New York Gun Policies Rebuked by Supreme Court on First, Second Amendment Grounds
9.3.2024
Rulings To Restrict Would-Be Firearm Regulators Across the Country
A pair of gun-related cases decided this summer by the U.S. Supreme Court will restrict state firearms rules that infringe federal civil rights, not just in New York State but across the nation.
The first case, NRA v. Vullo, was decided unanimously, 9-0, by the high court.[1] It found that the Cuomo administration violated the First Amendment of the U.S. Constitution by coercing regulated financial institutions to “punish or suppress” the National Rifle Association’s gun-promotion advocacy.
In Antonyuk v. James, the justices demonstrated a conservative/liberal divergence of opinion with a 6-3 vote.[2] The decision declares that a New York law restricting concealed carry permits interfered with federal Second Amendment rights.
Analysis: Viewpoint Discrimination Prohibited
With both of these gun-related rulings, the Supreme Court favored federal constitutional rights over what the justices saw as unreasonable regulatory reach on the state level. Government regulation of guns is a legitimate government interest, but the court says it should be weighed with the protections of the Bill of Rights in mind. This is consistent with the Bill of Rights jurisprudence of the court over the years. In Rosenberger v. Board of Visitors of the University of Virginia (1995), the court held that the University of Virginia could not discriminate against the viewpoint of a student group, and deny it funding, based on the group’s First Amendment rights. Similarly, the court found in Good News Club v. Milford Central School (2001) that the school district could not discriminate against the viewpoint of a group when allocating after-school space for recreational activities.
As in another high-profile case this term with national impact, the overturning of the 40-year-old Chevron doctrine, it is clear that the court does not give complete deference to administrative agencies. This is part of the conservative viewpoint that the administrative state has grown in power in ways not foreseen in the 18th century. The thinking articulated through this ruling will have national impact.
In NRA v. Vullo, the Cuomo administration wanted government agencies in other states they were collaborating with to use the New York policy as a model for their own regulations.
“I urge you to examine your laws and determine whether or not this product [insurance rebranded and resold by the NRA] is being ‘sold in your state,’” Gov. Cuomo wrote in a letter on Aug. 8, 2018 to the governors of the other 49 states, a copy of which was obtained by the New York State Bar Association Journal. Then-Governor Cuomo also encouraged policymakers to follow New York’s lead to outlaw insurance products sold by the NRA if they are not already prohibited.
Justice Sotomayor Penned the NRA Ruling
Given the ruling, that grand goal of Cuomo’s is no longer attainable for policymakers across the country. The justices’ ruling notes that the purpose of the state’s financial services agency is to regulate financial services, to paraphrase the court’s opinion, not govern the gun industry through the back door.
Justice Sonia Sotomayor’s opinion stated, “At the heart of the First Amendment’s Free Speech Clause is the recognition that viewpoint discrimination is uniquely harmful to a free and democratic society. . . . The takeaway is that the First Amendment prohibits government officials from wielding their power selectively to punish or suppress speech.”
The NRA contracted with entities regulated by the Department of Financial Services – affiliates of Lockton Companies – to administer insurance polices the NRA offered as a benefit to its members, which Chubb Limited and Lloyd’s of London would then underwrite, according to the court ruling.
“Vullo met with senior executives at Lloyd’s, expressed her views in favor of gun control, and told the Lloyd’s executives ‘that DFS was less interested in pursuing’ infractions unrelated to any NRA business ‘so long as Lloyd’s ceased providing insurance to gun groups, especially the NRA,’” the court ruling indicates.
The American Civil Liberties Union advocated for the NRA in the much-anticipated case. The ACLU argued that the NRA’s gun-promotion advocacy was harmed by denying it essential financial services needed to operate the organization. The Second Circuit had held that the actions of Maria Vullo, the Department of Financial Services administrator, constituted permissible government speech and legitimate law enforcement. The Supreme Court granted certiorari to address whether the NRA’s complaint stated a First Amendment claim. The justices determined that the regulatory machinations did violate the free speech rights of the NRA.
The ruling points to the fact that Vullo and Governor Cuomo issued a joint press release echoing many of the letters’ statements, and “‘urg[ing] all insurance companies and banks doing business in New York’” to join those “‘that have already discontinued their arrangements with the NRA.’” The court ruled that kind of viewpoint discrimination was “uniquely harmful” in a democracy.
