Supreme Court, Dutchess County, January 19, 2024

Larkin & Ingrassia, LLP, Newburgh (John Ingrassia of counsel), and Clayman Rosenberg Kirshner & Linder, LLP, New York City (Wayne E. Gosnell, Jr., of counsel), for respondent.

Letitia James, Attorney General, Poughkeepsie (Suzette Corinne Merritt of counsel), for petitioner.

This challenge to New York's "Red Flag" Law arises in the wake of the United States Supreme Court's decision in June of 2022, New York State Rifle & Pistol Assn., Inc. v Bruen (597 US 1 [2022]).

The respondent challenges the constitutionality of the state's Red Flag Law—article 63-A of the Civil Practice Law and Rules—which provides for the entry of extreme risk protection orders (ERPO), disarming those deemed dangerous. The respondent challenges both the substantive statutory provisions and the procedural provisions under the Second Amendment to the United States Constitution as made applicable to the states by the Fourteenth Amendment.

a. The Petition

On July 9, 2023, New York State Police Investigator Christopher Gonyo filed with the New York State Supreme Court, on a form promulgated by the Unified Court System, an application for a temporary extreme risk protection order against the respondent.

The petition alleged that the respondent was "likely to engage in conduct that would result in serious harm to self or others" and checked boxes on the form as follows:

"[T]he respondent has engaged in, exhibited, or committed the following behavior(s) or act(s) [check all that apply]:

"√ A threat or act of violence or use of physical force directed toward self, the petitioner or another person; . . .

"√ A pending charge or conviction for an offense involving the use of a weapon;

"√ The reckless use, display or brandishing of a firearm, rifle or shotgun."

Under the narrative portion of the form, the following was completed:

"On 7/8/23, the New York State Police received a complaint about an incident which had occurred on{**82 Misc 3d at 1020} 4/7/23. Complainant,^[FN1] stated she was in a verbal argument with . . . , D.S., about the house not being cleaned. After believing D.S. left the residence, N.S. went into the bedroom to pack a bag to leave. D.S. came up to the bedroom with a firearm in his hand and instructed N.S. to get on her knees. D.S. placed the gun on top of N.S.'s head and stated it would all be over quick and then he would shoot himself causing N.S. to be afraid and she believed D.S. was going to kill her. D.S. then left the residence and N.S. then left the residence."

Attached also was a domestic incident report and a supporting deposition of N.S. Both those documents recited the same basic allegations.

Also checked was a box that indicates the petitioner has reason to believe that the [*2]respondent "owns, possesses or has access to a firearm, rifle or shotgun."

In the papers submitted on this motion, the petitioner has made reference to allegations that the respondent raped the alleged victim, which respondent denies. As those allegations are not contained in the ERPO application and no application has been made to supplement or amend the ERPO application, they have not been considered.

On an ex parte basis, upon submission of the application for an extreme risk protection order, a temporary extreme risk protection order was issued. A hearing date was originally set for July 14, 2023. The respondent appeared on the hearing date with counsel and requested the opportunity to make a full submission by motion challenging the constitutionality of the ERPO. The matter has been briefed by both sides. Experts have been retained by both parties who opine on the history of firearms regulation. The temporary ERPO has been extended to allow time for submission on the constitutional question and the court's ruling. The hearing on an extreme risk protection order awaits the court's ruling.

b. The Constitutional Background

Bruen essentially held that any regulatory scheme that impacts the "right" to carry a firearm must be in accordance with historical understanding of the acceptable restrictions on the Second Amendment at the time of its ratification (1791) and of the Fourteenth Amendment (1868), making the Second Amendment applicable to the states.{**82 Misc 3d at 1021}

While there has been much criticism of using "historical traditions" of two to three centuries ago as a basis for determining the scope of a right in today's world, it is the analysis that under US Supreme Court precedent must be applied.

The question presented, therefore, is whether article 63-A of New York's Civil Practice Law and Rules (New York's Red Flag Law) is substantively constitutional. Also challenged is whether the procedure under the law passes constitutional muster.

At the time of this decision and order, the US Supreme Court has heard arguments in the case of Zackey Rahimi. (United States v Rahimi, 61 F4th 443 [5th Cir 2023], cert granted 600 US —, 143 S Ct 2688 [2023].) Rahimi involves the criminal prosecution under federal law of an individual who possessed a firearm in violation of the US Code's (18 USC § 922 [g] [8]) provisions barring possession of a firearm by those who are restrained under protection orders in family law matters. It is anticipated that Rahimi may very well provide guidance as to what are the acceptable limits of firearms regulations; what are the acceptable historical precedents for firearms regulations; whether dangerousness is an acceptable category for deprivation of Second Amendment rights; and the true meaning of the "historical analogy" test established—for the very first time in constitutional law—by Bruen. But even the most optimistic soothsayer would be challenged to believe that this decision and order will analyze the questions in full accordance with what holds forth from the US Supreme Court in the next few months given the broad parameters established under Bruen and the difficulties with applying its directives. Interpretations and applications of Bruen by lower courts have been widely divergent and thus, very difficult to apply as precedent.

It is noteworthy as well that only a few weeks ago, the Second Circuit Court of Appeals decided challenges to New York's statutes regarding concealed firearms carry enacted in the wake of Bruen. (Antonyuk v Chiumento, 89 F4th 271 [2d Cir 2023].) The Second Circuit's interpretations of Bruen are important as well.[*3]

c. New York's Red Flag Law

Until the notorious murders in Buffalo in May of 2022, New York's Red Flag Law was seldom used. In April of 2020 there were nine extreme risk protection orders issued statewide. In the month of November of 2023 there were 375 (New York State Unified Court System Division of Technology & Court Research, https://ww2.nycourts.gov/erpo-36201). Although their use {**82 Misc 3d at 1022}throughout the state varies, they have gained substantially wider impact.

Under article 63-A, a petitioner—defined as either a police officer, a district attorney, a family or household member of the respondent, a school administrator, a licensed physician or other designated mental health professional—may file a petition with the Supreme Court for a temporary and one-year ERPO. (CPLR 6340.)

The application must be sworn and set forth the "facts and circumstances" justifying the issuance of an ERPO. (CPLR 6341.) When the potential filer is a district attorney or police officer and credible evidence supports the application, the filing is mandatory. (CPLR 6341.)

Upon the filing, the court may issue a temporary ERPO if it finds probable cause to "believe the respondent is likely to engage in conduct that would result in serious harm to himself, herself or others, as defined in paragraph one or two of subdivision (a) of section 9.39 of the mental hygiene law." (CPLR 6342 [1].) Section 9.39 (a) of the Mental Hygiene Law defines such conduct as:

" 'Likelihood to result in serious harm' as used in this article shall mean:

"1. substantial risk of physical harm to himself as manifested by threats of or attempts at suicide or serious bodily harm or other conduct demonstrating that he is dangerous to himself, or

"2. a substantial risk of physical harm to other persons as manifested by homicidal or other violent behavior by which others are placed in reasonable fear of serious physical harm." (Mental Hygiene Law § 9.39 [a].)

The court may also authorize a search for firearms in the respondent's possession in accordance with "the procedures of article six hundred ninety of the criminal procedure law." (CPLR 6342 [8].)

Once the petition has been filed, the statute calls for an expedited hearing on whether an ERPO should issue, which may be adjourned at the respondent's request. (CPLR 6343 [1].) The petitioner has the burden of establishing the dangerousness as defined above of the respondent by "clear and convincing evidence." (CPLR 6343 [2].) If the court finds the burden has been met, it may enter an ERPO for a duration of one year.{**82 Misc 3d at 1023}

Those subject to an extreme risk protection order are thereafter prohibited from possessing or attempting to possess a firearm for the duration of the order. (CPLR 6343 [3] [b].)

The duration of the order may be extended. (CPLR 6345.) The respondent may also seek modification of the order. (CPLR 6343 [6].)

a. The Appropriate Constitutional Analysis

The analysis begins with a determination of whether the constitutional challenge to the statute should be determined as applied or more broadly on its face.[*4]

When challenging a statute on a constitutional basis, in all but the First Amendment context, the standard to be met is whether the statute is unconstitutional as applied to the particular litigant's case. "A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid." (United States v Salerno, 481 US 739, 745 [1987].)

In one of the few federal appellate level decisions post-Bruen, the Court of Appeals for the Fifth Circuit claimed that Salerno may have "fallen out of favor." (Rahimi, 61 F4th at 453.) Yet, the Supreme Court continues to cite Salerno, as recently as June of 2023. "[L]itigants mounting a facial challenge to a statute normally 'must establish that no set of circumstances exists under which the [statute] would be valid.' United States v. Salerno, 481 U. S. 739, 745 (1987) (emphasis added)." (United States v Hansen, 599 US 762, 769 [2023].)

The Fifth Circuit took from Bruen that the analysis of the statute as applied versus a full facial challenge is no longer a valid analysis. Instead, the court jumped directly to a full facial challenge under the Bruen standard: "The core question is whether the challenged law and proffered analogue are 'relevantly similar.' Id. at 2132." (United States v Rahimi, 61 F4th 443, 454 [5th Cir 2023], cert granted 600 US —, 143 S Ct 2688 [2023].)

The distinction in this case is a minimal one at best. The respondent's challenges are broad, raising a variety of constitutional (and policy) issues. Since the allegations against the respondent are essentially the textbook example of the type of behavior contemplated by the statute, a full facial challenge{**82 Misc 3d at 1024} would not run the risk of having the respondent argue issues of constitutionality that do not apply to him, except as noted herein. As no hearing has been held—and the court will for the purpose of analysis here only assume the allegations in the application are true—the nature of the allegations is such that an "as applied" limitation on the analysis would not substantially differ from the analysis necessary on a facial challenge.

However, some of the procedural issues raised are more properly raised at the hearing yet to be held, such as the admissibility of hearsay. Those issues are not addressed here as they would not serve to invalidate the entire statute.

b. Constitutional Analysis under Bruen

As the constitutional analysis begins with Bruen, it is instructive to review the decision and its language.

