Of Good Moral Character In New York

In light of the crushing, if entirely expected, blow of the Supreme Court’s ruling in Bruen, the New York legislature did what it does best, rushed to pass a law. So it did, and the default governor signed it, proclaiming how she’s on the side of freedom and liberty by making the exercise of constitutional rights as difficult as possible.

The state’s new gun law bars the carrying of handguns in many public settings such as subways and buses, parks, hospitals, stadiums and day cares. Guns will be off-limits on private property unless the property owner indicates that he or she expressly allows them. At the last minute, lawmakers added Times Square to the list of restricted sites.

For obvious reasons, this creates a number of obstacles that will make concealed carry  extremely difficult, if not impossible. That, of course, is the point. Whether these restrictions will hold up constitutionally remains to be seen, and will take years before a decision is made, and will thereupon be replaced by new, similarly onerous limits that will go through the process again.

But within the new law passed and signed in the night as New York is wont to do, are these additional requirements.

THE APPLICANT SHALL MEET IN PERSON WITH THE LICENSING OFFICER FOR AN INTERVIEW AND SHALL, IN ADDITION TO ANY OTHER INFORMATION OR FORMS REQUIRED BY THE LICENSE APPLICATION SUBMIT TO THE LICENSING OFFICER THE FOLLOWING INFORMATION: (I) NAMES AND CONTACT INFORMATION FOR THE APPLICANT’S CURRENT SPOUSE, OR DOMESTIC PARTNER, ANY OTHER ADULTS RESIDING IN THE APPLICANT’S HOME, INCLUDING ANY ADULT CHILDREN OF THE APPLICANT, AND WHETHER OR NOT THERE ARE MINORS RESIDING, FULL TIME OR PART TIME, IN THE APPLICANT’S HOME; (II) NAMES AND CONTACT INFORMATION OF NO LESS THAN FOUR CHARACTER REFERENCES WHO CAN ATTEST TO THE APPLICANT’S GOOD MORAL CHARACTER AND THAT SUCH APPLICANT HAS NOT ENGAGED IN ANY ACTS, OR MADE ANY STATEMENTS THAT SUGGEST THEY ARE LIKELY TO ENGAGE IN CONDUCT THAT WOULD RESULT IN HARM TO THEMSELVES OR OTHERS;

Four character references to attest to the applicant’s “good moral character,” which standing alone, isn’t much of a big deal, except for the kicker that the aplicant “MADE ANY STATEMENTS THAT SUGGEST THEY ARE LIKELY TO ENGAGE IN CONDUCT THAT WOULD RESULT IN HARM TO THEMSELVES OR OTHERS.” What does that mean? That the applicant never said he felt depressed? That the applicant doesn’t like transgender or Antifa or AOC or, well, the list goes on.

But there’s more.

(III) CERTIFICATION OF COMPLETION OF THE TRAINING REQUIRED IN SUBDIVISION NINETEEN OF THIS SECTION; (IV) A LIST OF FORMER AND CURRENT SOCIAL MEDIA ACCOUNTS OF THE APPLICANT FROM THE PAST THREE YEARS TO CONFIRM THE INFORMATION REGARDING THE APPLICANTS CHARACTER AND CONDUCT AS REQUIRED IN SUBPARAGRAPH (II) OF THIS PARAGRAPH; AND (V) SUCH OTHER INFORMATION REQUIRED BY THE LICENSING OFFICER THAT IS REASONABLY NECESSARY AND RELATED TO THE REVIEW OF THE LICENSING APPLICATION.

An applicant will be required to provide “former and current social media accounts” for the past three years to the licensing officer, so that the officer of the state can peruse one’s social media to decide whether ones utterances, or “likes,” or RTs (sorry Dave Weigel) meet with this official state approval of the sort of expression that makes the state, or perhaps just that particular licensing officer, feel that you’re of “good moral character”?

Will this pass constitutional muster? It would all seem a fairly flagrant violation of the First Amendment rights of applicants, whose rights are not generally subject to an official government litmus test of approved speech in order to exercise a fundamental right. But more to the point, the imposition of this requirement raises the stakes all around for legislative places no one should ever go when conditioning the exercise of constitutional rights.

What if this were applied to voter registration, as there is nothing that precludes states from requiring good moral character of its residents to vote. What if this were applied to the right to counsel, to the right to be subject to compelled interrogation or to be a witness against yourself? The list is kinda long, even if mostly honored in the breach.

Between the breakdown of norms and the “must win at any price” approach to every controversial issue, we’re watching imaginative approaches to problems that are poorly thought out, poorly executed and given little to no concern for how much they violate constitutional rights. If they comport with transitory popularity, nothing more matters, and New York at a state does not want people carrying guns.

And this is exclusive neither to New York nor guns, as made blatant by Texas’ efforts to stymie abortion in advance of Dobbs. Of course, if your metric for monumentally bad and stupid laws was Texas, then you’ve forsaken any claim to principle anyway. If the gimmick works in one place on one issue, what sort of intellectual deficiency makes you think it won’t be used elsewhere for another issue? And the downward spiral of society continues unabated.

New York’s rushed enactment of gun laws in response to Bruen should come as no surprise. Nino Scalia’s errant paragraph in Heller provided no principled way to decipher which limits are constitutional and which are not, assuring decades if not centuries of litigation to fight over every inch of turf when it comes to the Second Amendment in states where it’s not favored. But as the New York lege, and our default governor, have now demonstrated, the zeal to circumvent constitutional rights may take us to new depths of intrusion, such as the state approval of our words on social media, that may well be applied to the rights we do like as long as it’s being applied to the one New York doesn’t.