However, Sotomayor explained that the NRA is not immune from government investigations and regulations. And, she observed, Vullo was “free to criticize the NRA and pursue the conceded violations of New York insurance law.” What she could not do, however, was use her power as the head of the Department of Financial Services to “threaten enforcement actions” against entities that the department regulated “to punish or suppress the NRA’s gun-promotion advocacy.”
The conservative think tank The Cato Institute, in Washington D.C., said in its blog that “free-expression advocates won a big victory at the Supreme Court” with the NRA decision, noting also that New York’s actions “provided a road map for officials to circumvent the First Amendment’s protection for freedom of speech.” This road map was articulated by then-Gov. Cuomo in his letter, cited above, which detailed what New York’s actions were, and suggested they provided guidelines for other states to follow. The case took years to make it to the high court, which gave other states basically all the time they needed to shape new rules mirroring the New York precedent, were they so inclined.
Analysis: ‘Proper Cause’ Requirement Improper
At issue in the other gun-rights ruling this summer, Antonyuk v. James, the Supreme Court overturned a gun control law in New York that required showing a “proper cause” for an applicant to get a license to carry a concealed handgun outside of her home. The litigation was brought by a gun rights organization, the New York State Rifle and Pistol Association.
Writing for the majority, Justice Clarence Thomas opined, “New York’s ‘proper-cause requirement’ violates the 14th Amendment by preventing law-abiding citizens with ordinary self-defense needs from exercising their Second Amendment right to keep and bear arms in public for self-defense.”
This ruling is linked to an earlier Supreme Court case weighing public safety standards against interpretations of the Second Amendment, which the court reaffirmed.
Back in 2021, in the Bruen decision, Justice Thomas wrote that New York imposed unconstitutional requirements in its World War I-era concealed carry permit law that required petitioners prove “proper cause” to be armed. “We know of no other constitutional right that an individual may exercise only after demonstrating to government officers some special need,” that decision read.
New York also failed to prove the measure “consistent with the Nation’s historical tradition of firearm regulation,” the court said, noting that there were decades of precedent from New York lawmakers to draw from as guidance.
This new ruling in Antonyuk v. James attracted piercing comment from the right and the left, with both sides noting the national importance of the case. “This ruling comes at a crucial time. Now, law-abiding gun owners in New York State and across the nation can again exercise their Constitutional right to concealed carry to protect themselves and their families,” said Rep. Elise Stefanik (R-N.Y.), a high-profile Republican who was vetted by former President Donald Trump for the GOP nomination for vice president.
Sen. Kirsten Gillibrand (D-N.Y.) also commented on her congressional website that the “Supreme Court ruling, which guts state concealed carry permitting laws, is not just irresponsible, it is downright dangerous. Our nation is in the middle of a gun violence epidemic. . . .”
According to the Bureau of Justice Statistics, there are more than 350,000 gun crimes committed each year, 19,000 of which are homicides.[3] In New York State alone, Sen. Gillibrand has long been active in gun control measures, for years unsuccessfully seeking to amend the Federal Criminal Code to transform trafficking in firearms a federal crime. Her latest bill on the issue is named for a Brooklyn girl killed by gunfire.
The court is mindful of the impact of guns on American culture, and in a separate 8-1 firearms decision on June 21 also upheld a federal law that strips those under domestic violence restraining orders of their gun rights, based on the precedent of the three-year old, New York-related Bruen decision. “Since the founding, our Nation’s firearm laws have included provisions preventing individuals who threaten physical harm to others from misusing firearms,” Chief Justice Roberts wrote, demonstrating what the court sees as a reasonable government restriction on Second Amendment rights.
Gene J. Koprowski is a member of NYSBA’s Communications and Publications Committee, an arbitrator with the Financial Industry Regulatory Authority in Washington D.C. and an award-winning journalist who spent 35 years working for United Press International and other leading media.
Endnotes
[1] National Rifle Association v. Vullo, ACLU, Jan. 9, 2024, https://www.aclu.org/cases/national-rifle-association-v-vullo.
[2] Antonyuk v. James, https://www.news10.com/wp-content/uploads/sites/64/2024/07/Antonyuk.pdf.
[3] Press Release, Gillibrand, Adams, Sewell and Gun Safety Advocates Tout Criminalization of Gun Trafficking as Part of Historic Bipartisan Communities Act, June 29, 2022, https://www.gillibrand.senate.gov/news/press/release/gillibrand-adams-sewell-and-gun-safety-advocates-tout-criminalization-of-gun-trafficking-as-part-of-historic-bipartisan-safer-communities-act/.