The Bruen decision relies heavily on its predecessor, District of Columbia v Heller (554 US 570 [2008]), which held the District of Columbia's prohibition on handguns in the home for self-defense violated the Second Amendment. Most at issue in the case was the actual meaning of the Amendment: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

Despite the Second Amendment being one of the original amendments known as the Bill of Rights to the Constitution, the Supreme Court only recently decided that the Second Amendment established a right to bear arms for individuals for self-defense. In describing the Second Amendment issue, the Court wrote:

"Petitioners and today's dissenting Justices believe that it protects only the right to possess and carry a firearm in connection with militia service. See Brief for Petitioners 11-12; post, at 636-637 (Stevens, J., dissenting). Respondent argues that it protects an individual right to possess a firearm unconnected with service in a militia, and to [*5]use that arm for traditionally lawful purposes, such as self-defense within the home. See Brief for Respondent 2-4." (District of Columbia v Heller, 554 US 570, 577 [2008].)

The Court decided the respondent's interpretation of the Second Amendment was correct.

In Bruen, the challenge was to New York State's handgun licensing scheme which left the decision to grant a permit for{**82 Misc 3d at 1025} the possession or carrying of a pistol to local permitting or licensing officers, before whom the applicant would have to demonstrate a particular need beyond those of the general public—a "special need."

The prefatory paragraph to the Court's opinion is helpful in ascertaining the reach of the decision:

"[I]n six States, including New York, the government further conditions issuance of a license to carry on a citizen's showing of some additional special need. Because the State of New York issues public-carry licenses only when an applicant demonstrates a special need for self-defense, we conclude that the State's licensing regime violates the Constitution." (Bruen at 11.)

c. Bruen's Language Regarding the Limitations of the Right

The Court in Bruen, however, makes repeated references to who enjoys the rights established by Heller. There are at least 10 occasions in Bruen where the Supreme Court makes reference to a right enjoyed by "law-abiding citizens" or "responsible" persons:

• "In District of Columbia v. Heller, 554 U. S. 570 (2008), and McDonald v. Chicago, 561 U. S. 742 (2010), we recognized that the Second and Fourteenth Amendments protect the right of an ordinary, law-abiding citizen to possess a handgun in the home for self-defense. In this case, petitioners and respondents agree that ordinary, law-abiding citizens have a similar right to carry handguns publicly for their self-defense." (Bruen at 8-10 [emphasis added].)

• "Nor is there any such historical tradition limiting public carry only to those law-abiding citizens who demonstrate a special need for self-defense." (Bruen at 38 [emphasis added].)

• "As set forth in the pleadings below, petitioners Brandon Koch and Robert Nash are law-abiding, adult citizens of Rensselaer County, New York." (Bruen at 15 [emphasis added].)

• "The Second Amendment 'is the very product of an interest balancing by the people' and it 'surely elevates above all other interests the right of law-abiding, responsible citizens to use arms' for self-defense. Heller, 554 U. S., at 635." (Bruen at 26 [some emphasis added].){**82 Misc 3d at 1026}

• "While we do not now provide an exhaustive survey of the features that render regulations relevantly similar under the Second Amendment, we do think that Heller and McDonald point toward at least two metrics: how and why the regulations burden a law-abiding citizen's right to armed self-defense." (Bruen at 29 [emphasis added].)

• "In their view, 'sensitive places' where the government may lawfully disarm law-abiding citizens include all 'places where people typically congregate and where law-enforcement and other public-safety professionals are presumptively available.' " (Bruen at 30-31 [emphasis added].)

• "It is undisputed that petitioners Koch and Nash—two ordinary, law-abiding, adult citizens—are part of 'the people' whom the Second Amendment protects. See Heller, 554 U. S., at 580." (Bruen at 31-32 [emphasis added].)

• "Nor is there any such historical tradition limiting public carry only to those law-abiding citizens who demonstrate a special need for self-defense." (Bruen at 38 [emphasis added].)

• "None of these historical limitations on the right to bear arms approach New York's [*6]proper-cause requirement because none operated to prevent law-abiding citizens with ordinary self-defense needs from carrying arms in public for that purpose." (Bruen at 60 [emphasis added].)

• "Nor, subject to a few late-in-time outliers, have American governments required law-abiding, responsible citizens to 'demonstrate a special need for self-protection distinguishable from that of the general community' in order to carry arms in public. Klenosky, 75 App. Div. 2d, at 793, 428 N. Y. S. 2d, at 257." (Bruen at 70 [emphasis added].)

• "New York's proper-cause requirement violates the Fourteenth Amendment in that it prevents law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms." (Bruen at 71 [emphasis added].)

Respondent seeks to have the court ignore this language in Bruen. First, he argues the language is "dicta." Secondly, he argues that the language is "vague." Both arguments fail. First, to call some of the language of Bruen "dicta" is to ignore the {**82 Misc 3d at 1027}mission imposed by the Supreme Court in Bruen—to discern the limitations that have been and will be allowed on the Second Amendment. As to the "vagueness" argument—the US Supreme Court has left open for some future time what the "law abiding" and "responsible" terms will actually mean. Void for vagueness is a concept applied to statutory text, not US Supreme Court precedent.

Essentially, the respondent interprets Bruen as being applicable to all "people" without limitation. Thus, despite the language regarding responsible and law-abiding persons, the respondent interprets Bruen as standing for the proposition that no regulation at all can be countenanced, save for a prohibition on "felons" and the "mentally ill." Nothing in Bruen can even come close to supporting that interpretation, particularly in light of the language above. The references to "people" cited in Bruen and Heller are clearly meant to be an attempt to distinguish the right as belonging to individuals versus an armed militia. Certainly, it cannot be said that Bruen countenanced as unconstitutional a firearm regulation based on the behavior of an individual citizen. In fact, a clear reading of the language above leads to the opposite conclusion.

And the problem with the argument that "felons" and the "mentally ill" are permissible categories of prohibition against firearm possession is that while they are clearly categories based on a perceived risk of dangerous behavior, they are so broad as to encompass many who are not of such risk. Article 63-A, however, does not attempt by categorical definition to determine who is dangerous, but by an individual determination based on behavior proved by clear and convincing evidence.

Post Bruen, it has been argued that there are two categories of individual citizens that can be subject to regulation and divested of Second Amendment rights: persons who are not "law abiding" and persons who are not "responsible." The United States Solicitor General argued before the court in Rahimi that "law abiding" was a reference to "felons" and the term "responsible" would encompass those deemed dangerous (see United States v Rahimi, No. 22-915, US Sup Ct oral argument tr, https://www.supremecourt.gov/oral_arguments/argument_transcripts/2023/22-915_986b.pdf). The distinction may eventually be adopted by the US Supreme Court, but the nomenclature does not change the ultimate analysis of whether article 63-A is constitutional.{**82 Misc 3d at 1028}

As the Second Circuit recently opined:

"The [US Supreme Court in Bruen], however, made clear that 'nothing in [its] analysis should be interpreted to suggest the unconstitutionality of the . . . "shall-issue" licensing [*7]regimes' applicable in 43 States. Id. at 2138 n.9. In ' "shall issue" jurisdictions,' licensing 'authorities must issue concealed-carry licenses whenever applicants satisfy certain threshold requirements.' Id. at 2123. 'Because these licensing regimes do not require applicants to show an atypical need for armed self-defense, they do not necessarily prevent "law-abiding, responsible citizens" from exercising their Second Amendment right to public carry.' Id. at 2138 n.9 (quoting Heller, 554 U.S. at 635, 128 S.Ct. 2783). 'Rather, it appears that these shall-issue regimes, which often require applicants to undergo a background check or pass a firearms safety course, are designed to ensure only that those bearing arms in the jurisdiction are, in fact, "law-abiding, responsible citizens." ' Id. (quoting Heller, 554 U.S. at 635, 128 S.Ct. 2783). And those regimes do so by applying ' "narrow, objective, and definite standards" guiding licensing officials.' Id. (quoting Shuttlesworth v. Birmingham, 394 U.S. 147, 151, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969))." (Antonyuk v Chiumento, 89 F4th 271, 299 [2d Cir 2023].)

It is clear that the US Supreme Court did not reject licensing regimes as being unconstitutional. In fact, depending on how they are administered, Bruen could be interpreted as being in approval of licensing regimes. It is evident that licensing regimes exist for the very purpose of allowing some to have firearms and prohibiting others, as well as providing a mechanism for revocation or suspension under certain criteria. The only criteria that logically follows as the purpose of a licensing regime is to prohibit use by those who are a threat to use a firearm in a manner dangerous to others.

In sum, there is simply no reading of the Bruen decision that can be understood to prevent a state from enacting legislation to keep firearms out of the hands of those who are dangerous. In fact, the language of Bruen appears to stand for the opposite.

d. The Required Analysis of Historic Regulation under Bruen

The burden placed on the state is concisely put forward in Bruen: "The government must then justify its regulation by {**82 Misc 3d at 1029}demonstrating that it is consistent with the Nation's historical tradition of firearm regulation. Only then may a court conclude that the individual's conduct falls outside the Second Amendment's 'unqualified command.' Konigsberg, 366 U. S., at 50, n. 10." (Bruen at 24.)

The necessity for the analysis required by Bruen begins with the concept that the Second Amendment was the codification of a "pre-existing right." (Bruen at 34.) The historical tradition analysis "delimits the outer bounds of the right to keep and bear arms." (Bruen at 19.) Thus, logic dictates, a historical tradition of disarmament that impacts a greater and less defined group of individuals than the regulation here would be a historical tradition supportive of New York's Red Flag Law.^[FN2] Further, there is no limitation in Bruen that can be read as a requirement that a single [*8]historical precedent be found to support each element of the regulatory scheme in question. Such would create a requirement for a "historical twin" which Bruen does not impose.

Bruen describes the required inquiry as follows:

"In some cases, that inquiry will be fairly straightforward. For instance, when a challenged regulation addresses a general societal problem that has persisted since the 18th century, the lack of a distinctly similar historical regulation addressing that problem is relevant evidence that the challenged regulation isf inconsistent with the Second Amendment. Likewise, if earlier generations addressed the societal problem, but did so through materially different means, that also could be evidence{**82 Misc 3d at 1030} that a modern regulation is unconstitutional. And if some jurisdictions actually attempted to enact analogous regulations during this timeframe, but those proposals were rejected on constitutional grounds, that rejection surely would provide some probative evidence of unconstitutionality." (Bruen at 26-27.)

