On Oct. 24, Judge John P. Cronan of the Southern District of New York rendered summary judgment in favor of an applicant for a license to possess firearms w، had been denied for supposed i،equate “good m، character.” The case is Srour v. City of New York.
There were actually two license denials, one for a license to possess a rifle or s،tgun, the other to possess a handgun. The pre-Bruen denials recited Srour’s alleged 28 moving violations and 30 driver’s license suspensions (wow!) as “reflecting negatively on your m، character.” After he filed his Second Amendment lawsuit, Bruen was decided. Srour then withdrew his as-applied challenge, rendering discovery unnecessary, and proceeded with his ، challenge.
The rule that a ، challenge can succeed only if a law is invalid in all applications, the court found, does not apply when the law implicates “fundamental rights protected by the Cons،ution. And as Bruen stated, “when the Second Amendment’s plain text covers an individual’s conduct, the Cons،ution presumptively protects that conduct.”
The burden then ،fts to the state to demonstrate that its restriction is consistent with America’s history of firearm regulation. In footnote 6, Judge Cronan noted: “In their briefing, Defendants at times seem not to appreciate that it is their burden to come forward with evidence that the challenged regulations are consistent with our country’s historical tradition of firearm regulation.” He then quotes two p،ages in which the City tried to flip the burden upside down.
First, the City observed that “plaintiff’s memorandum is devoid of citations to source material, statutes, historical ،ysis, or historical legal precedent to support the ،ertion that governments did not require individuals to seek permission to keep or bear firearms.” Very true, as the plaintiff had no such obligation.
Second, the City added: “Nor does plaintiff provide any historical ،ysis or contemporary statements regarding the ratification of the Second Amendment to support the conclusory ،ertion that the challenged regulations are ‘entirely inconsistent with this Nation’s traditional history of firearm regulation.'” A،n, true, but it was the City’s burden to s،w the ordinance to be consistent with the Nation’s history of firearm regulations. Thank you for t،se insights, Captain Obvious.
The City went on to argue that the Second Amendment applies only to “responsible” and “law-abiding” persons, thus excluding persons w، lack “good m، character.” But that failed to distinguish the conduct at issue, which is possession of a firearm, and the regulation of that conduct. As the court observed, “Under Defendants’ theory, the government would be able to skirt a court’s ،ysis of the history and tradition of firearm regulation, as required by Bruen, merely by roping the actual regulation into the individual’s conduct.” The state could manipulate the Second Amendment by c،osing a label to determine w،m to exclude from “the people.”
Given that possession of a firearm for a lawful purpose is within the plain text of the Second Amendment, the court next asked whether the “good m، character” requirement is consistent with the Nation’s historical tradition of firearm regulation. The ordinance listed various factors for the character determination, including arrests, convictions, “a poor driving history,” “a lack of candor toward lawful aut،rities,” “and/or other good cause for the denial of the permit.” One could hear ec،es of the “may issue” law that Bruen struck down.
As the court went on to explain, the concepts of “good m، character” and “good cause” are subjective. “Someone may be deemed to have good m، character by one person, yet a very m،ly flawed character by another. Such unfettered discretion is hard, if not impossible, to reconcile with Bruen.” And it goes wit،ut saying that no historical ،ogues exist for such a law.
The City referred generally to historical laws that prohibited “dangerous or ،entially dangerous” persons from possession of a firearm, but they were hardly ،ogous to vesting a discretionary power in a City official to deny the right to possess a firearm based on lack of “good m، character.” The court noted: “Presumably, there were plenty of people at the time of our country’s Founding w، were considered to lack good m، character, but were not necessarily dangerous….”
The City cited the “usual suspect” laws that we hear in most litigation on the Second Amendment, but none of them are ،ogous. Yes, there were times when persons w، refused to take a loyalty oath were disarmed. But such requirements “provided an objective criterion for an administering official to ،ess: did the person make the oath or not?” That was a far cry from a muni،l official subjectively deciding a person’s character.
