Key Points

  • The Second Circuit vacated the dismissal of Second Amendment challenges to New York City's one-handgun carry limit, its one-handgun-per-90-days purchase limit and its repealed two-handgun cap on carry-license registrations, and remanded for Bruen step-two analysis.
  • The court held that the Second Amendment does not protect only against permanent or complete deprivations of the right to keep and bear arms.
  • The court held that at Bruen step one a plaintiff opposing a motion to dismiss need only plausibly allege a restriction on protected conduct, not show that the rule is foreclosed by the amendment's text, and declined to follow the Fourth Circuit's en banc decision in Maryland Shall Issue v. Moore.
  • The court affirmed dismissal of the challenge to the city's $340 license fee and $88.50 fingerprinting fee under Kwong v. Bloomberg, and affirmed dismissal for lack of standing of challenges to the purchase-authorization, handgun-registration and dealer-reporting rules.

A federal appeals court on Nov. 10 revived a challenge to New York City rules that bar licensed gun owners from carrying more than one handgun at a time or buying more than one handgun in any 90-day period. The court held that the rules regulate conduct the Second Amendment protects, so the city must now defend them with history.

A three-judge panel of the U.S. Court of Appeals for the Second Circuit also reinstated a damages claim over a since-repealed city rule that capped at two the number of handguns a person could register to a carry license. Judge Reena Raggi wrote the opinion for the panel, which also included Judges Livingston and Park. The court vacated part of a December 2024 judgment by U.S. District Judge Jed S. Rakoff of the Southern District of New York, who had dismissed the suit entirely.

The decision turns on the first step of the test the Supreme Court set out in 2022 in New York State Rifle & Pistol Association v. Bruen. At that step, a court asks only whether the Second Amendment's text covers the conduct a law regulates. If it does, the government must show at the second step that the rule is "consistent with the Nation's historical tradition of firearm regulation." Judge Rakoff had ended the case at step one. The Second Circuit held that all three rules clear that threshold.

"This is not to conclude that the challenged rules are necessarily unconstitutional," Judge Raggi wrote. "We hold simply that the constitutionality of these rules must be determined at the second step of the Bruen analysis."

Three New York State residents brought the suit in August 2022. Charles Mills of Queens holds city licenses to keep handguns at home and to carry one concealed. He alleged that, but for the rules, he would routinely carry a second, back-up handgun and would have bought a Glock from a Queens gun shop inside the 90-day window. Craig Sotomayor of Nassau County holds a state carry license and a city special license for nonresidents. Braden Holliday of the Bronx alleged that he could not afford the city's $340 license application fee and $88.50 fingerprinting fee.

The panel left the rest of Judge Rakoff's ruling intact. It held that the fee challenge was foreclosed by Kwong v. Bloomberg, a 2013 Second Circuit decision upholding "the very fees here at issue," and that Holliday's claim of inability to pay was "pleaded conclusorily and without any supporting factual allegations." It also agreed that the plaintiffs lacked standing to challenge the city's purchase-authorization, handgun-registration and dealer-reporting rules.

The appeals court rejected two lines of reasoning that ran through the lower court's ruling. Judge Rakoff had distinguished Supreme Court precedent on the ground that none of the city rules "operates to permanently deprive applicants of their right to own and carry firearms." The panel held that temporary limits count too, writing that "nothing in the text draws a temporary/permanent distinction with respect to the right to keep and bear arms." It cited founding-era dictionaries defining "infringe" to include "to hinder."

The panel also held that Judge Rakoff misstated the plaintiffs' burden when he dismissed the case because "plaintiffs have failed to show that the challenged regulations are foreclosed by the text of the Second Amendment." At step one, the panel wrote, plaintiffs need only plausibly allege that a rule restricts protected conduct. In so holding, it declined to follow Maryland Shall Issue Inc. v. Moore, a 2024 decision of the full Fourth Circuit that required plaintiffs to prove at step one that a licensing law infringes the right. The Second Circuit read a Bruen footnote endorsing "shall-issue" licensing as addressing the second step, not the first.

On the one-gun carry rule, the panel relied on the amendment's wording. The Supreme Court, Judge Raggi wrote, "has not construed the plural word 'Arms' to safeguard an individual right to possess or carry only a single such weapon." The city had argued that the founders would not have contemplated carrying several guns because "all small arms [were then] single-shot weapons." The panel was unpersuaded. "The need for reloading after every shot might have made it more likely that an 18th-century individual would carry multiple firearms," Judge Raggi wrote, adding that the point belongs at step two in any event.

The 90-day rule, the panel held, differs from the short delays that licensing and registration paperwork cause, which the Second Circuit has previously upheld. The city acknowledged that the rule's purpose is to regulate "the pace of additional firearm acquisitions" and deter straw buyers, who buy guns and then illegally transfer them to others. Following the Ninth Circuit, which reached the same result for a one-gun-a-month limit, the panel held that "where the purpose of an ancillary rule is thus to delay the exercise of Second Amendment rights," the rule materially constrains those rights. Whether the anti-straw-buyer purpose fits within historical tradition, the panel said, is a question for step two.

The two-gun registration cap was repealed in August 2024 while the city's motion to dismiss was pending, and Judge Rakoff found the plaintiffs' facial challenge to it moot, a ruling they did not appeal. Mills's damages claim survived. Because state law makes it a crime to carry a handgun not registered to a carry license, the panel wrote, the cap "effectively prevented Mills from carrying all but two of his lawfully owned handguns for self-defense." The city had argued that the Constitution confers no right "to choose among an unlimited selection of handguns on demand." The panel answered that Mills needed only to plead a plausible claim that the rule regulated protected conduct, and "This he has done."

Lawyers for the plaintiffs included Amy L. Bellantoni of The Bellantoni Law Firm, PLLC. The city was represented by Jeremy W. Shweder, an assistant corporation counsel. Janet Carter of Everytown Law represented Everytown for Gun Safety, which filed a friend-of-the-court brief supporting the city.

The case returns to the district court, which must now decide whether the city can show that the one-gun carry limit, the 90-day rule and the repealed registration cap fit the nation's tradition of firearm regulation. The panel said it did "not here predict whether or how the government might carry that burden." Judge Rakoff had written in his dismissal that the claims would "likely fail" at step two. The panel called that statement "more suggestive than conclusory" and said it was "confident the district court will reach a final conclusion only after engaging in the particularized historical analysis required at Bruen step two."