Citing prejudiced historical gun bans is unlikely to convince federal courts to uphold New York’s “good moral character” clause.
That’s one of the key takeaways from what several Constitutional law experts told The Reload. Those experts doubted the state’s argument would persuade judges, especially those at the Supreme Court.
“This analogy seems unlikely to persuade the courts,” Adam Winkler, a constitutional law professor at UCLA, told The Reload.
Josh Blackman, a South Texas College of Law professor specializing in Constitutional law, agreed.
“I do not think New York’s argument will gain much traction,” he told The Reload.
The office of New York Attorney General Letitia James (D.) defended the state’s practice of denying gun-carry permits on the subjective basis of whether officials believe they are of “good character” by pointing to an “Anglo-American” tradition of barring Native Americans from owning guns.
“From the early days of English settlement in America, the colonies sought to prevent Native American tribes from acquiring firearms, passing laws forbidding the sale and trading of arms to Indigenous people,” the Monday filing reads.
The state further pointed to laws denying people their gun rights based on religion as another example of the tradition its requirement is based in.
“[E]ven after the English Bill of Rights established a right of the people to arm themselves, the right was only given to Protestants, based on a continued belief that Catholics were likely to engage in conduct that would harm themselves or others and upset the peace,” the filing said.
New York admitted the laws they claimed as “relevantly similar” to their own were bigoted. However, it argued they remained viable as examples of the state denying gun rights to those they deem dangerous or suspect even though those determinations were based largely on prejudice.
“A clear-eyed look at American history and doctrine will necessarily reveal episodes that are shameful but nonetheless relevant, as the Bruen opinion teaches us,” the filing said in a footnote. “Of course, if a modern instance were to arise where gun licensing requirements were applied in a discriminatory manner, it could, should, and would be struck down as unconstitutional.”
The experts said New York likely used this line of argument in order to try and fulfill the Supreme Court’s new standard for upholding gun restrictions. In New York State Rifle and Pistol Association v. Bruen, the Court decided modern gun regulations that conflict with the text of the Second Amendment can only be upheld if there is a historical analogue for them.
Winkler and Eric Ruben, a Constitutional law specialist at Southern Methodist University’s Dedman School of Law, said the argument is doing what the Court required.
“I think it’s important not to lose sight of why New York is talking about these historical gun laws: because Bruen requires the government to point to historical analogues to shore up the constitutionality of modern-day gun laws aimed at modern-day problems,” Ruben said. “We are likely to see a lot of odd attempts at historical analogy simply because the conservative majority in Bruen said that’s how Second Amendment cases are to be litigated, as opposed to a more conventional approach like tiered scrutiny. Before Bruen, I doubt we’d see arguments like this.”
Robert Leider, Assistant Professor at George Mason University’s Antonin Scalia Law School, said attempts to draw a connection between the modern licensing requirement and 17th or 18th Century bigoted gun bans are proving perilous. He said New York’s argument is unpersuasive and the result of having little else to rely on.
“There is not much historical precedent for many of New York’s current gun control laws,” Leider told The Reload. “Trying to find historical support anywhere it can, New York is now using laws that discriminated against American Indians and Catholics to justify their current laws. New York is stringing together these precedents to support a vague general principle that the government can disarm anyone the government deems dangerous.”
Winkler agreed the argument is born out of the limited number of historical gun laws New York has to pull from.
“The Court says that only laws from the 1700s and 1800s can provide historical precedent for today’s gun laws, and many gun laws in those older days were discriminatory,” he said. “NY is now forced to look to a racist past to justify current gun restrictions.”
However, he noted New York isn’t the first to make this comparison.
“Don Kates and other gun rights advocates have argued that felon bans are just modern-day versions of Founding-era laws banning blacks from possessing firearms,” he said. “They have argued for years that government can limit guns to ‘trustworthy’ or ‘virtuous’ people, and those early racist laws were just an unfortunate application of a broader government power.”
Andrew Willinger, Executive Director of the Duke University Center for Firearms Law, noted the argument has even been referenced by Justice Amy Coney Barrett in a gun case while she was a district court judge.
“While it’s not cited in this portion of NY’s brief, this is largely the same theory that then-Judge Amy Coney Barrett articulated in her 2019 dissent in Kanter v. Barr,” he said. “Justice Barrett considered these laws, and others, to constitute a historical tradition establishing ‘that legislatures have the power to prohibit dangerous people from possessing guns.'”
Willinger suggested that could indicate Barrett and others on the Court may be open to the idea. However, Leider argued the Court is unlikely to be persuaded the bigoted prohibitions are similar to New York’s law even if decoupled from their prejudiced motivations.
“[M]ost of these laws affected only those who were thought, at the time these laws were passed, to be beyond the protection of the right to bear arms,” he said. “They are not good precedent to demonstrate how restrictive laws may be against those who fell within the right to bear arms.”
Blackman noted the Court has taken a dim view of trying to argue racist gun restrictions are instructive if applied equally to everyone.
“The United States has an unfortunate history of denying civil rights to certain groups,” he said. “Bruen recognized that slaves and freedmen, in particular, were denied the right to keep and bear arms, while white people were allowed to exercise their Second Amendment rights. Bruen recognized that race-based denial of this civil right does not undermine the existence of the civil right.”
Still, most of the experts agreed that subjective consideration for who can and can’t obtain gun-carry permits has a better chance of surviving for other reasons.
“I think New York’s stronger argument in support of the good moral character requirement—and the argument the state led with in its brief, even though the historical comparators are likely to get more attention—is that the Court in Bruen specifically blessed licensing frameworks with a ‘good moral character’ or ‘suitability’ requirement such as DE, CT, and RI,” Willinger said. “Looking at footnote 1 of the majority opinion, the Court doesn’t seem to have any issue with these types of requirements so long as they don’t operate in practice like the ‘proper cause’ test.”
Leider said “some discretionary judgments” are likely to survive scrutiny.
“Many shall-issue states have these provisions in their laws, including states with fairly liberal gun policies such as Pennsylvania and New Hampshire,” he said. “I doubt the courts will invalidate all discretionary criteria.”
However, he said New York’s tendency to set low bars for denying permit applications could put it at special risk of having its regulations struck down.
“New York may find individual decisions vacated in as-applied challenges,” Leider said. “For example, New York City had threatened to refuse firearm licenses to individuals with too many traffic citations. After Bruen, I doubt New York City can continue that policy.”