No.

22A557
In The
Supreme Court of the United States
______________________________
IVAN ANTONYUK, et al.,
Applicants,
v.
STEVEN NIGRELLI, in His Official Capacity as Acting Superintendent of
New York State Police, JUDGE MATTHEW J. DORAN in His Official Capacity
as the Licensing Official of Onondaga County, New York, and
JOSEPH CECILE in His Official Capacity as the Chief of Police
of Syracuse, New York,
Respondents.
______________________________

BRIEF FOR RESPONDENTS IN OPPOSITION TO

EMERGENCY APPLICATION FOR IMMEDIATE ADMINISTRATIVE
RELIEF AND TO VACATE STAY OF PRELIMINARY INJUNCTION
ISSUED BY THE U.S. COURT OF APPEALS FOR THE SECOND CIRCUIT
______________________________

SUSAN R. KATZOFF LETITIA JAMES

Corporation Counsel Attorney General
City of Syracuse State of New York
TODD M. LONG BARBARA D. UNDERWOOD*
Senior Assistant Corporation Counsel Solicitor General
DANIELLE R. SMITH ESTER MURDUKHAYEVA
Assistant Corporation Counsel Deputy Solicitor General
233 East Washington Street PHILIP J. LEVITZ
Syracuse, New York 13202 Assistant Solicitor General
(315) 448-8400 28 Liberty Street
New York, New York 10005
(212) 416-8016
[email protected]
Attorney for Respondent Cecile Attorney for Respondents
Nigrelli and Doran
*Counsel of Record
Dated: January 3, 2023
 TABLE OF CONTENTS
Page

TABLE OF AUTHORITIES .......................................................................................... ii

PRELIMINARY STATEMENT ..................................................................................... 1

STATEMENT ................................................................................................................. 3

Factual Background .................................................................................. 3

This Court’s decision in New York State Rifle & Pistol

Association v. Bruen........................................................................... 3

New York’s Concealed Carry Improvement Act ............................... 6

Procedural Background ............................................................................. 8

The district court’s jurisdictional dismissal and advisory

opinion in Antonyuk I ........................................................................ 8

The district court’s entry of a temporary restraining order

and preliminary injunction in Antonyuk II..................................... 10

The court of appeals’ stay of the preliminary injunction

pending appeal ................................................................................. 14

ARGUMENT

I. This Court Is Not Likely to Grant Review of the Forthcoming

Decision from the Court of Appeals. .............................................................. 18

II. Applicants Have Not Shown That the Court of Appeals Clearly and
Demonstrably Erred in Granting a Stay. ...................................................... 21

Respondents Are Likely to Succeed on the Merits of Their

Appeal. ..................................................................................................... 22

The Remaining Stay Factors Weigh in Favor of a Stay Pending

Appeal. ..................................................................................................... 32

III. Applicants Will Not Suffer Irreparable Injury from the Stay. ..................... 34

CONCLUSION............................................................................................................. 37

i
 TABLE OF AUTHORITIES
Cases Page(s)

Abbott v. Veasey,
137 S. Ct. 612 (2017) .............................................................................................. 18

Antonyuk v. Bruen,
No. 22-cv-734, 2022 WL 3999791 (N.D.N.Y. Aug. 31, 2022)................................... 9

Antonyuk v. Hochul,
No. 22-cv-986, 2022 WL 5239895 (N.D.N.Y. Oct. 6, 2022) .............................. 10-11

Antonyuk v. Nigrelli,
No. 22-cv-986, 2022 WL 17039232 (N.D.N.Y. Nov. 17, 2022)............................... 13

Arizona v. Evans,
514 U.S. 1 (1995) .................................................................................................... 19

Ashcroft v. Iqbal,
556 U.S. 662 (2009) ................................................................................................ 19

Brotherhood of Locomotive Firemen & Enginemen v. Bangor & Aroostook R.R.,

389 U.S. 327 (1967) ................................................................................................ 18

Certain Named and Unnamed Non-citizen Children v. Texas,

448 U.S. 1327 (1980) .............................................................................................. 18

Citibank, N.A. v. Nyland (CF8) Ltd.,

839 F.2d 93 (2d Cir. 1988) ...................................................................................... 32

Coleman v. Paccar, Inc.,

424 U.S. 1301 (1976) .............................................................................................. 21

District of Columbia v. Heller,

554 U.S. 570 (2008) ........................................................................ 4-5, 24, 27, 29-30

Doe v. Gonzales,
546 U.S. 1301 (2005) .............................................................................................. 17

Frein v. Pennsylvania State Police,

47 F.4th 247 (3d Cir. 2022) .................................................................................... 19

Garcia-Mir v. Smith,
469 U.S. 1311 (1985) .............................................................................................. 17

GeorgiaCarry.Org., Inc. v. Georgia,

687 F.3d 1244 (11th Cir. 2012) .............................................................................. 30

ii
Cases Page(s)

Hollingsworth v. Perry,
570 U.S. 693 (2013) ................................................................................................ 26

Kanter v. Barr,
919 F.3d 437 (7th Cir. 2019) .................................................................................. 25

Konigsberg v. State Bar of Cal.,

353 U.S. 252 (1957) ................................................................................................ 24

Libertarian Party of Erie County v. Cuomo,

970 F.3d 106 (2d Cir. 2020) .................................................................................... 24

Maryland v. King,
567 U.S. 1301 (2012) .............................................................................................. 33

Maslenjak v. United States,

137 S.Ct. 1918 (2017) ............................................................................................. 20

McCray v. New York,

461 U.S. 961 (1983) ................................................................................................ 20

Moore v. Brown,
448 U.S. 1335 (1980) .............................................................................................. 17

Moreland v. Federal Bureau of Prisons,

547 U.S. 1106 (2006) .............................................................................................. 18

Mount Soledad Memorial Ass’n v. Trunk,

567 U.S. 944 (2012) ................................................................................................ 18

National Inst. of Family & Life Advocates v. Becerra,

138 S. Ct. 2361 (2018) ............................................................................................ 32

New York State Rifle & Pistol Association v. Bruen,

142 S. Ct. 2111 (2022) ................................................................. 1, 4-6, 23-25, 27-31

Nken v. Holder,
556 U.S. 418 (2009) ................................................................................................ 22

Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott,

571 U.S. 1061 (2013) ................................................................................................ 2

Range v. Attorney General,

53 F.4th 262 (3d Cir. 2022) .............................................................................. 19, 24

iii
Cases Page(s)

Steel Co. v. Citizens for a Better Env’t,

523 U.S. 83 (1998) .................................................................................................... 9

Trump v. International Refugee Assistance Project,

137 S. Ct. 2080 (2017) ............................................................................................ 36

United States v. Decastro,

682 F.3d 160 (2d Cir. 2012) .................................................................................... 24

Veasey v. Perry,
769 F.3d 890 (5th Cir. 2013) .................................................................................. 22

Western Airlines, Inc. v. International Bhd. of Teamsters,

480 U.S. 1301 (1987) ........................................................................................ 17, 21

Whole Woman’s Health v. Jackson,

142 S. Ct. 522 (2021) .............................................................................................. 30

Will v. Hallock,
546 U.S. 345 (2006) ................................................................................................ 19

Wrotten v. New York,

560 U.S. 959 (2010) ................................................................................................ 18

Laws

New York

Ch. 371, 2022 N.Y. Laws ............................................................................................... 6

Penal Law
§ 140.17 ................................................................................................................... 30
§ 265.01-d ......................................................................................................... 7-8, 29
§ 265.01-e ............................................................................................................ 7, 27
§ 265.03 ..................................................................................................................... 3
§ 265.20 ..................................................................................................................... 3
§ 400.00(1).............................................................................................. 3, 6-7, 24, 33
§ 400.00(2)................................................................................................................. 4
§ 400.00(19) ............................................................................................................ 6-7

iv
Laws Page(s)

Other States

Conn. Gen. Stat. § 29-28 .............................................................................................. 23

Ga. Code Ann. § 16-11-129 .......................................................................................... 23

Ind. Code § 35-47-2-3 ................................................................................................... 23

