18-386

Libertarian Party of Erie County v. Cuomo

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

- - - - - -

August Term, 2018

(Argued: February 20, 2019 Decided: August 11, 2020)

Docket No. 18-386

____________________________________________________________

LIBERTARIAN PARTY OF ERIE COUNTY, MICHAEL KUZMA, 

RICHARD COOPER, GINNY ROBER, PHILIP M. MAYOR, MICHAEL 

REBMANN, EDWARD L. GARRETT, DAVID MONGIELO, JOHN 

MURTARI, and WILLIAM A. CUTHBERT,

Plaintiffs-Appellants,

- v. -

ANDREW M. CUOMO, individually and as Governor of the State of 

New York, LETITIA JAMES, individually and as Attorney General of 

the State of New York*

, JOSEPH A. D'AMICO, individually and as 

Superintendent of the New York State Police, MATTHEW J. MURPHY, 

III, individually and as Niagara County pistol permit licensing officer, 

DENNIS M. KEHOE, individually and as Wayne County pistol permit 

 * Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General 

Letitia James is automatically substituted for former Attorney General 

Eric T. Schneiderman as a defendant in this case.
licensing officer, and M. WILLIAM BOLLER, individually and as Erie 

County pistol permit licensing officer,

Defendants-Appellees.

**

____________________________________________________________

 ** The Clerk of Court is instructed to amend the official caption to conform 

with the above.

Before: KEARSE, WALKER, and JACOBS, Circuit Judges.

Appeal from a judgment of the United States District Court for the 

Western District of New York, Frank P. Geraci, Jr., Chief Judge, dismissing, 

pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6), plaintiffs' amended complaint 

brought under 42 U.S.C. ' 1983 against various state officials, alleging that New 

York State's firearm licensing laws, see N.Y. Penal Law ' 400.00, violate plaintiffs' 

rights under the Second and Fourteenth Amendments to the Constitution. The 

district court dismissed on grounds of mootness or lack of standing the claims of 

all but two plaintiffs, against all but two defendants, for failure to plead 

injury-in-fact or traceability of injury to other defendants; dismissed claims for 

money damages against the two remaining defendants on grounds of judicial and 

Eleventh Amendment immunity; dismissed individual-capacity claims against 

those defendants for injunctive relief as barred by 42 U.S.C. ' 1983; and dismissed 

the surviving claims on the grounds that the ' 400.00 licensing criteria of "good 
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moral character," "good cause," and "proper cause" are not unconstitutionally 

vague, and that the statutory scheme, while impacting Second Amendment rights, 

does not burden those rights substantially, closely relates to the State's interests in 

public safety, and thus survives intermediate scrutiny. On appeal, plaintiffs, 

while expressly not seeking reversal of the dismissal as to Libertarian Party, 

principally contend that in dismissing the claims of the individual plaintiffs, the 

district court erred in its rulings on standing, mootness, and judicial immunity; in 

applying intermediate scrutiny to the challenged licensing scheme; and in 

concluding that the challenged statutory criteria for licensing are not 

impermissibly vague. We have been informed by the parties of events that have 

rendered the claims of certain plaintiffs moot, requiring dismissal of so much of 

the appeal as concerns those claims; we otherwise affirm the rulings of the district 

court principally for the reasons stated by that court, see 300 F.Supp.3d 424 (2018).

Appeal dismissed in part and affirmed in part.

JAMES OSTROWSKI, Buffalo, New York, for 

Plaintiffs-Appellants.

ANISHA S. DASGUPTA, Deputy Solicitor General, 

New York, New York (Barbara D. Underwood, 

Attorney General of the State of New York, Amit 
- 4 -

R. Vora, Assistant Solicitor General, New York, 

New York, on the brief), for Defendants-Appellees.

Morrison & Foerster, New York, New York (Jamie 

A. Levitt, Jayson L. Cohen, Rhiannon N. 

Batchelder, New York, New York; Hannah 

Shearer, San Francisco, California, J. Adam Skaggs, 

David M. Pucino, Giffords Law Center to Prevent 

Gun Violence, New York, New York, of counsel), 

filed a brief for Amicus Curiae Giffords Law Center to 

Prevent Gun Violence, in support of 

Defendants-Appellees and Affirmance.

Clarick Gueron Reisbaum, New York, New York 

(Nicole Gueron, Ashleigh Hunt, New York, New 

York, of counsel), filed a brief for Amicus Curiae 

Everytown for Gun Safety, in support of 

Defendants-Appellees and Affirmance.

KEARSE, Circuit Judge:

Plaintiffs Libertarian Party of Erie County ("Libertarian Party") et al. 

appeal from a judgment of the United States District Court for the Western District 

of New York, Frank P. Geraci, Jr., Chief Judge, dismissing, pursuant to Fed. R. Civ. 

P. 12(b)(1) and 12(b)(6), their amended complaint brought under 42 U.S.C. ' 1983 

against several state officials, alleging that the firearm licensing laws of New York 
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State (the "State" or "New York"), see N.Y. Penal Law ' 400.00, violate plaintiffs' 

rights under the Second and Fourteenth Amendments to the Constitution. The 

district court dismissed on grounds of mootness or lack of standing the claims of 

all but two plaintiffs, against all but two defendants, for failure to plead 

injury-in-fact or traceability of injury to other defendants; dismissed claims for 

money damages against the two remaining defendants on grounds of judicial and 

Eleventh Amendment immunity; dismissed the individual-capacity claims against 

those defendants for injunctive relief as barred by 42 U.S.C. ' 1983; and dismissed 

the surviving claims on the grounds that the ' 400.00 licensing criteria of "good 

moral character," "good cause," and "proper cause" are not unconstitutionally 

vague, and that the statutory scheme, while impacting Second Amendment rights, 

relates substantially to the State's interests in public safety and thus survives 

intermediate scrutiny. On appeal, plaintiffs, while expressly not seeking reversal 

of the dismissal as to Libertarian Party, principally contend that in dismissing the 

claims of the individual plaintiffs, the district court erred in its rulings on 

standing, mootness, and judicial immunity; in applying intermediate scrutiny to 

the challenged licensing scheme; and in concluding that the challenged statutory 
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criteria for licensing are not impermissibly vague. For the reasons that follow, we 

conclude that claims of certain plaintiffs have become moot, requiring dismissal of 

so much of the appeal as pursues those claims; we otherwise affirm the challenged 

rulings of the district court, principally for the reasons stated by that court.

I. BACKGROUND

The Second Amendment, which applies to the States through the 

Fourteenth Amendment, see McDonald v. City of Chicago, 561 U.S. 742, 791 (2010), 

provides: "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," U.S. Const. 

amend. II. In District of Columbia v. Heller, 554 U.S. 570 (2008), the Supreme Court 

held that the Second Amendment codified a pre-existing "individual right to 

possess and carry weapons in case of confrontation," id. at 592.

New York State "maintains a general prohibition on the possession of 

'firearms' absent a license." Kachalsky v. County of Westchester, 701 F.3d 81, 85 (2d 

Cir. 2012) ("Kachalsky"). Section 400.00 of New York's Penal Law is the State's
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"exclusive statutory mechanism for the licensing of firearms," id. (internal 

quotation marks omitted); other sections of the Penal Law provide criminal 

penalties for possession of a firearm without a license, see N.Y. Penal Law 

'' 265.00(3), 265.01 et seq., and 265.20(a)(3).

