Facial Constitutional Challenges, Appeal Waivers, and New York’s Firearm Licensing Scheme After Bruen: Commentary on People v. Johnson

I. Introduction

People v. Johnson, 2025 NY Slip Op 06528 (Nov. 24, 2025), is a significant decision of the New York Court of Appeals at the intersection of criminal procedure (appeal waivers), state standing doctrine, and Second Amendment challenges to New York’s firearm licensing regime in the wake of the U.S. Supreme Court’s decision in New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U.S. 1 (2022).

Omar Johnson was convicted, on a guilty plea, of attempted criminal possession of a weapon in the second degree (Penal Law § 265.03(3)) after police discovered a loaded 9mm pistol in his moped. He had no license. The events occurred in the narrow window after Bruen was decided but before New York’s Concealed Carry Improvement Act (CCIA) took effect. Johnson argued that Bruen rendered New York’s entire pre‑CCIA handgun licensing scheme facially unconstitutional, so that his conviction for possessing an unlicensed handgun could not stand.

The case presents three central issues:

Whether a defendant’s appeal waiver, given as part of a plea bargain, can bar a facial constitutional challenge to the validity of the criminal statute or regulatory scheme under which he was prosecuted.
Whether a defendant convicted of unlicensed firearm possession has standing to bring a facial challenge to the state’s licensing scheme despite never having applied for a license.
Whether Bruen’s invalidation of New York’s “proper cause” requirement for public carry rendered the entire licensing scheme facially unconstitutional, or whether “proper cause” is severable from the rest of the licensing framework.

The Court of Appeals:

Holds that facial constitutional challenges to criminal statutes are among the narrow class of non‑waivable claims that survive a valid appeal waiver.
Holds that Johnson has standing, under New York’s standing doctrine, to challenge the firearm licensing scheme even though he never sought a license.
Rejects his Second Amendment claim on the merits, finding the “proper cause” requirement severable from the remainder of the licensing regime and concluding that he has not carried the heavy burden of a facial challenge.

Judge Halligan writes for the majority. Judge Cannataro concurs in the result, joined by Judges Garcia and Singas, but would affirm solely on the basis that Johnson’s appeal waiver bars review of his Second Amendment claim.

II. Summary of the Opinion

A. Factual and Procedural Background

On July 30, 2022, shortly after Bruen and before the CCIA’s effective date, police responded to a domestic violence 911 call involving Johnson. During the investigation, an officer found a loaded 9mm pistol in Johnson’s moped outside his residence. Johnson had no New York firearm license. He was indicted for weapons possession and ammunition offenses.

Johnson moved to dismiss the indictment, arguing broadly that Bruen had “struck down New York’s public carry licensing system” by invalidating the “proper cause” requirement, and because the charges were premised solely on his lack of a license, the prosecution could not stand.

Supreme Court:

Held Johnson lacked standing to challenge New York’s licensing laws because he had never applied for a license and did not show futility; and
Rejected his argument on the merits, concluding Bruen invalidated only the “proper cause” requirement, not the entire licensing statute.

Johnson then pleaded guilty to attempted criminal possession of a weapon in the second degree and received a sentence of five years’ probation. As part of the plea bargain, he executed a written and oral waiver of his right to appeal, after a colloquy with the court.

On appeal to the First Department, Johnson:

Argued his Bruen-based constitutional challenge was non‑waivable because it implicated rights “going to the very heart of the process,” or alternatively that the waiver was not knowing and voluntary; and
On the merits, renewed the argument that Bruen invalidated the entire licensing scheme and, for the first time, objected to particular features of the pre‑CCIA regime (good moral character requirement, age‑21 minimum, felon prohibition, etc.).

The Appellate Division:

Found the appeal waiver valid and enforceable, and held it barred review of the Bruen claim;
Held that, even if not barred, Johnson lacked standing because he never applied for a license; and
In any event, found the conviction constitutional under Bruen. 225 A.D.3d 453 (1st Dept. 2024).

