24-1290-cv N.Y. State Firearms Ass’n v. James

United States Court of Appeals for the Second Circuit _____________________________________

August Term 2024

(Argued: March 14, 2025 Decided: October 15, 2025)

No. 24-1290-cv

_____________________________________

NEW YORK STATE FIREARMS ASSOCIATION, GEORGE BORRELLO, DAVID DIPIETRO, WILLIAM ORTMAN, AARON DORR,

Plaintiffs-Appellants,

— v. —

STEVEN G. JAMES, IN HIS OFFICIAL CAPACITY AS SUPERINTENDENT OF THE NEW YORK STATE POLICE,

Defendant-Appellee. ∗ _____________________________________

Before: BIANCO, PARK, and NARDINI, Circuit Judges.

Plaintiffs-Appellants New York State Firearms Association (“NYSFA”), George Borrello, David DiPietro, William Ortman, and Aaron Dorr (the “individual plaintiffs”) (collectively, “Plaintiffs”) appeal from the order of the United States District Court for the Western District of New York (Frank P. Geraci,

∗ The Clerk of the Court is respectfully directed to amend the caption on this Court’s docket to be consistent with the caption on this order. Jr., Judge), entered on May 2, 2024, denying Plaintiffs’ motion to preliminarily enjoin the enforcement of provisions of New York’s Concealed Carry Improvement Act (“CCIA”) that require an ammunition seller to (1) conduct a background check on a prospective purchaser of ammunition prior to the sale, (2) pay a $2.50 fee for each background check conducted, and (3) register with the Defendant-Appellee Superintendent of the New York State Police (“Superintendent”) (collectively, the “ammunition background check provisions”). The district court first determined that, although NYSFA lacked associational standing, the individual plaintiffs had standing to challenge the ammunition background check provisions under the Second Amendment. It then concluded that Plaintiffs were unlikely to succeed on the merits of their Second Amendment challenges because, under the second step of the framework set forth in New York State Rifle & Pistol Ass’n, Inc. v. Bruen,

(2022), the government demonstrated that the ammunition background check provisions were consistent with the Nation’s historical tradition of firearm regulation. On appeal, Plaintiffs argue that the district court erred in determining that NYSFA lacked standing. As to the merits, Plaintiffs contend that the district court erred in concluding that the CCIA’s ammunition background check provisions were consistent with our Nation’s historical tradition of firearm regulation. For his part, the Superintendent argues that the district court incorrectly found that the individual plaintiffs had standing.

We first conclude that the individual plaintiffs have standing to sue, and so we may proceed to the merits. We hold that, on this record, Plaintiffs have failed to meet their burden of demonstrating that the ammunition background check provisions meaningfully constrain their ability to “keep” or “bear” arms under the first step of the Bruen framework. As such, we have no occasion to review the district court’s historical analysis at the second step of the Bruen framework. We therefore agree with the district court that Plaintiffs have not shown the requisite likelihood of success to warrant a preliminary injunction—albeit for reasons on which the district court did not rely.

Accordingly, we AFFIRM the order of the district court and REMAND for further proceedings consistent with this opinion.

FOR PLAINTIFFS-APPELLANTS: STEPHEN R. KLEIN (Benjamin Barr, Barr & Klein PLLC, Chicago, 2 Illinois, on the brief), Barr & Klein PLLC, Washington, District of Columbia.

FOR DEFENDANT-APPELLEE: BEEZLY J. KIERNAN, Assistant Solicitor General (Barbara D. Underwood, Solicitor General, Jeffrey W. Lang, Deputy Solicitor General, on the brief), for Letitia James, Attorney General for the State of New York, Albany, New York.

FOR AMICUS CURIAE: Freya Jamison, Everytown Law, Washington, District of Columbia; Janet Carter and William J. Taylor, Jr., Everytown Law, New York, New York.

JOSEPH F. BIANCO, Circuit Judge: Plaintiffs-Appellants New York State Firearms Association (“NYSFA”),

George Borrello, David DiPietro, William Ortman, and Aaron Dorr (the

“individual plaintiffs”) (collectively, “Plaintiffs”) appeal from the order of the

United States District Court for the Western District of New York (Frank P. Geraci,

Jr., Judge), entered on May 2, 2024, denying Plaintiffs’ motion to preliminarily

enjoin the enforcement of provisions of New York’s Concealed Carry

Improvement Act (“CCIA”) that require an ammunition seller to (1) conduct a

background check on a prospective purchaser of ammunition prior to the sale,

(2) pay a $2.50 fee for each background check conducted, and (3) register with the

Defendant-Appellee Superintendent of the New York State Police

(“Superintendent”) (collectively, the “ammunition background check 3 provisions”). The district court first determined that, although NYSFA lacked

associational standing, the individual plaintiffs had standing to challenge the

ammunition background check provisions under the Second Amendment. It then

concluded that Plaintiffs were unlikely to succeed on the merits of their Second

Amendment challenges because, under the second step of the framework set forth

in New York State Rifle & Pistol Ass’n, Inc. v. Bruen,

(2022), the government

demonstrated that the ammunition background check provisions were consistent

with the Nation’s historical tradition of firearm regulation. On appeal, Plaintiffs

argue that the district court erred in determining that NYSFA lacked standing. As

to the merits, Plaintiffs contend that the district court erred in concluding that the

CCIA’s ammunition background check provisions were consistent with our

Nation’s historical tradition of firearm regulation. For his part, the Superintendent

argues that the district court incorrectly found that the individual plaintiffs had

standing.