The State allows an application for a firearm license by a person who 

resides in the State or whose principal place of business is in the State. See N.Y. 

Penal Law ' 400.00(3)(a). The "[t]ypes of licenses" that may be issued include "[a] 

license for a pistol or revolver" for "a householder" "to . . . have and possess in his 

dwelling," N.Y. Penal Law ' 400.00(2)(a), and a license to "have and carry 

concealed [a pistol or revolver], without regard to employment or place of 

possession, by any person when proper cause exists for the issuance thereof," id. 

' 400.00(2)(f). To be granted a license for at-home possession of a firearm, an 

applicant principally must show "good moral character" and show that "no good 

cause exists for denial of the license." N.Y. Penal Law '' 400.00(1)(b) and (n) 

(emphasis added); id. ' 400.00(2)(a). To obtain a license to carry a concealed 

firearm in public ("concealed-carry"), one must show, in addition, that "proper 
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cause" exists for issuance of that license. Id. ' 400.00(2)(f). A concealed-carry 

permit encompasses an at-home license. See id.

A. The Parties

The present action was brought by plaintiffs Libertarian Party and 

several New York residents. According to the amended complaint ("Complaint" 

or "Comp."), Libertarian Party is an association "whose platform includes support 

for the right to bear arms" (Comp. & 3). The Complaint contains no other 

allegations about Libertarian Party. The individual plaintiffs (collectively 

"Plaintiffs") are Michael Kuzma, Richard Cooper, Ginny Rober, Philip M. Mayor, 

Michael Rebmann, Edward L. Garrett, David Mongielo, John Murtari, and 

William A. Cuthbert, who claim that various aspects of New York's firearm 

licensing regime violate their rights under the Second and Fourteenth 

Amendments to bear arms.

The defendants are Andrew M. Cuomo, Governor of the State; Letitia 

James, the State's Attorney General; Joseph A. D'Amico, Superintendent of the 

State Police; Matthew J. Murphy III, a judge who is the pistol permit licensing 
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officer for Niagara County; Dennis M. Kehoe, a judge who is the pistol permit 

licensing officer for Wayne County; and M. William Boller, an Acting State 

Supreme Court Justice who is the pistol permit licensing officer for Erie County. 

(See, e.g., Comp. && 14-22.)

B. The Complaint

Plaintiffs contend that the right to bear and carry firearms is a 

"fundamental" Second Amendment right that the State has no authority to license 

(Comp. && 33-62). The Complaint alleged principally that the New York 

licensing scheme on its face (1) violates Plaintiffs' rights to possess firearms in 

their homes (see id. & 137), (2) violates their rights to possess firearms in public (see

id. & 138), and (3) uses standards of "good moral character," "proper cause," and 

"good cause" that are so vague as to violate the Due Process Clause of the 

Fourteenth Amendment (id. && 139-141).

As to individual plaintiffs, the Complaint alleged that Mayor and 

Cuthbert "have obtained . . . pistol permits but remain under constant threat of 

having their licenses revoked based on application of the arbitrary and subjective 
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criteria set forth in the statute." (Comp. & 77.) The license granted to Cuthbert 

by Justice Boller was an at-home permit that allowed him to use the firearm for 

hunting and target shooting; but Cuthbert was denied a concealed-carry permit. 

(See id. & 94.) The Complaint alleged that Mongielo held a concealed-carry 

permit which, after his arrest, was suspended by Judge Murphy. It alleged that 

the suspension was "temporar[y]." (Id. & 81; see also Declaration of New York 

State Assistant Attorney General William J. Taylor, Jr., dated April 29, 2016 

("Taylor Decl."), Exhibit C (Niagara County Court Order signed by Judge Murphy, 

ordering reinstatement of Mongielo's permit)).

The Complaint alleged that Murtari applied for a pistol permit 

(Comp. & 96), but that his application was denied by Judge Kehoe (id. & 97). The 

10-paragraph letter of denial stated, inter alia, that Murtari's record showed that 

from 1998 through 2010 he had been arrested "approximately 50 times" and that 

Murtari's "prior conduct in failing to obey lawful orders issued in the Federal 

Court System, as well as in the State Family Court System, constitutes 'good cause' 

for this Court to deny [his] application for a pistol permit at this time." (Id. & 98.)
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As to plaintiffs Kuzma, Cooper, Rober, Rebmann, and Garrett, the 

Complaint contained no allegation that any of them had ever applied for a pistol 

permit.

The Complaint principally sought "injunctive and declaratory relief" 

(Comp. & 76) and "compensatory and punitive damages" (id. & 135). Murtari also 

requested an order, pursuant to N.Y. C.P.L.R. Article 78, directing Judge Kehoe to 

issue him a pistol permit. (See id. && 142-144.)

C. The District Court's Dismissal of the Action

Defendants moved pursuant to Federal Rules of Civil Procedure 

12(b)(1) and 12(b)(6) to dismiss the Complaint for lack of subject matter 

jurisdiction and failure to state a claim. Under Rule 12(b)(1) they argued, inter 

alia, (1) that Libertarian Party, Kuzma, Cooper, Rober, Rebmann, and Garrett lack 

standing, having failed to apply for a firearm license or to allege that applying 

would have been futile; (2) that Mayor and Mongielo lack standing because they 

hold licenses, and that any fear of revocation is speculative; and (3) that Cuthbert 
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lacks standing to challenge provisions governing at-home possession, because he 

has a license for such possession.

Under Rules 12(b)(1) and 12(b)(6), defendants argued that Plaintiffs 

could not obtain relief against Cuomo, James, and D'Amico because the 

Complaint did not show that those defendants had any direct involvement in 

administering the challenged statutory provisions. And under Rule 12(b)(6), 

defendants argued that Cuthbert's claim with respect to the denial of his request 

for a concealed-carry permit, and all of Murtari's claims, fail because the statutory 

criteria governing the granting of permits are not impermissibly vague, and the 

New York firearm licensing provisions substantially relate to the State's interests 

in public safety, thus surviving intermediate scrutiny. Defendants also argued 

that Justice Boller and Judges Murphy and Kehoe, as sued in their official 

capacities, are entitled to Eleventh Amendment immunity from claims for 

damages; and that because they act in a judicial capacity in ruling on firearm 

license applications, they are, insofar as they are sued in their individual 

capacities, entitled to judicial immunity from Plaintiffs' claims for damages or 

injunctive relief.
- 13 -

In a thorough opinion dated January 10, 2018 ("D. Ct. Opinion"), 

reported at 300 F.Supp.3d 424, relying principally on the Supreme Court's decision 

in Heller and this Court's decisions in New York State Rifle & Pistol Association, Inc. 

v. Cuomo, 804 F.3d 242 (2d Cir. 2015) ("NYSRPA"); Kachalsky, 701 F.3d 81; United 

States v. Decastro, 682 F.3d 160 (2d Cir. 2012) ("Decastro"); and Jackson-Bey v. 

Hanslmaier, 115 F.3d 1091 (2d Cir. 1997) ("Jackson-Bey"), the district court granted 

defendants' motion in its entirety.

