Opposition Brief — Libertarian Party of Erie County, et al., Petitioners v. Andrew M. Cuomo, Individually and as Governor of the State of New York, et al.
Supreme Court briefMay 25, 2021
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No. 20-1151
IN THE
Supreme Court of the United States
LIBERTARIAN PARTY OF ERIE COUNTY, et al.,
Petitioners,
v.
ANDREW M. CUOMO, Individually and as Governor
of the State of New York, et al.,
Respondents.
ON PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
BRIEF IN OPPOSITION
LETITIA JAMES
Attorney General
State of New York
BARBARA D. UNDERWOOD*
Solicitor General
ANISHA S. DASGUPTA
Deputy Solicitor General
MATTHEW W. GRIECO
AMIT. R. VORA
Assistant Solicitors General
28 Liberty Street
New York, New York 10005
(212) 416-8020
barbara.underwood@ag.ny.gov
*Counsel of Record
i
COUNTERSTATEMENT OF
QUESTION PRESENTED
Whether the court of appeals correctly rejected
petitioners’ Second Amendment challenge to New
York State’s authority to maintain a firearms
licensing scheme, to charge fees to cover the costs of
issuing licenses, and to deny a license to a person
whose criminal history shows a current unwillingness
or inability to adhere to public safety laws.
ii
TABLE OF CONTENTS
Page
Table of Authorities ................................................... ii
Introduction ................................................................. 1
Statement .................................................................... 4
Reasons for Denying the Petition ............................. 12
I.
This Case Is a Poor Vehicle for
Considering the Questions the Petition
Seeks to Raise. ................................................ 12
II. Petitioners Fail to Identify Any Split in
Authority on the Questions They Present
in Their Petition.............................................. 18
III. The Decision Below Is Correct. ...................... 22
A. History and tradition show that New
York’s premises licensing laws are
consistent with the Second
Amendment. .............................................. 23
B. New York’s premises licensing laws
advance the State’s compelling
interests in public safety and crime
prevention. ................................................. 26
Conclusion.................................................................. 29
iii
TABLE OF AUTHORITIES
Cases
Page(s)
American Target Adver., Inc. v. Giani, 199 F.3d
1241 (10th Cir. 2000) ........................................... 20
Antoine v. Byers & Anderson, Inc., 508 U.S. 429
(1993) .................................................................... 16
Arizonans for Off. Eng. v. Arizona, 520 U.S. 43
(1997) .................................................................... 14
City of Los Angeles v. Lyons, 461 U.S. 95 (1983) ...... 14
Clapper v. Amnesty Int’l USA, 568 U.S. 398
(2013) .................................................................... 14
Cleavinger v. Saxner, 474 U.S. 193 (1985) .......... 15,16
Coalition for the Abolition of Marijuana
Prohibition v. City of Atlanta, 219 F.3d 1301
(11th Cir. 2000) .................................................... 20
People ex rel. Darling v. Warden of City Prison,
154 A.D. 413 (1st Dep’t 1913) ................................ 5
District of Columbia Court of Appeals v.
Feldman, 460 U.S. 462 (1983) ............................. 15
District of Columbia v. Heller, 554 U.S. 570
(2008) ............................................................ passim
Diva’s Inc. v. City of Bangor, 411 F.3d 30 (1st
Cir. 2005) .............................................................. 16
Drake v. Filko, 724 F.3d 426 (3d Cir. 2013).............. 19
Duncan v. Becerra, 970 F.3d 1133 (9th Cir.
2020) ..................................................................... 22
Ezell v. Chicago, 651 F.3d 684 (7th Cir. 2011) ......... 20
Folajtar v. Attorney General, 980 F.3d 897 (3d
Cir. 2020) .............................................................. 21
iv
Cases
Page(s)
Gould v. Morgan, 907 F.3d 659 (1st Cir. 2018) ........ 19
Heller v. District of Columbia, 670 F.3d 1244
(D.C. Cir. 2011)........................................... 19,20,27
Heller v. District of Columbia, 801 F.3d 264
(D.C. Cir. 2015)................................................ 19,20
International Women’s Day March Planning
Comm. v. City of San Antonio, 619 F.3d 346
(5th Cir. 2010) ...................................................... 20
Jake’s, Ltd., Inc. v. City of Coates, 284 F.3d 884
(8th Cir. 2002) ...................................................... 20
Kachalsky v. County of Westchester, 701 F.3d
81 (2d Cir. 2012) ............................................. 7,8,19
Kentucky v. Graham, 473 U.S. 159 (1985)................ 15
Keystone Redevelopment Partners, LLC v.
Decker, 631 F.3d 89 (3d Cir. 2011) ...................... 16
Kwong v. Bloomberg, 723 F.3d 160 (2d Cir.
2013) ..................................................................... 20
Lane v. Holder, 703 F.3d 668 (4th Cir. 2012) ........... 20
Matter of Delgado v. Kelly, 127 A.D.3d 644 (1st
Dep’t 2015).............................................................. 9
Matter of Hassig v. Nicandri, 2 A.D.3d 1118 (3d
Dep’t 2003).............................................................. 9
Matter of Parker v. Randall, 120 A.D.3d 946
(4th Dep’t 2014) ............................................... 16,28
McDonald v. City of Chicago, 561 U.S. 742
(2010) .................................................................... 23
Moore v. Madigan, 702 F.3d 933 (7th Cir.
2012) ..................................................................... 19
Morin v. Leahy, 862 F.3d 123 (1st Cir. 2017) ........... 13
v
Cases
Page(s)
National Rifle Ass’n of Am., Inc. v. Bureau of
Alcohol, Tobacco, Firearms, & Explosives,
700 F.3d 185 (5th Cir. 2012) ........................... 21,27
Northeast Ohio Coal. for the Homeless v. City
of Cleveland, 105 F.3d 1107 (6th Cir. 1997)........ 21
Parker v. District of Columbia, 478 F.3d 370
(D.C. Cir. 2007)..................................................... 13
People v. Hughes, 22 N.Y.3d 44 (2013) ..................... 27
Schrader v. Holder, 704 F.3d 980 (D.C. Cir.
2013) ..................................................................... 21
Tyler v. Hillsdale County Sheriff’s Dep’t, 837
F.3d 678 (6th Cir. 2016) (en banc) ....................... 21
United States v. Bena, 664 F.3d 1180 (8th Cir.
2011) ..................................................................... 21
United States v. Chester, 514 F. App’x 393 (4th
Cir. 2013) .............................................................. 21
United States v. Focia, 869 F.3d 1269 (11th
Cir. 2017) .............................................................. 21
United States v. Marzzarella, 614 F.3d 85 (3d
Cir. 2010) .............................................................. 27
United States v. Murtari, 120 F. App’x 378 (2d
Cir. 2004) .................................................... 17,22,27
United States v. Murtari, No. 5:03 Crim. 81,
2007 WL 1174860 (N.D.N.Y. Apr. 19, 2007) .. 17,27
United States v. Murtari, No. 5:07 Crim. 387,
2007 WL 3046746 (N.D.N.Y. Oct. 16, 2007)... 17,27
United States v. Murtari, No.5:07 Crim. 428,
2008 WL 687434 (N.D.N.Y. Mar. 11, 2008) ... 17,27
vi
Cases
Page(s)
United States v. Reese, 627 F.3d 792 (10th Cir.
2010) ..................................................................... 21
United States v. Rene E., 583 F.3d 8 (1st Cir.
2009) ..................................................................... 21
United States v. Torres, 911 F.3d 1253 (9th
Cir. 2019) .............................................................. 21
United States v. Yancey, 621 F.3d 681 (7th Cir.