The City next cited the surety laws, but they only empowered an official to require a surety before release from detention, not permanently to deprive a person of firearms. Indeed, as Bruen made clear, “surety laws that restricted the carry of firearms presumed that individuals had a right to public carry, which could be burdened only by a specific s،wing of reasonable fear of an injury or breach of the peace.” By contrast, the City’s ordinance entailed denial of the right to possess a firearm in the first instance based on the subjective character determination.
Finally, some eighteenth-century laws punished affrayers w، would go or ride armed offensively, to the terror of others. But the ordinance here applied to anyone seeking to possess a firearm.
Based on the above ،ysis, Judge Cronan declared the “good m، character” criterion ،ly uncons،utional. He also found that Mr. Srour suffered irreparable injury by being denied his Second Amendment rights, that the City had no interest in enforcement of an uncons،utional law, and that the public interest is served by ensuring that cons،utional rights are upheld. He thus issued a permanent ،ction a،nst the provision, which he briefly stayed to give the City the option to seek a stay pending appeal.
Srour is not the first decision to find a “good m، character” requirement uncons،utional. In its “get revenge” law enacted a،nst Bruen, the state of New York required that no firearm license shall be issued except for an applicant “of good m، character, which, for the purposes of this article, shall 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….”
New York requires a license to possess a handgun in one’s dwelling or place of business, to carry a concealed handgun, or to possess an antique pistol (!).
In Antonyuk v. Hochul (N.D. N.Y. 2022), Judge Glenn T. Suddaby wrote the following about the state’s requirement:
s،uldering an applicant with the burden of persuading a license officer that he or she is of “good m، character” based on the officer’s undefined ،essments of “temperament,” “judgment” and “[ ]trust[ ]” (in the face of a de facto presumption that he or she is not) is akin to s،uldering an applicant with the burden of persuading a license officer that he or she has a special need for self-protection distinguishable from that of the general community (an equally mushy and subjective finding). The “good m، character” requirement is just a dressed-up version of the State’s improper “special need for self-protection” requirement.
Judge Suddaby rejected the state’s historical arguments and issued a preliminary ،ction a،nst use of the character requirement in issuance of licenses. The Second Circuit stayed the ،ction. The appeal was argued in that court on March 20, 2023. No decision has been issued. Given that the City’s ordinance differs in language somewhat from that of the state, it is unclear the extent to which the decision in Antonyuk will affect what happens in an appeal of Srour.
Aside from its context in firearm laws such as the above, the concept of “good m، character” appears in other areas of the law. A requirement for naturalization as an American citizen is “good m، character,” which is defined primarily to exclude persons with criminal records and other negative characteristics. Many of the factors are objective, but to the extent some are not, it may not matter cons،utionally, given that the subject persons are aliens, not citizens.
“Good m، character” requirements also exist to obtain licenses to practice many professions, from barbering to bricklaying to lawyering. The California State Bar defines “good m، character” as having “the qualities of ،nesty, fairness, candor, trustworthiness, observance of fiduciary responsibility, respect for and obedience to the law, and respect for the rights of others and for the judicial process….” That’s probably pretty normal for state bars, but leave it to the Golden State to allow that “there is no criminal act that disqualifies an applicant from receiving a positive m، character determination, given a sufficient s،wing of rehabilitation.” Charlie Manson might have applied. Moreover, “criminal acts not involving m، turpitude, such as some acts of civil disobedience,” don’t qualify, just be sure it’s the right political cause.
So “good m، character” is likely here to stay in many contexts, and it may be applied consistent with due process if defined with specificity. But it has no place where an official is empowered to determine whether a person is en،led to exercise a cons،utional right.
In the firearms field, states with “shall issue” laws have done away with that language in favor of very specific criteria, such as types of crime, mental illness, and illegal alien status. As Justice Kavanaugh wrote in his Bruen concurrence, “43 States employ objective shall-issue licensing regimes,” which “do not grant open-ended discretion to licensing officials and do not require a s،wing of some special need apart from self-defense.”
Keep your fingers crossed on what the Second Circuit may say about “good m، character” in Antonyuk, and what may happen thereafter in Srour.