Because plaintiffs' response to defendants' motion to dismiss made no 

argument with respect to Libertarian Party, the district court dismissed any claims 

on behalf of Libertarian Party on the ground that they had been abandoned. 

With respect to the three federal claims asserted in the Complaint, the court found 

that most of the plaintiffs lacked standing to sue, either in general because of their 

own inaction, or with respect to certain defendants to whom their asserted injuries 

were not traceable. As to the plaintiffs who had standing, the court found that 

the Complaint failed to state a claim on which relief can be granted.
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1. Standing

The court noted that, in order to have standing to sue in federal court, 

a plaintiff must show

(1) injury-in-fact, which is a "concrete and particularized" harm 

to a "legally protected interest"; (2) causation in the form of a 

"fairly traceable" connection between the asserted injury-in-fact 

and the alleged actions of the defendant; and (3) redressability, 

or a non-speculative likelihood that the injury can be remedied 

by the requested relief.

D. Ct. Opinion, 300 F.Supp.3d at 432 (quoting W.R. Huff Asset Management Co. v. 

Deloitte & Touche LLP, 549 F.3d 100, 106-07 (2d Cir. 2008) (emphasis in W.R. Huff)); 

see, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). Further, each 

plaintiff must establish standing with respect to each claim he or she asserts, see

D. Ct. Opinion, 300 F.Supp.3d at 432; and standing must be maintained 

throughout the proceeding, see, e.g., id. A federal court loses jurisdiction to 

entertain a claim that has become moot. See, e.g., id.
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In order to challenge the New York firearm licensing laws, a person 

must either have applied for and been denied a license or make a "'substantial 

showing'" that his or her application "'would have been futile,'" Decastro, 682 F.3d 

at 164 (quoting Jackson-Bey, 115 F.3d at 1096). Mere objection or antipathy to the 

law does not constitute a showing of futility. See, e.g., Decastro, 682 F.3d at 164; 

D. Ct. Opinion, 300 F.Supp.3d at 433.

The district court noted that the Complaint "contain[ed] no factual 

allegations as to . . . Kuzma, Cooper, Rober, Rebmann, or Garrett." D. Ct. 

Opinion, 300 F.Supp.3d at 431. There being neither allegations that they had 

applied for a license nor allegations to show futility, the court dismissed the claims 

of those plaintiffs for lack of any alleged injury-in-fact. See id. at 433.

The court also found that Mayor, who had applied for and received 

the permit for which he applied, lacked an injury-in-fact. Although the 

Complaint alleged that Mayor was afraid his license would be arbitrarily revoked, 

the court found such speculation insufficient to show injury-in-fact. See id. at 434. 

Similarly, Mongielo, who was alleged to have been granted a license but had it 
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"temporarily" suspended following his arrest, lacked standing because his license 

had subsequently been reinstated. See id. at 434-35.

The court found that Cuthbert, who had applied for a concealed-carry 

permit but had been granted only an at-home permit, lacked standing to complain 

of the New York licensing scheme with respect to at-home licenses. His alleged 

fear that his at-home permit would be revoked was merely speculative, failing to 

show injury-in-fact. See id. at 435. However, Cuthbert sufficiently alleged 

injury-in-fact as to his request for a concealed-carry permit, which had been 

denied. See id.

Finally, as to Murtari, the court found that he had alleged 

injury-in-fact because he had applied for a license and his application had been 

denied. See id. at 436.

Although the court found that the Complaint was sufficient to show 

that Cuthbert and Murtari asserted claims of injury-in-fact, it found that there was 

no allegation that their claimed injuries had been inflicted by any persons other 

than the defendants who had denied their respective license requests. Cuthbert's 

request for a concealed-carry permit had been denied by Justice Boller; Murtari's 
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license application had been denied by Judge Kehoe. Accordingly, the court 

found that the claims of Cuthbert and Murtari--the only plaintiffs who asserted 

injury-in-fact--were traceable only to Justice Boller and Judge Kehoe, respectively. 

See id. The court therefore dismissed the Complaint against Cuomo, James, 

D'Amico, and Murphy. See id.

2. Judicial Immunity

As to Boller and Kehoe, the remaining defendants, the district court 

noted that judges performing judicial duties, when sued in their individual 

capacities, are entitled to immunity both from claims for damages, see D. Ct. 

Opinion, 300 F.Supp.3d at 436-37 (citing Bliven v. Hunt, 579 F.3d 204, 209 (2d Cir. 

2009) ("Bliven")), and, by reason of the 1996 amendments to ' 1983, from claims for 

"injunctive relief, unless a declaratory decree was violated or declaratory relief 

was unavailable," D. Ct. Opinion, 300 F.Supp.3d at 436 (internal quotation marks 

omitted); see Pub.L. 104-317, Title III, ' 309(c), Oct. 19, 1996, 110 Stat. 3853; 

42 U.S.C. ' 1983 ("in any action brought against a judicial officer for an act or 

omission taken in such officer's judicial capacity, injunctive relief shall not be 
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granted unless a declaratory decree was violated or declaratory relief was 

unavailable").

Although Plaintiffs challenged the applicability of these principles, 

contending that deciding firearms license applications is an administrative act, not 

a judicial one, the court rejected that contention. It pointed out that except as to 

New York City and Long Island, the State's statutory scheme places the authority 

to decide "firearms license applications" in "state judges," D. Ct. Opinion, 300 

F.Supp.3d at 437 n.9; that "[t]he principal hallmark of the judicial function is a 

decision in relation to a particular case," id. at 437 (internal quotation marks 

omitted); see Bliven, 579 F.3d at 211; and that each of the decisions by Justice Boller 

and Judge Kehoe "arose out of an individual case before them," D. Ct. Opinion, 

300 F.Supp.3d at 437. Concluding that those rulings had "all the hallmarks of 

judicial acts," id., the court dismissed all claims asserted against Boller and Kehoe 

in their individual capacities on the ground of judicial immunity.
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3. Eleventh Amendment Immunity

Finally as to the claims of Cuthbert and Murtari against Justice Boller 

and Judge Kehoe in their official capacities, defendants moved to dismiss the 

claims for damages, contending that those claims are barred by the Eleventh 

Amendment. The court, noting that Plaintiffs had made no response to that 

contention, dismissed those claims against Boller and Kehoe. See D. Ct. Opinion, 

300 F.Supp.3d at 438. Noting that defendants had made no similar Eleventh 

Amendment motion to dismiss official-capacity claims against the judges for 

injunctive relief, the court concluded that those claims by Cuthbert and Murtari 

against Boller and Kehoe remained pending for consideration of whether the 

Complaint stated a claim on which relief can be granted. See id.

4. The Due Process Vagueness Contention

Finding that Cuthbert and Murtari had standing to bring one or all of 

their claims, the court turned to their claims of denial of due process. The 

Complaint alleged that the New York licensing scheme is unconstitutionally 

vague principally because ' 400.00 premises the grant of licenses on "good moral 
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character" and on the absence of "good cause" for denial, and that those terms are 

"not capable of definition in such a way that puts an applicant, a licensing officer 

or a reviewing court on notice of the meaning of the terms." (Comp. && 139-141.) 