2010) ..................................................................... 21
Watts v. Burkhart, 978 F.2d 269 (6th Cir.
1992) ..................................................................... 16
Woollard v. Gallagher, 712 F.3d 865 (4th Cir.
2013) ..................................................................... 19
Wrenn v. District of Columbia, 864 F.3d 650
(D.C. Cir. 2017)..................................................... 19
Young v. Hawai‘i, 992 F.3d 765 (9th Cir. 2021) ....... 19
Laws
Federal
Ch. 465, 47 Stat. 650 (D.C. 1932)................................ 7
Federal Firearms Act, Ch. 850, 52 Stat.
1250 (1938) ........................................................... 25
Pub. L. No. 87-342, 75 Stat. 757 (1961) .................... 25
Omnibus Crime Control Act of 1968, Pub. L.
No. 90-351, 82 Stat. 197 ....................................... 25
18 U.S.C. § 922 .......................................................... 25
vii
Laws
Page(s)
State (alphabetical)
Act No. 82, 1936 Ala. Laws 51 (Feb. Gen.
Laws Extra Sess.) .............................................. 7,25
Ch. 430, 1923 Ark. Acts 379 ................................... 6,24
Ch. 339, 1923 Cal. Stat. 695................................... 6,25
Ch. 252, 1923 Conn. Pub. Acts 3707 ........................... 6
Ch. 206, 1927 Haw. Sess. Laws 209 ........................ 6,7
Ch. 207, 1925 Ind. Acts 495 ................................... 7,25
Ch. 63, 1935 Ind. Acts 159 ..................................... 7,25
Ch. 372, 1927 Mich. Pub. Acts 887 ........................ 7,25
Act of Apr. 7, 1921, 1921 Mo. Laws 691 ................ 6,24
Ch. 2, 1918 Mont. Laws 6 ....................................... 6,24
Ch. 118, 1923 N.H. Laws 138................................. 7,25
Ch. 321, 1927 N.J. Laws 742.......................... 6,7,24,25
Ch. 195, 1911 N.Y. Laws 442 ...................................... 5
Ch. 608, 1913 N.Y. Laws 1627 ............................... 5,24
N.Y. Penal Law
§ 265.00(10) .................................................... 8,9,15
§ 400.00 ......................................................... passim
Ch. 197, 1919 N.C. Sess. Laws 397........................ 6,24
Ch. 266, 1923 N.D. Laws 379 ................................. 7,25
Ch. 256, 1913 Or. Laws 497 ................................... 5,24
Ch. 260, 1925 Or. Laws 468 ................................... 7,25
Act. No. 158, 1931 Pa. Laws 497............................ 7,25
Ch. 1052, 1927 R.I. Sess. Laws 256 ....................... 7,25
Ch. 208, 1935 S.D. Sess. Laws 355 ........................ 7,25
viii
Laws
Page(s)
State (alphabetical)
Ch. 267, 1931 Tex. Gen. Laws 447......................... 6,24
Ch. 172, 1935 Wash. Sess. Laws 599 ..................... 7,25
Ch. 3, 1925 W. Va. Acts 24 (Extraordinary Sess.)...... 7
Miscellaneous Authorities
Nat’l Conf. of Comm’rs on Uniform State
Laws, Handbook and Proceedings of the
34th Annual Meeting (1924),
https://babel.hathitrust.org/cgi/pt?id=md
p.35112103425932&view=1up&seq=723 ......... 6,24
Revolver Killings Fast Increasing, N.Y.
Times, Jan. 30, 1911 .............................................. 5
State of N.Y., Report of the N.Y. State Joint
Legislative Comm. on Firearms &
Ammunition (1965),
https://nysl.ptfs.com/data/Library1/Libra
ry1/pdf/11474023_1965.pdf .................................... 7
Uniform Firearms Act § 8 (Nat’l Conf. of
Comm’rs on Unif. State L. 1930),
https://babel.hathitrust.org/cgi/pt?id=uiu
g.30112022014283&view=1up&seq=1 ............. 6,24
1 W. & M., ch. 2, in 3 Eng. Stat. at Large 440
(1689) .................................................................... 26
1 William Blackstone, Commentaries ....................... 26
INTRODUCTION
Petitioners bring a Second Amendment challenge
to New York State’s regime for licensing the
possession of firearms. New York’s licensing regime
has existed in the same essential form since 1913 and
descends from a centuries-long Anglo-American
historical practice of ensuring that only persons who
are law-abiding and responsible have access to arms.
Petitioners argue that the Second Amendment forbids
a State to maintain a licensing scheme at all, and
challenge various details of New York’s scheme,
including the background-check requirement, the
State’s imposition of licensing fees to cover the costs of
issuing licenses, and certain of the State’s licensing
criteria.
The petition does not warrant this Court’s review.
Petitioners’ case is a poor vehicle for evaluating the
questions the petition seeks to present, the analysis of
the court of appeals does not implicate any circuit
split, and the decision below was correct.
Although the petition purports to have been
brought on behalf of nine individuals and one
organization (Pet. iii), petitioners have conceded that
the organization identified in the caption does not
possess standing; that petitioners Richard Cooper,
Michael Rebmann, and Edward Garrett have not even
applied for licenses; that petitioner Ginny Rober is
dead; that petitioners Philip Mayor and William
Cuthbert have moved to other States; and that
petitioners Michael Kuzma and David Mongielo hold
unrestricted licenses that enable them to possess
firearms at home and carry firearms in public. Pet. 15;
see Pet. App. 98, 102–103.
2
Thus, only petitioner John Murtari actually
possesses Article III standing to pursue a challenge to
New York’s firearms licensing criteria. But his claim
is not a suitable vehicle for challenging New York’s
“proper cause” requirement for a license to carry
firearms in public because he applied only for a
premises license, not a public carry license. Likewise,
his claim is not a suitable vehicle for challenging New
York’s requirement that an applicant exhibit “good
moral character,” because he was not denied a license
on that basis. Instead, he was denied a license for
“good cause” based on his lengthy criminal history,
which encompasses sentences for trespassing in
violation of court orders, including trespassing in a
federal courthouse. See infra at 16–17.
The petitioners who have brought damages
requests cannot use those to avoid the mootness of
their challenges to New York’s requirement to show
“proper cause” for a carry license. As they
acknowledge, the respondents from whom they seek
damages are state court judges who, as the court of
appeals recognized, are absolutely immune from
damages claims. Pet. 15; see Pet. App. 109. In
disputing the court of appeals’s conclusion, petitioners
do not raise any issues meriting resolution by this
Court. The court of appeals relied on well-settled legal
principles in explaining why the judicial respondents
were performing an at least quasi-judicial function
when evaluating the merits of specific licensing
applications, and therefore were entitled to immunity
from petitioners’ damages claims. Pet. App. 91, 107–
109.
Beyond these serious vehicle problems, petitioners
cannot identify any circuit split on the authority of a
State to maintain a firearms licensing scheme or to
3
impose licensing fees to defray the costs of issuing
firearm licenses. Seven circuits have held that
firearms licensing and registration schemes do not run
afoul of the Second Amendment; two circuits have
explicitly held that that the administrative fees
incidental to such schemes comport with the Second
Amendment; and no court of appeals has held to the
contrary on either issue.
Nor can petitioners identify any circuit split that
is implicated by Murtari’s specific licensing challenge.
The court of appeals concluded that a State may
consider an applicant’s criminal history when deciding
whether to grant a firearms license—and that a State
is not required to issue a license to a person whose
criminal history shows a current unwillingness or
inability to adhere to public safety laws. Pet. App. 117.