We first conclude that the individual plaintiffs have standing to sue and so

we may proceed to the merits. We hold that, on this record, Plaintiffs have failed

to meet their burden of demonstrating that the ammunition background check

provisions meaningfully constrain their ability to “keep” or “bear” arms under the

4 first step of the Bruen framework. As such, we have no occasion to review the

district court’s historical analysis at the second step of the Bruen framework. We

therefore agree with the district court that Plaintiffs have not shown the requisite

likelihood of success to warrant a preliminary injunction—albeit for reasons on

which the district court did not rely.

Accordingly, we AFFIRM the order of the district court and REMAND for

further proceedings consistent with this opinion.

BACKGROUND

On July 1, 2022, the New York State Legislature passed the CCIA. As

relevant here, the CCIA created a regulatory scheme requiring a seller of

ammunition to (1) conduct a background check on a prospective purchaser of

ammunition prior to completing the sale, pursuant to

(2),

400.03(3), and

(the “background check provisions”);

(2) pay a fee to run a background check for each ammunition transaction, pursuant

to

(5)(a) (the “fee provision”), and (3) register with the

Superintendent or face certain consequences, pursuant to

(1), (7)–(8) (the “licensing provisions”).

5 The background check provisions require the New York State Police

(“NYSP”) to create and maintain “a statewide license and record database specific

for ammunition sales.”

(2). The same section provides

that a “dealer in firearms” or a “seller of ammunition” may not sell ammunition

to a purchaser unless it first “verifie[s] the identity” of the purchaser by examining

a valid identification document, and then “contacts the statewide license and

record database and provides the database with information sufficient to identify”

the purchaser. Id.; see

(3) (similar). In practice, this means

that, prior to selling ammunition, a seller will first contact the NYSP and provide

it with the purchaser’s identifying information. The NYSP will then query its

database to determine if the purchaser is prohibited from possessing ammunition

under federal law, namely,

(g). Under Section 922(g), it is unlawful

for individuals in certain prohibited categories to possess a firearm or

ammunition, in or affecting commerce, including any person who, inter alia: has

been convicted of a felony; “is a fugitive from justice”; “is an unlawful user of or

addicted to any controlled substance” as defined under federal law; “has been

adjudicated as a mental defective or who has been committed to a mental

institution”; “being an alien [] is illegally or unlawfully in the United States” (with

6 an enumerated exception); or “has been convicted in any court of a misdemeanor

crime of domestic violence.”

(g)(1)–(5), (9). If the NYSP does not

identify any potentially disqualifying records, it approves the transaction and

provides the seller with a “proceed” response immediately. If any potentially

disqualifying records are identified, however, the transaction is “delayed,” and an

NYSP examiner will further review the application and ultimately adjudicate the

transaction as either a “proceed” or “deny.” If an individual receives a denial, he

may appeal by first seeking from the NYSP the reason for the denial and, after

receiving such information, submitting an appeal to the New York State Office of

the Attorney General.

The CCIA’s fee provision requires the ammunition seller to “pay a fee

imposed by the [NYSP] for performing such background check.”

(5)(a). The fees are “allocated to the background check fund,” and the

“amount of the fee shall not exceed the total amount of direct and indirect costs

incurred by [the NYSP] in performing [each] background check.”

The fee is

currently $2.50 per background check.

Finally, the CCIA’s licensing provisions mandate all ammunition sellers

who are not registered firearm dealers to register with the Superintendent. N.Y.

7 Penal Law § 400.03(1). The licensing provisions further require that every

commercial transfer of ammunition involve a licensed firearms dealer or a

registered ammunition seller as an intermediary. Id. § 400.03(7). An ammunition

seller who fails to register or involve a licensed firearms dealer or registered

ammunition seller in a commercial transfer, and sells ammunition, is subject to a

$1,000 fine for the first offense and may be found guilty of a class A misdemeanor

for a second offense. Id. § 400.03(8).

The regulatory scheme went into effect on September 13, 2023. Plaintiffs

sued the Superintendent that same day. The operative complaint asserts claims,

pursuant to

, against the Superintendent challenging the facial and

as-applied constitutionality of the CCIA’s ammunition background check

provisions, as well as the facial constitutionality of the fee and licensing

provisions. 1

1 The Superintendent contends that Plaintiffs failed to raise an as-applied constitutional challenge. Appellee’s Br. at 23 n.2. We, like the district court, construe Plaintiffs’ operative complaint to adequately raise an as-applied challenge with respect to the background check provisions. See N.Y. State Firearms Ass'n v. James, No. 23-cv-6524 (FPG),

, at *7 (W.D.N.Y. May 2, 2024) (concluding that “Plaintiffs are not likely to succeed on the merits of an as-applied challenge of the background check system”). For example, the operative complaint alleges that Plaintiff Dorr attempted to purchase ammunition but was unable to do so because of an operational failure in the statewide license and record database. 8 Plaintiff NYSFA is a nonprofit organization that “advocates for the

protections of the right to keep and bear arms.” App’x at 12. It “represents

thousands of [its] members who are law-abiding citizens who own and possess

firearms . . . .”

