NEW YORK FEDERAL COURT UPHOLDS SECOND AMENDMENT, OVERRULES NYC LICENSING RULES
BY PROF. ANTHONY MICHAEL SABINO
The federal courts residing in New York City are not particularly known as staunch defenders of the Second Amendment; recall that NYSRPA v. Bruen, 597 U.S. (2022), reversed a decision of the Manhattan-based Second Circuit Court of Appeals. But could that be changing, given the irresistible force of the Supreme Court’s most recent affirmation of the Right to Keep and Bear Arms?
A most encouraging sign of a sea change in the lower courts’ thinking is found in the comprehensive ruling issued by Southern District of New York Judge John P. Cronan in Srour v. New York City, F.Supp.3d (No. 22-cv-00003) (S.D.N.Y. October 24, 2023). Joseph Srour, a Brooklyn resident, was denied licenses to possess a variety of firearms in his home. According to New York City Police Department licensing officials, Srour’s arrest record, driver’s license suspensions, and numerous traffic violations evinced “poor moral judgment,” bad character, and his general unfitness to possess a firearm. Srour thereafter challenged the relevant municipal rules (as they existed prior to Bruen being decided) as “facially unconstitutional.”
Agreeing with Srour, the court found that Gotham’s licensing regime was strikingly similar to the “‘proper cause'” strictures struck down by Bruen, given that the City’s rules empowered police officials to make “judgment call[s]…without an objective process.” The federal trial court reiterated Bruen‘s admonition that vesting such “broad discretion” in government administrators unconstitutionally impeded law-abiding citizens from exercising their Right to Keep and Bear Arms for ordinary self-defense.
While the court was unoffended by those components of the local law which predicated licensure upon objective facts, such as an applicant’s arrest record, indictments or convictions, it robustly declared that the “magnitude of discretion afforded New York City licensing officials… is not constitutionally permissible under the Second and Fourteenth Amendments.”
One of the more significant aspects of Judge Cronan’s erudite opinion was the identification of the fatal flaws in the government’s arguments. The NYPD contended that these municipal regulations merely regulated irresponsible conduct, inconsistent with lawful firearms ownership. Not so, decreed the bench.
The only conduct at issue, remonstrated Judge Cronan, is the Second Amendment right to keep and bear arms. “The question is whether such conduct in possessing firearms may be constitutionally regulated.” Therefore, allegations of a lack of moral fitness fall outside that constitutionally protected behavior.
For these reasons and more, Srour ruled that New York City’s licensing regime “fail[s] to pass constitutional muster because of the magnitude of discretion afforded to City officials in denying an individual their constitutional right to keep and bear firearms,” and because of the City’s failure to show that such unabridged discretion has “any historical analogue.” Indeed, Judge Cronan’s last point demonstrated unswerving fidelity to the “history and tradition” test articulated by Justice Thomas in Bruen.
Undoubtedly, New York City shall appeal, and, fittingly, to the same tribunal which was overturned in Bruen. It remains to be seen how the vaunted Second Circuit shall decide Srour, given the unassailable commands set forth by the Supreme Court in Bruen.