Further,

"While we do not now provide an exhaustive survey of the features that render regulations relevantly similar under the Second Amendment, we do think that Heller and McDonald point toward at least two metrics: how and why the regulations burden a law-abiding citizen's right to armed self-defense. As we stated in Heller and repeated in McDonald, 'individual self-defense is "the central component" of the Second Amendment right.' McDonald, 561 U. S., at 767 (quoting Heller, 554 U. S., at 599)." (Bruen at 29.)

At various points, the respondent argues that the search for an analogous scheme should be for one related to domestic violence. That argument is rejected. The problem with the respondent's argument is that New York's Red Flag Law is not a regulation directed at domestic violence. Equally, it is not a regulation directed at mass shootings. It is a regulation directed at those who are dangerous.

e. The Problems Presented by the Bruen Analysis for the Courts

It is in the judicial determination of whether a sufficiently analogous regulatory scheme or schemes have been demonstrated where even Bruen itself acknowledges the difficulties lie: "To be sure, '[h]istorical analysis can be difficult; it sometimes requires resolving threshold questions, and making nuanced judgments about which evidence to consult and [*9]how to interpret it.' McDonald, 561 U. S., at 803-804 (Scalia, J., concurring)." (Bruen at 25.)

One need not dive into the analysis required by Bruen without almost immediately encountering the hurdles presented by what is apparently a new method of constitutional analysis.

First, Bruen requires courts to analyze not law, but legal history and the times and context of the laws of centuries before. In the submissions before this court, the experts retained by{**82 Misc 3d at 1031} the parties do not only disagree on the law, but on the history and context of that history. Thus, the court is put in the position of a factfinder of American and English legal history. Approaching the analysis as one in which historical facts must be determined—the court as a factfinder—presents myriad potential unresolvable issues. The best course of action appears to be to follow the Supreme Court's lead and label the matter one of legal analysis alone.^[FN3]

Of course, Bruen's finding that there was a "pre-existing" right that eventually was codified into the Second Amendment presumes there was a common understanding of that right, and thus, only one understanding to be determined.

Bruen itself offers almost no assistance to solving these dilemmas. In fact, the language is at times difficult to reconcile. The US Supreme Court notes in its decision that " '[e]verything is similar in infinite ways to everything else' " (Bruen at 29), as a preamble for the necessary analysis it then directs of historical tradition. Even as a starting point, it is not hard to imagine the analytical distance to be travelled to finding when dissimilar has crossed over into similar.

a. References in Bruen

Once again, a useful starting point in the analysis is Bruen itself. Although analyzing a regulatory scheme different than is presented here, if the Supreme Court has already cited with approval a source for finding a historical tradition in Bruen that also includes an analogous provision to the regulation in question here, it can be presumed that the source is a reliable and valid one.

In fact, it can be argued that relying on the Bruen decision's historical analysis alone would be enough to satisfy the petitioner's burden. Although Bruen's subject was a broad prohibition, the US Supreme Court went to great lengths to differentiate New York's suggested analogous historical traditions as they were limited in purpose to those who invoked fear in others. "Throughout modern Anglo-American history, the right to keep and bear arms in public has traditionally been subject to well-defined restrictions governing the intent for which one{**82 Misc 3d at 1032} could carry arms, the manner of carry, or the exceptional circumstances under which one could not carry arms" (Bruen at 38).

It is important to note that what is challenged here is not a broad prohibition on carrying or possessing weapons. What is challenged is an individual prohibition based on behavior that supports a finding of dangerousness. In essence, those who stand, by their behavior, to create [*10]fear in the minds of others are those affected by the law. In distinguishing a number of citations to historic prohibitions in Bruen, the US Supreme Court rejected claimed analogous prohibitions because they were not broad prohibitions like New York's former "special need" licensing scheme, but prohibitions on creating fear in others.

The US Supreme Court analyzed the Statute of Northampton, an English law from 1328, and rejected it for, among other reasons, that it was too remote in time from the ratification of the Second Amendment. The Court did, however, return to note it with some significance:

"[T]he government charged Sir John Knight, a prominent detractor of James II, with violating the Statute of Northampton because he allegedly 'did walk about the streets armed with guns, and that he went into the church of St. Michael, in Bristol, in the time of divine service, with a gun, to terrify the King's subjects.' Sir John Knight's Case, 3 Mod. 117, 87 Eng. Rep. 75, 76 (K. B. 1686). Chief Justice Herbert explained that the Statute of Northampton had 'almost gone in desuetudinem,' Rex v. Sir John Knight, 1 Comb. 38, 38-39, 90 Eng. Rep. 330 (K. B. 1686), meaning that the Statute had largely become obsolete through disuse. And the Chief Justice further explained that the act of 'go[ing] armed to terrify the King's subjects' was 'a great offence at the common law' and that the Statute of Northampton 'is but an affirmance of that law.' 3 Mod., at 118, 87 Eng. Rep., at 76 (first emphasis added). Thus, one's conduct 'will come within the Act,'—i.e., would terrify the King's subjects—only 'where the crime shall appear to be malo animo,' 1 Comb., at 39, 90 Eng. Rep., at 330, with evil intent or malice. Knight was ultimately acquitted by the jury." (Bruen at 43-44.)

Continuing, the Court cited the Statute of Northampton as one which prohibited creating fear in others by use of arms:{**82 Misc 3d at 1033}

"[T]he Statute of Northampton survived both Sir John Knight's Case and the English Bill of Rights, but it was no obstacle to public carry for self-defense in the decades leading to the founding. Serjeant William Hawkins, in his widely read 1716 treatise, confirmed that 'no wearing of Arms is within the meaning of [the Statute of Northampton], unless it be accompanied with such Circumstances as are apt to terrify the People.' 1 Pleas of the Crown 136. To illustrate that proposition, Hawkins noted as an example that 'Persons of Quality' were 'in no Danger of Offending against this Statute by wearing common Weapons' because, in those circumstances, it would be clear that they had no 'Intention to commit any Act of Violence or Disturbance of the Peace.' Ibid.; see also T. Barlow, The Justice of Peace 12 (1745)." (Bruen at 45 [emphasis added].)

Respondent's expert argues that the reference in the Statute of Northampton to "arms" has as its origin a translation error, and that the statute really prohibits the wearing of armor. This misses the reference above from Bruen and ignores that what resulted in disarmament was behavior indicative of dangerousness. He goes on to concede that the Statute of Northampton (according to a source he cites—a manual for justices of the peace in Ireland) could result in "forfeiture . . . of their bodies to prison at the Kings's pleasure [if it is] accompanied with such circumstances as are apt to terrify the people." Both the commitment of "bodies to prison" and the "circumstances as are apt to terrify the people" are features of the analogy that support the [*11]ERPO scheme. It is difficult to see much daylight between "circumstances as are apt to terrify the people" and evidence supporting that "the respondent is likely to engage in conduct that would result in serious harm to himself, herself or others" (CPLR 6342 [1]). If anything, the requirement in article 63-A is a more stringent one. Further, if a potential remedy is forfeiture of a person's "bod[y] to prison" it necessarily encompasses not only a deprivation of Second Amendment rights, but a host of others as well.

The US Supreme Court also cites statutes enacted in the colonies of Massachusetts and New Hampshire, as being not general prohibitions, but prohibitions against those who would create fear (i.e., perceived dangerousness) in others:

"Colonial Massachusetts and New Hampshire both {**82 Misc 3d at 1034}authorized justices of the peace to arrest 'all Affrayers, Rioters, Disturbers, or Breakers of the Peace, and such as shall ride or go armed Offensively . . . by Night or by Day, in Fear or Affray of Their Majesties Liege People.' 1692 Mass. Acts and Laws no. 6, pp. 11-12; see 1699 N. H. Acts and Laws ch. 1. Respondents and their amici contend that being 'armed offensively' meant bearing any offensive weapons, including firearms. See Brief for Respondents 33. In particular, respondents' amici argue that ' "offensive" ' arms in the 1600s and 1700s were what Blackstone and others referred to as ' "dangerous or unusual weapons," ' Brief for Professors of History and Law as Amici Curiae 7 (quoting 4 Blackstone, Commentaries, at 148-149), a category that they say included firearms, see also post, at 121-123 (Breyer, J., dissenting).

"Respondents, their amici, and the dissent all misunderstand these statutes. Far from banning the carrying of any class of firearms, they merely codified the existing common-law offense of bearing arms to terrorize the people, as had the Statute of Northampton itself. See supra, at 43-46. For instance, the Massachusetts statute proscribed 'go[ing] armed Offensively . . . in Fear or Affray' of the people, indicating that these laws were modeled after the Statute of Northampton to the extent that the statute would have been understood to limit public carry in the late 1600s. Moreover, it makes very little sense to read these statutes as banning the public carry of all firearms just a few years after Chief Justice Herbert in Sir John Knight's Case indicated that the English common law did not do so." (Bruen at 46-47.)

During the colonial period and the early days of the republic, the Court noted that, in rejecting Massachusetts and New Hampshire statutes as analogous for a broad prohibition, "[f]ar from banning the carrying of any class of firearms, they merely codified the existing common-law offense of bearing arms to terrorize the people, as had the Statute of Northampton itself." (Bruen at 47.)

The Court also analyzed several state regulatory enactments created shortly after the ratification of the Bill of Rights. Observing a 1794 Virginia statute, a 1795 Massachusetts law and an 1801 Tennessee law, the Court noted, "[a] by-now-{**82 Misc 3d at 1035}familiar thread runs through these three statutes: They prohibit bearing arms in a way that spreads 'fear' or 'terror' among the people." (Bruen at 50.)

The time period after the adoption of the Constitution is also examined in Bruen. Again, as stated above, the Court distinguishes the historic laws by emphasizing they did not constitute a broad prohibition on the carrying of a firearm, but

"[a]s during the colonial and founding periods, the common-law offenses of 'affray' or going armed 'to the terror of the people' continued to impose some limits on firearm carry in the antebellum period. But as with the earlier periods, there is no evidence indicating that these common-law limitations impaired the [*12]right of the general population to peaceable public carry." (Bruen at 50-51.)