No circuit court has held otherwise. Because Murtari’s
licensing application was rejected based on his
repeated and relatively recent failures to heed public
safety laws, his claims do not raise any question
regarding the scope of a law-abiding person’s right to
carry a firearm. 1
A further reason why the petition should be denied
is that the court of appeals’s analysis was correct. New
York’s longstanding licensing regime is consistent
with the historical scope of the Second Amendment.
Moreover, petitioners’ own experiences with the
scheme show that it directly advances the State’s
1 Thus, there is no need to hold this petition for the Court’s
decision in New York State Rifle and Pistol Association v. Corlett,
No. 20-843, in which the Court granted certiorari to decide
whether New York violated the Second Amendment by denying
concealed-carry licenses for self-defense to petitioners, whose
complaint alleged that they are law-abiding and responsible.
4
compelling interests in public safety and crime
prevention without impinging on the rights of lawabiding and responsible persons to defend themselves.
For example, Murtari is the only petitioner who
applied for a firearms license but did not receive one;
the other petitioners either did not apply for licenses
or were not denied a license. And the denial decision,
which he received in 2015, advised him that he could
reapply once he was able to demonstrate that he was
willing to abide by public safety laws. The Second
Amendment permits that measured and tailored
approach.
STATEMENT
1. In District of Columbia v. Heller, this Court
recognized that the Second Amendment protects the
rights of “law-abiding” and “responsible” persons to
keep and bear arms. 554 U.S. 570, 625, 635 (2008). In
line with that recognition, the Court emphasized that
the Second Amendment right “is not unlimited,” and
that nothing in Heller should be taken to cast doubt on
certain “longstanding” and “presumptively lawful
regulatory measures,” including “prohibitions on the
possession of firearms by felons and the mentally ill.”
Id. at 626–27 & n.26. The Court added that its list of
longstanding laws was not “exhaustive.” Id. at 626.
This passage from Heller underscores the bedrock
status of New York’s firearms licensing scheme, which
was a forerunner of the restrictions referenced with
approval in Heller. New York’s laws have existed in
the same essential form since 1913 and are therefore
even older than the restrictions on firearm possession
by felons and the mentally ill that Heller approved as
“longstanding” and “presumptively lawful.” Those
5
restrictions were enacted at the state level in the
1920s and 1930s, and took their current forms at the
federal level in the 1960s. See infra at 25.
After a 1911 New York Coroner’s Office Report
described a marked increase in homicides and suicides
committed with concealable firearms, the New York
legislature sought to craft a licensing scheme that
would stem the rise in deaths associated with such
weapons. See People ex rel. Darling v. Warden of City
Prison, 154 A.D. 413, 423 (1st Dep’t 1913); Revolver
Killings Fast Increasing, N.Y. Times, Jan. 30, 1911, at
4 (citing New York Coroner’s Office Report). The result
was the enactment in 1911 of the Sullivan Law, which
required a license to possess “any pistol, revolver or
other firearm of a size which may be concealed upon
the person.” Ch. 195, § 1, 1911 N.Y. Laws 442, 443
(codifying former N.Y. Penal Law § 1897 ¶ 3).
In 1913, the New York legislature amended the
Sullivan Law to establish statewide standards for
issuing licenses to possess and carry concealable
firearms. Ch. 608, § 1, 1913 N.Y. Laws 1627, 1627–30.
As amended, the statute allowed any magistrate in the
State to issue a license for home possession if the
magistrate was “satisfied of the good moral character
of the applicant,” and “no other good cause exist[ed]”
to deny the license. Id. at 1629. The statute also
authorized a magistrate to issue a license for
concealed carrying in public upon proof “of good moral
character, and that proper cause exists for the
issuance [of the license].” Id. Other States adopted
similar laws. 2 Those laws and New York’s were
2 See, e.g., Ch. 256, § 2, 1913 Or. Laws 497, 497 (permit to
acquire firearm issued only if affidavit showed “good moral
6
forerunners of two influential model acts: the model
Revolver Act of 1923 promulgated by the United
States Revolver Association, and the Uniform
Firearms Act of 1930 promulgated by the National
Conference of Commissioners on Uniform State Laws.
The 1923 model Revolver Act included provisions
restricting access to firearms by felons, and it
mandated waiting periods between the purchase and
transfer of firearms so as to enable law enforcement to
perform background checks. 3 The 1930 Uniform
Firearms Act built on the template of the 1923 model
Revolver Act, including provisions for longer waiting
periods and for restrictions on firearm access by
persons convicted of violent crimes and those of
“unsound mind.” 4 In the 1920s and 1930s, at least
fourteen States, the District of Columbia, and the
territory of Hawai’i adopted these model acts or
various provisions of them, including the restrictions
on firearm access by felons and mentally ill persons. 5
character”); Ch. 2, § 3, 1918 Mont. Laws 6, 7 (permit to acquire
firearm issued only upon determination that applicant was of
“good moral character”); Ch. 197, § 3, 1919 N.C. Sess. Laws 397,
398 (same); Act of Apr. 7, 1921, § 2, 1921 Mo. Laws 691, 692
(same); see also Ch. 430, § 2, 1923 Ark. Acts 379, 380 (“good
character”); Ch. 206, 1927 Haw. Sess. Laws 209 (“good moral
character”); Ch. 321, § 9, 1927 N.J. Laws 742, 746 (“good
character” and “good repute in the community”); Ch. 267, § 4,
1931 Tex. Gen. Laws 447, 447–48 (“good character”).
3
See Nat’l Conf. of Comm’rs on Uniform State Laws,
Handbook and Proceedings of the 34th Annual Meeting 717–18,
731 (1924) (reprinting the 1923 Revolver Act and its appendix).
4 See Uniform Firearms Act § 8 (Nat’l Conf. of Comm’rs on
Unif. State L. 1930).
5 See, e.g., Ch. 339, § 2, 1923 Cal. Stat. 695, 696 (restricting
firearm access by felons); Ch. 252 §§ 3, 7, 1923 Conn. Pub. Acts
7
Over the course of the twentieth century, New
York maintained its licensing regime in essentially
the same form. Statutory amendments and recodifications through the years reiterated the importance of
New York’s licensing requirements to public safety,
but never evinced a “general animus towards guns.”
Kachalsky v. County of Westchester, 701 F.3d 81, 97
n.22 (2d Cir. 2012). As a 1965 legislative report
observed: “Statutes governing firearms and weapons
are not desirable as ends in themselves. Such
legislation is valuable only as a means to the worthwhile end of preventing crimes of violence before they
occur.” State of N.Y., Report of the N.Y. State Joint
Legislative Comm. on Firearms & Ammunition 12
(1965).
2. New York law requires a license to possess or
carry a “firearm.” See N.Y. Penal Law § 400.00. The
statutory term “firearm” is defined to include
3707–3709 (requiring application for purchase); Ch. 118, §§ 3, 8,
1923 N.H. Laws 138, 138–139 (felons); Ch. 266, §§ 5, 10, 1923
N.D. Laws 379, 380–81 (felons); Ch. 207, §§ 4, 9, 1925 Ind. Acts
495, 495, 497 (felons); Ch. 260, §§ 2, 10, 1925 Or. Laws 468, 468,
473 (felons); Ch. 3, § 1, sec. 7(b), 1925 W. Va. Acts 24, 26
(Extraordinary Sess.) (requiring dealer to report purchaser’s
characteristics to police); Ch. 206, § 23, 1927 Haw. Laws 209,
215–216 (conditioning permit to purchase on applicant’s
background); Ch. 372, § 2, 1927 Mich. Pub. Acts 887, 887–88
(felons and those “adjudged insane”); Ch. 321, §§ 4, 7, 1927 N.J.