R.I. Gen. Laws § 11-47-11 ........................................................................................... 23

Miscellaneous Authorities

N.Y. Div. of Crim. Just. Servs., Frequently Asked Questions Regarding

Recent Changes to New York State Firearm Laws (Aug. 27, 2022),
https://troopers.ny.gov/frequently-asked-questions-regarding-recent-
changes-nys-gun-laws ............................................................................................ 34

N.Y. Governor, Proclamation (June 24, 2022),

https://www.governor.ny.gov/sites/default/files/2022-
06/Proclamation_Extraordinary_Session_June_2022.pdf ...................................... 6

v
 PRELIMINARY STATEMENT

In July 2022, the New York State Legislature enacted the Concealed Carry

Improvement Act (CCIA) to make necessary changes to the State’s firearms licensing

and possession laws following this Court’s decision in New York State Rifle & Pistol

Association v. Bruen, 142 S. Ct. 2111 (2022). Shortly after this legislation took effect,

applicants—five individuals with carry permits and a sixth individual who has never

applied for a firearms license—sued to challenge nearly every provision of the CCIA

as unconstitutional. After giving respondents 1 approximately three weeks to oppose

a motion seeking a preliminary injunction as to dozens of distinct provisions, the U.S.

District Court for the Northern District of New York (Suddaby, J.) entered a prelimi-

nary injunction against defendants’ enforcement of vast swaths of the CCIA on a

statewide basis. After full briefing and consideration, a three-judge panel of the U.S.

Court of Appeals for the Second Circuit (Sack, Wesley, Bianco, JJ.) granted respond-

ents’ motion for a stay of the preliminary injunction pending appeal and ordered

expedited consideration of the matter, with respondents’ opening briefs due on

January 9, 2023.

1 Respondents are Steven A. Nigrelli in his official capacity as Acting

Superintendent of the New York State Police, Judge Matthew J. Doran in his official
capacity as licensing official for Onondaga County (which includes the City of
Syracuse), and Joseph Cecile in his official capacity as Chief of Police of the City of
Syracuse.
 Applicants now ask this Court to take the extraordinary step of vacating a stay

entered by a court of appeals. This Court should deny the request for multiple

independent reasons.

First, applicants cannot show that this Court is likely to grant review of the

court of appeals’ forthcoming decision reviewing a preliminary injunction. Likely

review in this Court is ordinarily the predicate for action by this Court in connection

with a stay pending appeal. However, this Court rarely grants review of cases in an

interlocutory posture absent unusual circumstances that are not present here. In

addition, this case involves the application of Bruen, which was issued only six

months ago and which revised the relevant constitutional framework for Second

Amendment challenges. This Court ordinarily awaits percolation of legal issues in

the lower courts before granting review and would benefit from such percolation here.

Second, applicants have not shown that the court of appeals erred—much less

“clearly and demonstrably erred”—in issuing a stay. See Planned Parenthood of

Greater Tex. Surgical Health Servs. v. Abbott, 571 U.S. 1061, 1061 (2013) (quotation

marks omitted) (Scalia, J., concurring in denial of application to vacate stay). Respond-

ents showed a strong likelihood of success on the merits given the numerous flaws in

the district court’s opinion regarding standing, the district court’s erroneous require-

ment of a showing of historical evidence to support every challenged restriction

regardless of whether the restriction implicated the text of the Second Amendment,

and the district court’s use of an improperly rigid analogical methodology. Respond-

ents also showed below that a stay was in the public interest and necessary to avoid

2
irreparable injury from the injunction. For example, the injunction would have

precluded the enforcement of a “good moral character” requirement for firearms

licenses, thereby requiring the State to issue licenses to people with a demonstrated

propensity to misuse firearms. In addition, the likelihood of public and law enforce-

ment confusion resulting from the preliminary injunction was substantial.

By contrast, applicants will not suffer irreparable injury from the stay pending

the court of appeals’ expedited resolution of the appeal. The injuries cited by applicants

are either hypothetical or sufficiently narrow that they cannot overcome respondents’

strong showing on the merits and equities. At a minimum, any vacatur of the stay

should be limited to applicants, since the statewide relief ordered by the district court

is grossly disproportionate to the individual harms alleged.

STATEMENT

Factual Background

This Court’s decision in New York State Rifle & Pistol

Association v. Bruen

Like dozens of States, New York requires a license to carry a concealed

handgun in public. See, e.g., Penal Law § 265.03(b) (criminalizing possession of loaded

handgun), § 265.20(a)(3) (exempting license holders). New York law has long set forth

basic eligibility criteria for a license, including being at least twenty-one years old,

not having a felony record, and otherwise having “good moral character.” Id.

§ 400.00(1)(a)-(c). Until recently, New York also required demonstrating “proper

3
cause” to obtain a concealed-carry license. Id. § 400.00(2)(f) (effective through June

23, 2022).

In Bruen, this Court concluded that insofar as “proper cause” demanded

showing “a special need for self-defense,” this requirement implicated the Second

Amendment right of law-abiding, responsible citizens to carry arms in public for

self-defense and was invalid because it was unsupported by historical tradition. 142

S. Ct. at 2122, 2130-31. In so holding, Bruen rejected the framework previously used

by nearly all federal courts of appeals to evaluate Second Amendment challenges in

favor of a restated standard: if “the Second Amendment’s plain text covers an

individual’s conduct,” then the government seeking to regulate that conduct “must

demonstrate that the regulation is consistent with this Nation’s historical tradition

of firearm regulation.” Id. at 2126; see also id. at 2129.

Bruen was explicit about the areas of law left undisturbed by the decision. The

Court made clear that “nothing in [its] analysis” was meant “to suggest the unconsti-

tutionality” of “shall-issue” licensing regimes. Id. at 2138 n.9. These laws “often

require applicants to undergo a background check or pass a firearms safety course”

and “are designed to ensure only that those bearing arms in the jurisdiction are, in

fact, ‘law-abiding, responsible citizens.’” Id. (quoting District of Columbia v. Heller,

554 U.S. 570, 635 (2008)); see also id. at 2161-62 (Kavanaugh, J., concurring). The

Court also “assume[d] it settled” that certain areas are ‘“sensitive places’ where arms

carrying could be prohibited consistent with the Second Amendment.” Id. at 2133.

The opinion endorsed such prohibitions in schools, legislative assemblies, polling

4
places, and courthouses, while recognizing that this list was nonexhaustive and that

“modern regulations prohibiting the carry of firearms in new and analogous sensitive

places are constitutionally permissible.” Id. In other words, Bruen decided “nothing

about who may lawfully possess a firearm or the requirements that must be met to

buy a gun,” nor did it disavow previously recognized “restrictions that may be

imposed on the possession or carrying of guns.” Id. at 2157 (Alito, J., concurring).

Bruen was also clear that application of the restated Second Amendment

standard would require substantial development in the lower courts, in accordance

with traditional patterns of constitutional litigation. For example, the court declined

to “undertake an exhaustive historical analysis of the full scope of the Second

Amendment.” Id. at 2134 (quotation and alteration marks omitted). Indeed, Bruen

left open many questions about how to evaluate historical sources from different time

periods. See id. at 2136-38; see also id. at 2162-63 (Barrett, J., concurring). And while

Bruen instructed that the historical inquiry required in Second Amendment cases

“will often involve reasoning by analogy,” it similarly declined to “provide an exhaus-

tive survey of the features that render regulations relevantly similar.” Id. at 2132. At

the same time, Bruen cautioned that its standard was not intended to be a “regulatory

straightjacket” and that governments were not required to identify “historical

twin[s]” or “dead ringer[s]” to support modern regulations. Id. at 2133 (emphasis

omitted); see also id. at 2162 (Kavanaugh, J., concurring) (“Properly interpreted, the

Second Amendment allows a ‘variety’ of gun regulations.” (quoting Heller, 554 U.S.

at 636)). As the Court recognized, in some cases historical analogies will be “relatively

5
simple to draw,” while “other cases implicating unprecedented societal concerns or

dramatic technological changes may require a more nuanced approach.” Id. at 2132.