The US Supreme Court next examined several common-law criminal prosecutions in the early 1800s. In rejecting those references (Tennessee's affray laws, North Carolina's prosecution in State v Huntly, 25 NC [3 Ired] 418 [1843]) as justifying a broad prohibition against the carrying of firearms, the US Supreme Court noted that it was in fact a limited prohibition.

"Only carrying for a 'wicked purpose' with a 'mischievous result . . . constitute[d a] crime.' Id., at 423; see also J. Haywood, The Duty and Office of Justices of Peace 10 (1800); H. Potter, The Office and Duty of a Justice of the Peace 39 (1816). Other state courts likewise recognized that the common law did not punish the carrying of deadly weapons per se, but only the carrying of such weapons 'for the purpose of an affray, and in such manner as to strike terror to the people.' O'Neil v. State, 16 Ala. 65, 67 (1849). Therefore, those who sought to carry firearms publicly and peaceably in antebellum America were generally free to do so." (Bruen at 51-52.)

What is evident from these various parts of Bruen is that prohibition of firearm possession based on individual behavior indicative of dangerousness was a normal and accepted limitation on the right to bear arms.

In the "antebellum" period, at the time when the Bill of Rights became applicable to the states by virtue of the Fourteenth Amendment, again, the US Supreme Court found insufficient historically analogous regulations to support a general prohibition on the carrying of firearms. However, when it{**82 Misc 3d at 1036} came to those deemed dangerous, it appears the opposite was true:

"To summarize: The historical evidence from antebellum America does demonstrate that the manner of public carry was subject to reasonable regulation. Under the common law, individuals could not carry deadly weapons in a manner likely to terrorize others. Similarly, although surety statutes did not directly restrict public carry, they did provide financial incentives for responsible arms carrying. Finally, States could lawfully eliminate one kind of public carry—concealed carry—so long as they left open the option to carry openly." (Bruen at 59.)

Bruen summarized its review of the "long journey through the Anglo-American history of public carry" by making the following observation:

"The Second Amendment guaranteed to 'all Americans' the right to bear commonly used arms in public subject to certain reasonable, well-defined restrictions. Heller, 554 U. S., at 581. Those restrictions, for example, limited the intent for which one could carry arms, the manner by which one carried arms, or the exceptional circumstances under which one could not carry arms, such as before justices of the peace and other government officials. Apart from a few late-19th-century outlier jurisdictions, American governments simply have not broadly prohibited the public carry of commonly used firearms for personal defense." (Bruen at 70.)

Simply put, the language of Bruen makes specific reference to prohibiting those with "intent" of unlawful use as being part of the regulatory tradition. Those with bad intentions are those specifically targeted in New York's Red Flag Law—CPLR article 63-A. Thus, it is a more than fair conclusion that Bruen itself sufficiently identifies historically analogous precedent for a prohibition directed at persons deemed dangerous to others.

b. Regulations Cited by the Attorney General and the Arguments of Respondent[*13]

Petitioner's submission attempts to satisfy the burden of demonstrating historically analogous firearms regulations by discussing firearms regulation under English common law, the era of the founding of the United States (i.e., Colonial America during the period of the Revolution and the enactment of the Constitution) and the Reconstruction era when the Fourteenth{**82 Misc 3d at 1037} Amendment extended the reach of the Bill of Rights to the states.

The petitioner has filed with the court affidavits from two experts who discuss the history of firearms regulations over the span of many centuries, Robert Spitzer and Saul Cornell. Mr. Spitzer is a distinguished service professor, emeritus at SUNY Cortland and has an extensive curriculum vitae. Mr. Spitzer attaches to his affidavit a host of schedules listing various firearms regulations in support of his analysis. Mr. Cornell is a chair in American history at Fordham University. He teaches at Fordham, both in the history department and at the law school.

Many of those proffered historical analogies are disputed by the respondent's expert, Clayton Cramer, an adjunct professor of history at Western Idaho College.

Also, many of the references cited by the parties' experts are discussed above as they were examined in the Bruen decision.

The Colonial Period:

Sources Arising from the History of State Constitution Ratifications:

Heller cited with approval the use of state constitution texts as being a potential source of analogous historical traditions. "Our interpretation is confirmed by analogous arms-bearing rights in state constitutions that preceded and immediately followed adoption of the Second Amendment." (Heller at 600-601.)^[FN4]

The petitioner cites several occasions where state constitutional conventions considered a right to bear arms, all of which{**82 Misc 3d at 1038} limited the right to being available to those who were "responsible" and "law abiding."

Specifically, a proposal before the Pennsylvania state ratification convention prohibited "disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals" (Merrill Jensen ed., The Documentary History of the Ratification of the Constitution, Ratification by the States [Documentary History], vol. II, The Pennsylvania Convention Wednesday 12 December 1787, Debates at 598 [1976], https://search.library.wisc.edu/digital/ATR2WPX6L3UFLH8I/pages/AHEXEUY72EUD3G9C).

Samuel Adams proposed before the Massachusetts convention a provision granting the right to all "peaceable citizens." (John P. Kaminski & Gaspare J. Saladino eds., Documentary History, vol. VI, The Massachusetts Convention Wednesday 6 February 1788, Convention Journal at 1453 [2000] [emphasis added].) A New Hampshire proposal denied the right to those who had been "in actual rebellion." (Jonathan Elliot, The Debates In the Several State Conventions, on the Adoption of the Federal Constitution 326 [2d ed 1891].)

Surety Bonds:

The US Supreme Court in Bruen rejected the analogy of surety bonds as a sufficiently historical analogy to justify New York's broad permitting regimen. In doing so, the Court wrote, "respondents offer little evidence that authorities ever enforced surety laws." (Bruen at 58.)

The Court did note, however, that "although surety statutes did not directly restrict public carry, they did provide financial incentives for responsible arms carrying." (Bruen at 59.){**82 Misc 3d at 1039}

There is a strong record, however, that such surety statutes were successful. As stated above, surety bonds were a means of private persons enforcing the peace and were largely successful. As noted in the affidavit of Mr. Cornell, the records in Ablemarle County, Virginia show records of over 20 surety bonds between 1798 and 1801.

However, keeping in mind Bruen's directive that the historical context of the time period of the existence of a suggested analogy or lack of an analogy is an important part of the analysis, the surety bond is significant in the context of the ERPO regulatory scheme being examined:

"Though a main purpose of a judicial system is to punish crime, remnants of an ancient system designed to prevent crime remained very much alive in seventeenth-century England. The system of frankpledge had bound all freemen as sureties for the behavior of their neighbors. What had survived was a method of binding specific individuals because their behavior made it appear likely that they might commit a crime. The restraint took the form of a recognizance, a debt acknowledged to be due to the crown if certain conditions were not met. Usually, the person with presumed criminal tendencies needed to find one or two men to be his sureties. Recognizances were of two kinds, for the peace and for good behavior. Judges normally demanded recognizance for the peace to end a threat of violence. A constable might ask that persons be bound, or an individual might 'swear the peace' against another at whose hands he feared violence." (Bradley Chapin, Criminal Justice in Colonial America, 1606-1660 at 27-28 [Univ of [*15]Georgia Press 1983].)^[FN5]

In Colonial America, "[t]he system seems to have worked for the records of forfeited bonds are rare." (Bradley Chapin, Criminal Justice in Colonial America, 1606-1660 at 28 [Univ of Georgia Press 1983].)

In fact, here, in Dutchess County, the same can be said. A review of the colonial period court records confirms those statements of Professor Laura Edwards cited in the affidavit of{**82 Misc 3d at 1040} petitioner's expert Saul Cornell, specifically: "In matters involving peace bonds, offenders were required to find sureties to post a peace bond and, failing that, would be jailed. If they misbehaved thereafter, their sureties would lose their bond and the offender would be jailed. In cases involving specific criminal charges, peace bonds were also required." (Laura Edwards & Mandy Cooper, The Sounds of Silence: An Examination of Local Legal Records Reveals Robust Historical Regulation of the Public Peace, Duke Center for Firearms Law Blog [Aug. 18, 2023], as cited in aff of Saul Cornell, paras 18-19.)

For example, in 1763 one Simeon Smith of Rombout Precinct in Dutchess County had two sureties, Matthias Horten and William Vantine in "current money of this province of New York" pledge security to

"our said Sovereign Lord the King his Heirs and Successors in case Default shall be made in the condition hereunder written. The condition of this Recognizance is such that if the above bound Simeon Smith shall personally appear in Court at the next General Session of the Peace to be held at Poghkeepsie in and for the County aforesaid, to answer unto such matters as shall be objected against him by John Shearer of said Precinct Schoolmaster . . . and in the mean time to keep the Peace of our Sovereign Lord the King, . . . and especially towards the said John Shearer and shall not due or procure to be done any bodily hurt to him" (https://www.dutchessny.gov/DutchessCountyPublicAccess/HistoricalDocuments/HistoricalDocuments.aspx?OBKey__235_1=*Surety*).

The historian who compiled the county's historic records^[FN6] identified as sureties ("Persons on bonds or recognizances who {**82 Misc 3d at 1041}swear to pay bail or other monetary stake for a third party's good behavior") approximately 250 individuals between 1736 and 1833. Messrs. Horten and Vantine were discharged from their surety, presumably meaning that the peace was kept, as it appears most were.

Respondent's expert disputes the surety bonds analogy, arguing that the bonds were not [*16]meant to act prospectively against future conduct, because they were issued after an arrest. However, this misses the point the US Supreme Court made—that surety bonds are evidence of preventive measures being instituted to dissuade future conduct.

Racist and Discriminatory Regulations:

Cited by the Attorney General are regulations of the colonial period that prohibited dealing in firearms with Native Americans.

The respondent argues against considering these historical traditions as they arise out of evil intentions. He misses the point of the reference. If the ultimate question to be decided is what regulations of firearms the authors and ratifiers of the Second Amendment would find acceptable in the following millennium—the limitations on the existing right as they understood it—then surely the fact that a regulation was in existence that was so broad and so discriminatory as to be morally bankrupt may be repugnant, but still relevant. If the use of prejudicial stereotypes to determine dangerousness was acceptable, how could a narrowly tailored regulation based on actual conduct creating legitimate fears be unacceptable?^[FN7]

Curiously, respondent's expert apparently concedes much of the point: "Spitzer [petitioner's expert] points to yet another law specific to Indians and unlike the Massachusetts disarmament bill of attainder, this required no reason to assume that the persons to be disarmed were individually a threat to public safety. Race was enough." (Cramer aff para 103.){**82 Misc 3d at 1042}

Other distinct groups who were subject to disarmament included religious groups, loyalists to Britain,^[FN8] "Papists" and Quakers.