Laws 742, 743, 45 (those convicted of violent crimes and “not of
sound mind”); Ch. 1052, § 3, 1927 R.I. Sess. Laws 256, 257 (those
convicted of violent crimes); Act No. 158, §§ 4, 9, 1931 Pa. Laws
497, 498-99 (those convicted of violent crimes and of “unsound
mind”); Ch. 465, §§ 3, 7, 47 Stat. 650, 651, 652 (D.C. 1932) (same);
Ch. 63, § 6, 1935 Ind. Acts 159, 161 (same); Ch. 208, §§ 4, 9, 1935
S.D. Sess. Laws 355, 355–56 (same); Ch. 172, §§ 4, 8, 1935 Wash.
Sess. Laws 599, 601 (same); Act No. 82, § 9, 1936 Ala. Laws 51,
53 (Feb. Gen. Laws Extra Sess.) (same).
8
handguns (e.g., pistols and revolvers) but excludes
most rifles and shotguns, which are not subject to New
York’s licensing requirements. Id. § 265.00(3). New
York residents may obtain either a “premises” license,
which allows them to possess a firearm in their home
or place of business, id. § 400.00(2)(a)–(b), or a “carry”
license, which allows them to carry a concealed
firearm in public, id. § 400.00(2)(c)–(f). An applicant
must apply for licenses in the county where the
applicant resides or does business. Id. § 400.00(3)(a).
To obtain a premises license, an applicant must
show that he or she is at least twenty-one years old, of
“good moral character,” has no history of serious crime
or mental illness, and that “no good cause exists for
the denial of the license.” Id. § 400.00(1). To obtain an
unrestricted carry license, an applicant must make
the requisite showing for a premises license and
establish “proper cause” for issuing an unrestricted
carry license. Id. § 400.00(2)(f). If the applicant does
not obtain an unrestricted carry license, the applicant
may receive a carry license that is restricted to specific
purposes such as hunting and target shooting. See
Kachalsky, 701 F.3d at 86 & n.5.
Applicants for licenses must undergo a
background check of their mental health history and
criminal history. See N.Y. Penal Law § 400.00(1), (12).
Local police departments, which conduct the
background checks, may charge fees for processing
applications and performing background checks. Id.
§ 400.00(14).
Upon completion of the background check, the
local police department reports the results to a local
licensing officer, who adjudicates the application. See
id. § 400.00(4). In almost all New York counties—
9
including those in which petitioners reside and would
make any application for a firearms license—the local
licensing officer is the “judge or justice of a court of
record having his office in the county of issuance.” Id.
§ 265.00(10). A challenge to a licensing adjudication
rendered by a state court judge or justice must be
brought in the Appellate Division of New York
Supreme Court. See, e.g., Matter of Hassig v. Nicandri,
2 A.D.3d 1118, 1119 (3d Dep’t 2003).6
3a. Petitioners’ complaint (CA2 J.A. 56–81)
alleges that New York’s firearms licensing regime
violates their Second Amendment rights. Petitioners
challenge the State’s authority to maintain a firearms
licensing scheme, the scheme’s background-check
requirement, the State’s imposition of licensing fees to
cover the costs of issuing licenses, and certain of the
State’s criteria for premises licenses and public carry
licenses. The complaint alleges that petitioner
Murtari applied for but was denied a premises license;
that petitioner Cuthbert applied for an unrestricted
license but was granted a carry license restricted to
target shooting and hunting; that petitioner Mayor
secured an unrestricted license but faced a “constant
threat” that it could be revoked; and that petitioner
Mongielo’s unrestricted license was suspended after
an arrest and then fully reinstated—putting Mongielo
under a “constant threat” of revocation. CA2 J.A. 67–
69 (complaint). The complaint contained no
6 In New York City and Nassau County, the local licensing
officer is the police commissioner; in Suffolk County, the local
licensing officer is the police commissioner or the sheriff,
depending on the applicant’s town. N.Y. Penal Law § 265.00(10).
A licensing decision made by a police official may be reviewed in
court under N.Y. C.P.L.R. article 78. See, e.g., Matter of Delgado
v. Kelly, 127 A.D.3d 644 (1st Dep’t 2015).
10
allegations that petitioners Cooper, Garrett, Kuzma,
Rebmann, and Rober had applied for or been denied a
license, and no allegations whatsoever about any
injuries purportedly suffered by the Libertarian Party
of Erie County.
As relief, petitioners requested an injunction
striking down New York’s licensing laws and money
damages from Governor Andrew M. Cuomo, thenAttorney General Eric T. Schneiderman, thenSuperintendent of State Police Joseph A. D’Amico, 7
and three state court judges who issued licenserelated rulings pertaining to petitioners Murtari,
Cuthbert, and Mongielo. CA2 J.A. 58–59, 67–71
(complaint).
b. The district court dismissed the action. The
court held that all of the petitioners except Murtari
and Cuthbert lacked standing, noting that some had
not even applied for a license, while others already
held an unrestricted license. Pet. App. 46–54. The
court further held that the Governor, the Attorney
General, and the Superintendent were improper
defendants because they had no involvement in
administering firearms licensing laws, and therefore
the claims against them could not satisfy the
traceability component of standing; and that Judge
Murphy was an improper defendant because he had
reinstated Mongielo’s unrestricted license, leaving
Mongielo with no redressable claim against him. Pet.
App. 49–54.
7 The Attorney General is currently Letitia James; the
Superintendent’s duties are currently performed by Acting
Superintendent Kevin P. Bruen.
11
In addition, the court held that Eleventh
Amendment sovereign immunity barred all of
petitioners’ official-capacity damages claims, and
absolute judicial immunity barred their individualcapacity damages claims, which were brought only
against the judicial respondents. Pet. App. 54–59. The
court then held that, although Murtari had standing
to bring a claim for injunctive relief against Judge
Kehoe for denying Murtari a premises license, and
Cuthbert had standing to bring such a claim against
Justice Boller for denying Cuthbert an unrestricted
carry license, their respective Second Amendment
challenges were meritless. Pet. App. 63–73.
c. The court of appeals affirmed the dismissal of
the complaint. The court held that the petitioners who
had secured licenses and the petitioners who had not
applied for licenses had not suffered an injury-in-fact
and therefore lacked Article III standing to sue. Pet.
App. 102–103. The court also agreed with the district
court’s conclusion that Governor Cuomo, Attorney
General James, and Superintendent D’Amico were not
proper defendants; that the judicial defendants were
immune from petitioners’ damages claims; and that
Mongielo had not stated any redressable claims. Pet.
App. 103–110.
The court of appeals noted that petitioner
Cuthbert had moved away from New York while the
appeal was pending, thus mooting petitioners’ challenge to New York’s carry licensing laws. Pet. App. 98.
The court further noted that even if Cuthbert’s claim
were not moot, it would have been foreclosed by the
court’s Kachalsky decision. Pet. App. 113.
Finally, the court of appeals observed that the
complaint had failed to allege that any law-abiding,
12
responsible citizen had been denied a premises
license. Pet. App. 115. As the court noted, the only
petitioner who was denied a premises license was
Murtari, who had failed to demonstrate a “law-abiding
temperament” and had “frequently violat[ed] court
orders for “more than a decade”—as petitioners’
complaint acknowledged. Pet. App. 117. Reasoning
that New York’s premises licensing laws did not
impose substantial burdens on the Second
Amendment rights of law-abiding and responsible
citizens, the court subjected the laws to intermediate
scrutiny. Pet. App. 114–116. The court concluded that
the laws satisfied that standard in light of the “close
relationship between the licensing regime and the
State’s interests in public safety and crime
prevention—as well as solicitude for the Second
Amendment rights of citizens who are responsible and
law abiding.” Pet. App. 117.