The Court of Appeals granted leave and affirmed the conviction, but on different reasoning.

B. Holdings

Non‑waivability of facial constitutional challenges. A defendant’s facial constitutional challenge to a criminal statute or, as here, to a regulatory scheme that functions as an integral part of the criminal prohibition, is not barred by a general appeal waiver. Such challenges fall within the narrow category of non‑waivable claims, alongside constitutional speedy trial claims, illegal sentences, and defects in jurisdiction.
Standing without a license application. Under New York standing doctrine, a defendant prosecuted and convicted for unlicensed possession of a handgun has standing to mount a facial constitutional challenge to the licensing scheme, even if he has never applied for a license.
Severability and failure of the facial Second Amendment challenge. Johnson preserved only a single, very broad argument: that Bruen’s invalidation of the “proper cause” requirement rendered the entire licensing scheme facially unconstitutional. The Court holds that “proper cause” is severable from the rest of the pre‑CCIA licensing framework; that Johnson has not come close to satisfying the severe standard for a facial challenge; and therefore that his conviction remains valid.
No need to apply Bruen’s “historical tradition” test to the entire scheme. Because the only preserved issue is whether Bruen knocked out the licensing scheme wholesale via severability, the Court declines to require the People to prove the historical pedigree of every licensing condition. Challenges to discrete provisions would be governed by Bruen, but they are not before the Court.

III. Analysis

I. Appeal Waivers and Facial Constitutional Challenges

A. The Seaberg Framework and Its Prior Limits

The leading New York case on appeal waivers is People v. Seaberg, 74 N.Y.2d 1 (1989). Seaberg held that:

Appeal waivers are generally enforceable if knowing, intelligent, and voluntary.
They promote important public interests: conserving judicial resources, fostering finality, and supporting plea bargaining – described as “a vital part of our criminal justice system.”
There is “no public policy precluding defendants from waiving their rights to appeal as a condition of plea and sentence bargains” (74 N.Y.2d at 10).

At the same time, Seaberg recognized certain narrow exceptions: claims that “transcend the individual concerns of the defendant” and “embrace the reality of fairness in the process itself” cannot be waived (74 N.Y.2d at 9). Later cases synthesized these into a short list of non‑waivable claims:

Challenges to the voluntariness of the plea itself.
Challenges to the defendant’s competency to stand trial or plead (People v. Armlin, 37 N.Y.2d 167 (1975)).
Constitutional speedy trial claims (People v. Blakley, 34 N.Y.2d 311 (1974)), grounded partly in the coercive effect of delay.
Challenges to the court’s jurisdiction or authority (People v. McLaughlin, 80 N.Y.2d 466 (1992); People v. Thomas, 34 N.Y.3d 545 (2019)).
Claims that the sentence is illegal (People v. Francabandera, 33 N.Y.2d 429 (1974); People v. Campbell, 97 N.Y.2d 532 (2002)).

By contrast, the Court had repeatedly enforced appeal waivers against constitutional claims such as:

Fourth Amendment suppression challenges (People v. Kemp, 94 N.Y.2d 831 (1999)).
Fifth Amendment voluntariness and self-incrimination issues (Thomas, 34 N.Y.3d at 553–54, 557–58).
Double jeopardy claims (People v. Allen, 86 N.Y.2d 599 (1995)).

The concurrence in Johnson leans heavily on this line of precedent to argue that constitutional claims, even weighty ones, are generally waivable unless they directly implicate either the integrity of the plea/waiver process or the court’s authority to sentence.

B. The Majority’s New Rule: Facial Challenges Are Non‑Waivable

The majority adds a new category to the list of non‑waivable claims: facial constitutional challenges to criminal statutes or to closely integrated schemes of criminal regulation.

Drawing on prior facial-challenge cases such as Cohen v. State, 94 N.Y.2d 1 (1999) and People v. Stuart, 100 N.Y.2d 412 (2003), the Court emphasizes:

A facial challenge requires arguing that “in any degree and in every conceivable application, the law suffers wholesale constitutional impairment” (Cohen, 94 N.Y.2d at 8).
If such a challenge succeeds, “the law is invalid in toto – and therefore incapable of any valid application” (Stuart, 100 N.Y.2d at 421).