As to disarmament of religious groups, it is important to understand the context of the times, especially when it comes to Quakers. A particularly ugly form of prejudice against Quakers in Colonial America was justified thus:

"The Quakers, moved by 'impetuous & fanaticke fury,' aimed 'to undermine & ruine' authority. Arguing from the analogy of a man's right to defend his house and family from intruders and citing prolific biblical precedent, the magistrates saw themselves as 'nursing fathers & nursing mothers' protecting 'theire subjects.' " (Bradley Chapin, Criminal Justice in Colonial America, 1606-1660 at 105 [Univ of Georgia Press 1983], quoting Massachusetts colonial records.)

Affrays, "Brandishing Laws" and Threatening Behavior:[*17]

Among the more compelling of the historical precedents cited by the Attorney General are those specifically dealing with those who caused fear in others. For instance, the 1708 law in New Hampshire that disarmed those "who shall go armed offensively, or put his Majesty's subjects in fear, by menacing or threatening speeches."

A 1736 law in Virginia authorized constables in the colony to "take away Arms from such who ride or go offensively armed, in Terror of the People, and may apprehend the Person, and carry them, and their Arms, before a Justice of Peace."

The extensive discussion in Bruen itself (cited above) adds multiple references to the affray/terror concept. As noted above, this is perhaps the most apt analogy to the concept found in the Red Flag Law where actual behavior is the criteria for disarmament.

Respondent correctly points out that some of the citations presented by petitioner's expert for the proposition that drunkenness could result in disarmament are mischaracterized.{**82 Misc 3d at 1043} However, it is clear that intoxication and firearms were a prohibited mix, if not at the time of the ratification of the Second Amendment, certainly at the time of the Fourteenth Amendment, which, despite respondent's expert's statements, is a relevant time period under Bruen.

For example, The Revised Statutes of the State of Missouri § 1274 (1879) prohibited carrying firearms by those "intoxicated or under the influence of intoxicating drinks."

However, it is clear that the historical analogy is an apt one. There is no doubt that the abuse of alcohol makes a person more likely to engage in dangerous behavior with a firearm. The fact that such a deprivation may be overly broad does not overcome its being a valid historical tradition for firearms regulation. A historical drunkenness disarmament tradition is one best described as disarming a group of individuals in a broad category of those with a single characteristic potentially triggering dangerous behavior. In other words, the fact of drunkenness is a substitute for the "homicidal or other violent behavior by which others are placed in reasonable fear of serious physical harm." (Mental Hygiene Law § 9.39 [a].) If the ultimate goal of the "historical tradition" analysis is determining what the ratifiers and framers would have found acceptable, then how could a more narrowly drawn disarmament based on an individual's actual behavior be considered unacceptable to the ratifiers and framers?

An examination of the criminal law during the colonial period is important in two respects:

First, few behaviors that would fulfill the necessary proof of being a risk of serious harm to others can be considered as outside the realm of criminal behavior. The use of words (harassment, Penal Law § 240.30) or use of weapons (menacing, Penal Law § 120.15) to instill fear in others of harm should necessarily consider how the criminal law would have dealt with such behaviors during the colonial period. If the criminal law dealt with it in ways more severe than merely disarmament or in ways that encompassed disarmament, there is further support for the Red Flag Law.

Second, when determining the relevance of whether an analogous regulatory scheme existed at the time, Bruen specifically cautions against drawing inappropriate conclusions, as there are numerous potential reasons for a lack of an analogous "twin" to a regulatory scheme other than it would be considered violative of the established right. The circumstances existing at the time are a highly relevant consideration.{**82 Misc 3d at 1044}

In fact, during the early colonial era, witchcraft was on par with murder as the basis for execution. Bestiality was a frequent cause of prosecution. Jails were virtually unknown. And recidivism was incredibly sparse. While there may be little history of actual firearm confiscation, [*18]those who did commit crimes were more likely to be banished, hanged or whipped. And crime was exceedingly rare.

And looking for "statutory references" in Colonial America for any precedent is little proof of the intention of those who did not enact them. In Colonial America, the criminal law remained largely a creation of the magistrates and the common law. "By 1660, Virginia had defined only 35.6 percent and Maryland 50.9 percent of the criminal law by statute." (Bradley Chapin, Criminal Justice in Colonial America, 1606-1660 at 22 [Univ of Georgia Press 1983].)

Nor, apparently, was there a massive social problem to be addressed of firearm misuse during the colonial era. Between 1630 and 1797 of the 613 homicides recorded, 124 were committed with a gun, or between one and two a year in all New England (The Ohio State University, Criminal Justice Research Center, Data: United States, https://cjrc.osu.edu/research/interdisciplinary/hvd/united-states).^[FN9]

Thus, even if the colonial period's evidentiary foundation for an analogous regulatory scheme to the one here is sparse, it can hardly be concluded that the apparent lack of an "analogous twin" regarding the confiscation of firearms is reflective of a deference to the "pre-existing right" of the citizenry to possess firearms. As Bruen commands, there is not a presumption that the lack of an "analogous twin" is evidence of a deference to the Second Amendment's predecessor.

"[T]he absence of a distinctly similar historical regulation in the presented record, though undoubtedly relevant, can only prove so much. Legislatures past and present have not generally legislated to their constitutional limits. Reasoning from historical silence is thus risky; it is not necessarily the case that, if no positive legislation from a particular place is in the record, it must be because the legislators there deemed such a regulation inconsistent with the right to bear arms. There are many reasons why the historical record may not evince{**82 Misc 3d at 1045} statutory prohibitions on a given practice. For example, lawmakers are not moved to forbid behavior that is governed by custom, universal practice, or private warning. No legislation is needed to forbid zoo patrons from entering the lion's enclosure; similarly, a town with only a single daycare facility that privately bans firearms from its premises has no need to pass a regulation prohibiting guns in daycare centers. Thus, '[t]he paucity of eighteenth century gun control laws might have reflected a lack of political demand rather than constitutional limitations.' Binderup v. Att'y Gen. United States of Am., 836 F.3d 336, 369 (3d Cir. 2016) (en banc) (Hardiman, J., concurring in part and concurring in the judgments) (quoting Nelson Lund, The Second Amendment, Heller, and Originalist Jurisprudence, 56 UCLA L. REV. 1343, 1354 (2009)). Stated differently, 'novelty does not mean unconstitutionality.' Id. at 368. That is so even if the problems faced by past generations could be described, at a high level of generality, as similar to the problems we face today.

"Fourth, courts must be particularly attuned to the reality that the issues we face today are different than those faced in medieval England, the Founding Era, the Antebellum Era, and Reconstruction. To put it plainly, our era does not resemble those. Thus, the lack of a distinctly similar historical regulation, though (again) no doubt relevant, may not be reliably dispositive in Second Amendment challenges to laws addressing modern [*19]concerns. Such a lack of precedent was, to be sure, dispositive in Bruen. But that was due to the exceptional nature of New York's proper-cause requirement, which conditioned the exercise of a federal constitutional right on the rightsholder's reasons for exercising the right. As the Supreme Court explained, and as we repeated earlier, '[w]e know of no other constitutional right that an individual may exercise only after demonstrating to government officers some special need.' Bruen, 142 S. Ct. at 2156. '[A] more nuanced approach' will often be necessary in cases challenging less exceptional regulations. Id. at 2132. The Supreme Court emphasized in Bruen that such a 'more nuanced approach' is necessary in cases concerning 'new circumstances' {**82 Misc 3d at 1046}or 'modern regulations that were unimaginable at the founding,' such as regulations addressing 'unprecedented societal concerns or dramatic technological changes.' Id. . . .

"The district court also seemed to draw strong and specific inferences from historical silence, reasoning that, if the submitted record lacks legislation from a particular place, it must be because the legislators there deemed such a regulation inconsistent with the right to bear arms. That inference is not commanded by Bruen, nor is it sound. There are many reasons why the historical record may not evince statutory prohibitions on a given practice. See supra Background § III.E; see also Binderup, 836 F.3d at 369 (Hardiman, J., concurring in part and concurring in the judgments) ('The paucity of eighteenth century gun control laws might have reflected a lack of political demand rather than constitutional limitations.' (quoting Nelson Lund, The Second Amendment, Heller, and Originalist Jurisprudence, 56 UCLA L. REV. 1343, 1354 (2009))." (Antonyuk v Chiumento, 89 F4th 271, 301-302, 321 [2d Cir, Dec. 8, 2023].)

When examining the colonial era for a historical tradition, the lack of any "historical twin" as a way of establishing what was contemplated as an acceptable curtailment of an established right is weak at best. Statutory laws were rare, the incidence of firearm violence was virtually nonexistent and the records of the courts were infrequently preserved.

What is established, looking more broadly, is that a deprivation of such a right based on dangerousness was acceptable to the governing and governed and did not fall outside the limits of the protections of the Second Amendment.

Post-Ratification References:

Petitioner cites a number of post-ratification restrictions, which, while the US Supreme Court has acknowledged are a proper part of constitutional analysis, decline in relevance the further in time they are from the dates of ratification of the Second Amendment and the Fourteenth Amendment.

According to petitioner, from the beginning of the nineteenth century until the time of Reconstruction, there were laws in a number of states that prevented carrying concealed weapons, assuming that, according to petitioner's expert, concealment was an indication of dangerous intentions. Alabama's 1839{**82 Misc 3d at 1047} statute is prefaced by the following: "AN ACT To suppress the evil practice of carrying weapons secretly." The first paragraph of which reads as follows:

"Section 1. Be it enacted by the Senate and House of Representatives of the Slate of Alabama in [*20]General Assembly convened,

"That if any person shall carry concealed about his person any species of fire arms, or any bowie knife, Arkansaw tooth-pick, or any other knife of the like kind, dirk, or any other deadly weapon, the person so offending, shall on conviction thereof, before any court having competent jurisdiction, pay a fine not less than fifty nor more than five hundred dollars, to be assessed by the jury trying the case; and be imprisoned for a term not exceeding three months, at the discretion of the Judge of said court" (1839 Ala Laws 67, https://archive.org/details/alabama-acts-1838-1839/Acts_1838_1839/page/n67/mode/2up?view=theater).

