, that the average person might not want the average investigator seeing but are otherwise harmless? How will investigating officials be able to access private posts, say, on Facebook, rather than just scrolling through posts made public? What is the threshold for denying an application? Would posting a video of Body Count’s “Cop Killer” be reason enough? Would a post, “I wish I was never born,” made after breaking up with a girlfriend be sufficient? Could an investigator deny one’s application because the person being investigated was loudly critical of law enforcement or local politicians on social media? Would an investigating official’s prudish views on sex or sexuality give them reason to deny an application? There is a very real risk that laws such as these will be used for nefarious purposes. I do not know what methodologies investigators will use when making their determination. I also do not know if there is an objective meaning to the phrase “good moral character,” which is a requirement to possess a firearm.

I simply do not see this element of the law as viable or particularly enforceable, which explains my above views concerning the law’s intent. The sheer mass of social media output would strain the agency responsible, the New York State Police, and would result in either grinding the approval process to a near halt or inadequate background checking, the latter of which would nullify the purported purpose entirely. Additionally, those who advertise their intent to commit violence on social media usually do so just before they act. I am unclear as to how this law would prevent incidents like that, though it may mitigate instances in which a potential shooter has a history of making such threats. But someone who already owns firearms and for whatever reason turns to violence, this would not help much, nor would the monthly requirements described below. The window of prevention would be painfully small. As an aside, I have done social media investigations in the past, but almost always on a single individual at a time rather than, potentially, dozens. They are laborious, time-consuming, boring, and quite often give a very incomplete picture of a person.

This aspect of the law is, as mentioned, probably not constitutional under the First, Second, Fourth, Fifth, and Fourteenth Amendments and could be challenged in myriad ways. Those not familiar with those amendments should do a cursory review and it will become somewhat obvious how easily this law would be struck down by the current United States Supreme Court. Essentially, it could be denying someone of their rights without due process. In other words, a person could be denied ownership of a pistol not for having been convicted of a crime, but for something they posted on social media. And this doesn’t even address the very real First Amendment, right-to-privacy concerns, and prohibitions against unlawful search and seizure.

Section Seven of this law requires the Division of Criminal Justice Services (DCJS) to “conduct monthly checks of licensee’s records,” from criminal convictions to mental health and protective orders. I do not know how many New Yorkers are licensed pistol owners, but this provision does not seem to have existed in previous laws. I imagine that there could be some growing pains involved in implementing this requirement. “Mental health” records seems to be an allusion to so-called “red flag laws,” concerns for which I’ve discussed in depth in a post on my personal Facebook page. Again, I’m not intrinsically opposed to such laws, but I have deep concerns about their potential for abuse. For instance, I spoke with a sheriff a few years ago about the number of weapons they had stored as a result of citizens of the county losing their right to own them. There were more than 450 guns in their lockers. He told me their busiest time of year in terms of seizures due to domestic protective orders was right before hunting season. I’ll let you make your own inferences as to why.

This section also requires the implementation of a statewide database on ammunition sales and the requirement for background checks for ammunition sales. This means that when a person, who is already licensed to own a firearm, purchases ammunition for that firearm, the shopkeeper will have to keep records of that sale and, ostensibly, report it on some periodic basis to a state database. On its face, this doesn’t appear particularly nefarious. However, as with all things, there are concerns with precedence and second order effects. Some state could, hypothetically, use the existence of this provision to justify a similar database for, say, pregnancy tests in order to assist in the prevention or prosecution of illegal abortions. While this sounds ludicrous, there’s another precedence in this regard: Pseudoephedrine sales, which, though legal (like ammunition) and available without a prescription (like pregnancy tests), are highly regulated and tracked in order for law enforcement to combat methamphetamine production. I’ve also discussed this connection in a post. The social media aspect of this law could also be used by another state in which abortion is illegal. Perhaps the purchase of a pregnancy test triggers and automatic social media check. Overly zealous legislators can be incredibly creative in finding ways to restrict citizens. Sometimes these sorts of laws are used as precedent for things entirely unrelated. States enact laws and then simply let the courts figure out whether or not they are constitutional.