. Plaintiffs Borrello and DiPietro allege that, but for the

background check and associated fee, they would have purchased ammunition

from licensed firearms dealers. Similarly, Plaintiff Ortman alleges that he

attempted to purchase ammunition from a licensed firearms dealer on September

13, 2023, but declined to proceed with the transaction upon learning that he would

have to undergo a background check and pay an associated fee imposed by the

dealer. Plaintiff Dorr alleges that he attempted to purchase ammunition from two

different licensed firearms dealers on September 14, 2023, but was unable to do so

on either occasion because the statewide license and record database was not

functioning. He alleges that, but for the system failure, he would have proceeded

with the background check and purchase. He further alleges that, but for what he

believes will be additional system failures, he would make future ammunition

purchases. Plaintiffs also allege that, “[o]n information and belief, licensed dealers

are passing [the $2.50] fee onto purchasers.” App’x at 16. Further, DiPietro alleges

that he would like to sell ammunition to Ortman, but would be fined $1,000 if he

9 engages in the transaction either without involving a licensed dealer or registered

seller intermediary or himself registering with the Superintendent.

Plaintiffs moved for a temporary restraining order (“TRO”) and preliminary

injunction. The district court denied the TRO motion and, after receiving briefing

from the parties, also denied the motion for a preliminary injunction. See James,

, at *1. As an initial matter, the district court concluded that

NYSFA lacked associational standing to sue on behalf of its members, but that the

individual plaintiffs had standing to challenge each provision.

at *3–5. On the

merits, the district court determined that Plaintiffs failed to show a likelihood of

success on their Second Amendment claim because “there exists a history and

tradition of background checks for ammunition, fees incident to background

checks, and the requirement to involve a licensed dealer in a commercial exchange

of ammunition.”

. This appeal followed.

DISCUSSION

“We review the denial of a motion for a preliminary injunction for abuse of

discretion, which we will identify only if the decision rests on an error of law or a

clearly erroneous finding of fact, or cannot be located within the range of

10 permissible decisions.” Emilee Carpenter, LLC v. James,

(2d Cir.

2024) (internal quotation marks and citation omitted).

“A preliminary injunction is an extraordinary remedy never awarded as of

right.” Winter v. Nat. Res. Def. Council, Inc.,

(2008). Ordinarily, “[a]

plaintiff seeking a preliminary injunction must establish [(1)] that he is likely to

succeed on the merits, [(2)] that he is likely to suffer irreparable harm in the

absence of preliminary relief, [(3)] that the balance of equities tips in his favor, and

[(4)] that an injunction is in the public interest.”

. However, “when, as

here, the preliminary injunction will affect government action taken in the public

interest pursuant to a statutory or regulatory scheme, it should be granted only if

the moving party meets the more rigorous likelihood-of-success standard.” Cent.

Rabbinical Cong. of U.S. & Can. v. N.Y.C. Dep't of Health & Mental Hygiene,

(2d Cir. 2014) (alteration adopted) (internal quotation marks and citation

omitted). “That is, plaintiffs must establish a clear or substantial likelihood of

success on the merits.” Sussman v. Crawford,

(2d Cir. 2007) (per

curiam) (internal quotation marks and citation omitted).

11 I. Standing

As a threshold matter, the Superintendent argues that we should affirm the

denial of preliminary injunctive relief on the basis that the individual plaintiffs

lack standing to sue. We find this argument unpersuasive.

To establish standing, “a plaintiff must show [(1)] that he suffered an injury

in fact that is concrete, particularized, and actual or imminent; [(2)] that the injury

was likely caused by the defendant; and [(3)] that the injury would likely be

redressed by judicial relief.” TransUnion LLC v. Ramirez,

(2021).

To establish standing at the preliminary injunction stage, a plaintiff cannot rely on

mere allegations and instead must set forth, by affidavit or other evidence, specific

facts, which will be taken to be true. See Cacchillo v. Insmed, Inc.,

(2d Cir. 2011).

An injury in fact is “an invasion of a legally protected interest which is

[(1)] concrete and particularized and [(2)] actual or imminent, not conjectural or

hypothetical.” Lujan v. Defs. of Wildlife,

(1992) (internal quotation

marks and citations omitted). In the context of a Second Amendment challenge to

the concealed carry licensing application process, we have said that when a

plaintiff “argues that a portion of the application process is unconstitutional,” his

12 “injury flows from the application itself.” Antonyuk v. James,

, 979 (2d

Cir. 2024) (emphasis in original), cert. denied,

(2025). Thus, even if

the plaintiff’s “injury stems from his own unwillingness to comply with the

challenged requirements,” he suffers an injury-in-fact that is traceable to the

defendant’s allegedly unlawful conduct if it deters the plaintiff from engaging in

constitutionally protected activity “due to [the plaintiff’s] individual, but

reasonable, sensibilities.”

. In such circumstances, the plaintiff “is not

required to first apply for and be refused a license” to establish standing.

(emphasis omitted). These standing principles apply with equal force to a Second

Amendment challenge to a background check process.

Here, Plaintiffs Borrello, DiPietro, and Ortman allege that the background

check and associated fee deterred them from purchasing ammunition. Plaintiffs

have plausibly alleged, and provided declarations supporting, that at least some

retailers are passing the $2.50 background check fee onto the purchaser. A

reasonable individual may well be deterred from engaging in what Plaintiffs

allege is constitutionally protected conduct—namely, purchasing ammunition—

by this fee, which is “inextricable” from the background check itself.