The district court, stating that "[a] claim is as-applied if it is limited to a plaintiff's 

particular case," but "is facial if it 'challenges application of the law more broadly,'" 

D. Ct. Opinion, 300 F.Supp.3d at 439 (quoting John Doe No. 1 v. Reed, 561 U.S. 186, 

194 (2010)); see also NYSRPA, 804 F.3d at 249-50, found that the Complaint painted 

with a broad brush and did not allege any facts to support an as-applied 

vagueness claim. Thus, the court read the Complaint to assert that the statute is 

facially invalid.

The court stated that "'[t]o succeed on a facial challenge, the 

challenger must establish that no set of circumstances exists under which the [laws] 

would be valid.'" D. Ct. Opinion, 300 F.Supp.3d at 439 (quoting NYSRPA, 804 

F.3d at 265 (emphasis in NYSRPA), and citing United States v. Salerno, 481 U.S. 739, 

745 (1987)). The district court noted that defendants here provided compelling 

examples of circumstances that would show an applicant's lack of "good moral 

character," show "good cause" for the denial of a license, or show lack of "proper 
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cause" for approval to carry a concealed firearm in public--to wit, an individual 

suffers from dementia and paranoid schizophrenia; or an individual threatens to 

harm others, or shoots himself, or has an alcohol or drug addiction and repeatedly 

engages in reckless activity with his firearm while intoxicated. See D. Ct. 

Opinion, 300 F.Supp.3d at 440. 

Referring to the observation in Heller that longstanding restrictions 

such as "prohibitions on the possession of firearms by felons and the mentally ill" 

are "presumptively lawful regulatory measures," 554 U.S. at 626 & n.26, the district 

court concluded that Cuthbert and Murtari had obviously failed to show that no 

set of circumstances exists under which the conditions imposed in ' 400.00 would 

be valid. See generally Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 

455 U.S. 489, 497 (1982) (in order to succeed in "challeng[ing a law] on its face as 

unduly vague, in violation of due process," the plaintiff "must demonstrate that 

the law is impermissibly vague in all of its applications").
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5. The Second Amendment Burden

As to Plaintiffs' claims that the New York licensing scheme is 

unconstitutional under the Second Amendment purely because it limits their 

rights to possess and carry firearms, the court noted that Heller established that the 

Second Amendment codified an individual's right to possess and carry weapons 

"in common use" by citizens for "lawful purposes like self-defense," Heller, 554 U.S. 

at 624. See D. Ct. Opinion, 300 F.Supp.3d at 440. While Heller neither purported 

to make that right immune from all regulation nor attempted to lay out the 

permissible scope of such regulation, the district court noted that a two-step 

framework for analysis in this Circuit had been established by Decastro, Kachalsky, 

and NYSRPA:

The Court must consider (1) whether the law burdens conduct 

protected by the Second Amendment, and then (2) the 

appropriate level of scrutiny. See NYSRPA, 804 F.3d at 254. 

Of course, if the law does not burden conduct protected by the 

Second Amendment, it stands. Id.

D. Ct. Opinion, 300 F.Supp.3d at 441.

Finding, at step one, that New York's licensing laws unquestionably 

place restrictions on the possession of firearms "in common use," as individuals in 
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New York may not possess handguns, even in their own homes, without a license, 

the court concluded that these laws burden law-abiding citizens' possession of 

weapons typically kept for lawful purposes. Id. at 441-42.

In determining what level of scrutiny to apply to New York's firearms 

licensing laws, the court considered (a) how close the law comes to the core of the 

Second Amendment right, and (b) the severity of the law's burden on the right. 

Id. at 442-43. In considering the latter factor, the court noted that heightened 

scrutiny is appropriate only where the law burdens Second Amendment 

protections "substantially," NYSRPA, 804 F.3d at 259, and that the burden is not 

substantial "if adequate alternatives remain for law-abiding citizens to acquire a 

firearm for self-defense," id. (quoting Decastro, 682 F.3d at 168). D. Ct. Opinion, 

300 F.Supp.3d at 442.

Accordingly, the district court inferred that "where a law does not 

prevent law-abiding, responsible citizens from possessing firearms in defense of 

hearth and home, it does not substantially burden the core Second Amendment 

right." Id. (internal quotation marks omitted). The court concluded that "[w]hile 

[the State's] firearms licensing laws implicate the core Second Amendment right, 
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they do not substantially burden it. The licensing laws place no more than 

'marginal[ or] incremental . . . restraint on the right to keep and bear arms.'" Id. 

at 442-43 (quoting NYSRPA, 804 F.3d at 259; Decastro, 682 F.3d at 166). The 

district court pointed out that, here,

[a]s Plaintiffs note, law-abiding, responsible citizens face 

nothing more than time, expense, and questioning of close 

friends or relatives. [Complaint] && 68-72. It is only the 

narrow class of persons who are adjudged to lack the 

characteristics necessary for the safe possession of a handgun 

that face a substantial burden on the core Second Amendment 

protection via [New York's] firearms licensing laws.

D. Ct. Opinion, 300 F.Supp.3d at 443 (internal quotation marks omitted). The 

court stated that

Plaintiffs' own experiences support the Court's 

conclusion. It is only Murtari who was denied a license to 

possess a firearm in his home. . . . Murtari plainly fits into the 

narrow class of persons . . . [who have] shown repeated 

indifference for laws at the state and federal level. See

[Complaint & 98 quoting] (letter from Judge Kehoe denying 

Murtari's application for a firearms license in full because he 

was arrested approximately fifty times, had received four jail 

sentences totaling over four months in jail, and repeatedly 

refused to make child support payments).

Id. at 443 (internal quotation marks omitted).
- 25 -

Concluding that the New York licensing scheme does not impose a 

burden that is substantial, the court determined that an intermediate level of 

scrutiny was appropriate. Under that level of scrutiny, the question is whether 

the laws are "substantially related to the achievement of an important government 

interest." Id. (quoting NYSRPA, 804 F.3d at 261; Kachalsky, 701 F.3d at 96).

The district court found that New York "[u]nquestionably" has 

"'substantial, indeed compelling, governmental interests in public safety and crime 

prevention,'" D. Ct. Opinion, 300 F.Supp.3d at 443 (quoting NYSRPA, 804 F.3d 

at 261), and that the State's firearms licensing laws are substantially related to that 

governmental interest. They are designed to allow only law-abiding, responsible 

citizens to possess a firearm, and to ensure that classes of individuals who do not 

have the necessary character and qualities are not. See D. Ct. Opinion, 300 

F.Supp.3d at 443-44.

6. Murtari's State-Law Claim

Finally, the district court noted that Murtari asked the court to 

conduct a proceeding under New York law, N.Y. C.P.L.R. Article 78, and rule that 
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Judge Kehoe was required to grant his application for a firearm license. Having 

dismissed all of Plaintiffs' federal claims, and noting that it was questionable 

whether federal courts had authority to conduct such a proceeding, the court 

declined to exercise supplemental jurisdiction to entertain Murtari's Article 78 

claim. See D. Ct. Opinion, 300 F.Supp.3d at 444.

D. Post-Dismissal Developments

Shortly before oral argument of this appeal, Plaintiffs' counsel 

informed this Court of developments since the inception of the action. Plaintiff 

Rober has died; plaintiff Kuzma has obtained a firearm license; and plaintiff 

Cuthbert has "moved out of New York State and now resides in Colorado" (Letter 

from James Ostrowski dated February 15, 2019, at 1).