REASONS FOR DENYING THE PETITION
I.
This Case Is a Poor Vehicle for Considering
the Questions the Petition Seeks to Raise.
Petitioners seek to raise sweeping constitutional
challenges to New York’s firearms licensing regime,
but as the court of appeals correctly recognized, almost
all of petitioners’ claims fail at the threshold. Most of
the petitioners lack Article III standing to challenge
the State’s licensing criteria because they have not
applied for a license, possess unrestricted licenses, or
have moved away from New York. 8 One petitioner
(Murtari) possesses a live challenge to the denial of his
8
Petitioners abandoned their claims on behalf of the
Libertarian Party of Erie County. See Pet. App. 81.
13
application for a premises license, but the facts of his
case make it a poor vehicle for broader constitutional
review; as the complaint acknowledges, the basis for
the denial was Murtari’s chronic and comparatively
recent history of breaking the law—including by
violating court orders. Nor can damages claims save
petitioners’ constitutional challenges. The respondents here are either state officials who have no role
in firearm licensing, or state judges who possess
absolute judicial immunity against petitioners’
damages claims.
1. Several of the petitioners (Cooper, Garrett, and
Rebmann) never applied for a firearms license and do
not allege that applying would have been futile. As the
court of appeals properly held, they lack an injury-infact. Pet. App. 102 (citing, inter alia, Moose Lodge No.
107 v. Irvis, 407 U.S. 163, 167 (1972)). 9
Other petitioners (Mongielo and Kuzma) already
possess unrestricted licenses. The court of appeals
correctly noted that their allegations that they are
under a “constant threat” that their licenses might be
revoked is a mere speculative fear of future injury
(Pet. App. 102–103), of the type that this Court has
9 See
also Morin v. Leahy, 862 F.3d 123, 128 (1st Cir. 2017)
(plaintiff lacked “standing to challenge the constitutionality of
the statutory scheme that governs the issuance” of
Massachusetts Firearm Identification Card required to possess
handgun in homes, because “without having applied for, or
having been denied, a [card], [plaintiff] can show no injury to
sustain his claim”); Parker v. District of Columbia, 478 F.3d 370,
373–75 (D.C. Cir. 2007) (only plaintiff who had applied for D.C.
registration certificate to possess handgun in home had
standing), aff'd sub nom. District of Columbia v. Heller, 554 U.S.
570 (2008).
14
found inadequate to support standing, see Clapper v.
Amnesty Int’l USA, 568 U.S. 398, 409 (2013). Although
Mongielo alleges that his license was temporarily
suspended after he was arrested and prosecuted on
charges of obstructing governmental administration
and resisting arrest, he admits that his license was
fully restored after the charges were resolved in his
favor. He advances no allegations to support his fear
that his license might be revoked at some uncertain
time in the future for no ascertainable reason. CA2
J.A. 67–68 (complaint). As the court of appeals
observed, Mongielo’s fear of revocation is “speculative”
and “insufficiently concrete” to confer standing. Pet.
App. 102.
Cuthbert, the only petitioner who applied for and
did not receive an unrestricted license, has moved
away from New York. Pet. App. 103. As the court of
appeals rightly observed, that move rendered him
ineligible for a New York firearm license, see Penal
law § 400.00(3)(a), for reasons other than Penal Law
§ 400.00(2)’s “proper cause” requirement—thereby
mooting his claim for an injunction against that
requirement. Pet. App. 103, 110; see Arizonans for Off.
Eng. v. Arizona, 520 U.S. 43, 72 (1997). Petitioner
Mayor possessed an unrestricted license when this
litigation commenced (Pet. App. 102) and he has since
moved away from New York (Pet. 15). And petitioner
Rober, who had not applied for a license, died while
the appeal was pending. Pet. App. 98. Thus, their
claims were not justiciable from the case’s start, and
their claims remain non-justiciable now: striking
down New York’s firearms licensing regime, as they
request, will not benefit them. See City of Los Angeles
v. Lyons, 461 U.S. 95, 105–06 (1983).
15
2. An additional defect in the complaint, as the
court of appeals recognized, is that the complaint
names multiple improper defendants. Because the
Governor, the Attorney General, and the Superintendent of the State Police have no role in administering
New York’s firearms licensing laws here, petitioners’
injuries are not fairly traceable to those officials. Pet.
App. 103; see also Pet. App. 53–54. See generally N.Y.
Penal Law §§ 265.00, 400.00 (providing no role for
listed defendants in administering licensing laws
relating to petitioners).
The court of appeals also correctly held that
Eleventh Amendment sovereign immunity bars
petitioners’ official-capacity damages claims against
all the defendants, and absolute judicial immunity
bars petitioners’ individual-capacity damages claims
against the state court judges who issued rulings
concerning certain petitioners’ firearms licenses. Pet.
App. 106–110. See also Kentucky v. Graham, 473 U.S.
159, 167 (1985). Each state court judge considered a
request for a “declaration on rights as they stand” and
issued a decision on the “merits” that set forth the
reasons for the decision based on “present or past
facts” and “existing law.” See District of Columbia
Court of Appeals v. Feldman, 460 U.S. 462, 478–80
(1983) (quotation marks omitted); see also Penal Law
§ 400.00(4-a) (requiring that license denials include
“reasons specifically and concisely stated in writing”).
The license-adjudication process also included
safeguards to ensure fair decision-making and to
correct errors, including participation by the
individual seeking the license and an opportunity for
judicial review. See Cleavinger v. Saxner, 474 U.S.
193, 201–02 (1985). For example, the denied
applicants could have sought further review in New
16
York’s intermediate appellate court. See, e.g., Matter
of Parker v. Randall, 120 A.D.3d 946, 947 (4th Dep’t
2014). And given the public-safety dimension of the
judicial respondents’ decision-making, there is a
significant “need to assure” that the judges can
“perform [their] functions without harassment or
intimidation.” See Cleavinger, 474 U.S. at 201–02. 10
3. The only remaining claim here—and the sole
claim on which the lower courts reached the merits—
is Murtari’s challenge to the order denying him a
premises license. A. 110. But that claim presents a
poor vehicle for broader constitutional review because
it is evident from the pleadings that during the time
leading up to Judge Kehoe’s decision, Murtari had not
been a “law-abiding” or “responsible” citizen, see
Heller, 554 U.S. at 625, 635. Justice Kehoe’s 2015
decision, which is quoted in petitioners’ complaint,
recounted that Murtari had been arrested approximately fifty times from 1998 through 2010; had
committed trespass in violation of a federal court order
on four occasions; and had served multiple postconviction jail sentences. Judge Kehoe concluded that
10 For these same reasons, the judicial respondents would be
entitled to immunity from damages claims even if they were
acting as licensing officials performing a quasi-judicial role. See
Antoine v. Byers & Anderson, Inc., 508 U.S. 429, 436 (1993)
(recognizing that absolute immunity may “extend[] to officials
other than judges”); Keystone Redevelopment Partners, LLC v.