New York’s Concealed Carry Improvement Act

The day after Bruen was decided, New York Governor Kathy Hochul announced

that she would convene an extraordinary legislative session to bring New York’s law

into compliance with the decision. See N.Y. Governor, Proclamation (June 24, 2022).

On July 1, 2022, the Legislature passed the CCIA, which removed the proper cause

requirement that Bruen declared unconstitutional and made several other changes

to New York’s firearms licensing and possession laws. See Ch. 371, 2022 N.Y. Laws

(N.Y. Legis. Retrieval Serv.) (eff. Sept. 1, 2022) (codified at, inter alia, Penal Law

§§ 265.01-d, 265.01-e, 400.00). The statutory amendments relevant to this application

are discussed below.

First, the CCIA made more precise the longstanding requirement of “good

moral character” for a handgun license; this is the provision under which the State

had long denied licenses to people with criminal records and other indicia of a

propensity for violence. The CCIA defined the term “good moral character” to mean

“having the essential character, temperament and judgement necessary to be

entrusted with a weapon and to use it only in a manner that does not endanger oneself

or others.” Penal Law § 400.00(1)(b). In addition, the CCIA required that every

applicant “shall meet in person with the licensing officer for an interview,” id.

§ 400.00(1)(o), complete sixteen hours of training and two hours of live-fire

instruction, id. §§ 400.00(1)(o)(iii), 400.00(19), and submit statutorily specified

6
information to the licensing officer, including contact information for any spouse,

domestic partner, and adult coinhabitants, and whether minor children live in the

applicant’s house, see id. § 400.00(1)(o)(i); at least “four character references who can

attest to the applicant’s good moral character” by representing that the applicant is

not “likely to engage in conduct that would result in harm to themselves or others,”

id. § 400.00(1)(o)(ii); “a list of former and current social media accounts” over the past

three years, meant “to confirm the information” otherwise provided about the appli-

cant’s “character and conduct,” id. § 400.00(1)(o)(iv); and “such other information

required by the licensing officer that is reasonably necessary and related to the review

of the licensing application,” id. § 400.00(1)(o)(v).

Second, the CCIA codified several “sensitive locations” in which carrying “a

firearm, rifle or shotgun” would not be allowed, including government buildings such

as courthouses; polling places; schools, colleges, and universities; nursery schools,

preschools, and playgrounds; places of worship; public transit; public parks and zoos;

shelters for the homeless and domestic-violence victims; sites of programs for the

disabled; health-care and drug-treatment facilities; entertainment venues such as

theaters and conference centers; venues serving alcohol; “gathering[s] of individuals

to collectively express their constitutional rights to protest or assemble”; and Times

Square, if “identified with signage.” Id. § 265.01-e(1)-(2).

Third, the CCIA made it unlawful to possess “a firearm, rifle, or shotgun” in a

“restricted location.” Id. § 265.01-d(1). Under this provision, a person may not carry

such a weapon “on or in private property” when the “person knows or reasonably

7
should know that the owner or lessee of such property” has not “given express

consent” to carrying such weapons on the premises by posted signage or other means.

Id.

The “sensitive” and “restricted” location provisions exempt law enforcement

officers, military personnel, armed security guards, and persons lawfully hunting. Id.

§§ 265.01-d(2), 265.01-e(3).

Procedural Background

The district court’s jurisdictional dismissal and

advisory opinion in Antonyuk I

Ten days after the CCIA’s enactment, applicant Ivan Antonyuk and two

gun-advocacy organizations filed suit under 42 U.S.C. § 1983 in the U.S. District

Court for the Northern District of New York against the then-Superintendent of the

New York State Police, challenging the above-referenced CCIA provisions under the

First, Second, and Fourteenth Amendments. See Compl., Antonyuk v. Bruen

(Antonyuk I), No. 22-cv-734 (N.D.N.Y. July 11, 2022), ECF 1. Plaintiffs sought a

preliminary injunction to block these provisions from taking effect as scheduled on

September 1, 2022. The superintendent opposed the request and sought dismissal of

the case for lack of Article III standing.

Four days before plaintiffs’ reply was due, the district court (Suddaby, J.) sua

sponte invited plaintiffs to file “supplemental declarations” on whether they had

suffered specified types of injuries from the CCIA or otherwise had “any intent” to

“engage in conduct proscribed by the CCIA (e.g., carrying a concealed handgun into

a gas station or store that is not specifically posted with a sign allowing him to carry

8
there).” Text Order (Aug. 18, 2022), ECF No. 34. The next day, the district court

clarified that the “declarations may also detail the fair traceability of Plaintiffs’

alleged injuries to Defendant.” Amended Text Order (Aug. 19, 2022), ECF No. 39.

Notwithstanding these directions, plaintiffs did not make the requisite

showings. On August 31, the district court dismissed the case for lack of Article III

standing. See Antonyuk I, 2022 WL 3999791, at *1 (N.D.N.Y. Aug. 31, 2022). In

particular, the court held that the organizations had not shown injury-in-fact to

themselves, id. at *18-23, and that Antonyuk had not indicated his intent to violate

the CCIA’s provisions, id. at *16-18. The court correctly observed that this result

“requir[ed] an immediate dismissal without prejudice.” Id. at *23-25. But despite the

absence of a live controversy, the court proceeded to render an advisory opinion

describing what “would constitute the Court’s holding” on the merits if the plaintiffs

were “found to, in fact, possess standing.” 2 Id. at *25; see id. at *26-37. Specifically,

the court stated that the CCIA was “an unconstitutional statute,” and indicated that

it would have enjoined the enforcement of nearly every challenged provision of the

law—including most of the licensing requirements, each of the codified sensitive

locations (including schools and government buildings), and the restricted-location

provision in its entirety. Id. at *26.

2Assuming “[h]ypothetical jurisdiction” so as “to pronounce upon the meaning

or the constitutionality of a state or federal law” generates “an advisory opinion.”
Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 101 (1998). Doing so is therefore
“ultra vires.” Id. at 102.

9
 The district court’s entry of a temporary restraining
order and preliminary injunction in Antonyuk II

On September 20, Antonyuk filed a new § 1983 lawsuit attacking mostly the

same CCIA provisions, dropping the organizational plaintiffs, adding five other

individual plaintiffs (who are also applicants in this Court), and naming new state

and municipal defendants (three of whom are respondents in this Court). See Compl.,

Antonyuk v. Hochul (Antonyuk II), No. 22-cv-986 (N.D.N.Y. Sept. 20, 2022), ECF 1.

Shortly thereafter, applicants moved for a temporary restraining order (TRO),

preliminary injunction, and permanent injunction. Mem. in Supp. of Pls.’ Mot. for

TRO, Prelim. Inj., & Permanent Inj. (“PI Mem.”) at 1 (Sept. 22, 2022), ECF 6-1.

Additionally, applicants marked the complaint as related to Antonyuk I, see Civil

Cover Sheet (Sept. 20, 2022), ECF 1-11, and Judge Suddaby accepted the case as

related, see Text Order (Sept. 26, 2022), ECF 12.

In their motion, the five applicants with carry licenses represented that they

have standing because they intend to bring weapons into various sensitive or

restricted locations “in the near future.” PI Mem. at 3; see id. at 2-5. A sixth applicant

who lacked a concealed-carry license argued that he had standing to challenge the

licensing provisions even though he had never applied for a license because his

hypothetical application would be rejected due to his intention to withhold much of

the required information. See id. at 7-9.

On October 6, the district court granted a TRO as to multiple CCIA provisions.

See Antonyuk II, 2022 WL 5239895 (N.D.N.Y. Oct. 6, 2022). The court held that all of

10
the applicants had standing, that all defendants were proper, and that each of the

challenged provisions was a proper subject for adjudication. Id. at *7-9.