Tennessee and Georgia enacted similar provisions.

As time progressed, the number of states prohibiting the carrying of concealed weapons increased. By the early 1900s, 13 states had enacted prohibitions on same.

Because the action of merely carrying a weapon concealed was at that time proof enough of evil intent to be prohibited—and addressed by more serious consequences than just disarmament—then surely actual homicidal behavior cannot be beyond the reach of a disarmament law as is the case here.

Hunting Laws:

Petitioner cites a number of historical regulations regarding the confiscation of firearms from those who violated various hunting laws. The petitioner cites hunting law violations that resulted in confiscation of firearms in the 1700s (three different states), 1800s (four states) and 1900s (three states). As to the "how and why" analysis directed by Bruen, the how is clearly analogous as confiscation of firearms was "how" the statutes operated. The why is self-evident: To prevent future violations of the law.

Addressing the hunting laws analogy, the only response from respondent's expert is to ask the question: "So ERPO has some relationship to conservation and hunting?" Respondent's argument misses the point precisely put forward by the petitioner: That the Second Amendment right can be constitutionally{**82 Misc 3d at 1048} limited based on a danger of future behavior for a much less extreme anticipated violation of the law as the unauthorized taking of an animal, thus the Second Amendment must certainly tolerate a restriction on a much more severe danger of future behavior—the threat of serious injury to a human being.

c. Conclusion Regarding Historical Tradition:

And thus, when examining historical traditions, Bruen itself cites a history of firearms regulations consistent with article 63-A. The additional sources related herein also strongly support article 63-A's constitutionality. What that history indicates is that the "pre-existing right"—later codified by the Second Amendment—at times contemplated deprivation of that right based on a single characteristic perceived indicative of dangerousness arising from racial or religious prejudice and broad single-characteristic bases like drunkenness or mental illness. There is also a history of curtailing the rights based on individual conduct indicative of dangerousness. There is also strong historical precedent for the curtailment of the right based on anticipated future conduct. Finally, disarmament—or more—was an acceptable method of curtailing that right. The conclusion is that there is a historically analogous tradition that [*21]supports as constitutional New York's Red Flag Law.

a. The Wisdom of the Red Flag Law

It is observed that both the petitioner and respondent seek to invoke arguments concerning the wisdom of the ERPO statute and the avoidance of gun violence. Bruen rejected the concept of considering the harm to the citizenry that can arise from unrestricted firearm possession. Equally, the argument that there is a better way—hospitalization under the Mental Hygiene Law as suggested by the respondent—to avoid mass murder ignores those who are violent and not mentally ill.^[FN10]

Respondent's expert attempts to minimize the problem of domestic homicide: "Curiously, today murders of wives and girlfriends are rarer than the casual reader might think. In 2019, out of 13,297 murders in the US 482 were wives and 505{**82 Misc 3d at 1049} were girlfriends. 7% in total." Mr. Cramer cites FBI statistics in support of his conclusion. In actuality, the FBI statistics cited do not report "wife" nor "girlfriends." They report "spouses" and "boyfriend/girlfriend." The FBI also does not use a category for "murder." The category reported is "homicide" which encompasses more than murder. When the FBI does analyze gender as related to homicide, the most common perpetrator of the homicide of females (34%) is an "intimate partner" which is inclusive of both spouse and boyfriend/girlfriend. Additionally, although respondent's expert abandons the reference to FBI statistics when discussing the use of firearms in homicides, the overwhelming number of homicides are committed with firearms (10,258 out of 13,927 in 2019) (U.S. Department of Justice, Federal Bureau of Investigation, Criminal Justice Information Services Division, 2019 Crime in the United States, Expanded Homicide Data Table 8, https://ucr.fbi.gov/crime-in-the-u.s/2019/crime-in-the-u.s.-2019/tables/expanded-homicide-data-table-8.xls). "More than 73 percent (73.7) of the homicides for which the FBI received weapons data in 2019 involved the use of firearms. Handguns comprised 62.1 percent of the firearms used in murder and nonnegligent manslaughter incidents in 2019. (Based on Expanded Homicide Data Table 8)" (https://ucr.fbi.gov/crime-in-the-u.s/2019/crime-in-the-u.s.-2019/topic-pages/expanded-homicide).

Further, FBI statistics demonstrate that the predominant cause of police officer non-accidental "felonious" death—76.4%—is from firearms (Federal Bureau of Investigation, Crime Data Explorer, Law Enforcement Officers Killed and Assaulted [LEOKA], https://cde.ucr.cjis.gov/LATEST/webapp/#/pages/le/leoka).

However, to entertain arguments that there is a better way to address the societal problem is to disregard the US Supreme Court's command.

"Moreover, Heller and McDonald expressly rejected the application of any 'judge-empowering "interest-balancing inquiry" that "asks whether the statute burdens a protected interest in a way or to an extent that is out of proportion to the statute's salutary effects upon other important governmental interests." ' Heller, 554 U.S., at 634 (quoting id., at 689-690 (Breyer, J., dissenting)); see also[*22]McDonald, 561 U.S., at 790-791 (plurality opinion) (the Second Amendment does not permit—let alone {**82 Misc 3d at 1050}require—'judges to assess the costs and benefits of firearms restrictions' under means-end scrutiny). We declined to engage in means-end scrutiny because '[t]he very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon.' Heller, 554 U.S., at 634. We then concluded: 'A constitutional guarantee subject to future judges' assessments of its usefulness is no constitutional guarantee at all.' Ibid." (Bruen, 597 US 1, 22-23 [2022].)

Thus, while Bruen does speak of comparisons between the problems of today and of the times of historical relevance being a feature of the constitutional analysis, there is no room in that analysis for the court to determine constitutionality based on there being a better way to achieve the goals of the Red Flag Law.

b. Other New York Courts That Have Examined the Issue

Two other trial level courts that have examined the statute found it unconstitutional in reported decisions.

The first of those courts determined that in order for the court to make the finding of a respondent being "a danger to himself or others" an opinion from a psychiatrist was necessary to the effect. (G.W. v C.N., 78 Misc 3d 289 [Sup Ct, Monroe County 2022].)

"Why should the law not treat similarly situated people the same, with the same constitutional guarantees and protections, if both are deemed to present as having a 'likelihood to result in serious harm.' " (G.W. v C.N. at 293.) The opinion goes on to state how those who are the subject of involuntary hospitalization under the Mental Hygiene Law are treated differently than those who are the respondents in ERPO proceedings. Since the case proclaims those who are respondents under the Mental Hygiene Law must be determined to be "dangerous" by a psychiatrist or physician, the ERPO statute must require same. Where that analysis is clearly incorrect is in the differences between the two groups.

In order to be confined without court intervention a psychiatrist or physician must determine that a person is mentally ill and a danger to him/herself or others. In the ERPO context, the respondent is not being deprived of their rights without court intervention. The necessity for a medical professional's{**82 Misc 3d at 1051} involvement is also quite logically tied to the required element of confinement—a diagnosis of mental illness. Moreover, to say that a court is required to make a finding of dangerousness under the Mental Hygiene Law only on the basis of medical testimony implies a requirement simply not found under that statute.

The second court has cited as its basis that article 63-A is unconstitutional a "void for vagueness" theory.

"To begin, the court is not convinced that 'conduct that would result in serious harm to himself, herself or others' is a phrase sufficiently definite enough to provide clear and fair notice of the conduct that it covers or provide a clear standard for the application of CPLR 6342 (1) and 6343 (2)." (Matter of Anonymous v C.P., 81 Misc 3d 355, 364 [Sup Ct, Warren County 2023].)

This court disagrees with that analysis. "[A]pplication of the vagueness doctrine outside the First Amendment context has been restricted to a limited set of fact situations, most notably 'status' and 'vagrancy' crimes." (Ryan McCarl, Incoherent and Indefensible: An Interdisciplinary Critique of the Supreme Court's "Void-for-Vagueness" Doctrine, 42 Hastings Const LQ 73, 75[*23][2014].) The reason for the void for vagueness doctrine's application in the First Amendment context is the concern that the imprecision of a statutory standard might chill free speech. It is hard to imagine that a person would find the terms "homicidal or other violent behavior by which others are placed in reasonable fear of serious physical harm" (Mental Hygiene Law § 9.39 [a] [2]) so vague as to chill their Second Amendment rights.

Additionally, the concept of dangerousness has been repeatedly upheld in the face of vagueness challenges.

"Second, and more particular to this case, numerous court decisions have upheld the constitutionality of other statutes that are similar to the Kentucky statute. The fact that similarly phrased statutes allow police officers to detain an individual involuntarily if they have 'reason to believe' or a 'reasonable belief' that the individual is mentally ill and poses a danger to himself or others weighs heavily against Simon's facial challenge. See S.P. v. City of Takoma Park, Md., 134 F.3d 260, 271 (4th Cir.1998) (citing Ahern, 109 F.3d at 817; Pino v. Higgs, 75 F.3d 1461, 1468-69 (10th Cir.1996);{**82 Misc 3d at 1052} Gooden, 954 F.2d at 960)." (Simon v Cook, 261 Fed Appx 873, 883 [6th Cir 2008].)

Moreover, under Court of Appeals precedent, this court would, in fact, be precluded from considering "vagueness" unless the allegations here were such that a reasonable person would not understand that their specific alleged conduct would fall within the proscribed conduct of a challenged statute.

"Because facial challenges to statutes are generally disfavored (see e.g. National Endowment for the Arts, 524 US at 580) and legislative enactments carry a strong presumption of constitutionality (see Brady v State of New York, 80 NY2d 596, 602 [1992]; Bright, 71 NY2d at 382), a court's task when presented with both a facial and as-applied argument is first to decide whether the assailed statute is impermissibly vague as applied to the defendant (see Ulster Home Care v Vacco, 96 NY2d 505, 510 [2001]; Nelson, 69 NY2d at 308; Hoffman Estates, 455 US at 495; United States v Mazurie, 419 US 544, 550 [1975]). If it is not and the statute provides the defendant with adequate notice and the police with clear criteria, that is the end of the matter. '[T]he court will not strain to imagine marginal situations in which the application of the statute is not so clear' (Nelson, 69 NY2d at 308; People v Shack, 86 NY2d 529, 538 [1995]).'

