Antonyuk Nuts & Bolts
At a whopping 261-pages long, the Second Circuit ruling in the four cases, headed up as Antonyuk v. Chiumento is a challenge to digest. Indeed, it took me several hours to complete a first reading, and even longer to begin to study. Candidly? I don’t envy the attorneys on either side. The Second Circuit wrote a difficult text from which to form an appeal to SCOTUS, plus the delay of having to do a remand back to District Court for a portion.
Snag your FREE download of the Second Circuit ruling in Antonyuk v. Chimumento. (Also, if you haven’t already, grab the compact ruling in Gazzola v. Hochul and read the blog about the ruling.)
My concern is you, dear friends of the Second Amendment in New York, and how you manage to navigate your concealed carry and long gun transport in the light of the Antonyuk appellate preliminary injunction ruling. So today, I’m using blog space to hit the nuts and bolts of the Antonyuk v. Chiumento Second Circuit ruling, specifically as it applies to the firearms you already lawfully own and carry and/or transport.
What you also want to grab - if you haven’t already - is my CCIA Handbook for Risk Mitigation. Print this out and keep it with the handbook. And, for handbook owners, expect to see an e-blast from me in a few days with your code to download a free copy of a memorandum update. It will also be included with all purchases of the handbook made after 12.08.2023.
Restricted Locations
The ruling on “restricted locations” starts at page 239. I start here, because this is the major win of the preliminary injunction, but also the most confusing aspect of the ruling.
“Restricted Locations,” as per the 2022 statute flipped the presumption of lawful carry on its head. The 2022 law created the presumption to NOT carry onto any private property, whether a personal dwelling or a rental retail unit open to the public. (See pages 239-240 for this reading of the statute.)
The Second Circuit has now affirmed a preliminary injunction against the enforcement of only half of that 2022 statute. The preliminary injunction applies ONLY against enforcement of concealed carry licensees on private property that is open to the public, such as a retail store. During oral arguments last March, Judge Lynch pounded the NYS attorney over an example of the iconic Macy’s in Manhattan. Other common examples include gas stations, diners, and fast food restaurants.
This means that if you leave your house armed to go to your hunting property, and en route you stop for gas, and want to go into the gas station to use the bathroom, you may now do so. Likewise, if you want to park en route and walk into a fast food restaurant to use their bathroom and grab coffee to go, you may do so. UNLESS the business posts a conspicuous sign, e.g., on the door to enter the premises, which expressly prohibits firearms on the premises. A business remains free to disallow firearms on premises, but it is the business that must take the initiative to do so.
In other words, for private property open to the public, the Second Circuit preliminary injunction makes it as if the 2022 law isn’t in effect.
BUT! WATCH OUT! The Second Circuit remanded the attorneys and their clients back to Judge Suddaby in the Northern District Court for further proceedings specifically about private property not open to the public.
This means, you need permission in accordance with the 2022 laws to enter a person’s private property while armed. Even if you are the firefighter in the Antonyuk case, you can’t respond to a three-alarm emergency dwelling ablaze without stopping to remove your firearm from your person and store it in accordance with 2022 requirements. The 2022 law remains in full effect AGAINST carry onto private property, as the new presumption.
How does this translate for those of you who purchased my “CCIA Handbook to Risk Mitigation?” Turn to the “Permissions” tab, where you will find two sample permission slips for compliance with the 2022 laws concerning “Restricted Locations.” Because of the Second Circuit ruling you do not need the first sample, “Concealed Carry Permission for the Premises.” That one is for a business open to the public. That’s now covered by the preliminary injunction. You continue to need the second sample, which is the “Individual Permission for Premises.” You should continue to have this or a comparable form signed by the property owner to give you permission to be on their property while armed.
Even Santa Claus needs a permission slip to go down your chimney. It’s true! Even Santa Claus needs individual homeowner permission slips to deliver presents, unless he wants to risk arrest by the NYS Police. How Grinchy is that?
Keep in mind – those of you who want to stay on the nice list – that the language in the “Restricted Location” statutory provision covers ALL firearms, whether long gun or hand gun.
If you’ve already purchased my CCIA Handbook to Risk Mitigation, you’ll receive an email in the next few days with the code for a free download of a memo to dovetail into your handbook. This memo will also tuck into all future purchases. The handbook is designed for this style of updates throughout the life of the four, pending cases, headed up by the Antonyuk v. Chiumento case, until they reach terminal decisions on the merits. At that point, I’ll do a revised edition with updates as additional cases are filed.
My final comment on the “Restricted Locations” section of the Second Circuit ruling is that it’s clear the Second Circuit wants the entirety of “Restricted Locations” gone for good. I expect that Judge Suddaby will issue a supportive ruling following further proceedings and that any appeal by the state will fail. However, friends, I implore you to be as informed and as in compliance as possible. For now: it’s only a preliminary injunction against enforcement for “Restricted Locations” that are private property open to the public.
Sensitive Locations
Unfortunately, only some of the “Sensitive Locations” are challenged by the four lawsuits. Thus, only six (6) locations were on appeal to become part of the Second Circuit ruling. It was mixed results. Here are the “Sensitive Locations” in the order of the Second Circuit ruling, including the page number on which the ruling discussion begins.