(concluding that the plaintiff’s injury was traceable to a requirement of a licensing

13 regime, “even if he is directly deterred only by [another] requirement[]” because

the two requirements are inextricably linked (emphasis omitted)).

In addition, Dorr alleges that he was denied the ability to purchase

ammunition due to the operational failure of the background check database, and

that he was deterred from making future purchases by the prospect of facing

similar failures. Plaintiffs have also submitted declarations indicating that these

failures did in fact occur on multiple days. Plaintiffs’ theory of future injury is

therefore not “too speculative to satisfy the well-established requirement that

threatened injury must be ‘certainly impending.’” Clapper v. Amnesty Int’l USA,

(2013).

Finally, DiPietro claims that he is deterred from selling ammunition to

Ortman for fear of being subject to a $1,000 fine for failing to register with the

Superintendent or involve a licensed dealer or registered seller in the transaction.

The Superintendent argues that, under the relevant provisions, DiPietro is not

required to register because he does not “engage[] in the business of purchasing,

selling or keeping ammunition,” and the proposed transaction does not qualify as

a “commercial transfer of ammunition” requiring the involvement of a licensed

dealer or registered seller. See

(7), 265.00(24). However,

14 in determining standing, we “are to consider whether the plaintiff’s intended

conduct is arguably proscribed by the challenged statute, not whether the

intended conduct is in fact proscribed.” Antonyuk, 120 F.4th at 1008 (emphases

omitted) (internal quotation marks and citation omitted). Under this “forgiving

standard,” “if a plaintiff’s interpretation of a statute is reasonable enough, and

under that interpretation, the plaintiff may legitimately fear that it will face

enforcement of the statute, then the plaintiff has standing to challenge the statute.”

Id. (alteration adopted) (internal quotation marks and citation omitted). We, like

the district court, conclude that DiPietro “[has] described a desire to engage in a

course of conduct that is arguably proscribed by the statute.” James,

, at *5.

In short, the individual plaintiffs have established each of the standing

requirements: (1) they are deterred from purchasing or selling ammunition;

(2) they are “injured by the consequent inability to exercise [their alleged] Second

Amendment rights,” Antonyuk, 120 F.4th at 977; (3) “that injury is traceable to the

[Superintendent’s] enforcement of [the challenged] provisions,” id.; and (4) “the

injury is redressable by the injunction that [the individual plaintiffs] seek[],” id.

15 Accordingly, we conclude, as the district court did, that the individual plaintiffs

have standing to challenge each of the CCIA provisions. 2

II. Second Amendment Claim

On the merits, Plaintiffs argue that the district court erred in concluding they

“[had] not shown a likelihood that the challenged law is unsupported by a well-

established historical tradition of firearms regulation which is a requirement for

success on the merits of their constitutional challenge.” James,

,

at *9. However, we need not address the district court’s historical analysis because

we affirm on a different basis—namely, that Plaintiffs have failed to demonstrate,

on this record, that the modest conditions the ammunition background check

provisions impose on the commercial sale of ammunition meaningfully constrain

their right to keep and bear arms. Thus, we conclude, albeit on a different legal

ground, that the district court correctly denied the preliminary injunction motion

because Plaintiffs failed to demonstrate a likelihood of success on the merits. See

2 Because we conclude that the individual plaintiffs have standing to challenge each of the CCIA provisions, we can proceed to the merits without considering whether NYSFA has standing to advance the same challenges. See Bd. of Educ. of Indep. Sch. Dist. No. 92 of Pottawatomie Cnty. v. Earls,

, 826 n.1 (2002) (stating that once one plaintiff is determined to have standing, it is unnecessary for courts to address whether other plaintiffs have standing or resolve remaining standing disputes); Horne v. Flores,

(2009) (same). 16 Name.Space, Inc. v. Network Sols., Inc.,

(2d Cir. 2000) (“We may, of

course, affirm on any basis for which there is a record sufficient to permit

conclusions of law, including grounds upon which the district court did not rely.”

(internal quotation marks and citation omitted)).

A. Second Amendment Principles

The Second Amendment 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. The Second Amendment

applies to the states through the Fourteenth Amendment. See McDonald v. City of

Chicago,

(2010). The Supreme Court has construed the Second

Amendment to guarantee an individual’s “right to possess and carry weapons in

case of confrontation.” District of Columbia v. Heller,

(2008).

In New York State Rifle & Pistol Ass’n, Inc. v. Bruen,

(2022), the

Supreme Court prescribed a two-step framework to evaluate Second Amendment

challenges. Our Court, when applying Bruen’s two-step framework, has explained

that we ask first “whether the Second Amendment’s text applies to the challenged

regulation; second, if it does, we ask whether the regulation is consistent with the

17 nation’s historical tradition of firearm regulation.” United States v. Vereen, --- F.4th

----,

, at *3 (2d Cir. Aug. 19, 2025).

Under the first step of the Bruen analysis, the plaintiff bears the burden of

demonstrating that “the Second Amendment’s plain text covers an individual’s

conduct”—namely, to “keep” and “bear” arms. Bruen,

. When the

challenged law regulates unenumerated “ancillary” conduct—such as the

acquisition and maintenance of firearms and ammunition—the conduct is “only

protected to the extent that [it is] necessary to the realization of the textually

specified right to keep and bear arms.” Vereen,

, at *3 (internal

quotation marks and citation omitted). Thus, “regulations on the means of

acquiring, transporting, and storing firearms only implicate the text of the Second

Amendment if they meaningfully constrain the right to possess and carry arms.”