On the merits, the district court rewrote the CCIA’s definition of “good moral

character” such that a firearms-license applicant is presumed to satisfy this criterion

absent a contrary determination supported by a preponderance of the evidence, which

may rest only on an applicant’s past conduct and which may not rest on a desire to

use a weapon for lawful self-defense (though the law did not purport to disqualify

applicants for this reason). Id. at *9-11. In addition, the court restrained enforcement

of the application requirements of an in-person interview, identification of other adult

coinhabitants, disclosure of whether minor children live at home, and listing of social

media accounts, all for a perceived lack of historical analogs. Id. at *12. The court

then analyzed whether history supported every “sensitive location” designated in

New York’s law—without regard to whether applicants had challenged, or even had

standing to challenge, any particular provision—and held “that most of the CCIA’s

list of ‘sensitive locations’ violate the Constitution” because respondents had “not met

their burden” of presenting relevant precursors. Id. at *13-21. The court also

restrained enforcement of the prohibition on carrying firearms onto private property

without the proprietor’s express consent, except as to fenced-in farmland or hunting

grounds. Id. at *21. The court expressly extended the TRO beyond the fourteen days

permitted in Federal Rule of Civil Procedure 65(b). Id. at *23.

The state respondents (Acting Superintendent Nigrelli and Judge Doran) and

respondent Cecile (the Chief of Police of Syracuse) filed notices of appeal from the

11
open-ended TRO and moved for a stay pending appeal and an emergency interim

stay. See Antonyuk v. Hochul, No. 22-2379 (2d Cir.) (appeal docketed Oct. 7, 2022),

No. 22-2403 (2d Cir.) (appeal docketed Oct. 11, 2022). The U.S. Court of Appeals for

the Second Circuit granted a single-judge interim stay on October 12, and calendared

the motion for argument on November 15. See No. 22-2379, Dkt. 39, 67, 68 (2d Cir.).

On November 7, the district court entered a preliminary injunction against

enforcement of many (but not all) of the provisions subject to the TRO and of several

provisions that were not enjoined in the TRO. See App.003a-187a. The parties

thereafter stipulated to withdraw the appeal of the TRO as moot. No. 22-2379, Dkt.

74 (2d Cir. Nov. 9, 2022).

First, the district court determined that the sole applicant without a carry

license had standing to challenge the CCIA’s licensing requirements, even though he

had never applied for such a license. App.020a-024a. The court also reversed its prior

ruling enjoining only certain applications of the good moral character requirement.

App.094a-105a. Although the court acknowledged that the requirement would be

constitutional if it allowed a licensing official to determine, based on prior conduct,

that an applicant was “likely to use the weapon in a manner that would injure

themselves or others (other than in self-defense),” the court nevertheless enjoined

enforcement of the provision in its entirety. App.105a. As in the TRO, the court

separately enjoined enforcement of the requirement to identify household members,

disclose whether children live in the home, and list social media accounts. App.108a-

114a. The court departed from the TRO by enjoining the requirement to provide “such

12
other information . . . that is reasonably necessary and related to the review of the

licensing application,” based on speculation that a licensing official might use this

provision to demand inspection of an applicant’s cell phone or the production of a

urine sample. 3 App.116a.

Second, the district court for the first time acknowledged that applicants

lacked standing to challenge most of the “sensitive location” provisions. App.026a-

083a. The court therefore limited the injunction to the following places: locations

providing behavioral health or chemical dependence care or services, places of

worship or religious observation, public parks and zoos, airports (to the extent the

license holder is complying with federal regulations), buses, establishments serving

alcohol, theaters, conference centers, banquet halls, and any gathering of individuals

to collectively express their constitutional rights to protest or assemble. App.185a-

187a; see App.027a-047a, 059a-076a, 077a-082a.

Finally, the district court enjoined in full the prohibition on carrying firearms

onto private property without express consent, eliminating the TRO’s carveout for

fenced-in farmland or hunting grounds. 4 App.168a-182a.

3 The district court declined to enjoin the in-person interview requirement

(which had been subject to the TRO), or the character reference and training
requirements. App.105a-108a, 119a-125a.
4In the preliminary injunction decision, the district court dismissed Governor
Hochul from the action. See App.087a-089a. On November 17, the district court
granted the remaining state respondents’ motion to dismiss the claims as to which it
had found applicants to lack standing. See Antonyuk II, 2022 WL 17039232 (N.D.N.Y.
Nov. 17, 2022).

13
 The court of appeals’ stay of the preliminary
injunction pending appeal

The state respondents filed a notice of appeal from the preliminary injunction

and again moved for a stay pending appeal and an emergency interim stay. 5 See

Antonyuk v. Hochul, No. 22-2908 (appeal docketed Nov. 9, 2022). Respondents sought

a stay of the preliminary injunction in its entirety, except as to (i) places of worship

or religious observation, to the extent such locations designate individuals who are

otherwise authorized to carry firearms to keep the peace; (ii) airports, as the

injunction was limited to license holders acting in compliance with applicable federal

regulations; and (iii) private buses, which were the subject of the complaint and the

district court’s discussion of standing. See Mem. in Supp. of Mot. for Stay Pending

Appeal (“Stay Mem.”) at 13 n.5 (Nov. 12, 2022), No. 22-2908, Dkt. 18.

Respondents argued that a stay was necessary on multiple grounds. First,

respondents argued that equitable factors supported a stay. For example, the injunc-

tion against enforcement of the “good moral character” requirement for firearms

licenses would require the issuance of licenses to people with a demonstrated propen-

sity to misuse firearms. Likewise, the injunction against enforcement of restrictions

on firearm possession in sensitive locations like bars, restaurants, theaters, and

political protests risked potential irreparable injuries from intentional or inadvertent

shootings. And the injunction against enforcement of the restricted-locations provision

5Respondent Cecile subsequently filed a notice of appeal as well. See Antonyuk

v. Hochul, No. 22-2972 (appeal docketed Nov. 21, 2022).

14
would allow persons to carry firearms onto any private property (including into a

person’s home) without obtaining express consent or even notifying the property

owner of the presence of a deadly weapon on their property. In addition, the likelihood

of public and law enforcement confusion resulting from the preliminary injunction

was substantial. By contrast, applicants faced no likelihood of irreparable harm from

the stay, given that the CCIA has been in effect for months and the availability of

expedited appellate resolution. Id. at 14-17; Reply Mem. in Supp. of Mot. for Stay

Pending Appeal (“Stay Reply Mem.”) at 3-7 (Nov. 28, 2022), No. 22-2908, Dkt. 51.

Second, respondents argued that they were likely to prevail on the merits of

the appeal for numerous reasons. As an initial matter, the district court’s standing

analysis was deeply flawed. Among other things, the court erroneously concluded that

a person who had never applied for a carry license nevertheless has standing to

challenge applicable licensing laws, and that a person who provides counseling to

drug-addicted persons in church has standing to challenge the prohibition on guns in

drug-treatment clinics. Stay Mem. at 20, 24; Stay Reply Mem. at 10. Similarly, the

district court misapplied the first part of Bruen’s analysis—whether the Second

Amendment’s text applies to an individual’s conduct—by assuming that the text

applied with respect to every restriction challenged by applicants. Stay Mem. at 20-

23, 25; Stay Reply Mem. at 9-10. And the court erroneously disregarded the historical

analogues identified by respondents based on invented metrics of relevancy and

representativeness, speculative hypotheticals, and an improper demand that respond-

ents identify examples of historical regulations that are both numerous and identical

15
to the challenged provisions of the CCIA. Stay Mem. at 23, 25-27; Stay Reply Mem.

at 11.

Third, respondents argued that the preliminary injunction was improperly

granted because respondents were not given a meaningful opportunity to mount a

defense before being subject to an injunction. Specifically, the district court entered

the injunction after giving respondents less than three weeks to oppose both a TRO

and a preliminary injunction with respect to dozens of distinct provisions. Stay Mem.

at 17-19.

Finally, respondents argued that the district court erred in granting statewide

preliminary injunctive relief that far exceeded any need to redress applicants’ highly

individualized assertions of harm. Stay Mem. at 27-28; Stay Reply Mem. at 11-12.

On November 15, a three-judge panel (Sack, Wesley, Bianco, JJ.) granted

respondents’ request for an interim stay. See No. 22-2908, Dkt. 31. On December 7,

following full briefing, the same panel granted respondents’ motion for a stay pending

appeal (as narrowed in the motion) and ordered expedited consideration of the

matter. App.002a. Respondents’ opening briefs are due on January 9, 2023. See No.

