Parts of New York’s gun law mandating social media background checks reinstated, provision banning guns in places of worship temporarily blocked

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New York’s Concealed Carry Improvement Act was temporarily restored after a federal judge blocked several of its provisions, though a separate temporary stay was issued on a provision regarding guns in places of worship. The law also required handgun permit applicants to provide three years of recent social media activity for officials to vet for signs of violence, assessing the “character and conduct” of applicants. 

Key Players

Kathy Hochul, the 57th governor of New York, previously served as a Democratic member of the U.S. House of Representatives, representing the 26th District in Western New York, encompassing Buffalo and parts of Erie and Niagara counties. 

State Sen. Andrea Stewart-Cousins (D), the majority leader, first assumed office in 2007, representing the 35th District, encompassing Greenburgh, Scarsdale, and parts of White Plains, New Rochelle, and Yonkers. She introduced bill S51001, the gun-control measure at issue.

State Sen. Andrew Lanza (R) condemned the law. He represents the 24th District, encompassing a significant portion of Staten Island. He too assumed office in 2007 and previously served on the New York City Council. 

Ivan Antonyuk, a New Yorker and member of the Gun Owners Association of America (GOAA), filed two complaints against Hochul and other officials after the law went into effect. 

Brady, a gun control advocacy organization, seeks to end gun violence through education, litigation, and legislation. Founded in 1974, Brady was instrumental in passing the 1993 Brady Handgun Violence Prevention Act, a federal law requiring background checks for gun sales.

The National Shooting Sports Foundation (NSSF), the trade association for the firearms industry, was founded in 1961 and represents the hunting and shooting industries. It provides membership for manufacturers, distributors, retailers, shooting ranges, and other affiliated organizations.

Further Details

On June 23, 2022, the U.S. Supreme Court ruled that the state’s law barring most people from publicly carrying guns was unconstitutional, overturning a century-old law, The New York Times reported. 

On July 1, the CCIA was introduced as an emergency measure. It passed by a 90-52 vote in the state general assembly, and a 43-20 vote in the state senate. That same day, Hochul signed the bill into law, mandating that handgun permit applicants provide three years of social media activity for law enforcement to make a “character and conduct” assessment, among other requirements, U.S. News reported. 

Hochul stressed the troubling social media posts of the Buffalo shooter, who livestreamed his murder of 10 Black people in a grocery store in May 2022. His online activity included an affinity for white supremacy, the Times Union reported. 

The law states that applicants must prove they have “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 and others.” Under its terms, local sheriff’s staff, judges, or county clerks are to vet three years’ worth of social media accounts of would-be gun purchasers for any signs of threatening statements or violent behavior, NPR reported. 

Tanya Schardt, director of state and federal policy at Brady, said the law’s passage reflected the fact that the Supreme Court had shifted responsibility to states to vet those who carry firearms in public, U.S. News reported.

Democratic lawmakers pledged to designate 100 full-time employees to help facilitate background checks and other measures. State police and the Division of Criminal Justice Services would be integral in processing background checks and permits, the Times Union reported. 

Individuals whose permits are denied or revoked due to a conviction or court order have the right to appeal. A spokesperson from Stewart-Cousins’s office told The Free Speech Project that existing permit holders are subject to the law when they are next required to renew their license. 

State Republican lawmakers condemned the law’s expeditious passage, stating that they had less than a day to review it, and that the public did not have time to form an opinion on it. 

“What is being proposed in New York is a violation of Second Amendment rights, but they are also asking you to sign away your privacy rights for social media accounts, signing away your First Amendment rights,” said Mark Liva, managing director of public affairs for the NSSF. 

“Now we’re going to let the pizzeria owner decide whether or not I can express my constitutional right,” Lanza said in reference to the law requiring local businesses to display whether or not firearms were allowed in their establishment. “This is a disgrace. See you in the courts. You all know this is unconstitutional,” Lanza added. 

While many state Democratic leaders and gun control advocacy groups applauded the legislation’s passage, First Amendment questions loomed large. In terms of enforcement, James Densley, a criminal justice professor at Metro State University in Denver, Colorado, said the law opens “a can of worms.” 

“Where this will get tricky is to what extent is this expression and to what extent is this evidence of wrongdoing?” Densely said, referring to Free Speech intersecting with threatening statements on social media. 

Adam Scott Wandt, a public policy professor at the John Jay College of Criminal Justice, called the law a “slippery slope,” arguing it slowly reduced individuals’ “rights to carry guns and allow a bureaucracy to decide, based on unclear criteria, who can have a gun and who cannot. Which is exactly what the Supreme Court was trying to avoid.”

For the social media background checks, local officials expressed the need for additional resources. As the law requires New York rapidly to create a system for conducting such background checks, Hochul stated that, if necessary, outside consultants would be hired to assist with implementation, Times Union reported.

Peter Kehoe, executive director of the New York Sheriffs’ Association, claimed sheriffs have not received any additional funds or staff and questioned whether officers would look at applicants’ social media history at all, U.S. News reported.

Outcome

Law goes into effect, pro-gun activists files lawsuit

On Sept. 1, the law went into effect. Three weeks later, Antonyuk and “five like-minded individuals” filed a lawsuit against Hochul and other officials, asserting that the law violated their First, Second, and 14th Amendment rights. 

Notably, Antonyuk had filed a similar complaint after the law’s passage, but his request for a preliminary injunction was rejected in August 2022 by U.S. District Judge Glenn T. Suddaby, nominated by former President George W. Bush, due to a seeming lack of standing to bring the case. 

However, Suddaby noted the law was “vague” and “subjective” enough that a lawsuit could likely succeed on the merits, The Daily Caller reported. 

Suddaby pauses law, state attorney general files appeal

On Oct. 6, Suddaby ruled that the law’s social media requirement was unconstitutional, temporarily blocking that aspect of the law, as well as several other provisions, The New York Post reported.  

Suddaby wrote Antonyuk had “made a strong showing that they will likely experience irreparable harm if” he did not grant the injunction. He said the burden of proof of having “good moral character” should not rest on applicants. 

On Oct. 10, state Attorney General Letitia James (D) filed an appeal to keep the law in effect while the court determined whether aspects of it violated the Constitution, Concealed Carry reported. 

Federal appeals court reverses Suddaby’s decision, 

On Oct. 12, the U.S. Court of Appeals for the 2nd Circuit issued a temporary reversal of Suddaby’s ruling, which allowed the law to remain in effect until an official ruling from the three-judge panel, Reuters reported.  

“I am pleased that the full Concealed Carry Improvement Act will stay in effect and continue to protect communities as the appeals process moves forward,” James stated. “My office will continue our efforts to protect the safety of everyday New Yorkers and defend our common-sense gun laws.”

District court blocks separate provision

The next day, two pastors in Western New York filed a federal lawsuit against Erie County District Attorney John Flynn, whose office would be tasked with prosecuting those who broke the CCIA, WGRZ reported. The pastors argued that a provision outlawing guns in churches, synagogues, mosques, or other places of worship violated their Second Amendment rights.

On Oct. 20, U.S. District Judge John L. Sinatra, nominated by former President Donald Trump, issued a temporary restraining order against the provision.

“Here, absent a TRO, Plaintiffs’ constitutional rights are being violated,” Sinatra said. “Law-abiding citizens are forced to forgo their Second Amendment rights to exercise their First Amendment rights to free exercise of religion, or vice versa.”

As of Dec. 6, there were no further developments.