(emphasis added); accord Gazzola v. Hochul,

(2d Cir. 2023) (per

curiam); see also B & L Prods., Inc. v. Newsom,

, 119 (9th Cir. 2024)

(explaining that, post-Bruen, the inquiry of “whether a challenged regulation

meaningfully impairs an individual’s ability to access firearms [] remains

appropriate”), cert. denied,

(2025).

18 A law regulating the means of acquiring firearms and ammunition does not

meaningfully constrain the right to possess arms unless it “is so restrictive that it

threatens a citizen’s right to acquire firearms [and ammunition].” Gazzola,

(per curiam). Mere inconveniences do not constitute such a threat. Thus,

we have made clear that “gun buyers have no right to have a gun store in a

particular location, nor a right to travel no more than short distances to the most

convenient gun store that provides what they deem a satisfactory retail

experience.”

at 197–98 (internal quotation marks and citation omitted). In other

words, “the Second Amendment does not elevate convenience and preference

over all other considerations, nor does it guarantee a certain type of retail

experience.” B & L Prods., 104 F.4th at 119 (alteration adopted) (internal quotation

marks and citation omitted); see also United States v. Manney,

(9th Cir. 2024) (“Nor has the [Supreme] Court held that every requirement making

it slightly more difficult to possess a firearm demands a full historical inquiry into

its origin.”), cert. denied,

(2025).

Similarly, consequences that are part and parcel of ordinary regulatory

measures—such as reasonable processing times and the hassle of filling out

paperwork—generally will not meaningfully impair one’s ability to acquire arms.

19 Indeed, because the Supreme Court has recognized that “laws imposing

conditions and qualifications on the commercial sale of arms” are “presumptively

lawful regulatory measures,” Heller, 554 U.S. at 626–27 & n.26, the modest

administrative burdens that naturally follow will not ordinarily be sufficient to

overcome that presumption. See, e.g., Giambalvo v. Suffolk Cnty., --- F.4th ----,

, at *12 (2d Cir. Sept. 12, 2025) (noting that background checks and

firearm safety courses are presumptively constitutional even though they

“necessarily require some amount of processing time” (emphasis in original)).

Instead, a meaningful constraint must entail a much more substantial

burden. For example, we have said that a commercial sale regulation “cannot have

the effect of eliminating the ability of law-abiding, responsible citizens to acquire

firearms.” Gazzola,

; see also Nguyen v. Bonta,

(9th Cir. 2025) (concluding that “banning the purchase of more than one firearm

in a 30-day period” meaningfully constrains the ability to purchase, and thereby

to keep, arms). Presumptively lawful regulations may also become

constitutionally suspect if they are “put toward abusive ends.” Bruen,

n.9. In addition, we have made clear that pitting an individual’s Second

Amendment rights against that individual’s other constitutionally protected rights

20 may constitute a “significant burden on the right to bear arms.” Antonyuk, 120

F.4th at 1002–03 (preliminarily enjoining the “compelled disclosure of

pseudonymous social media handles” as part of a handgun licensing process

because “the First Amendment protects the right to speak anonymously”

(emphasis omitted)).

B. Second Amendment Analysis

Applying those principles here, we conclude that, on this record, Plaintiffs

have failed to demonstrate a likelihood of success in showing that the challenged

ammunition background check provisions implicate the plain text of the Second

Amendment, as required under step one of the Bruen framework.

New York’s background check regime is no doubt a “commercial sale

regulation” that imposes “conditions and qualifications” on the ammunition

retailer. Vereen,

, at *6 (internal quotation marks and citation

omitted). It requires the retailer to conduct background checks on potential

ammunition purchasers,

(3), imposes a small fee on the

retailer for utilizing the state’s background check apparatus,

(5)(a), and penalizes the seller for failing to abide by certain strictures of the

regime,

(8). We therefore consider whether the challenged

21 commercial ammunition regulations in the CCIA meaningfully constrain an

individual’s right to “keep” and “bear” arms. See Vereen,

, at *3;

Gazzola,

; see also Rhode v. Bonta,

, 1106 (9th Cir. 2025)

(reviewing California’s ammunition background check regime under the

“meaningfully constrain” standard because it imposed “conditions and

qualifications on the commercial sale of arms” (internal quotation marks and

citation omitted)).

i. Background Check Provisions

Plaintiffs principally argue that the background check requirement causes

wait times that effectively prevent them from purchasing ammunition. This

argument fails on both a facial and as-applied basis.

A facial constitutional challenge is the “most difficult challenge to mount

successfully, because it requires a [plaintiff] to establish that no set of

circumstances exists under which the [challenged provision] would be valid.”

United States v. Rahimi,

(2024) (internal quotation marks and

citation omitted). “That means that to prevail, the [state] need only demonstrate

that [the challenged provision] is constitutional in some of its applications.”