22-2908, Dkt. 79.

16
 ARGUMENT

Applicants seek to vacate the stay of the preliminary injunction entered by the

court of appeals following full briefing and consideration. The application should be

denied.

“A stay granted by a court of appeals is entitled to great deference from this

Court . . . .” Garcia-Mir v. Smith, 469 U.S. 1311, 1313 (1985) (Rehnquist, J., in

chambers). “[W]hen a court of appeals has not yet ruled on the merits of a controversy,

the vacation of an interim order invades the normal responsibility of that court to

provide for orderly disposition of cases on its docket.” Moore v. Brown, 448 U.S. 1335,

1341 n.9 (1980) (Powell, J., in chambers). “Respect for the assessment of the Court of

Appeals is especially warranted when that court is proceeding to adjudication on the

merits with due expedition.” Doe v. Gonzales, 546 U.S. 1301, 1308 (2005) (Ginsburg,

J., in chambers).

Accordingly, vacatur of a stay entered by a court of appeals (and the attendant

disruption of the orderly appellate process) is appropriate only when (1) the case

“could and very likely would be reviewed [by this Court] upon final disposition in the

court of appeals”; (2) “the court of appeals is demonstrably wrong in its application of

accepted standards in deciding to issue the stay”; and (3) applicants’ rights “may be

seriously and irreparably injured by the stay.” Western Airlines, Inc. v. International

Bhd. of Teamsters, 480 U.S. 1301, 1305 (1987) (O’Connor, J., in chambers). None of

those requirements is satisfied here.

17
I. THIS COURT IS NOT LIKELY TO GRANT REVIEW OF THE FORTHCOMING
DECISION FROM THE COURT OF APPEALS.

Applicants cannot make the “exceptional” showing that this Court is likely to

grant a writ of certiorari to review the court of appeals’ forthcoming determination

regarding the district court’s preliminary injunction. See Certain Named and

Unnamed Non-citizen Children v. Texas, 448 U.S. 1327, 1331 (1980) (Powell, J., in

chambers). Indeed, although applicants acknowledge this requirement for vacatur of

a stay (Appl. at 4), they offer no explanation as to how it has been satisfied in this

case.

Applicants could not carry the burden to make this showing in any event for

several reasons: review is premature given this case’s interlocutory posture, and

although this case concerns important issues, further percolation of the relevant

issues in the lower courts is needed to inform this Court’s review.

First, this Court is unlikely to grant review because this case’s interlocutory

posture renders the resolution of any Second Amendment question premature. This

Court’s ordinary practice is to deny interlocutory review even when a case presents a

significant statutory or constitutional question. 6 This Court has departed from that

practice in very rare circumstances, such as, for example, granting review when an

6See, e.g., Abbott v. Veasey, 137 S. Ct. 612 (2017) (Roberts, C.J., respecting
denial of certiorari); Mount Soledad Memorial Ass’n v. Trunk, 567 U.S. 944 (2012)
(Alito, J.); Wrotten v. New York, 560 U.S. 959 (2010) (Sotomayor, J.); Moreland v.
Federal Bureau of Prisons, 547 U.S. 1106 (2006) (Stevens, J.); Brotherhood of
Locomotive Firemen & Enginemen v. Bangor & Aroostook R.R., 389 U.S. 327 (1967)
(per curiam).

18
important question would be “effectively unreviewable” after final judgment, e.g.,

Will v. Hallock, 546 U.S. 345, 349-50 (2006) (quotation marks omitted), or when an

immunity from suit, rather than a mere defense to liability, is implicated, e.g.,

Ashcroft v. Iqbal, 556 U.S. 662, 671-72 (2009). But nothing in this case will become

effectively unreviewable if this Court were to take its ordinary course by waiting until

after final judgment—and the development of a complete record—to review any

remaining issues. Such a course is especially prudent in this case, where many claims

have already been dismissed for lack of standing (see supra at 13 n.4) and the court

of appeals may well rule in respondents’ favor solely on threshold standing grounds

as to many of the remaining issues.

Second, this Court is unlikely to grant review because lower courts have had

no meaningful opportunity to engage with the standard set forth in Bruen. Since

Bruen, there have been two substantive Second Amendment decisions from federal

appellate courts, neither of which directly address the myriad issues presented in this

case. See Range v. Attorney General, 53 F.4th 262 (3d Cir. 2022) (per curiam) (holding

that federal felon-in-possession law is constitutional because it does not implicate the

text of the Second Amendment); Frein v. Pennsylvania State Police, 47 F.4th 247 (3d

Cir. 2022) (holding that state police must return guns seized from criminal suspect’s

parents after the trial and appeal had concluded). “[W]hen frontier legal problems are

presented, periods of ‘percolation’ in, and diverse opinions from, state and federal

appellate courts may yield a better informed and more enduring final pronouncement

by this Court.” Arizona v. Evans, 514 U.S. 1, 23 n.1 (1995) (Ginsburg, J., dissenting);

19
see also Maslenjak v. United States, 137 S.Ct. 1918, 1931 (2017) (Gorsuch, J.,

concurring in part and concurring in the judgment) (“[T]he crucible of adversarial

testing on which we usually depend, along with the experience of our thoughtful

colleagues on the district and circuit benches, could yield insights (or reveal pitfalls)

we cannot muster guided only by our own lights.”) The need for percolation is

particularly strong where “other courts” may need to fully consider the “substantive

and procedural ramifications of the problem,” which in turn allows this Court “to deal

with the issue more wisely at a later date.” McCray v. New York, 461 U.S. 961, 962

(1983) (Stevens, J., respecting denial of certiorari).

Applicants’ only argument to the contrary is that this case implicates Second

Amendment interests. See Appl. at 1. But the existence of a Second Amendment claim

is far from a guarantee that an issue is suitable for this Court’s review, let alone ripe

for it. As noted above (at 18 & n.6), this Court routinely denies premature requests

for review of even important constitutional disputes either to allow further

development below in the litigation at issue, or to allow further percolation in courts

around the country. Following such an approach here would be especially appropriate

given that this Court announced a revised constitutional framework for Second

Amendment challenges just six months ago and numerous pending cases are

currently percolating in the courts of appeals and district courts.7

7 There are numerous challenges to various provisions of the CCIA alone. See,
e.g., Hardaway v. Nigrelli, No. 22-2933 (2d Cir.); Christian v. Nigrelli, No. 22-2987
(2d Cir.); N.Y. State Rifle & Pistol Ass’n v. Bruen, No. 22 cv-907 (N.D.N.Y.); Goldstein
(continues on the next page)

20
II. APPLICANTS HAVE NOT SHOWN THAT THE COURT OF APPEALS
CLEARLY AND DEMONSTRABLY ERRED IN GRANTING A STAY.

Applicants have similarly failed to demonstrate that the court of appeals was

“demonstrably wrong in its application of accepted standards in deciding to issue the

stay,” Coleman v. Paccar, Inc., 424 U.S. 1301, 1304 (1976) (Rehnquist, J., in chambers).

See also Western Airlines, 480 U.S. at 1305 (O’Connor, J., in chambers). Instead,

applicants ask this Court for a de novo consideration of the underlying stay motion

(see Appl. at 15-16), an action that is far outside the scope of this Court’s general

practice. 8

In any event, each of the traditional stay factors—(1) whether respondents are

likely to succeed on the merits of the appeal, (2) whether respondents will be

irreparably injured absent a stay, (3) whether applicants will be substantially injured

by a stay, and (4) whether the public interest supports a stay—favored respondents

v. Hochul, No. 22-cv-8300 (S.D.N.Y.); Spencer v. Nigrelli, No. 22-cv-6486 (W.D.N.Y.).