Decker, 631 F.3d 89, 101 (3d Cir. 2011) (state gaming control
board members adjudicating issuance of gaming licenses) (citing
Cleavinger, 474 U.S. at 201–02); Diva’s Inc. v. City of Bangor, 411
F.3d 30, 40 (1st Cir. 2005) (city council members adjudicating
issuance of special amusement permits for semi-nude dancing
establishments); Watts v. Burkhart, 978 F.2d 269, 277 (6th Cir.
1992) (state medical licensing board members adjudicating
revocation of physician licenses).
17
Murtari’s “prior conduct” constituted “good cause” to
deny his application. CA2 J.A. 69–70 (denial quoted in
complaint); see also CA2 J.A. 93–94 (denial as exhibit
to motion to dismiss).
Several of Murtari’s arrests and trespassing
offenses concern actions that he undertook at the
James F. Hanley Federal Building in Syracuse, New
York, such as refusing direct orders from lawenforcement personnel to cease his disruptive
activities there. See, e.g., United States v. Murtari, No.
5:03 Crim. 81, 2007 WL 1174860, at *1 (N.D.N.Y. Apr.
19, 2007); United States v. Murtari, No. 5:07 Crim.
387, 2007 WL 3046746, at *1 (N.D.N.Y. Oct. 16, 2007).
Even after court orders restricting his access to the
area, he continued his disruptive activities. United
States v. Murtari, No.5:07 Crim. 428, 2008 WL
687434, at *6 (N.D.N.Y. Mar. 11, 2008). As one federal
judge observed, by “unilaterally deciding that he
would violate any order” that was “not to his liking,”
Murtari exhibited a fundamental failure to grasp that
“[o]ur country’s justice system operates pursuant to
the rule of law.” Id.; see also United States v. Murtari,
120 F. App’x 378, 380 (2d Cir. 2004) (noting Murtari’s
“avowed unwillingness to abide by” the “lawful
restrictions on his use of the Federal Building”).
Because Justice Kehoe found that affirmative
“good cause exists for the denial of the license,” N.Y.
Penal Law § 400.00(1)(n), Justice Kehoe did not reach
any question of whether Murtari has “good moral
character,” id. § 400.00(1)(b). See CA2 J.A. 93–94
(order denying application). This case thus presents
no vehicle for this Court to evaluate the “good moral
character” requirement of New York’s firearm
licensing scheme. Pet. 7, 11.
18
This case is likewise a weak vehicle to evaluate
whether New York’s other premises licensing requirements comply with the Second Amendment. Murtari
is the only petitioner who applied for and was denied
a premises license, and thus the only petitioner with
standing to challenge New York’s criteria for issuing a
premises license. But Murtari’s conduct has been far
from “law-abiding” and “responsible,” see Heller, 554
U.S. at 625, 635, and he points to no circuit split on
the question whether a State must grant a firearms
license to a person whose ongoing criminal history of
arrests, prosecutions, jail sentences, and violations of
court orders—and whose averments to federal
judges—show that he cannot and will not heed public
safety laws.
II. Petitioners Fail to Identify Any Split in
Authority on the Questions They Present
in Their Petition.
1. Petitioners ask this Court to grant certiorari to
decide whether a State may license firearms
ownership at all, or charge a fee to defray the cost of
processing such licenses. Pet. 4, 9, 26. There is no
circuit split on these questions. No court of appeals
has suggested that licensing or registration schemes
for firearms ownership are inherently suspect, or that
the fees incidental to such schemes violate the Second
Amendment.
Seven courts of appeals—the First, Second, Third,
Fourth, Seventh, Ninth, and D.C. Circuits—have held
that the Second Amendment allows some licensing or
19
registration schemes for firearms. 11 Consistent with
Heller’s observation that the Constitution leaves
States and localities with a “variety of tools” to combat
gun violence, “including some measures regulating
handguns,” 554 U.S. at 636, those courts have
concluded that licenses and similar measures are
among the “traditional” and constitutionally available
options, see Wrenn, 864 F.3d at 667; cf. Heller II, 670
F.3d at 361 (Kavanaugh, J., dissenting) (noting that
licensing laws can “advance gun safety by ensuring
that owners understand how to handle guns safely”).
Two courts of appeals, relying on precedents of
this Court, have expressly concluded that the Second
Amendment permits States and localities to charge
administrative fees to defray the costs of maintaining
licensing or registration schemes. The D.C. Circuit has
11 The Second Circuit and the D.C. Circuit have upheld
licensing and registration schemes for possessing firearms. See
Pet. App. 115–117; Heller v. District of Columbia (“Heller III”),
801 F.3d 264, 273–74 (D.C. Cir. 2015) and Heller v. District of
Columbia (“Heller II”), 670 F.3d 1244, 1254–55 (D.C. Cir. 2011)
(upholding D.C.’s basic registration requirements for long guns
and handguns respectively).
And five circuits have upheld licensing schemes for carrying
firearms in public. See Kachalsky, 701 F.3d at 100–01; Gould v.
Morgan, 907 F.3d 659, 662 (1st Cir. 2018); Drake v. Filko, 724
F.3d 426, 431 (3d Cir. 2013); Woollard v. Gallagher, 712 F.3d 865,
868 (4th Cir. 2013); Young v. Hawai‘i, 992 F.3d 765, 773 (9th Cir.
2021) (en banc). Although other courts have struck down
particular carry-licensing schemes as too restrictive, those courts
have noted that they, too, view licensing as a permissible
regulatory tool. See Moore v. Madigan, 702 F.3d 933, 941–42 (7th
Cir. 2012) (inviting Illinois legislature to “craft a new gun law
that will impose reasonable limitations”); Wrenn v. District of
Columbia, 864 F.3d 650, 667 (D.C. Cir. 2017) (recognizing that
“licensing requirements” are “traditional limits”).
20
explained that “administrative . . . provisions incidental to the underlying regime”—which include
reasonable fees associated with registration—“are
lawful insofar as the underlying regime is lawful.”
Heller II, 670 F.3d at 1249 n.*; accord Heller III,
801 F.3d at 274 (quoting Heller II) (citing Cox v. New
Hampshire, 312 U.S. 569, 577 (1941)). The Second
Circuit similarly has explained that imposing fees “to
defray” the “administrative costs” of maintaining a
firearms licensing scheme does not itself violate the
Second Amendment. Kwong v. Bloomberg, 723 F.3d
160, 165–66 (2d Cir. 2013) (citing Cox, 312 U.S. at
577). 12 Courts of appeals have applied a similar
analysis outside of the Second Amendment context
too, recognizing that governments may license other
types of constitutionally protected activity and charge
administrative fees that are designed to defray the
costs of the licensing scheme. 13
12 See also Lane v. Holder, 703 F.3d 668, 673 (4th Cir. 2012)
(holding that the “additional costs and logistical hurdles”
associated with the federal requirement that interstate firearm
transfers take place via federal firearm licensees are “distinct
from an absolute deprivation” of the Second Amendment right);
Ezell v. Chicago, 651 F.3d 684, 695, 698 (7th Cir. 2011) (“expense
and inconvenience” of traveling “was not the relevant
constitutional harm” associated with the challenged restriction
on firing-ranges).
13 See, e.g., International Women’s Day March Planning
Comm. v. City of San Antonio, 619 F.3d 346, 370–71 (5th Cir.