Thus, where, as here, a background check system is designed to return “a ‘proceed’

22 response immediately” for those who are not disqualified from purchasing

ammunition, App’x at 50, there are at least some circumstances in which the delay

caused by the background check process is de minimis. We have previously held

that “a short delay does not violate an individual’s Second Amendment rights” so

as to rebut the presumptive validity of a challenged law. Giambalvo,

, at *12; see also Frey v. City of New York, --- F.4th ----,

, at

*13 (2d Cir. Sept. 19, 2025) (concluding that a permit requirement that “merely

imposes a brief delay on an individual’s ability to carry concealed firearms within

the City . . . does not amount to constitutional harm”); Antonyuk, 120 F.4th at 985

n.32 (agreeing that a shall-issue permit process is “presumptively constitutional”

“despite some delay occasioned by” it (internal quotation marks and citation

omitted)); Maryland Shall Issue, Inc. v. Moore,

, 227 (4th Cir. 2024) (en

banc) (rejecting an argument that “any temporary delay” constituted an

infringement of Second Amendment rights), cert. denied,

(2025);

McRorey v. Garland,

(5th Cir. 2024) (“Our law is plain as can be

that some amount of time for background checks is permissible.”); Manney,

(rejecting an argument that “fill[ing] out the [] form or making

[individuals] wait a short time while their application is processed would come

23 under [the] Second Amendment’s plain text”). Accordingly, because the Second

Amendment is not implicated under those circumstances, Plaintiffs are unlikely to

succeed on their facial challenge to the background check.

At least at this juncture, Plaintiffs’ as-applied challenge fares no better. We

have previously declined to find waiting periods of up to thirty days sufficient to

constitute a “lengthy wait time[].” See Giambalvo,

, at *12

(rejecting the plaintiffs’ argument that a waiting period of “more than 30 days is

per se sufficiently lengthy to violate their Second Amendment rights”); see also

Maryland Shall Issue, Inc., 116 F.4th at 227 (“We decline to construe the Supreme

Court’s reference to ‘lengthy’ processing periods as including within its scope the

relatively brief application, review, and approval process” of “a few days[.]”);

McRorey,

(concluding that “a period of 10 days does not

qualify” as “lengthy” under Bruen). Here, Dorr, the only plaintiff who attempted

to go through the ammunition background check process, was unable to do so

because the background check system was down that day. He does not allege that

the system was down in the subsequent days such that he was further denied the

ability to purchase ammunition. Dorr therefore endured a waiting period of, at

24 most, a single day. 3 That does not come close to the “lengthy” delays under Bruen

as understood by our own Circuit, as well as our sister courts. 4

In short, the modest delays reflected in the present record do not

meaningfully constrain Plaintiffs’ ability to “keep” or “bear” arms.

ii. Fee Provision

Next, we conclude that Plaintiffs have failed to demonstrate that the $2.50

fee imposed on the ammunition seller to defray the cost of background checks

meaningfully constrains their Second Amendment rights.

Under Kwong v. Bloomberg, a government-imposed fee in the Second

Amendment context is constitutional only if the fees (1) “are designed to defray

3 Plaintiffs also seek to rely on several sworn declarations from NYSFA members showing that the state background check system was down on several other days. The affidavits further aver that the wait times for the background check could last anywhere from three hours to nine days. These affidavits are potentially relevant to as-applied challenges to the background check provisions based on those delays. However, even if we consider these affidavits, our conclusion remains the same, because these affidavits do not show wait times so lengthy that they meaningfully constrain these individuals’ access to ammunition.

4 We acknowledge that an individual may more frequently need to purchase ammunition than a firearm or undergo a licensing process. Thus, although a brief delay during a single transaction might not, standing alone, be sufficiently lengthy, the cumulative effect of multiple delays may so significantly frustrate an individual’s ability to purchase ammunition as to amount to a meaningful constraint. Plaintiffs, however, have not plausibly alleged or averred facts to support such a theory at this juncture. 25 (and do not exceed) the administrative costs of regulating the protected activity,”

and (2) do not place “anything more than a marginal, incremental, or [] appreciable

restraint” on an individual’s Second Amendment rights.

(2d

Cir. 2013) (internal quotation marks omitted). We have continued to apply Kwong

after Bruen. See, e.g., Giambalvo,

, at *10. The first requirement,

that a fee cannot exceed the administrative costs of regulation, was adopted from

“the Supreme Court’s First Amendment fee jurisprudence,” Kwong,

, and is in no way undermined by the discussion regarding fees in Bruen. As

to the second requirement, Kwong originally asked whether the fee imposed a

“marginal [or] incremental” burden in order to determine what level of means-

end scrutiny should be applied.

(internal quotation marks and citation

omitted). To be sure, that inquisitorial purpose is no longer valid after Bruen. See

Bruen, 597 U.S. at 19–24 (discussing why “Heller and McDonald do not support

applying means-end scrutiny in the Second Amendment context”). However, we

still ask a substantially similar question after Bruen—whether the fee meaningfully

constrains an individual’s right to “keep” and “bear” arms—for the purpose of

ascertaining whether the plain text of the Second Amendment is implicated. See

Vereen,

, at *4 (“[T]he question of whether a regulation implicates

26 the text of the Second Amendment is not the kind of ‘means-end scrutiny’ that the

Supreme Court rejected” because we do not “assess the costs and benefits of

firearms restrictions nor ask whether on a case-by-case basis . . . the right is really

worth insisting upon.” (internal quotation marks, emphasis, and citation

omitted)). Consistent with Bruen’s plain-text inquiry, Kwong now teaches that a

regulatory fee that is both calibrated to only defray administrative costs and is not

prohibitively expensive does not meaningfully constrain an individual’s ability to

exercise his Second Amendment rights. See id.; see also Bruen,

n.9

(presumptively constitutional regimes may be subject to challenge if they involve

“exorbitant fees”).