"It follows, therefore, that if a defendant makes an as-applied vagueness challenge and the court repudiates it, the facial validity of the statute is confirmed (see Hoffman Estates, 455 US at 505)." (People v Stuart, 100 NY2d 412, 422 [2003].)

There can be no realistic claim here that the respondent would be unaware that putting a gun to someone's head and telling them it would be "over quick" would be actions proscribed as conduct that would result in serious harm to others, meaning conduct presenting "a substantial risk of physical harm to other persons as manifested by homicidal or other violent behavior by which others are placed in reasonable fear of serious physical harm." (Mental Hygiene Law § 9.39 [a] [2].) A discussion of the standard of dangerousness is also included below in reviewing the claims regarding procedural [*24]due process.{**82 Misc 3d at 1053}

c. Mental Illness as a Criteria for Curtailment of Second Amendment Rights

The respondent has not challenged the facial sufficiency of the statute as far as those who are "mentally ill" which he seems to equate as being those who present a risk of harm to themselves. There appears, however, to be a strong historical tradition to support same as well.^[FN11] And the analysis is the same—a history of overbroadly and prejudicially applied {**82 Misc 3d at 1054}criteria to establish dangerousness resulting in a more harsh response than just disarmament alone—does not equate with the outer bounds of the Second Amendment's protections being violated by an individual assessment of dangerousness based on behavior resulting in a temporary disarmament.

It cannot be seriously argued that Bruen did not contemplate that there are limits on the Second Amendment rights established in that decision and Heller. What limits, then, are acceptable? The respondent argues that only those who are convicted felons or are mentally ill [*25]would be subject to disarmament. Both categories, however, are even broader than the restriction in place here. Convicted felons would include tax cheats, food stamp benefit fraudsters and many others not at risk of harming others. In fact, challenges have been made by those convicted of such nonviolent offenses to the deprivation of their Second Amendment rights. (Range v Attorney Gen. United States of Am., 69 F4th 96 [3d Cir 2023].)

Equally, the category of "mental illness" is a broad one that encompasses far more people that are not dangerous than those who are. Neither category makes any sense at all as a basis for deprivation of any Second Amendment rights unless it is limited to those within those categories who are dangerous. Yet, dangerousness is rejected as a criteria for regulation by the respondent.

While the historical record is replete of instances where the regulatory scheme limiting the right to keep and bear arms was often broadly and wrongly imposed, what cannot be doubted is that it was done so based on the concept of dangerousness. Thus, article 63-A's limitation of the right based on an individual finding of dangerousness does not present an unconstitutional deprivation of a person's Second{**82 Misc 3d at 1055} Amendment rights. Substantively, New York's Red Flag Law—CPLR article 63-A—is constitutional.

The question next arises that given New York's Red Flag Law is substantively constitutional, whether there are sufficient due process protections in place in the statutory scheme.

Respondent argues that the only permissible constitutional process for deprivation of Second Amendment rights must be the same as for a criminal conviction—a jury trial, the right to presentment and indictment by grand jury, to compel defense witnesses to testify, the right to trial by jury and a finding beyond a reasonable doubt.

There is no US Supreme Court precedent directing certain procedures to be undertaken for the deprivation of Second Amendment rights. Equally, there is little clear lower court guidance post-Bruen as well. Thus, the analysis must draw on the acceptable procedures used when other constitutional rights are curtailed.

a. The Initial Stages

Article 63-A allows the issuance of a temporary extreme risk protection order based on a finding of probable cause that a person is a danger to themselves or others. It requires a hearing within six days of the service of the temporary order on the application for the one-year order, except when the respondent requests additional time.

Contrary to the respondent's argument, the initial proceedings in the statute mirror those long found to pass constitutional muster for the deprivation of other rights—for example, search warrants, mental hygiene confinement and confinement of criminal defendants pending trial.

b. Similar Constitutional Processes

Search Warrants

In order to obtain a search warrant, probable cause must be established and an application made before a neutral magistrate. And searches may also be conducted without a warrant merely when it is determined, after the fact, that a police officer had probable cause and [*26]one of the exceptions created by the US Supreme Court applied. "Thus, an issuing magistrate must meet two tests. He must be neutral and detached, and he must be capable of determining whether probable cause exists for the requested arrest or search." (Shadwick v Tampa, 407 US 345, 350 [1972].){**82 Misc 3d at 1056}

Article 63-A provides both of those protections—probable cause for the temporary (six-day) disarmament and a neutral magistrate.

Arrest Warrants and Felony Hearings

Paradoxically, the standards for depriving a person of their Second Amendment rights alone through the article 63-A process are more stringent than if a person is arrested on a felony and incarcerated—thus depriving them of not only Second Amendment rights, but basic physical liberty as well.

Article 63-A allows a deprivation of Second Amendment rights upon the presentation to the court of an application which must provide probable cause (CPLR 6342 [3]) to believe a person is a danger to themselves or others. The court must hold a hearing within six days of the service of the temporary extreme risk protection order. (CPLR 6343 [1].) The Criminal Procedure Law allows an arrest warrant to be issued and a person to be taken into custody on probable cause that a crime was committed. (CPL 120.20 [1] [a]; 100.40.)

Both article 63-A and the Criminal Procedure Law require an expedited hearing at which time the court determines whether there is sufficient proof to support the allegations. In the case of an arrest warrant for a felony, the court determines whether there is reasonable cause to believe a crime was committed and the defendant committed it within 120 hours should the defendant be held in custody. (CPL 180.80.) (Or indictment by a grand jury, whose determination is then reviewed for sufficiency.)

Under article 63-A, the court must hold a hearing on a "final" extreme risk protection order^[FN12] within six days of the service of the temporary extreme risk protection order, at which time, the petitioner must prove their case by clear and convincing evidence, a higher standard.^[FN13]

{**82 Misc 3d at 1057}Under the Criminal Procedure Law, once the determination is made that probable cause exists, a defendant may be held for an extended period, limited under various circumstances, but not unusually over a year or more before trial. Those preliminary procedures are constitutionally sufficient to hold a person for extended time periods. "While the length of pretrial detention is a factor in determining whether due process has been violated, the length of detention alone is not dispositive and 'will rarely by itself offend due process." Millan, 4 F.3d at 1044 (quoting United States v. Orena, 986 F.2d 628, 631 (2d Cir.1993)); see El-Gabrowny, 35 F.3d at 65."[*27] (United States v El-Hage, 213 F3d 74, 79 [2d Cir 2000] [finding no constitutional violation of 30-33 month confinement].) Under article 63-A, the order lasts no more than one year, without further application.

Thus, many of the due process requirements for the curtailment of rights associated with criminal prosecution and temporary incarceration are equal to or exceeded by the due process protections afforded under CPLR article 63-A.

c. The Process for a One-Year Order

After the initial stages, at the hearing for a one-year order, the proof required is clear and convincing evidence, before a New York State Supreme Court Justice, and a finding of dangerousness. There are some similar statutory schemes concerning other constitutional rights which support article 63-A being procedurally sound.

Mental Hygiene Proceedings

As noted above, article 63-A incorporates the definition of dangerousness from the Mental Hygiene Law. Also, the procedure under the Mental Hygiene Law for involuntary hospitalization may provide, if anything, less due process protection. But, besides those areas where the Mental Hygiene Law provides less protection, the procedures for these two statutory schemes are strikingly similar.

In Project Release v Prevost (722 F2d 960, 971 [2d Cir 1983]), the court recognized the gravity of involuntary hospitalization:

"Involuntary civil commitment to a mental institution has been recognized as 'a massive curtailment of liberty,' Vitek v. Jones, 445 U.S. 480, 491-92, 100 S.Ct. 1254, 1262-63, 63 L.Ed.2d 552 (1980); Humphrey v. Cady, 405 U.S. 504, 509, 92 S.Ct. 1048, 1052, 31 L.Ed.2d 394 (1972), which, because it may entail indefinite confinement, could be a more intrusive exercise of state power than incarceration following a criminal conviction. See Colyar v. Third{**82 Misc 3d at 1058} Judicial District Court, 469 F.Supp. 424, 429 (D.Utah 1979) (citing Humphrey v. Cady, 405 U.S. at 509, 92 S.Ct. at 1052). Civil commitment for any purpose requires due process protection. See Vitek, 445 U.S. at 491-92, 100 S.Ct. at 1262-63; Addington v. Texas, 441 U.S. 418, 425, 99 S.Ct. 1804, 1808, 60 L.Ed.2d 323 (1979); O'Connor v. Donaldson, 422 U.S. 563, 580, 95 S.Ct. 2486, 2496, 45 L.Ed.2d 396 (1975) (Burger, C.J., concurring). Indeed, '[t]here can be no doubt that involuntary commitment to a mental hospital, like involuntary confinement of an individual for any reason, is a deprivation of liberty which the State cannot accomplish without due process of law.' O'Connor, 422 U.S. at 580, 95 S.Ct. at 2496 (Burger, C.J., concurring)."

The court wrote as follows:

"This appeal requires us to determine whether standards and procedures for voluntary, involuntary and emergency civil commitment embodied in the New York State Mental Hygiene Law (M.H.L.) sections 9.13, 9.27, 9.37 and 9.39 (McKinney 1978), meet federal constitutional due process minima. Appellants appeal from a ruling of the United States District Court for the Eastern District of New York, Edward R. Neaher, Judge, construing appellants' complaint as a facial challenge to the provisions in question, finding the challenged provisions constitutional on their face and granting summary judgment in favor of appellees as to 'all substantive issues raised in the pleadings.'[*28]Project Release v. James Prevost, 551 F.Supp. 1298, 1310 (E.D.N.Y.1982). Appellants contend initially that it was error to dispose of their claims via summary judgment; next, they contend that the district judge erred in holding that the challenged provisions of the M.H.L. are facially constitutional. For the reasons stated below, we reject these claims and affirm the decision of the district court." (Project Release v Prevost, 722 F2d 960, 963 [2d Cir 1983].)