2010) (rejecting First Amendment challenge to fee defraying
costs of permitting regime for street processions); Jake’s, Ltd.,
Inc. v. City of Coates, 284 F.3d 884, 890–91 (8th Cir. 2002) (same,
for fee defraying costs of licensing regime for adult businesses);
American Target Adver., Inc. v. Giani, 199 F.3d 1241, 1248–49
(10th Cir. 2000) (same, for fee defraying costs of registration
regime for charitable fundraisers); Coalition for the Abolition of
21
2. Nor does the decision below precipitate any
circuit split on the scope of the Second Amendment
right. All eleven courts of appeals that have
interpreted the Second Amendment in Heller’s
aftermath, including the Second Circuit in this case
and others, recognize that the Second Amendment
protects the right of “law-abiding” and “responsible”
persons to possess firearms. See Heller, 554 U.S. at
625, 635. These courts have also uniformly held that
the Second Amendment permits the government to
restrict a person’s access to firearms, if that person
has demonstrated a lack of capacity or will to heed
public safety laws. 14 In the decision below, the Second
Marijuana Prohibition v. City of Atlanta, 219 F.3d 1301, 1324
(11th Cir. 2000) (same, for fee defraying costs of permitting
regime for outdoor festivals); Northeast Ohio Coal. for the
Homeless v. City of Cleveland, 105 F.3d 1107, 1109–10 (6th Cir.
1997) (same, for fee defraying costs of licensing regime for street
peddlers).
14 See Pet. App. 115–117; United States v. Rene E., 583 F.3d
8 (1st Cir. 2009) (juveniles); Folajtar v. Attorney General, 980
F.3d 897 (3d Cir. 2020) (person convicted of tax fraud), cert.
denied, 2021 WL 1520793 (Apr. 19, 2021); United States v.
Chester, 514 F. App’x 393 (4th Cir. 2013) (domestic-violence
misdemeanants); National Rifle Ass’n of Am., Inc. v. Bureau of
Alcohol, Tobacco, Firearms, & Explosives, 700 F.3d 185 (5th Cir.
2012) (18-to-20-year-olds); Tyler v. Hillsdale County Sheriff’s
Dep’t, 837 F.3d 678 (6th Cir. 2016) (en banc) (involuntarily
committed person); United States v. Yancey, 621 F.3d 681 (7th
Cir. 2010) (per curiam) (habitual drug users); United States v.
Bena, 664 F.3d 1180 (8th Cir. 2011) (persons subject to court
order of protection); United States v. Torres, 911 F.3d 1253 (9th
Cir. 2019) (undocumented immigrants); United States v. Reese,
627 F.3d 792 (10th Cir. 2010) (persons subject to domestic
restraining order); United States v. Focia, 869 F.3d 1269 (11th
Cir. 2017) (unlicensed firearms dealer); Schrader v. Holder, 704
F.3d 980 (D.C. Cir. 2013) (common-law misdemeanants).
22
Circuit rejected a challenge to New York premises
licensing laws by Murtari (Pet. App. 115–117), who
openly “avowed” an “unwillingness” to be law-abiding
and responsible, see Murtari, 120 F. App’x 379. That
decision is fully in line with the unanimous circuit
position. 15
Equally unavailing is petitioners’ suggestion that
the decision below deepens a divide among the courts
of appeals on the scope of a law-abiding and
responsible person’s right to carry firearms in public.
See Pet. 25–26. Murtari is the only petitioner with live
claims, he applied only for a premises license, and his
application was denied because he was demonstrably
neither law-abiding nor responsible. His claims,
therefore, cannot implicate any questions regarding
the scope of that particular right.
III. The Decision Below Is Correct.
An additional reason why this Court should deny
the petition is that the court below correctly decided
the only question presented on the merits: petitioner
Murtari’s Second Amendment challenge to New
York’s premises licensing scheme. The court of
appeals correctly concluded that New York’s premises
licensing laws are supported by a centuries-old
tradition of regulating access to firearms by persons
who are not law-abiding or responsible. That court
also correctly concluded that New York’s premises
15 Petitioners suggest (see Pet. 26) that the decision below
conflicts with the Ninth Circuit’s approach in Duncan v. Becerra,
970 F.3d 1133 (9th Cir. 2020) (rejecting ban on large-capacity
magazines). But the Ninth Circuit has vacated that opinion and
will rehear the case en banc. See 988 F.3d 1209 (9th Cir. 2021).
23
licensing laws directly advance the State’s compelling
interests in protecting the public from gun violence. 16
A. History and tradition show that New
York’s premises licensing laws are
consistent with the Second Amendment.
In Heller, this Court stressed that the Second
Amendment right is “not unlimited” and does not
allow a person to keep “any weapon whatsoever in any
manner whatsoever and for whatever purpose.”
Heller, 554 U.S. at 626; accord McDonald v. City of
Chicago, 561 U.S. 742, 786 (2010). Rather, the Court
explained, the Second Amendment “codified a
preexisting right,” Heller, 554 U.S. at 592, and thus
incorporated the “limitations upon the individual
right,” id. at 595 that were “inherited from our English
ancestors,” id. at 599. The Court also made clear that
its decision should not “be taken to cast doubt on
longstanding prohibitions,” such as the prohibitions
“on the possession of firearms by felons and the
mentally ill.” Id. at 626, 627 & n.26; accord McDonald,
561 U.S. at 786. In line with that analysis, the Court
emphasized that the Second Amendment protects the
right of “law-abiding” and “responsible” persons to
possess firearms. Heller, 554 U.S. at 625, 635. The
Court added that its list of longstanding laws was not
“exhaustive” and that such measures are “presumptively lawful.” Id. at 626, 627 & n.26.
16 The court below did not address the merits of petitioner
Cuthbert’s Second Amendment challenge to New York’s carrylicensing scheme. As noted (supra at 14), because Cuthbert
moved away from New York, he had no longer had a justiciable
interest in the controversy. Pet. App. 110.
24
New York’s premises licensing laws are similar to
the items on Heller’s list of longstanding and
presumptively lawful regulatory measures. The legislation that created New York’s licensing scheme—the
Sullivan Law—was enacted in 1911, and in 1913, it
was amended to condition the issuance of a license to
possess a handgun on an individual’s ability to
demonstrate that the individual was law-abiding and
responsible. Other States followed New York’s
example. 17 The Sullivan Law and the similar laws in
other States were forerunners of two influential model
acts, the Revolver Act of 1923 and the Uniform
Firearms Act of 1930. The Revolver Act included
provisions restricting access to firearms by felons, 18
and the Uniform Firearms Act included provisions
restricting access to firearms by those convicted of
violent crimes and those of “unsound mind.” 19
17 Compare Ch. 608, § 1, 1913 N.Y. Laws 1627, 1629
(conditioning license for possession on applicant’s “good moral
character”), with, e.g., Ch. 256, § 2, 1913 Or. Laws 497, 497
(permit to acquire firearm issued only if affidavit showed “good
moral character”); Ch. 2, § 3, 1918 Mont. Laws 6, 7 (permit to
acquire firearm issued only upon determination that applicant
was of “good moral character”); Ch. 197, § 3, 1919 N.C. Sess. Laws
397, 398 (same); Act of Apr. 7, 1921, § 2, 1921 Mo. Laws 691, 692
(same); see also Ch. 430, § 2, 1923 Ark. Acts 379, 380 (“good
character”); Ch. 206, § 23, 1927 Haw. Sess. Laws 209, 215–16
(“good moral character”); Ch. 321, § 9, 1927 N.J. Laws 742, 746
(“good character” and “good repute in the community”); Ch. 267,
§ 4, 1931 Tex. Gen. Laws 447, 447–48 (“good character”).
18 See Nat’l Conf. of Comm’rs on Uniform State Laws,
Handbook and Proceedings of the 34th Annual Meeting 717–18,
731 (1924) (reprinting the 1923 Revolver Act and its appendix).
19 See Uniform Firearms Act § 8 (Nat’l Conf. of Comm’rs on
Unif. State L. 1930).