In light of the fact that, neither in this Court nor in the district court, 

has any successor or representative sought to be substituted for Rober, we deem it 

appropriate to dismiss as moot so much of this appeal as purports to pursue her 

claims. See Fed. R. App. P. 43(a)(1) and (2); Fed. R. Civ. P. 25(a)(1). As to so 

much of the appeal as pursues claims of Kuzma and Cuthbert, we conclude that 
- 27 -

their claims have become moot or untenable largely for reasons found applicable 

to other plaintiffs, as discussed in Parts II.B. and C. below.

II. DISCUSSION

On appeal, the individual plaintiffs principally contend that the 

district court erred in its rulings on standing, mootness, judicial immunity, and 

traceability of their claims to the nonjudicial defendants; in concluding that the 

challenged statutory criteria for licensing are not impermissibly vague; in 

applying intermediate scrutiny to the challenged licensing scheme; and in 

concluding that the statute survives such scrutiny. For the reasons that follow, 

we conclude that these rulings of the district court were correct.

A. Standard of Review

To survive a motion to dismiss under Rule 12(b)(6) for failure to state 

a claim, a complaint "must contain sufficient factual matter, accepted as true, to 

state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 
- 28 -

678 (2009) (internal quotation marks omitted). A written instrument that is 

incorporated in the complaint by reference is deemed part of the complaint, see, 

e.g., Cortec Industries, Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991), cert. 

denied, 503 U.S. 960 (1992); Goldman v. Belden, 754 F.2d 1059 (2d Cir. 1985); 

5 C. Wright & A. Miller, Federal Practice and Procedure ' 1327 (4th ed. 2020), and 

thus may properly be considered by the district court in ruling on a Rule 12(b)(6) 

motion. Further, "when a plaintiff chooses not to attach to the complaint or 

incorporate by reference a [document] upon which it solely relies and which is 

integral to the complaint, the defendant may produce the [document] when 

attacking the complaint for its failure to state a claim." Cortec Industries, Inc. v. 

Sum Holding L.P., 949 F.2d at 47; see, e.g., Rothman v. Gregor, 220 F.3d 81, 88 (2d Cir. 

2000).

In ruling on a motion to dismiss under Rule 12(b)(1) for lack of 

statutory or constitutional power to adjudicate the action, the district court "may 

refer to evidence outside the pleadings." Makarova v. United States, 201 F.3d 110, 

113 (2d Cir. 2000). The burden of proving subject matter jurisdiction is on the 

plaintiff. Id.
- 29 -

We review grants of Rule 12(b)(6) and 12(b)(1) motions to dismiss de 

novo. See Elias v. Rolling Stone LLC, 872 F.3d 97, 104 (2d Cir. 2017); Katz v. Donna 

Karan Co., 872 F.3d 114, 118 (2d Cir. 2017). To the extent that the Complaint was 

dismissed for lack of subject matter jurisdiction, we may consider matters outside 

the Complaint that were presented to the district court. See, e.g., Mitchell v. 

Fishbein, 377 F.3d 157, 167-68 (2d Cir. 2004) ("Mitchell").

We review a district court's decision declining to exercise 

supplemental jurisdiction over a state-law claim for abuse of discretion. See, e.g., 

Klein & Co. Futures v. Board of Trade of City of New York, 464 F.3d 255, 262 (2d Cir. 

2006). In this case--without need for discussion--we see no abuse of discretion in 

the district court's decision to decline to conduct a State-law Article 78 proceeding.

B. Subject Matter Jurisdiction: Standing, Mootness, and

Traceability

No principle is more fundamental to the judiciary's 

proper role in our system of government than the constitutional 

limitation of federal-court jurisdiction to actual cases or 

controversies. . . . The concept of standing is part of this 

limitation.
- 30 -

Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 37 (1976). As 

recognized by the district court,

the irreducible constitutional minimum of standing contains 

three elements. First, the plaintiff must have suffered an 

"injury in fact"--an invasion of a legally protected interest which 

is (a) concrete and particularized . . . and (b) actual or 

imminent, not conjectural or hypothetical . . . . Second, there 

must be a causal connection between the injury and the conduct 

complained of--the injury has to be fairly . . . trace[able] to the 

challenged action of the defendant . . . . Third, it must be likely, as 

opposed to merely speculative, that the injury will be redressed 

by a favorable decision.

Lujan, 504 U.S. at 560-61 (other internal quotation marks omitted) (emphases ours). 

If, as to a claim, any of these three elements is missing, the federal court lacks 

jurisdiction to entertain the claim. See, e.g., id. at 561.

Further, "[t]he usual rule in federal cases is that an actual controversy 

must exist at stages of appellate or certiorari review, and not simply at the date the 

action is initiated." Roe v. Wade, 410 U.S. 113, 125 (1973). Thus, a plaintiff must 

show a "personal stake" in the outcome "throughout the life of the lawsuit." Cook 

v. Colgate University, 992 F.2d 17, 19 (2d Cir. 1993). A matter that has become 

moot is no longer a case or controversy, and a federal court loses jurisdiction to 

entertain it. See, e.g., DeFunis v. Odegaard, 416 U.S. 312, 316 (1974).
- 31 -

"'As a general matter, to establish standing to challenge an allegedly 

unconstitutional policy, a plaintiff must submit to the challenged policy.'" 

Decastro, 682 F.3d at 164 (quoting Jackson-Bey, 115 F.3d at 1096; and citing Allen v.

Wright, 468 U.S. 737, 746 (1984), and Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 

166-68 (1972)). Accordingly, we have held that, absent a showing of futility, a 

person who has "failed to apply for a gun license in New York . . . lacks standing 

to challenge the licensing laws of the state," Decastro, 682 F.3d at 164.

Within this legal framework, the district court properly dismissed for 

lack of standing (a) the claims of all plaintiffs who were not alleged to have 

applied for a New York State firearm license, including Cooper, Rebmann, and 

Garrett, and (b) the claims of Mayor who received a license. None of these 

plaintiffs showed that they suffered injury-in-fact.

The court also properly dismissed the claims of Mongielo, who 

received a license, which had been temporarily suspended when he was arrested 

but then had been reinstated after all but one of the charges against him were 

dismissed. Having had his license restored, Mongielo's challenges to the 

licensing system were moot. Assertions that Mongielo, Mayor, and Cuthbert 
- 32 -

feared their licenses would be revoked were speculative, such apprehensions 

being insufficiently concrete to constitute injury-in-fact.

In addition, while the district court also dismissed the claims of 

Kuzma on the ground that he had failed to apply for a license, we have been 

informed, as indicated in Part I.D. above, that Kuzma has now obtained a license. 

Kuzma's claims--nonexistent at the start of this action--have become moot, and we 

dismiss so much of the appeal as challenges the district court's dismissal of his 

claims.

