New York’s recently overhauled process for screening gun license applicants contains a controversial twist: Social media accounts will soon become fodder for investigators as they examine an applicant’s bona fides.
After the U.S. Supreme Court struck down a key feature of the state’s licensing process earlier this year, New York lawmakers rushed to tighten licensing requirements and restrict where residents can carry firearms. These and other mandates were included in a sprawling firearms legislative package, which was passed in early July and is due to come into force on September 1.
But the social media requirement in particular is generating a lot of outside scrutiny and skepticism. Depending on how it’s implemented, legal experts say it could lead to confusion and, almost certainly, further litigation.
“It’s just another debacle,” said Peter Tilem, a Westchester-based Second Amendment lawyer. “New York seemed to place a premium on being first and not necessarily succeeding.”
The Supreme Court’s June decision in New York State Rifle & Pistol Association v. Bruen established that the state’s high bar for obtaining a concealed carry license violated the US Constitution. Although it struck down the elusive ‘just cause’ standard – which required a claimant to provide specific reasoning for carrying a firearm – the High Court left almost every other aspect of the broad trial process in place. obtaining a permit from New York.
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How will NY review social media accounts?
Applicants will soon have to disclose to licensing officials “a list of former and current social media accounts”, going back three years. This information will be used to determine the “good character” of the applicant, a prerequisite for obtaining a firearms license.
That New York requires gun license applicants to be of “good character” is nothing new.
The morality requirement has been part of New York’s licensing process for more than a century. And some states with licensing regimes that were implicitly blessed by the Supreme Court’s decision contain similar “appropriate person” requirements.
“The purpose of these requirements is to widen the net a little bit and capture behavior that is not criminal but could raise concerns that that person has a concealed carry permit,” explained Andrew Willinger, executive director of the Duke Center for Firearms. Right. “There are already group prohibitions on gun ownership at the state and federal level.”
But now that New York’s “proper cause” standard has been eliminated from law, experts are wondering how and if the language of moral character will gain new prominence, and what role social media posts should play in that. assessment, if applicable.
Willinger notes that the law’s durability will depend on how it is applied in practice, adding that “there are likely to be challenges more generally, with people saying the good character requirement is basically used in the same way than good cause.”
What are the potential downsides?
Using social media feeds to vet candidates in this way, beyond the character references that many candidates already provide, presents a unique challenge for officials who may not understand the vernacular of social media. or who will have to assess flows consistently and objectively.
Social media usage varies widely across platforms, with some users maintaining accounts for business purposes and others preferring anonymous accounts in order to troll, spam and harass.
“Social media can be a kind of window into people’s interests,” observes Clare Norins, director of the First Amendment Clinic at the University of Georgia School of Law. “I certainly understand the desire to build some due diligence into the law, to look and see if there are any red flags.”
But without clear guidance on how streams should be assessed, Norins said it could allow officials to exercise unfettered discretion and, potentially, “open the door to viewpoint discrimination.”
“If a government official doesn’t personally agree with what you have in your account, or doesn’t like it for any reason related to their own biases, they can potentially use it against you,” a she explained.
Many questions remain unanswered about the level of invasiveness that will come with this new review, including how officials will access private streams and whether the First Amendment protection of anonymity will extend to applicants with anonymous accounts.
After the reforms were passed, the New York State Association of County Clerks wrote to Governor Kathy Hochul, warning her that “the process as it now stands will be riddled with complex, confusing, and redundant compliance hurdles,” according to Spectrum News.
New York City has issued rules clarifying how licensing officers must assess a person’s moral character, including references to their criminal history, driving record and certain outstanding debts. But those rules don’t apply statewide, and the injection of entirely new media promises to complicate that process.
The USA Today Network New York sought guidance from the governor’s office on how to interpret the recently enacted changes, but did not receive a final response.
Until then, county-level officials charged with investigating license applicants will make their own decisions, based on their own judgment, about the appropriateness of the online discourse.
News of the proposal was met with fierce resistance from subscribers to /r/NYguns, a popular Reddit forum for Second Amendment enthusiasts in New York City. Although it may be against the law, one user’s strategy illustrated a seemingly inevitable conflict in the future: “Tell them you don’t have a social network and let them try to to find.”