Trial by Jury

In Duncan v Louisiana (391 US 145 [1968]), the Supreme Court found that the constitutional right to a trial by jury for criminal offenses did not apply to "petty offenses." In Baldwin v New York (399 US 66 [1970]) the Supreme Court defined a "petty offense" as one punishable by no more than six months' incarceration.{**82 Misc 3d at 1059}

Surely, the deprivation of virtually all rights—First, Second, and Fourth Amendments—for a period of six months greatly exceeds the deprivation of only the Second Amendment right for one year. Yet, the Constitution would not provide for a jury trial for six months' incarceration.

Clearly, then, analysis of comparable statutes contemplating the curtailment of constitutional and liberty interests supports the adequacy of article 63-A's provisions.

d. The Standard of Proof

Proof Beyond a Reasonable Doubt

The trouble with respondent's argument that disarmament should first require a felony conviction or a process equal to a felony conviction—trial by jury and proof beyond a reasonable doubt is the absurd result it would create—is that, by that logic, a person being held in custody pending trial on a felony would have the right to be armed. One could of course argue that places of confinement are those described as "sensitive places"—a permissible category of regulation by Bruen.^[FN14] But the reason that such would qualify as a sensitive place is precisely because it is filled with persons adjudicated to be dangerous.

Further, the Second Amendment right has been compared to the First Amendment right to freedom of speech. The "clear and convincing evidence" standard has been applied in that context as well. (See New York Times Co. v Sullivan, 376 US 254 [1964]; see also Gertz v Robert Welch, Inc., 418 US 323, 342 [1974] ["Those who, by reason of the notoriety of their achievements or the vigor and success with which they seek the public's attention, are properly classed as public figures and those who hold governmental office may recover for injury to reputation only on clear and convincing proof that the defamatory falsehood was made with knowledge of its falsity or with reckless disregard for the truth"].)

{**82 Misc 3d at 1060}In United States v Rehlander (666 F3d 45 [1st Cir 2012]), the First Circuit examined the due process protections afforded to a person involuntarily hospitalized when that involuntary mental health hospitalization was the basis of a criminal prosecution based on 18 USC § 922 (g) (4) which makes it a crime for someone who has been involuntarily committed to a mental health facility to possess firearms. The court found that Maine's initial mental health confinement statutes were constitutionally insufficient to form a basis for disarmament. Those statutes allowed for a three-day confinement without any judicial intervention at all. The court noted, however, that one of the defendants in the case—Rehlander—had been the subject of Maine's more extensive judicial procedures for confinement, which, among other things, required proof by clear and convincing evidence. "If Rehlander is now mentally ill and dangerous, his commitment may be sought under section 3864 which, if successful, will create a presumptively valid section 922 ban." (United States v Rehlander, 666 F3d 45, 50 [1st Cir 2012].) The First Circuit appears to have condoned the clear and convincing proof standard in the Second Amendment context.

Analogous constitutionally sufficient statutory schemes, therefore, establish that proof beyond a reasonable doubt is not required and due process is satisfied by article 63-A's requirement of proof by clear and convincing evidence.

e. The Determination of Dangerousness

Respondent also argues that allowing a court to determine dangerousness allows for too much judicial discretion to be constitutional. The determination of dangerousness is far from novel in the law and has met with constitutional approval as a standard for deprivation of various liberty interests.

Respondent concedes that virtually every state but New York allows pretrial detention of criminal defendants based on dangerousness.

Federal law allows pretrial detention of criminal defendants based on dangerousness as well. A federal court may detain a federal criminal defendant if "such person may flee or pose a danger to any other person or the community." (18 USC § 3142 [d] [2].) That provision has been challenged on a constitutional basis and sustained.

"The Bail Reform Act of 1984 (Act) allows a federal court to detain an arrestee pending trial if the Government demonstrates by clear and convincing{**82 Misc 3d at 1061} evidence after an adversary hearing that no release conditions 'will reasonably assure . . . the safety of any other person and the community.' The United States Court of Appeals for the Second Circuit struck down this provision of the Act as facially unconstitutional, because, in that court's words, this type of pretrial detention violates 'substantive due process.' We granted certiorari because of a conflict among the Courts of Appeals regarding the validity of the Act. 479 U. S. 929 (1986). We hold that, as against the facial attack mounted by these respondents, the Act fully comports with constitutional requirements. We therefore reverse." (United States v Salerno, 481 US 739, 741 [1987].)

Moreover, courts routinely make findings of dangerousness in mental hygiene proceedings as described above. Family offense proceedings are another proceeding in which findings of dangerousness are made.

"And the meaning of dangerousness under the FCCA may be fleshed out through judicial review of individual cases, as it is for numerous other legal concepts that bear on constitutional rights. See, e.g., Ornelas v. United States, 517 U.S. 690, 697, 116 S. Ct. 1657, 1661, 134 L.Ed.2d 911 (1996) ('the legal rules for probable cause and reasonable suspicion acquire content only through application')." (White v Illinois State Police, 482 F Supp 3d 752, 764-765 [ND Ill 2020], affd as mod 15 F4th 801 [7th Cir 2021].)

Thus, a deprivation of constitutional rights on the basis of a finding of future dangerousness is no stranger to the law and has met with constitutional approval. While there undoubtedly may be constitutionally invalid circumstances put forward by a petitioner to obtain an ERPO, those circumstances must await an individual determination.

f. Conclusion Regarding Due Process:

What respondent argues for is a procedural process superior to those for other rights. The Second Amendment is not "a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees that we have held to be incorporated into the Due Process Clause." (McDonald v Chicago, 561 US 742, 780 [2010].) Neither is it a superior right.

Article 63-A provides sufficient process at the beginning of the ERPO proceedings in the form of the necessity of probable{**82 Misc 3d at 1062} cause demonstrated before a neutral magistrate for a short curtailment of Second Amendment rights in the form of a temporary extreme risk protection order. Further, the process for an ERPO determination at a hearing, that being proof by clear and convincing evidence of dangerousness, provides sufficient safeguards for the protection of the respondent's Second Amendment rights.

Respondent makes challenges to the mechanism and appropriateness of the search order that was issued in this matter. However, none of the submissions factually described the conduct of any search, or for that matter, whether a search was even conducted. Thus, an analysis of those objections could very well draw the court into making a purely hypothetical determination. And as respondent points out, article 63-A requires that any search authorization be conducted in accordance with CPL article 690. Challenges to search warrants issued under article 690 must be made in accordance with CPL article 710, which requires sworn statements of fact by the allegedly aggrieved party.

Thus, the court declines to enter into any determination regarding the search authorization until such time as the factual record is further developed.

VIII. Conclusion

As described above, the petitioner has demonstrated and the court finds that New York's Red Flag Law is not beyond the "outer limits" the framers and ratifiers of the Second and Fourteenth Amendments understood them, based on the nation's historical traditions. The language of Bruen and the references in same support a finding that article 63-A is constitutional. The United States Supreme Court's acknowledgment that a permitting regiment can be constitutional makes little sense unless a provision denying permits to those who would use firearms wrongly is an acceptable regulatory provision. The historical record indicates that the how and why of article 63-A's substance were not beyond what was an acceptable limitation at the relevant times before, during and after the nation's founding.

The due process afforded respondents under article 63-A exceeds those provided to [*30]persons facing equal or even more serious deprivations of liberty interests than Second Amendment{**82 Misc 3d at 1063} rights alone. Thus, the procedural due process provided by article 63-A, to the extent challenged here, provides sufficient constitutional protections.

The court finds that article 63-A to the extent challenged herein passes constitutional muster both facially and as applied.

For the foregoing reasons, it is hereby ordered that the respondent's application to dismiss the CPLR article 63-A proceeding on the basis that the article is unconstitutional is denied.

"[I]t is far from clear whether these adjectives describe individuals who stand outside the Second Amendment or instead those who may be disarmed consistent with that Amendment. See Kanter v. Barr, 919 F.3d 437, 452 (7th Cir. 2019) (Barrett, J., dissenting) (summarizing these two positions and explaining that 'one uses history and tradition to identify the scope of the right, and the other uses that same body of evidence to identify the scope of the legislature's power to take it away'). Indeed, the Fifth Circuit, the Third Circuit en banc, and then-Judge Barrett in a Seventh Circuit dissent have advocated the latter view (contrary to the State's position here). See id. at 453 (Barrett, J., dissenting); Rahimi, 61 F.4th at 451-53; Range, 69 F.4th at 101-03." (Antonyuk v Chiumento, 89 F4th 271, 313 [2d Cir 2023].)

"And whereas it is of the utmost importance to the safety of every State that it should always be in a condition of defence; and it is the duty of every man who enjoys the protection of society to be prepared and willing to defend it; this convention therefore, in the name and by the authority of the good people of this State, doth ordain, determine, and declare that militia of this State, at all times here-after, as well in peace as in war, shall be armed and disciplined, and in readiness for service. That all such of the inhabitants of this State being of the people called Quakers as, from scruples of conscience, may be averse to the bearing of arms, be therefrom excused by the legislature; and do pay to the State such sums of money, in lieu of their personal service, as the same may, in the judgment of the legislature, be worth.

"And that a proper magazine of warlike stores, proportionate to the number of inhabitants, be, forever hereafter, at the expense of this State, and by acts of the legislature, established, maintained, and continued in every county in this State." (1777 NY Const, art XL.)

The provision would appear to differ from the finding in the Supreme Court's Heller decision regarding the significance of the militia-related language.

"In 1954, Dutchess County Clerk Frederic A. Smith invited Dr. Henry Noble MacCracken, the recently-retired President of Vassar College, to examine the Ancient Documents Collection. At this time, the collection was completely unprocessed. MacCracken reported that the documents had 'tremendous genealogical and historic value' and recommended that they be indexed for improved access.

"Over the course of 1955, Dr. MacCracken and staff from the County Clerk's Office inventoried all of the records in the collection that they could locate dating from 1721 to 1800. They recorded the data on small memorandum cards, which County Clerk Smith compiled into two large index volumes, organized by surname."

The records have since been digitized and made searchable. Dutchess County appears to be one of the few locations where such records have been preserved and digitized.