Although the district court found that Cuthbert had standing to 

challenge the denial of his application for a concealed-carry license, we are 

informed that Cuthbert has moved out of New York and become a resident of 

Colorado. As a nonresident of New York whose principal place of employment is 

not in New York, he has thereby become ineligible to apply for a firearm license, 

see N.Y. Penal Law ' 400.00(3)(a). Accordingly, any request by Cuthbert for 

injunctive relief has become moot. To the extent that he asserted claims for 

money damages with respect to the denial of a concealed-carry license, those

claims were properly dismissed for reasons discussed in Part II.C. below.
- 33 -

Finally, we see no error in the district court's determination that as to 

the surviving claims of Cuthbert and the claims of Murtari--the only two plaintiffs 

as to whom there was any showing of injury-in-fact--the only defendants to whom 

their alleged injuries were fairly traceable were the judges who denied their 

respective applications. None of the other defendants was alleged to have had 

any role in the licensing process or in the consideration of the applications of 

Cuthbert or Murtari. The district court thus properly dismissed the claims 

asserted against defendants Cuomo, James, D'Amico, and Murphy.

C. Eleventh Amendment and Judicial Immunities

An action against a state official in his official capacity is deemed an 

action against the state itself, see, e.g., Hafer v. Melo, 502 U.S. 21, 25 (1991), which 

possesses sovereign immunity under the Eleventh Amendment, see U.S. Const. 

amend. XI. While the immunity conferred by that Amendment "is not 

coextensive with the limitations on judicial power in Article III," it places "a 

limitation on the federal court's judicial power." Calderon v. Ashmus, 523 U.S. 740, 

745 n.2 (1998). Although the Eleventh Amendment does not bar a federal court, 
- 34 -

in adjudicating federal claims against state officials in any capacity, from granting 

prospective injunctive relief, see Pennhurst State School & Hospital v. Halderman, 465 

U.S. 89, 105 (1984); Ex parte Young, 209 U.S. 123, 159-60 (1908), a state official sued 

in his official capacity is entitled to invoke Eleventh Amendment immunity from a 

claim for damages, see, e.g., Kentucky v. Graham, 473 U.S. 159, 166-67 (1985); Hafer, 

502 U.S. at 25.

In the present case, defendants invoked the Eleventh Amendment in 

moving to dismiss, inter alia, the claims against Justice Boller and Judge Kehoe in 

their official capacities for money damages. Given the above principles, the 

district court properly granted that motion.

The court also dismissed the claims of Cuthbert and Murtari against 

Justice Boller and Judge Kehoe in their individual capacities for damages or for 

equitable relief on the ground that judges are entitled to absolute immunity for 

performance of judicial functions. See, e.g., Mireles v. Waco, 502 U.S. 9, 9-10 (1991) 

(damages); 42 U.S.C. ' 1983 (injunctive relief). The court rejected Plaintiffs' 

contention that, in ruling on firearm license applications, Boller and Kehoe 
- 35 -

performed only an administrative function, not a judicial one. Plaintiffs pursue 

this contention on appeal. We are not persuaded.

Absolute immunity for a judge performing his or her judicial 

functions

is conferred in order to insure "that a judicial officer, in 

exercising the authority vested in him shall be free to act upon 

his own convictions, without apprehension of personal 

consequences to himself."

Bliven, 579 F.3d at 209 (quoting Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 347 (1871)).

Entitlement to absolute immunity does not depend on the 

individual's title or on the office itself. See, e.g., Forrester v. White, 484 U.S. 219, 228 

(1988). A judge may perform tasks that are not essentially judicial, such as 

supervising and managing court employees, which do not warrant absolute 

immunity, see, e.g., id. at 228-29; on the other hand, such immunity may be 

warranted for a person who is not a judge but whose duties are quasi-judicial, see, 

e.g., Butz v. Economou, 438 U.S. 478, 513-14 (1978). Further, other considerations 

may prevent even persons who are deciding disputes from being accorded 

absolute immunity. See, e.g., Cleavinger v. Saxner, 474 U.S. 193, 202-06 (1985) 

(prison disciplinary committee, though adjudicating disciplinary accusations, held 
- 36 -

not entitled to absolute immunity as quasi-judicial officers where, inter alia, the 

committee members were prison officials who had an intertangled relationship 

with the accusing prison officials, and, at the time of the events at issue, there were 

few procedural safeguards for the accused). Nor does a determination as to 

whether a proceeding is judicial in nature depend on the formality or informality 

with it was conducted, or on whether the proceeding was adversary or ex parte. 

See, e.g., Stump v. Sparkman, 435 U.S. 349, 363 & n.12 (1978).

Rather, the entitlement of a judge to absolute immunity depends on 

the nature of the function being performed. Judges are entitled not to absolute 

immunity, but to at most a qualified immunity, with respect to acts that are 

administrative, such as employment decisions, see, e.g., Forrester, 484 U.S. at 228-29. 

"Administrative decisions, even though they may be essential to the very 

functioning of the courts, have not . . . been regarded as judicial acts." Id. at 228.

Judicial acts principally involve adjudication of particularized, 

existing issues. Thus, some functions may be viewed as judicial acts when 

performed in the context of a particular case but as administrative when 

performed for the purpose of overall management in anticipation of future cases. 
- 37 -

For example, empaneling a jury in a particular criminal trial is a quintessentially 

judicial act, see White v. Bloom, 621 F.2d 276, 279-80 (8th Cir.), cert. denied, 449 U.S. 

995 (1980) (judge held to have absolute immunity from a claim of conspiracy to 

empanel an all-white trial jury), whereas compilation of an annual list of county 

residents believed to be qualified for jury duty is an act that is ministerial, see Ex 

parte Virginia, 100 U.S. (10 Otto) 339, 348 (1879) (no absolute immunity from claim 

of racial discrimination in the compilation).

Similarly, the act of disbarring an attorney as a sanction for the 

attorney's contumacious conduct in connection with a particular case is a judicial 

act, see Bradley v. Fisher, 80 U.S. (13 Wall.) at 354-57 (judge entitled to absolute 

immunity), whereas a committee, in making decisions as to additions to or 

deletions from a roster of attorneys deemed qualified to represent indigent 

defendants accused of crimes, unconnected to any particular criminal prosecution, 

is not performing a quasi-judicial function, see, e.g., Mitchell, 377 F.3d at 172-74 (no 

absolute immunity).

In determining a jurisdictional issue that depended on "whether a 

particular proceeding before another tribunal was truly judicial," District of 
- 38 -

Columbia Court of Appeals v. Feldman, 460 U.S. 462, 476 n.13 (1983) (internal 

quotation marks omitted) (emphasis ours), the Supreme Court stated that the form 

of the proceeding is less significant than the proceeding's nature and effect, see id. 

at 478. It concluded that where there was a petition for "a declaration on rights as 

they stand," and in that context the court had "taken cognizance of the petition," 

had "considered the petitioner's petition on its merits," and had issued "an order 

which [was] validated by the signature of the presiding officer," there was a 

decision that was truly judicial. Id. (internal quotation marks omitted).

Here, the applications of those plaintiffs who requested a firearm 

license were ruled on by the judge who was the licensing officer for the applicant's 

county of residence. Actual rulings on such applications--referred to in the 

Complaint, some of which have been submitted by defendants in support of the 

motion to dismiss--directly addressed the specific applications, referred to 

relevant requirements of ' 400.00, and decided the merits of the applicants' 

requests. For example, in ruling on the application of Cuthbert, Justice Boller 

caused to be entered a signed order of the "State of New York, Supreme 

Court: County of Erie" (see Appendix hereto), stating as follows:
- 39 -

After a full review of the application for an unrestricted 

firearms license pursuant to Section 400.00 of the New York 

State Penal Law, the Court has determined that the applicant 

has sufficient basis to be granted a firearms license for hunting 

and target shooting. Applicant has not demonstrated 

sufficient proper cause to be granted an unrestricted firearms 

license as required by section 400.00-2(f) of the New York State 

Penal Law.