There are many additional pending cases involving Second Amendment challenges to
other federal and state laws. See, e.g., Lara v. Commissioner, Pa. State Police, No. 21-
1832 (3d Cir.); United States v. Price, No. 22-4609 (4th Cir.); Bianchi v. Frosh, No. 21-
1255 (4th Cir.); Miller v. Smith, No. 22-1482 (7th Cir.); National Rifle Ass’n v.
Commissioner, Fla. Dep’t of Law Enforcement, No. 21-12314 (11th Cir.) Miller v.
Bonta, No. 19-cv-1537 (S.D. Cal.); Duncan v. Bonta, No. 17-cv-1017 (S.D. Cal.); Koons
v. Reynolds, No. 22-cv-7464 (D.N.J.); Hanson v. District of Columbia, No. 22-cv-2256
(D.D.C); Gates v. Polis, No. 22-cv-1866 (D. Colo.); Brumback v. Ferguson, No. 22-cv-
3093 (E.D. Wash.).
8Applicants repeatedly fault the court of appeals for the brevity of its stay
order (Appl. at 1-4, 14-15) but appellate rulings on stay motions (including from this
Court) are typically short and often lack a detailed explanation given the temporary
and nondefinitive nature of these orders.

21
below. 9 See Nken v. Holder, 556 U.S. 418, 434 (2009). “A stay pending appeal ‘simply

suspends judicial alteration of the status quo.’” Veasey v. Perry, 769 F.3d 890, 892

(5th Cir. 2013) (quoting Nken, 556 U.S. at 429). In this case, the status quo is that

the CCIA has taken effect after the failed preemptive attack in Antonyuk I (see supra

at 8-9) and has been in effect for three months because of stays issued by the court of

appeals. The stay factors continue to weigh in favor of maintaining this status quo

pending appeal of the district court’s judgment, which has been expedited. 10

Respondents Are Likely to Succeed on the Merits of Their Appeal.

Respondents are likely to prevail on appeal because the district court’s decision

is riddled with errors on threshold issues of standing, misapplies Bruen by requiring

a showing of historical evidence to support every challenged restriction regardless of

whether the restriction implicates the text of the Second Amendment, and applies a

rigid analogical methodology that impermissibly turns Bruen into a “regulatory

9 Applicants erroneously contend (Appl. at 13-14) that the court of appeals

mistakenly applied a standard “less demanding” than that set forth in Nken. As
respondents explained below (Stay Reply Mem. at 8-9), Nken did not discuss, much
less repudiate, a stay analysis that allows for calibrating the required merits showing
to the strength of the equities. In any event, respondents made a strong showing of
their likelihood of success on appeal under any applicable standard.
10 For the same reason, it was also appropriate for the court of appeals to grant
stays pending appeal in Hardaway v. Nigrelli, No. 22-2933 (2d Cir.) (appeal docketed
Nov. 15, 2022) (challenging the restriction on firearms in places of worship), and
Christian v. Nigrelli, No. 22-2987 (2d Cir.) (appeal docketed Nov. 23, 2022) (challeng-
ing the restricted-locations provision). Applicants’ suggestion to the contrary (Appl. at
3) is without merit.

22
straightjacket.” 142 S. Ct. at 2133. The various statutory provisions enjoined by the

district court and then reinstated by the stay are discussed in turn below.

Licensing requirements. The district court facially enjoined enforcement of

New York’s longstanding “good moral character” requirement to obtain a firearms

license, as well as several disclosures required by the statute to assist in assessing

“good moral character”—namely, identification of spouses, domestic partners, and

other adult inhabitants, disclosure of whether minors are present in the home,

identification of social media accounts, and the requirement to provide other relevant

information upon a licensing officer’s request. The stay lifted that injunction.

Applicants mistakenly state (at 6, 18) that the “good moral character” requirement is

a replacement for the “proper cause” requirement invalidated in Bruen. To the

contrary, the “good moral character” requirement has been an independent feature of

New York’s licensing law since 1913, and addresses something quite separate from

“proper cause.” Analogous requirements are part of several “shall-issue” regimes

favorably referenced in Bruen. See, e.g., Ga. Code Ann. § 16-11-129(d)(4); Ind. Code

§ 35-47-2-3(g); Conn. Gen. Stat. § 29-28(b); R.I. Gen. Laws § 11-47-11; see also Bruen,

142 S. Ct. at 2123 n.1.

As a threshold matter, no applicant has Article III standing to challenge the

CCIA’s licensing requirements. Here, five of the applicants already have carry permits

and have thus been found to satisfy the statutory requirement of good moral charac-

ter. The sixth applicant has never applied for a permit. A person who has “failed to

apply for a gun license in New York . . . lacks standing to challenge the licensing

23
laws.” United States v. Decastro, 682 F.3d 160, 164 (2d Cir. 2012); see also Libertarian

Party of Erie County v. Cuomo, 970 F.3d 106, 122 (2d Cir. 2020), abrogated in part on

other grounds by Bruen, 142 S. Ct. 2111. Applicants contend that such an application

would be futile because of alleged processing delays (Appl. at 20), but in that case,

any injury would be due to the possible delay and not to the underlying requirements.

Insofar as the district court concluded that an application would be futile because of

the applicant’s refusal to provide required disclosures (App.021a-024a), a plaintiff

cannot manufacture standing by refusing to “submit to the challenged policy.” Liberta-

rian Party, 970 F.3d at 121.

Moreover, the “good moral character” requirement does not infringe the text of

the Second Amendment, as it is “designed to ensure only that those bearing arms in

the jurisdiction are, in fact, ‘law-abiding, responsible citizens,’” Bruen, 142 S. Ct. at

2138 n.9 (quoting Heller, 554 U.S. at 635); see also Range, 53 F.4th at 284. Good moral

character connotes the absence of “base or depraved” actions that reflect moral

turpitude. Konigsberg v. State Bar of Cal., 353 U.S. 252, 263 (1957). The clarifying

definition added by the CCIA makes express that the requirement is intended to

prevent possession of firearms by persons who lack “the essential character, tempera-

ment and judgement necessary to be entrusted with a weapon and to use it only in a

manner that does not endanger oneself or others.” Penal Law § 400.00(1)(b). The

district court acknowledged that the requirement could be constitutionally applied in

many circumstances (App.105a) but nevertheless enjoined enforcement of the

provision in its entirety while precluding licensing officials from collecting

24
information aimed at informing the “good moral character” inquiry. That ruling was

inappropriate in a facial challenge. Cf. Bruen, 142 S. Ct. at 2162 (Kavanaugh, J.,

concurring) (“[S]hall-issue licensing regimes are constitutionally permissible, subject

of course to an as-applied challenge if a shall-issue licensing regime does not operate

in that manner in practice.”)

Because the “good moral character” requirement does not implicate the text of

the Second Amendment in the first instance, respondents were not required to proffer

historical evidence to support the challenged licensing provisions. Indeed, this Court

in Bruen endorsed shall-issue licensing regimes without undertaking any historical

analysis. See id. at 2138 n.9; see also id. at 2161-62 (Kavanaugh, J., concurring). But

even if such a showing were required, the historical record confirms that a “legislature

may disarm those who have demonstrated a proclivity for violence or whose posses-

sion of guns would otherwise threaten the public safety,” Kanter v. Barr, 919 F.3d

437, 454 (7th Cir. 2019) (Barrett, J., dissenting), whether the person “belongs to a

dangerous category or bears individual markers of risk,” id. at 451. 11 Respondents

identified many relevant historical laws in their papers below. See PI Mem. in Opp.

at 23-24 (Oct. 13, 2022), Dist. Ct. ECF 48 (citing historical authority for making

individualized determinations of suitability). Respondents similarly identified

relevant historical analogues for each of the enjoined disclosures, whose use is limited

11The majority’s decision in Kanter was abrogated on other grounds by Bruen,

142 S. Ct. 2111.

25
to the evaluation of whether an applicant is law-abiding and responsible for purposes

of firearms licensing. Id. at 33-34, 37-40.

Sensitive locations. Applicants contend that the CCIA’s enumerated sensitive

locations amount to a prohibition on concealed carry in “virtually the entire landmass

of New York.” Appl. at 6-7, 18. Plaintiffs offer no factual support for this hyperbole.