Applying our understanding of Kwong to the challenged fee provision here,

we conclude that Plaintiffs have failed to show a likelihood of success in

demonstrating that the fee provision violates their Second Amendment rights.

As an initial matter, a facial challenge to the fee provision fails because, by

law, the fee is imposed on the seller, not on purchasers like the individual

plaintiffs. See

(5)(a) (“Each licensed dealer . . . shall pay a fee

imposed by the [NYSP] for performing [each] background check.”). A seller’s

discretionary decision to pass that fee to the purchaser cannot be attributed as

27 government action. Cf. McRorey,

(“[A] third party’s legitimate

discretion breaks the chain of constitutional causation.” (internal quotation marks

and citation omitted)). Indeed, government regulations of all kinds impose costs,

fees, and taxes on commercial businesses, including firearm and ammunition

retailers. Surely, a private retailer’s economic decision, however rational, to pass

on some or all of those costs to the purchaser by way of raising prices or

implementing its own fees does not thereby subject each of those government

regulations to a facial Second Amendment challenge by the retailer’s customers.

In any event, a fee imposed on the retailer is certainly constitutional vis-à-

vis the purchaser if the retailer does not pass the fee onto the purchaser. In that

case, the fee would have no impact whatsoever (not even a marginal or

incremental one) on the purchaser’s Second Amendment rights. Therefore, to

facially challenge a fee imposed on the retailer, a purchaser-plaintiff must show

that, at a minimum, all retailers pass the fee onto the consumer. Plaintiffs here do

not plausibly demonstrate that all retailers pass the fee onto the purchaser.

Instead, Plaintiffs allege only that, “[o]n information and belief, licensed dealers

are passing this fee onto purchasers,” App’x at 16, and besides offering anecdotal

evidence that some retailers are passing the fee onto the purchasers, submit no

28 evidence or articulate plausible factual allegations supporting the contention that

every seller passes this fee onto the purchaser.

Even assuming arguendo that Plaintiffs could raise an as-applied challenge

based upon the seller passing the fee onto them, their challenge would fail under

Kwong. First, the fee is “designed to defray (and do[es] not exceed) the

administrative costs of” implementing and operating the background check

system. Kwong,

. The fee provision expressly requires that the

“amount of the fee shall not exceed the total amount of direct and indirect costs

incurred by [the NYSP] in performing [each] background check.”

(5)(a). The Superintendent further averred that “the $2.50 fee for ammunition

background transactions is not expected to exceed the costs of implementing and

operating the New York State background check system.” App’x at 45. Second,

Plaintiffs submit no evidence, nor seriously contend, that the $2.50 fee is exorbitant

or prohibitively expensive. Under Kwong, then, the $2.50 fee imposed on the

retailer does not meaningfully constrain a purchaser’s right to keep and bear arms.

In short, Plaintiffs have proffered “no evidence that [the fees] will impose

such burdensome requirements . . . that they restrict protections conferred by the

Second Amendment.” Gazzola,

.

29 iii. Licensing Provisions

Finally, we need not dwell long on Plaintiffs’ contention that the licensing

provisions meaningfully constrain their right to keep and bear arms.

We do not interpret the plain text of the Second Amendment to guarantee

the free-standing right to sell firearms, let alone to do so without a license or

registering with state authorities. See B & L Prods., Inc., 104 F.4th at 118 (stating

that “the right to sell firearms is not a protected ancillary right” under the Second

Amendment) (emphasis in original)). To be sure, in Gazzola, as noted supra, we

quoted the Tennessee Supreme Court’s observation that the right to keep arms

involves, among other rights, the right “to purchase and provide ammunition

suitable for such arms.”

(emphasis added) (quoting Andrews v.

State,

(1871)). However, in doing so, we did not suggest that

there is a separate right to sell ammunition under the Second Amendment.

Instead, we quoted that passage for the more general proposition that the

government cannot effectively “circumvent” the Second Amendment’s

prohibitions by targeting ancillary rights.

at 195–96. Accordingly, the proposed

course of conduct—to sell ammunition without first registering with the

Superintendent—is not conduct independently covered by the Second

30 Amendment’s text. 5 In addition, to the extent Plaintiffs argue that such a

requirement impedes the purchaser’s ability to buy ammunition from a preferred

source, that argument is without merit for the reasons discussed above. See, e.g.,

Gazzola, 88 F.4th at 197–98 (“It bears repeating that gun buyers have no right to

have a gun store in a particular location, nor a right to travel no more than short

distances to the most convenient gun store that provides what they deem a

satisfactory retail experience.” (internal quotation marks and citation omitted)).

Put simply, there is no evidence before us that Plaintiffs lack easy access to licensed

or registered ammunition sellers. We therefore fail to discern how the licensing

provisions meaningfully constrain a purchaser’s right to keep and bear arms.