A firearms license restricted to hunting and target 

shooting as set forth above is therefore GRANTED to the 

applicant.

SO ORDERED.

(Taylor Decl. Exh. D (emphasis added); see also id. Exh. C ("Order" of the "State of 

New York, County of Niagara, Niagara County Court, In the Matter of the Pistol 

Permit of David J. Mongielo," signed by Judge Murphy, stating that, "this Court 

. . . having determined that no good cause exists to continue the suspension of said 

Pistol Permit license; it is now ORDERED, that the Pistol Permit in question be 

reinstated . . . ." (emphasis added) (reproduced in Appendix hereto)).)

While Judge Kehoe informed Murtari of the decision to deny his 

application by way of a letter on a State of New York, Wayne County Court 

letterhead rather than in an order (see Taylor Decl. Exh. E), the 10-paragraph letter 

directly ruled on the application, referring in detail to the factual and statutory 

basis for the denial. It recounted, inter alia, the Judge's examination of the 
- 40 -

documents submitted by Murtari in support of the application and the Judge's 

communicating with the United States Attorney for the Northern District of New 

York pursuant to Murtari's request, along with the Judge's consideration of 

Murtari's approximately 50 arrests, including four for trespasses in violation of a 

federal court order, resulting in Murtari's being sentenced to a total of 142 days in 

jail, and his six months of incarceration "on at least one occasion" for nonpayment 

of child support--all leading to the conclusion that Murtari's prior conduct 

provided "'good cause' for this Court to deny your application for a pistol permit at 

this time." (Comp. & 98 (emphasis added).)

We conclude that the district court did not err in determining that the 

rulings on firearm license applications were judicial decisions and that Justice 

Boller and Judge Kehoe--the only defendants against whom traceable claims were 

asserted by plaintiffs with standing to sue--are entitled to absolute immunity from 

the claims asserted against them in their individual capacities.

The judicial-immunity-based dismissal of all of the 

individual-capacity claims, along with the Eleventh Amendment dismissal of 

official-capacity claims for damages, left pending only the official-capacity claims 
- 41 -

of Murtari for injunctive relief against Judge Kehoe for the denial of any license 

and the official-capacity claim of Cuthbert for injunctive relief against Justice 

Boller for the denial of a concealed-carry license (Cuthbert having been granted an 

at-home permit). However, while Cuthbert may have had standing at the time of 

the district court's decision to pursue such injunctive relief against Justice Boller in 

his official capacity, the fact that Cuthbert has now moved out of New York and 

become a resident of Colorado, see Part I.D. above, makes him ineligible for a New 

York firearm license, see N.Y. Penal Law ' 400.00(3)(a). Thus that claim has 

become moot, and we accordingly dismiss so much of this appeal as pursues it.

The only remaining claims in the Complaint are those of Murtari 

against Judge Kehoe in his official capacity seeking injunctive relief for denial of 

Murtari's license application, on the grounds that ' 400.00 is facially void for 

vagueness or unduly impinges on Murtari's Second Amendment rights.

D. The Due Process Void-for-Vagueness Claim

The Complaint alleged that New York Penal Law ' 400.00's uses of 

the terms "good moral character" as a prerequisite for approval of a firearm 
- 42 -

license, "proper cause" for the issuance of a concealed-carry permit, and "good 

cause" for the denial of a license violate due process, arguing that "these terms are 

not capable of definition in such a way that puts an applicant, a licensing officer or 

a reviewing court on notice of the meaning of the terms" (Comp. && 139-140). 

The district court correctly rejected this claim.

The "void-for-vagueness doctrine provides that no one may be 

required at peril of life, liberty or property to speculate as to the meaning of penal 

statutes." NYSRPA, 804 F.3d at 265 (internal quotation marks and alterations 

omitted). It requires that statutes define regulated conduct with "sufficient 

definiteness that ordinary people can understand"; but it does not demand 

"meticulous specificity . . . , recognizing that language is necessarily marked by a 

degree of imprecision." Id. (internal quotation marks omitted).

To sustain a facial vagueness challenge, a plaintiff "'must establish 

that no set of circumstances exists under which the Act would be valid.'" NYSRPA, 

804 F.3d at 265 (quoting Salerno, 481 U.S. at 745 (emphasis in NYSRPA)). Given 

this standard, a "facial challenge . . . is 'the most difficult challenge to mount 

successfully.'" NYSRPA, 804 F.3d at 265 (quoting Salerno, 481 U.S. at 745).
- 43 -

Plaintiffs' contention that ' 400.00 is unconstitutionally vague is based 

on their argument that the Supreme Court in Heller ruled that a limitation on the 

right to bear arms could properly be grounded "only [on] the commission of 

felonies or an adjudication of mental disability" (Plaintiffs' brief on appeal at 34), 

and that the ' 400.00 statutory phrases "'good moral character,'" "'proper cause,'" 

and "'good cause'" go "beyond" those two grounds (id.). But Heller did not 

purport to impose that limitation. The Heller Court stated that "nothing in our 

opinion should be taken to cast doubt on longstanding prohibitions on the 

possession of firearms by felons and the mentally ill, or laws forbidding the 

carrying of firearms in sensitive places such as schools and government 

buildings," 554 U.S. at 626; and it added that it was "identify[ing] these 

presumptively lawful regulatory measures only as examples; our list does not 

purport to be exhaustive," id. at 627 n.26. Indeed, Plaintiffs' brief itself states that 

the Supreme Court set forth "grounds for denying" the Second Amendment right 

to bear arms, "including mental illness and felonious criminality" (Plaintiffs' brief 

on appeal at 34 (emphasis added)).
- 44 -

As the district court pointed out, defendants proffered examples of 

several sound bases--in addition to mental illness and felony convictions--for 

denying an applicant's request to possess a firearm, such as his threats to harm 

others, or his addiction to drugs, or his repeatedly reckless conduct with a weapon 

while intoxicated. Such examples are not beyond an ordinary person's 

comprehension; nor are they rare, see, e.g., Robertson v. Kerik, 300 A.D.2d 90, 90-91, 

751 N.Y.S.2d 469, 469-70 (1st Dep't 2002) (upholding firearm license revocation for 

lack of "good moral character" due to the holder's "poor judgment and inability to 

manage his anger" as shown by his "assault[ing] his girlfriend"); Broadus v. City of 

New York Police Department (License Division), 62 A.D.3d 527, 528, 878 N.Y.S.2d 738, 

739 (1st Dep't 2009) (determination of lack of "good moral character" was 

supported by applicant's arrest for "driving while intoxicated" and possessing "a 

loaded firearm when arrested").

That such circumstances have direct implications for determinations 

of "good moral character," "proper cause," and "good cause" is easily 

understandable. Indeed, despite the presence of those challenged terms in New 

York's licensing regime for more than a century, see, e.g., Kachalsky, 701 F.3d at 85, 
- 45 -

Plaintiffs have identified no "evidence of confusion"; and the "repeated use for 

decades, without evidence of mischief or misunderstanding . . . suggests that the 

language is comprehensible," NYSRPA, 804 F.3d at 267, 268.