Moreover, applicants’ general disagreement with the policy choices reflected in the

law, “however sharp and acrimonious it may be, is insufficient by itself to meet Art.

III’s requirements,” Hollingsworth v. Perry, 570 U.S. 693, 704 (2013) (quotation

marks omitted). Here, the district court already determined that applicants lack

standing to challenge most of the sensitive-location provisions enumerated in the

CCIA. App.026a-083a. Applicants do not acknowledge or grapple with this ruling,

and instead repeatedly reference all twenty statutory subdivisions as if all of those

issues were ripe for resolution in this or some other court.

Moreover, the district court’s standing analysis with respect to the sensitive

locations that were enjoined by the district court and then reinstated by the court of

appeals’ stay is seriously flawed. 12 For example, the district court erroneously found

12As noted above (at 12-13), the injunction is limited to (i) locations providing
behavioral health or chemical dependence care or services, (ii) places of worship or
religious observation, (iii) public parks and zoos, (iv) airports (to the extent the license
holder is complying with federal regulations) and buses, (v) establishments serving
alcohol, (vi) theaters, conference centers, banquet halls, and (vii) any gathering of
individuals to collectively express their constitutional rights to protest or assemble.
App.184a-185a. At respondents’ request, the stay does not apply to places of worship
or religious observation when those places designate persons to carry firearms to
protect the peace, the narrowed injunction as to airports, and the injunction to the
extent it applies to private buses. App.002a.

26
that an applicant has standing to challenge the sensitive-place regulation governing

behavioral health or chemical dependence care or services, Penal Law § 265.01-

e(2)(b), because he allegedly provides counseling to drug-addicted individuals in his

church. App.028a-029a, 185a. But the applicant attested that his counseling is

intended to encourage those whom he counsels “to seek help and voluntarily enter

treatment”—not to provide the treatment that may be covered by the statute.

App.290a.

Next, the district court erroneously relieved applicants of their burden to show

that the Second Amendment’s “text, as informed by history,” plausibly encompassed

any of the challenged sensitive locations. Bruen, 142 S. Ct. at 2127; see Heller, 554

U.S. at 626 & n.26 (stating that sensitive places fall outside the “scope of the Second

Amendment” and that certain of such prohibitions are “presumptively lawful”).

Instead, the court assumed without meaningful analysis that the Second Amend-

ment’s text reaches every sensitive place covered by the CCIA that is open to the

public. App.126a, 131a, 137a. But several of the exemplar sensitive places identified

by this Court in Bruen are quintessentially open to the public. See 142 S. Ct. at 2133

(identifying courthouses and legislative assemblies). Moreover, the district court

compounded its error by relying on state statutory definitions of “public place” and

“public facility” (App.126a, 131a, 137a) even though these definitions say nothing

about the original meaning of bearing arms under the Second Amendment.

Finally, the district court erred in finding the State’s historical sources not

“relevantly similar” to New York’s current prohibitions, see Bruen, 142 S. Ct. at 2132.

27
Bruen identified “at least two metrics” for addressing similarity of historical

analogues: “how and why the regulations burden a law-abiding citizen’s right to

armed self-defense.” Id. at 2133. As respondents explained below, the “how and why”

of the CCIA’s sensitive-place regulations closely track the “how and why” of

longstanding prohibitions on the possession of firearms in places like fairs, markets,

election sites, places of worship, courts, schools, places of public assembly, and so

forth. These historical restrictions served several purposes, including: (1) to protect

the exercise of other rights such as voting, religious congregation, and public

assembly, and governmental processes such as courtroom adjudication; (2) to protect

places where vulnerable or impaired people who either cannot defend themselves, or

cannot be trusted to have firearms around them safely, are ordinarily found; and

(3) to avoid violence or chaos in unusually crowded places. Each of the CCIA’s

sensitive-place regulations at issue in this appeal serves at least one of these

purposes, and a number of them serve more than one. Applicants cannot show that

the court of appeals would have been demonstrably wrong in deeming these argu-

ments potentially meritorious—particularly when this Court has yet to “expound

upon the historical justifications” for the indisputably valid prohibitions on carrying

firearms in schools and government buildings, among other sensitive places, Heller,

554 U.S. at 635.

Although the district court referenced Bruen’s “how and why” metrics

(App.090a), its analysis of the challenged sensitive-location restrictions applied no

principles of analogical reasoning. Instead, the court repeatedly demanded identical

28
historical predecessors, invented a metric of representativeness based on historical

census data that respondents never had an opportunity to address or rebut, and

categorically discounted swaths of respondents’ historical evidence based on

irrelevant criteria and speculative hypotheticals. App.125a-168a. In so doing, the

court ignored Bruen’s clear direction to take a “nuanced approach” to “cases

implicating unprecedented societal concerns or dramatic technological changes,” 142

S.Ct. at 2132, to apply the Constitution “to circumstances beyond those the Founders

specifically anticipated,” id., and to utilize careful analogical reasoning based on

“well-established and representative historical analogue[s]” rather than demanding

“historical twin[s],” id. at 2133 (emphasis omitted).

Restricted locations. The district court also erroneously enjoined—and the

stay reinstated—the enforcement of CCIA’s restricted-locations provision, which bars

the possession of firearms on others’ private property absent express consent from

the owner or proprietor. See Penal Law § 265.01-d(1). Applicants lack standing to

challenge this provision on Second Amendment grounds because they do not dispute

that property owners may always exclude guns from their property or that a person

wishing to enter private property bearing a firearm can seek and obtain express

consent. Accordingly, an injunction against respondents cannot vindicate applicants’

asserted desire to carry guns onto others’ property. Any inability to do so would flow

not from respondents’ enforcement of the CCIA, but rather from decisions by property

owners or lessees about whether to allow guns on the premises and when and how to

convey that determination. Applicants hazard a guess that “the majority of otherwise

29
pro-gun homeowners, along with most proprietors of businesses . . . will not bother to

post such signage” (Appl. at 8), but this speculation, even if true, demonstrates that

any injury is due to actions by third parties and not respondents. “[U]nder traditional

equitable principles, no court may lawfully enjoin the world at large, or purport to

enjoin challenged laws themselves.” Whole Woman’s Health v. Jackson, 142 S. Ct.

522, 535 (2021) (quotation marks and citation omitted).

In addition, the district court mistakenly presumed that the restricted-

locations provision implicates the Second Amendment’s text. App.168a-169a. This

Court has never found that carrying firearms onto others’ private property equates

with “carrying handguns publicly,” Bruen, 142 S. Ct. at 2134, or keeping arms in one’s

own home, see Heller, 554 U.S. at 628. A private property owner has an undisputed

right to decide “whether to allow firearms on its premises and, if so, under what

circumstances.” GeorgiaCarry.Org., Inc. v. Georgia, 687 F.3d 1244, 1266 (11th Cir.

2012) (conducting extensive historical inquiry of Second Amendment’s textual scope),

abrogated on other grounds by Bruen, 142 S. Ct. 2111. New York’s statute merely

protects that right by selecting a default rule that enables proprietors to make an

informed determination about whether to allow guns on the premises; namely, by

requiring someone carrying a concealed firearm to seek express consent, which may,

in certain circumstances, require disclosing that the person is carrying a weapon. 13

13 In New York, it has long been a crime to remain in a building with an

operable firearm after a direction to leave. See Penal Law § 140.17(2).

30
 Moreover, even if the Second Amendment’s text reached the restricted-

locations provision (which it does not), respondents provided ample evidence showing

that the law is supported by an unambiguous historical tradition of laws forbidding

carrying guns onto others’ property without their permission. The district court

acknowledged that respondents identified numerous statutes spanning two centuries

from the colonial through the Reconstruction eras but misinterpreted many of these

provisions as “anti-poaching laws” and thereby dismissed them as irrelevant to the

restricted-locations provision. App.169a-174a. According to the district court, these

statutes were irrelevant because applicants have not alleged injury due to “not being

able to hunt turkey and deer” on private property. App.171a.