Sections Five and Nine are particularly interesting. Five states that it’s a class E felony to have a firearm on “private property where a property owner has not given an indication or expressly allowed a person to possess.” It should be noted that there are already a host of places in which possession of a firearm is prohibited. Nine stipulates “new safe storage laws for…firearms in vehicles,” the stated purpose being to prevent firearm thefts from cars. These two sections are very related. There will be a lot of firearms left in cars. Carrying a pistol will be a felony offense in any business that doesn’t “expressly allow” such, meaning every business is going to need to post a sign. Most small businesses will probably be unaware that they essentially will be responsible for the rights of a citizen who carries concealed. Since they aren’t aware of their role in this, they won’t likely post any signs or make “an indication,” and so concealed carry citizens will be required to leave their pistols in their vehicles. New laws will stipulate how those pistols (and other firearms) can be stored in those vehicles while their owners buy milk. Failure to properly store a firearm will be a class A misdemeanor offense. These two sections then do two things: 1.) They will dramatically limit where a person can carry, effectively reducing entirely the ability for citizens to carry; and 2.) Create criminal offenses where there before were none. Persons of Color are in some places disproportionately stopped by law enforcement. It does not require mental gymnastics to see the implications here. “Is your firearm securely stored,” might well become the new “I smelled the odor of marijuana emanating from the vehicle.”

This law does require that the applicant provide four character references. Previous laws required three, all of whom must live in the county in which the application is taking place and cannot be immediate family members. These references must “attest to the applicant’s good moral character.” I can imagine that some people will find it difficult to provide four people meeting those requirements that know the applicant well enough to make such an attestation. When I moved back to New York, I had difficulty finding three. An in-person interview will also be conducted. Additionally, licenses expire after three years, rather than five, which was the case previously. I am unclear what that means to those who have recently renewed.

For all intents and purposes, this new law makes possession of any sort of body armor illegal.

Not every aspect of this law comes with hidden concerns over its implementation. Sections Two and Three discuss the creation of firearms safety and live-fire courses for applicants. Section Six allows an applicant to “possess a pistol or revolver while undergoing live-fire range training with a qualified instructor.” Because the applicant has to undergo that training before they can legally possess (or even hold) a pistol, this provision is necessary, otherwise they’d be illegally possessing a pistol and thus disqualified. It seems silly, but… I am of the opinion that people should be trained to use their firearms, and especially so if they intend on carrying said firearms in public. A great many avid supporters of the Second Amendment couldn’t tell you any of the weapons safety rules and have painfully little knowledge of how their guns work. I’m generally not in favor of many mandates, but given that these people aren’t taking the initiative to learn, and given the plethora of accidental injuries or deaths as a result of poor weapons handling skills, I suppose that’s a price I’m willing to pay. Proper training and familiarity is, in my view, critically important.

There will also be an appeals process established for those who have either been denied or have had an existing license revoked. The licensing officer must provide written notice to the applicant as to the reasons, and the applicant has ninety days to appeal. They may be represented by an attorney at the appeals board. Strangely, this appeals process will not be implemented until July 2023. That said, how many people will use the appeals process at all? I would, at some future point, love to see the numbers on denials and appeals.

This is an expansive law with many provisions and caveats, despite the preponderance of the attention, rightfully, being given to the social media aspects. It is undoubtedly an attempt to do an end run around Bruen and will be the law of the land until challenged and, likely, struck down. New Yorkers, especially those who currently own or wish to own in the future, should be familiar with its contents as it changes a lot of things. But other New Yorkers and frankly residents in all of the states should be paying close attention to the potential ramifications. This law and others like it offer motivated legislators an opportunity to apply the restrictions contained within it in new and novel ways to enact various ideological agendas. I realize that there will be many supporters of this law, particularly from the left, as a legitimate effort to combat gun violence. Those on the right will be less enthusiastic. The concern for me is unintended consequences that cannot be clearly seen at this time. Gun violence and mass shootings are a very real issue that we as a society need to address, but it will require a holistic approach, sometimes in seemingly paradoxical ways. If it is painfully easy to restrict certain rights, the potential to restrict others will leave some salivating.