The district court did not err in concluding that the Complaint failed 

to set forth a plausible claim that ' 400.00 is impermissibly vague.

E. The Second Amendment Claim

Finally, the Complaint alleged that New York Penal Law '' 400.00 

and 265.00 violate the Second Amendment (1) by conditioning the right to obtain 

an at-home permit on "'good moral character,' integrity and the absence of 'good 

cause' to deny a license" (Comp. & 137(b)); and (2) by requiring those conditions 

plus a showing of "'proper cause'" in order to obtain a concealed-carry permit (id. 

&& 138(a) and (c)). The challenge to the "'proper cause'" prerequisite for obtaining 

a concealed-carry permit is foreclosed by this Court's decision in Kachalsky, 701 

F.3d at 97-101. Although Plaintiffs contend that Kachalsky was wrongly decided, 

it remains binding precedent.
- 46 -

The challenge to the "good moral character" and "good cause" 

requirements for obtaining an at-home permit, on analysis, fares no better. As 

indicated in Part II.D. above, the Supreme Court in Heller did not purport to find 

that the Second Amendment right to bear arms was unlimited; rather, it noted that 

certain longstanding restrictions on the right are "presumptively lawful," and that 

its list of examples "d[id] not purport to be exhaustive," 554 U.S. at 626-27 & n.26. 

As the district court noted, because Heller also did not attempt to define the 

standard for assessing challenged restrictions on the right, this Court has adopted 

a two-step analysis in which we first consider whether the challenged law burdens 

the right and, if it does, we then determine the appropriate level of scrutiny. See, 

e.g., NYSRPA, 804 F.3d at 254; Kachalsky, 701 F.3d at 93; Decastro, 682 F.3d at 165-68.

As to the first step of the analysis, we have interpreted the core 

Second Amendment right identified in Heller to be the "'right of law-abiding, 

responsible citizens,'" United States v. Jimenez, 895 F.3d 228, 234 (2d Cir. 2018) 

("Jimenez") (quoting Heller, 554 U.S. at 635 (emphasis in Jimenez)), to use "'handguns 

. . . for self-defense in the home,'" NYSRPA, 804 F.3d at 254 (quoting Heller, 554 

U.S. at 628-29). "The Supreme Court . . . identified the core . . . protections by 
- 47 -

reference not only to particular uses and particular weapons but also to particular 

persons, namely, those who are law-abiding and responsible." Jimenez, 895 F.3d 

at 234-35 (internal quotation marks omitted).

New York's at-home license regime, while affecting the core Second 

Amendment right, imposes nowhere near the burden that was at issue in Heller. 

In contrast to that "total[] ban[]" on "handgun possession in the home," which was 

held to violate the Second Amendment, Heller, 554 U.S. at 628-29, the New York 

regime allows at-home licenses for applicants who show "good moral character" 

and show that "good cause" does not exist for denying a license, N.Y. Penal Law 

'' 400.00(1)(b) and (n). The New York scheme further specifies that no firearm 

license is to be allowed for inter alios, persons convicted of "serious offense[s]," id. 

' 400.00(c), drug addicts, see id. ' 400.00(e), and "fugitive[s] from justice," id. 

' 400.00(d). But the statute does not burden the ability of "law-abiding, responsible

citizens to use arms in defense of hearth and home," Heller, 554 U.S. at 635 

(emphases added). Thus, the conditions placed on the core Second Amendment 

right are not onerous, and the Complaint does not allege that any law-abiding, 
- 48 -

responsible citizen who applied for a New York firearm license had been denied 

an at-home permit.

As for the second step of the Second Amendment analysis, we have 

not interpreted Heller as requiring that every

marginal, incremental or even appreciable restraint on the right 

to keep and bear arms be subject to heightened scrutiny. 

Rather, heightened scrutiny is triggered only by those restrictions 

that (like the complete prohibition on handguns struck down in

Heller) operate as a substantial burden on the ability of 

law-abiding citizens to possess and use a firearm for 

self-defense (or other lawful purposes).

Decastro, 682 F.3d at 166 (emphasis added); accord New York State Rifle & Pistol 

Ass'n v. City of New York, 883 F.3d 45, 56 (2d Cir. 2018). Laws that "place 

substantial burdens on core rights are examined using strict scrutiny"; but laws 

that "place either insubstantial burdens on conduct at the core of the Second 

Amendment or substantial burdens [only] on conduct outside the core . . . can be 

examined using intermediate scrutiny." Jimenez, 895 F.3d at 234. Given that the 

impact of the New York licensing regime on law-abiding, responsible citizens is 

modest, we conclude that intermediate scrutiny is the highest level of review 

potentially appropriate in this case.
- 49 -

In applying intermediate scrutiny, we ask "whether the statutes at 

issue are substantially related to the achievement of an important governmental 

interest." NYSRPA, 804 F.3d at 261 (internal quotation marks omitted). As it is 

"beyond cavil that . . . states have substantial, indeed compelling, governmental 

interests in public safety and crime prevention," we consider only "whether the 

challenged laws are substantially related to the achievement of that governmental 

interest." Id. (internal quotation marks omitted). "To survive intermediate 

scrutiny, the fit between the challenged regulation" and the government interest 

"need only be substantial, not perfect." Kachalsky, 701 F.3d at 97 (internal 

quotation marks omitted).

The Complaint's allegations with regard to Murtari reveal regulation 

that easily meets--and surpasses--this standard. The Complaint quotes Judge 

Kehoe's decision denying Murtari a pistol permit and does not dispute the 

accuracy of any part of it. The decision stated that Murtari was being denied a 

firearm license as a person who, for more than a decade, had not demonstrated 

law-abiding temperament, given, inter alia, his frequently violating court orders, 

his being arrested some 50 times, and his being jailed several times. (See Comp. 
- 50 -

& 98.) Nonetheless, the letter informed Murtari that if he proceeded, "for an 

extended period of time," to "remain compliant in the future with all lawful court 

orders, as well as Federal and State statutory law," he could "make a new 

application" for a license. (Id.)

The Complaint itself thus reveals a close relationship between the 

licensing regime and the State's interests in public safety and crime prevention--as 

well as solicitude for the Second Amendment rights of citizens who are 

responsible and law abiding. The district court made no error in determining 

that the New York licensing regime survives intermediate scrutiny and does not 

unduly burden Murtari's Second Amendment right to bear arms.

CONCLUSION

For the reasons discussed above, we conclude that the appeal is 

dismissed as to Libertarian Party, which expressly disclaimed any request for 

appellate relief; is dismissed as moot insofar as it pursues relief on behalf of 

plaintiff Rober, who is deceased with no successor or representative having been 
- 51 -

substituted for her; is dismissed insofar as it pursues relief on behalf of plaintiff 

Kuzma, whose acquisition of a firearm license has made moot any claim that was 

pursued for him; and is dismissed insofar as it pursues injunctive relief on behalf 

of plaintiff Cuthbert, whose relocation to Colorado has made him ineligible to 

apply for a New York concealed-carry permit. We have considered all of the 

other arguments that are properly before us and have found them to be without 

merit.

For the above reasons, the appeal is dismissed in part; the judgment 

of the district court is otherwise affirmed.