1 – Treatment Centers (begins on p. 132)
Per the Second Circuit ruling, the 2022 law prohibiting firearms in treatment centers remains in full force and effect.
The proper reference is actually “any location providing health, behavioral health, or chemical dependance care or services.” NY PEN s.265.01e(2)(b). I highlight this to emphasize that it’s an across-the-board restriction at all health care locations. It’s a trick one because if you have a solo or small medical practice, such as your primary care physician in a rural area, you might be thinking it’s private property open to the public, thus can now continue to carry. Unfortunately, the specific controls the general. The prohibition specifically against health care locations, such as a doctor’s office, trumps the broader “open to the public.”
2 – Places of Worship (begins on p. 146)
Per the Second Circuit ruling, the 2022 law, as amended May 2023, remains in full force and effect, except for the plaintiffs so named in the Spencer v. Chiumento case.
The applicable version of the statue at NY PEN s.265.01-e(2)(c) is the amended version from 05.06.2023 as published in A3005C/S4005C (Part F), “(c) any place of worship, except for those persons responsible for security at such place of worship.”
If you are concerned about this provision, it is worth reading the section. The discussion on how the Spencer plaintiffs satisfied the appellate court on First Amendment Free Exercise Clause is worth reading. It’s at pages 154-171.
3 – Parks and Zoos (begins on p. 172)
Per the Second Circuit ruling, the 2022 law remains in full force and effect to prohibit firearms at parks and zoos.
There is a hint of a distinction, at least in the mind of the Second Circuit judges, even if it didn’t make it into their ruling. They consider the Bruen analysis to definitively apply to “urban parks,” “though not necessarily as to rural parks.” (See p. 183.) This intimation includes reference to the 2023 amendment for the Adirondack forest preserve. (See pp. 197-198.) All of this language, however, is obiter dicta; the distinction is not before any court.
4 – Premises Licensed for Alcohol Consumption (begins on p. 203)
Per the Second Circuit ruling, the 2022 law remains in full force and effect to prohibit firearms at any establishment holding an active license for on-premise consumption of alcohol where alcohol is consumed.
5 – Theaters, Conference Centers, and Banquet Halls (begins on p. 214)
Per the Second Circuit ruling, the 2022 law remains in full force and effect to prohibit firearms at theaters, conference centers, and banquet halls.
Note that the 2023 amendment, conferring exemptions for things like historical reenactments, educational programming, or movie productions is not at issue in the pending lawsuits.
6 – First Amendment Gatherings (begins on p. 233)
Per the Second Circuit ruling, this law remains in full force and effect.
Specifically concerning the challenge for gun shows, the appellate court found that “A gun show is a commercial exhibition: that attendees might also engage in speech, including on politically-charged topics, does not make it a gathering for the purpose of expressing participants’ “constitutional right to protest or assemble.” (See p. 238.) The Second Circuit thus did not create any carve-out for gun shows.
Continuing thus my earlier comment about the general is trumped by the specific (as pertains, above, to your doctor’s office), let’s get tangled up in the gun show mess. Gun shows are universally open to the public. If the gun show is held on private property, such as a hotel, the preliminary injunction applies. If the gun show is held at a dedicated convention center (which I am reading as synonymous with the statute’s use of the term “conference center”), the preliminary injunction does not apply. If the gun show is held on municipal, county, state, or federal property, then the preliminary injunction does not apply.
Tying it all up with a bow.
25% win. 50% loss. 25% pending. 25% win is the “Restricted Location” private property open to the public, now covered by the preliminary injunction from the Second Circuit. 50% loss is how I am basically summing up the “Sensitive Location” treatment by the Second Circuit. The 25% pending is “Restricted Location – private.”
As one says in law school: here’s the hypothetical. Santa can jump in his sleigh on Christmas Eve, gas up en route and pop in to grab a candy cane from the clerk – all without disarming. He can stop to feed the team and get himself some grub – all without disarming. But, at the first house on his list, no matter how nice the kid, Santa can’t slide down the chimney sporting his trusty six-shooter without a permission slip from mom & dad. The cookies on the plate on the table so close to the chimney that he can see them through the sides of the chimney cap don’t constitute permission. Parents across the land of New York are going to have to hoist their ladders and place that printed and signed permission slip upon the chimney, since that’s Santa’s door. Or (I suppose) otherwise overnight mail it to the big guy, no later than about 3 p.m. tomorrow, Thursday, if you want guaranteed delivery by Christmas Eve, which is this coming Sunday.
‘Cause what you and I know, in terms of the political theatre of Hochul et cie in Albany? Nothing would make them happier than stealing above-the-fold newsprint on Christmas Day that the true miracle on 34th Street is the arrest of the man who already had to prove himself to be the law-abiding, truth-telling Mr. Kris Kringle, himself.
Bah Humbug, Albany! All I want for Christmas is a great, big “REPEAL” stamp!
There’s much to be said analytically about both the Gazzola v. Hochul and the suite of Antonyuk v. Chiumento over the coming weeks, but let me get at least this much linear information out to you. Please note also that this blog does not cover the portion of the 2d Cir ruling that involves concealed carry licensing, starting at page 57.
