The Appellate Division continued in relevant part: We deem it noteworthy that Bruen endorsed the concept of shall-issue licensing regimes without citing any historical analogues. The Court, in other words, acknowledged the constitutionality of modern licensing systems without identifying a single example of an 18th Century statute or ordinance requiring citizens to apply to a government agency for a permit before they could purchase or carry a firearm. (Of course, there would be no precursors for a falsification disqualification provision if there are no historical analogues for modern licensing systems requiring gun permit applicants to submit a completed application.)
Relatedly, the Court expressly recognized modern gun-permitting regimes “often require applicants to undergo a background check.” Bruen, 142 S. Ct. at 2138 n.9. But again, the Court did not mention any jurisdiction in early America that required prospective gun owners to undergo a background check by a government agency.
The Court’s general acceptance of background checks provides important guidance in addressing the novel constitutional question before us. Requiring applicants to answer questions truthfully on a form is no more intrusive of Second Amendment rights than requiring background checks. Cf. United States v. Holden, 70 F.4th 1015, 1017 (7th Cir. 2023) (noting in a criminal prosecution for making a false statement to a firearms dealer that “Congress is entitled to require would-be purchasers to provide information–their names, addresses, Social Security numbers, criminal histories, and so on. The power to collect accurate information is of a different character–and stands on a firmer footing–than the power to prohibit particular people from owning guns.”). Indeed, answering the questions on an application form is the initial step–and an essential part–of the background check process. Those answers provide basic information to facilitate a follow-up inquiry, if needed, by the agency responsible for conducting the background check.
The Appellate Division repeatedly cites to the Bruen decision’s lack of citations to historical analogues. While the panel is required to follow Bruen’s binding precedent, it can exercise its own judgment in the absence of guidance from the United States Supreme Court on unaddressed sub-issues.