* * *

In sum, none of the challenged provisions—individually or collectively—

meaningfully constrain an individual’s right to “keep” and “bear” arms so as to

implicate the plain text of the Second Amendment. Because Plaintiffs have failed

5 To be sure, retailers may “have derivative standing to pursue Second Amendment claims on behalf of [its] customer base.” Gazzola,

. But under those circumstances, as in Gazzola, the retailer must demonstrate that the challenged regulation meaningfully constrains the consumer’s Second Amendment right, not that it burdens the retailers’ non-existent constitutional right to sell firearms. 31 to demonstrate that they are likely to succeed at the first step of the Bruen

framework, we have no occasion to engage in the historical analysis at step two.

To the extent that Plaintiffs attempt to support their position by relying on

the Ninth Circuit’s recent decision in Rhode v. Bonta, 145 F.4th at 1098, affirming

the district court’s decision to permanently enjoin California’s ammunition

background check regime, we respectfully disagree with the analysis set forth in

that majority opinion. There, the Ninth Circuit held that the Californian regime

was facially unconstitutional because it (1) “meaningfully constrain[ed] California

residents’ right to keep and bear arms” in “all applications,” “[g]iven the fees and

delays associated with California’s ammunition background check regime, and

the wide range of transactions to which it applies” and (2) was not supported by

any relevantly similar historical analogues. Id. at 1106–07, 1109–16.

To begin, we emphasize that the California and New York regimes are not

the same. For example, according to the Rhode majority, California’s regime

required customers “to pay for” the background check and may have required

Californians to “purchase ammunition during a specified period of time—e.g., 18

hours—after passing a background check.” Id. at 1106–07. By contrast, the New

York regime on its face does not require the customer to pay a dime (indeed, the

32 decision to pass the processing fee onto the customer is made solely by the

individual retailers), and there is no block of time in which the customer must

purchase the ammunition once the background check clears, which can be

“immediate[].” 6 App’x at 50.

More fundamentally, we disagree with the Rhode majority’s application of

both the facial challenge and meaningfully constrain standards. As we explained

above, the Supreme Court could not have been clearer that to prevail on a facial

constitutional challenge, including in the Second Amendment context, the

challenger must “establish that no set of circumstances exists under which the

[statute] would be valid.” Rahimi,

(internal quotation marks and

citation omitted). In other words, the government need only demonstrate that the

challenged law “is constitutional in some of its applications.”

(emphasis added).

The Rhode majority gives short shrift to this well-settled regime for analyzing facial

6 Moreover, although not pertinent to a facial challenge (and no as-applied challenge was asserted in Rhode), we note that the record before the Ninth Circuit regarding California’s implementation of the background check regime differs starkly from that in this case. As the district court in that case observed, more than a hundred thousand applicants were rejected in the first few months the background check was in place, in large part due to the state’s mismatched records. Rhode v. Bonta,

, 876 (S.D. Cal. 2024), aff’d,

(9th Cir. 2025). In addition, the district court noted the thousands of potential purchasers who could not overcome the system’s rejections half a year later.

at 876–77. The record in this case, by contrast, is bereft of such wide-scale and substantial implementation failures. 33 constitutional challenges by merely summing up its features and then concluding,

ipso facto, that those qualities meaningfully constrain “in all applications.” Rhode,

145 F.4th at 1107; see id. at 1125 (Bybee, J., dissenting) (“The majority has not even

attempted to explain how these features necessarily impede firearm access.”

(alteration adopted) (internal quotation marks and citation omitted)).

Furthermore, the Rhode majority does not explain how a background check can

meaningfully constrain an individual’s rights where the attendant delays are

minimal. As the Rhode dissent points out, the face of the California law imposes

no delays, and the majority’s reliance on “hypothetical delays[] contradicts . . . the

Supreme Court’s warning . . . that we avoid belaboring onerous ‘hypothetical

scenarios.’” Id. at 1121 (Bybee, J., dissenting) (internal quotation marks and

citation omitted).

The only way in which the Rhode majority could be understood to be

faithfully applying the facial challenge standard is if they believed that any delay

or fee, however minimal, suffices to constitute a meaningful constraint, so long as

it applies to all transactions statewide. But that conclusion, as detailed above, is

flatly contradicted by our Circuit’s precedents, our sister courts’ precedents, and,

indeed, the Ninth Circuit’s own precedents. See, e.g., Giambalvo,

,

34 at *12; Frey,

, at *13; Antonyuk, 120 F.4th at 985 n.32; Maryland Shall

Issue, Inc., 116 F.4th at 227; McRorey,

; Manney, 11 F.4th at 1052; B &

L Prods., 104 F.4th at 119.

Accordingly, we conclude, on this record and on different bases than those

relied on by the district court, that Plaintiffs are unlikely to succeed on the merits

of their Second Amendment challenges.7 We therefore affirm the district court’s

order denying preliminary injunctive relief.

CONCLUSION

For the foregoing reasons, we AFFIRM the order of the district court and

REMAND for further proceedings consistent with this opinion.

7 We emphasize that, with respect to Plaintiffs’ as-applied challenge to the ammunition background check provisions, our analysis does not foreclose the possibility that, on remand, Plaintiffs could gather and submit additional evidence to the district court in an effort to meet their burden, under the first step of the Bruen framework, to demonstrate that one or more aspects of the implementation of the ammunition background check provisions have meaningfully constrained their ability to “keep” or “bear” arms. Therefore, “[o]ur affirmance . . . of the district court’s [holding] does not determine the ultimate constitutionality of the [state’s actions], which await further briefing [and] discovery.” Antonyuk, 120 F.4th at 1048 n.126. 35