The district court’s reasoning is flawed in many respects. As an initial matter,

many of the statutes cited by respondents are, by their plain terms, not limited to

poaching but extend broadly to carrying any firearm. The court’s analysis also

eschews the careful analogical reasoning required by Bruen. See 142 S.Ct. at 2132-

33. Even if the cited historical laws had been motivated in whole or in part by

concerns about poaching, the court failed to explain why respondents could not rely

on these provisions to support a similar restriction motivated by different and modern

concerns. In arbitrarily dismissing respondents’ historical evidence, the court in effect

eliminated the possibility of supporting a modern law through historical analogues—

the exact result against which Bruen cautioned.

Finally, the district court erred in concluding that the restricted-location

provision violated the First Amendment by “compelling” property owners to

31
communicate that guns are welcome on their property. App.177a-181a. This ruling

misunderstands compelled-speech claims, which require that the government force

individuals to “speak a particular message,” National Inst. of Family & Life Advocates

v. Becerra, 138 S. Ct. 2361, 2371 (2018). The CCIA does not compel speech; rather, it

prohibits guests from entering private property with a firearm without obtaining

consent. A property owner may give consent to carry, deny permission to carry, or

choose not to speak at all; none of these options represents a state-sponsored message.

In sum, there is a strong likelihood that respondents will succeed on the merits

of their challenge to the provisions of the injunction that were suspended by the stay.

The Remaining Stay Factors Weigh in Favor of a Stay

Pending Appeal.

A stay pending appeal was necessary to prevent irreparable injury to

respondents and was in the public interest for several reasons. First, a stay was

necessary to prevent regulatory chaos and public confusion, which had already been

exacerbated by the district court’s issuance of three different decisions in the span of

ten weeks, each of which reached a different result as to which provisions of the CCIA

may be enforced and for which reasons. See Citibank, N.A. v. Nyland (CF8) Ltd., 839

F.2d 93, 97 (2d Cir. 1988) (public confusion can constitute irreparable harm). In

addition, the need for state and local law enforcement to explain the effect of these

decisions to officials and members of the public and to implement compliance with a

piecemeal injunction that may ultimately be vacated on appeal was a substantial

burden warranting a stay.

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 Second, a stay was necessary to avoid substantial public harms. For example,

the injunction would require the issuance of firearms licenses to persons who fail to

demonstrate good moral character and would allow applicants for permits to withhold

multiple categories of information relevant to assessing their fitness to carry a fire-

arm. As a result, concealed-carry licenses may be granted to people lacking “the

essential character, temperament and judgement necessary to be entrusted with a

weapon,” Penal Law § 400.00(1)(b).

In addition, the injunction bars respondents from enforcing prohibitions on

carrying firearms in numerous sensitive locations such as bars, restaurants, theaters,

and political protests, increasing the risk of intentional or inadvertent shooting

deaths or injuries. And the injunction would allow people to enter private property

(including people’s homes) with concealed firearms without obtaining consent or even

providing notice, notwithstanding the potential presence of children or other

vulnerable persons on that property. “That [a State] may not employ a duly enacted

statute to help prevent [serious] injuries constitutes irreparable harm.” Maryland v.

King, 567 U.S. 1301, 1303 (2012) (Roberts, C.J., granting stay).

Third, a stay was necessary where, as here, the district court enjoined the

enforcement of a duly enacted state law without giving respondents a meaningful

opportunity to mount a defense. Indeed, the court gave appellants less than three

weeks in total to oppose both a TRO and a preliminary injunction, see Text Order

(Sept. 23, 2022), ECF 8, as well as to address the reasoning in the court’s own shifting

decisions. But, under Bruen’s standard for Second Amendment challenges, defending

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firearm regulations requires assembling materially analogous laws and policies from

a wide range of sources, and obtaining expert testimony from legal historians and

other scholars—a task that could not realistically be completed on the district court’s

timetable.

III. APPLICANTS WILL NOT SUFFER IRREPARABLE INJURY FROM THE STAY.

By contrast, a stay would not cause (and has not caused) substantial injury to

applicants (as enumerated in the stay factors), much less the irreparable injury

needed to justify this Court’s vacatur of a stay entered by a court of appeals.

The harms identified by applicants in their papers are hypothetical. For

example, applicants assert that a pastor might not be able to possess a firearm in his

home if that home is located on church property. Appl. at 7, 21-22. But applicants fail

to explain how the CCIA could fairly be read (or ultimately applied) to reach that

result; and, in any event, the terms of the stay allow the place of worship to designate

the applicant to carry firearms on church property to keep the peace. App.002a.

Applicants also assert that a person whose home is “surrounded by the rural Catskill

Park” cannot possess a firearm at home because of the designation of parks as

sensitive places. Appl. at 7. However, Catskills State Park is a forest preserve rather

than a park and is therefore not a sensitive location, although it may contain some

interior sensitive locations like libraries or government administrative facilities. See

N.Y. Div. of Crim. Just. Servs., Frequently Asked Questions Regarding Recent

Changes to New York State Firearm Laws (Aug. 27, 2022).

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 Likewise, the applicant who has yet to file a license erroneously asserts that

the CCIA prevents him from filing that application. Appl. at 22. The CCIA does no

such thing; the applicant’s purported injury is due to his own decision to refuse to

comply with the law, which does not bestow standing, much less cognizable injury in

a stay application. And while applicants now assert that they cannot “freely carry

their firearms in public to defend themselves and their families” (Appl. at 22), what

the complaint and declarations in support of the preliminary injunction motion reflect

is that several applicants wish to carry guns into specific sensitive or restricted

locations, such as a zoo in Syracuse or a community center in Albany (App.045a-046a,

071a). To the extent applicants are unable to do so during the pendency of this appeal,

such injuries are not sufficiently substantial to warrant enjoining the application of

the law on a statewide basis.

Applicants are also wrong to argue that the alleged denial of their

constitutional rights is, standing alone, sufficient to establish substantial injury for

purposes of a stay. See Appl. at 23, 26-27. This argument conflates likelihood of

success on the merits with the equitable stay factors. Under applicants’ logic, the

government would never be entitled to a stay pending appeal where a district court

has entered a preliminary injunction based on an asserted constitutional violation,

no matter how weak the decision may be on the merits. That result is untenable.

Finally, the risk of any harm to applicants is mitigated by the court of appeals’

decision to hear the case on an expedited basis, with appellants’ opening briefs due

on January 9, 2023—less than a week from the date of this filing. App.002a;

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Antonyuk, No. 22-2908, Dkt. 79. The court of appeals has similarly ordered expedited

briefing in Hardaway v. Nigrelli and Christian v. Nigrelli, two other cases involving

overlapping challenges to the CCIA. 14 Where, as here, the court of appeals stands

ready to adjudicate these important challenges in a timely fashion, this Court’s

premature intervention is neither appropriate nor necessary.

If this Court disagrees and determines to vacate the stay, it should do so only

with respect to applicants, which would suffice to prevent any alleged injuries that

applicants may have standing to assert. See Trump v. International Refugee

Assistance Project, 137 S. Ct. 2080, 2087-88 (2017) (per curiam).

14See Hardaway, No. 22-2933, Dkt. 57 (briefing to be completed by March 13,

2023); Christian, No. 22-2987, Dkt. 44 (briefing to be completed by March 22, 2023).

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 CONCLUSION

The emergency application to vacate the stay issued by the court of appeals

should be denied.

Dated: New York, New York

January 3, 2023

Respectfully submitted,

LETITIA JAMES
Attorney General
State of New York

By: . /s/ Barbara D. Underwood .

BARBARA D. UNDERWOOD*
Solicitor General

SUSAN R. KATZOFF ESTER MURDUKHAYEVA

Corporation Counsel Deputy Solicitor General
TODD M. LONG PHILIP J. LEVITZ
Senior Assistant Corporation Counsel Assistant Solicitor General
DANIELLE R. SMITH
Assistant Corporation Counsel * Counsel of Record

City of Syracuse Department of Law 28 Liberty Street

233 East Washington Street New York, NY 10005
Syracuse, NY 13202 (212) 416-8016
(315) 448-8400 [email protected]

Attorneys for Respondent Cecile Attorneys for Respondents

Nigrelli and Doran

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