25
States began adopting restrictions on firearm
possession by felons and the mentally ill in the 1920s
and 1930s. 20 Federal restrictions on possession by
felons and the mentally ill were enacted even later.
The federal restriction on felons, 18 U.S.C. § 922(g)(1),
was not enacted until 1938, and was not expanded to
cover non-violent felonies until 1961. In 1968,
Congress enacted the first restrictions on possession
by felons and by the mentally ill. 21 New York’s laws,
which predated and influenced these later laws, are
even more “longstanding,” and are entitled to at least
as strong a presumption of lawfulness.
History and tradition also support the
constitutionality of New York’s premises licensing
laws in a more fundamental sense. New York’s regime
descends from a centuries-old Anglo-American
tradition that aims to limit access to arms by those
who would not use them lawfully and responsibly.
Although the terminology used to describe law20 See, e.g., Ch. 339, § 2, 1923 Cal. Stat. 695, 696 (felons); Ch.
118, §§ 3, 8, 1923 N.H. Laws 138, 138–139 (felons); Ch. 266, §§ 5,
10, 1923 N.D. Laws 379, 380–81 (felons); Ch. 207, §§ 4, 9, 1925
Ind. Acts 495, 495, 497 (felons); Ch. 260, §§ 2, 10, 1925 Or. Laws
468, 468, 473 (felons); Ch. 372, § 2, 1927 Mich. Pub. Acts 887,
887–88 (felons and those “adjudged insane”); Ch. 321, §§ 4, 7,
1927 N.J. Laws 742, 743, 745 (those convicted of violent crimes
and “not of sound mind”); Ch. 1052, § 3, 1927 R.I. Sess. Laws 256,
257 (those convicted of violent crimes); Act No. 158, §§ 4, 9, 1931
Pa. Laws 497, 498-99 (those convicted of violent crimes and of
“unsound mind”); Ch. 63, § 6, 1935 Ind. Acts 159, 161 (same); Ch.
208, §§ 4, 9, 1935 S.D. Sess. Laws 355, 355–56 (same); Ch. 172,
§§ 4, 8, 1935 Wash. Sess. Laws 599, 601 (same); Act No. 82, § 9,
1936 Ala. Laws 51, 53 (Feb. Gen. Laws Extra Sess.) (same).
21 See Federal Firearms Act, ch. 850, 52 Stat. 1250, 1251
(1938); Pub. L. No. 87-342, 75 Stat. 757 (1961); Omnibus Crime
Control Act of 1968, Pub. L. No. 90-351, § 1202, 82 Stat. 197, 236.
26
abiding and responsible persons has differed through
the centuries, the principle has remained steadfast:
for public welfare’s sake, legislatures may impose
“restraints” on firearm possession by persons outside
that category to prevent “what would be pernicious
either to ourselves or our fellow citizens.” 1 William
Blackstone, Commentaries *139–40; see also 1 W. &
M., ch. 2, § 7, in 3 Eng. Stat. at Large 440, 441 (1689)
(permitting persons to access arms as “suitable to
their Conditions and as allowed by Law”). See supra
at 5 & n.2 (describing “good moral character” laws).
Petitioners thus miss the mark in contending, in
their petition and supplemental brief, that New York’s
laws conflict with a tyranny-deterring function of the
Second Amendment. Pet. 30; Supp. Br. 1–3. From the
English Bill of Rights through Heller, it has been
understood that firearm possession can both serve
that function and be subject to reasonable public
safety laws. See 554 U.S. at 593–95. New York’s laws
fit comfortably within this historical tradition.
B. New York’s premises licensing laws
advance the State’s compelling
interests in public safety and crime
prevention.
The court of appeals also correctly concluded that
New York’s premises licensing scheme was
sufficiently related to New York’s compelling interest
in public safety and crime prevention to pass
constitutional muster. Pet. App. 114–117; see also Pet.
App. 68–72. 22 Petitioners’ experiences with the
22 As Heller recognized, and as several courts of appeals
have subsequently observed, heightened scrutiny is not
27
scheme support that conclusion. They allege that only
Murtari applied for and was denied a premises license;
and they acknowledge that Murtari has violated
numerous court orders, been arrested over fifty times,
and been jailed several times. Pet. App. 116–117; CA2
J.A. 69–70 (complaint). See supra at 16–17. Moreover,
court decisions concerning Murtari’s prior federal
offenses establish Murtari’s inclination to defy public
safety laws that are not “to his liking.” See Murtari,
2008 WL 687434, at *6; see also Murtari, 120 F. App’x
at 379; Murtari, 2007 WL 1174860, at *1; Murtari,
2007 WL 3046746, at *1.
The court of appeals also properly found that New
York’s premises licensing laws are appropriately
tailored. For the typical applicant, a New York
premises license is not “difficult to come by,” as the
New York Court of Appeals has explained. People v.
Hughes, 22 N.Y.3d 44, 50 (2013). Petitioners’
complaint does not allege facts showing that New
York’s premises licensing laws impose substantial
burdens on the self-defense rights of law-abiding and
responsible persons. A law-abiding, responsible
applicant must provide basic information (e.g., name,
date of birth, address, Social Security number,
citizenship status), submit character references, pay
an administrative fee designed to defray the costs of
operating the licensing scheme, and undergo a
background check. Penal Law § 400.00(3)(a), (4), (14).
Petitioners offer no support for the proposition that
these requirements amount to a substantial burden on
equivalent to an “interest-balancing inquiry.” See, e.g., National
Rifle Ass'n, 700 F.3d at 197; Heller II, 670 F.3d at 1257, 1265;
United States v. Marzzarella, 614 F.3d 85, 96 (3d Cir. 2010).
Petitioners’ suggestion to the contrary is incorrect. See Pet. 21–
24
28
an applicant’s Second Amendment right. See Pet. 33–
34. Indeed, petitioners’ successful interactions with
New York’s licensing regime undermine the notion
that the regime is unduly burdensome. Several
petitioners applied for and obtained licenses. One
petitioner (Kuzma) did not have a license when the
complaint was filed, but by the time the appeal was
heard, he had applied for and secured an unrestricted
license. See supra at 13.
Even the burden on Murtari is limited. An
applicant like Murtari who is initially denied a license
may seek further review of that decision in New York’s
intermediate appellate court. See, e.g., Matter of
Parker, 120 A.D.3d at 947 (reversing and remanding
licensing officer’s denial). Such applicants also may
reapply in the future. In the 2015 decision denying
Murtari a license, Judge Kehoe observed that the
denial was not permanent, but rather Murtari could
reapply once he was in a position to show that he was
willing and able to cease violating the law. CA2 J.A.
93–94 (order denying application). Nothing prevents
Murtari from accepting that invitation and renewing
his application even now.
*
*
*
In sum, the court below appropriately recognized
that New York’s longstanding premises licensing laws
are constitutional. The licensing regime has existed in
the same form for over a century and comports with a
historical tradition of ensuring that those who have
access to arms are law-abiding and responsible. At the
same time, the regime does not unduly burden the
typical applicant, and it manifestly serves the State’s
compelling interests in protecting the public.
29
CONCLUSION
The petition for a writ of certiorari should be
denied.
Respectfully submitted,
LETITIA JAMES
Attorney General
State of New York
BARBARA D. UNDERWOOD*
Solicitor General
ANISHA S. DASGUPTA
Deputy Solicitor General
MATTHEW W. GRIECO
AMIT R. VORA
Assistant Solicitors General
barbara.underwood@ag.ny.gov
May 2021
* Counsel of Record
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.