From this, the Court reasons:

A successful facial challenge means the State has no authority to prosecute or punish anyone under the statute, not just the defendant before the court.
That consequence implicates “fairness in the process itself” (borrowing Seaberg’s language) and a “larger societal interest in its correct resolution” (People v. Callahan, 80 N.Y.2d 273, 280 (1992)).
Allowing appeal waivers to foreclose review of such claims would risk leaving facially unconstitutional statutes in force despite a preserved and ripe challenge brought by a defendant actually prosecuted under them.

Thus, a waiver that purports to bar appellate review of a properly preserved facial constitutional attack on the criminal statute (or the integral licensing scheme) under which the defendant was convicted will not be enforced.

The Court is careful, however, to stress that “the class of claims excepted from the general rule enforcing appeal waivers remains narrow,” and that “appeal waivers otherwise should be enforced.” The rule applies only to facial challenges, not to standard “as‑applied” challenges or discrete procedural claims.

C. Preservation vs. Waiver: Distinct Doctrines

The First Department had reasoned that, because the Court of Appeals previously held Bruen claims must be preserved at trial (People v. David, 41 N.Y.3d 90 (2023); see also People v. Cabrera, 41 N.Y.3d 35 (2023)), such claims must also be waivable via appeal waiver. The majority rejects that logic as a conflation of two distinct doctrines:

Preservation is a constitutional limit on the Court of Appeals’ jurisdiction (N.Y. Const. art. VI, § 3; People v. Turriago, 90 N.Y.2d 77 (1997)). It exists to ensure that issues are first raised and developed in the trial court, creating a proper record and allowing lower courts to address them.
Appeal waivers are contractual (though regulated) devices tied to plea bargaining. They serve interests in finality and efficiency but do not bear on the Court’s jurisdiction and do not affect the creation of an evidentiary record.

Thus, the fact that a constitutional claim must be preserved says nothing about whether it is waivable via an appeal waiver. A facial challenge, in particular, must still be raised with “sufficient specificity” in the trial court (People v. Robinson, 88 N.Y.2d 1001 (1996); People v. Baumann & Sons Buses, Inc., 6 N.Y.3d 404 (2006)), but if so preserved, it cannot then be contractually forfeited on appeal.

D. Response to the Concurrence and Concerns About Burden

Judge Cannataro, concurring in the result, criticizes the majority for what he sees as an unwarranted expansion of the Seaberg exceptions. He argues:

Historically, facial challenges have been “commonplace” for over a century (citing Gladson v. Minnesota, 166 U.S. 427 (1897)), yet New York courts never treated them as non‑waivable.
The recognized non‑waivable categories all concern either the voluntariness of the plea/waiver, the defendant’s competency, the court’s jurisdiction, the legality of the sentence, or the unique coercive dynamic of speedy trial delays.
Facial challenges to criminal statutes do not necessarily implicate coercion or fairness in the plea process; they are simply one kind of substantive defense, often disfavored because they risk premature, broad constitutional rulings (citing Washington State Grange v. Washington State Republican Party, 552 U.S. 442 (2008)).

He also worries about systemic effects, especially in a post‑Bruen world where Second Amendment litigation has exploded:

Allowing defendants to raise facial challenges despite appeal waivers may encourage more appeals and complicate plea bargaining.
Prosecutors may respond by offering less favorable deals or by structuring plea negotiations differently when a facial challenge is raised.

The majority acknowledges that its rule may marginally increase appellate workload, but responds that:

Facial challenges must still be preserved and meet a very high substantive bar, so nonfrivolous claims will be rare.
Appellate courts often already address constitutional claims on the merits despite upholding appeal waivers.
Allowing proper facial challenges to be resolved promotes judicial economy by removing unconstitutional statutes from the books in one stroke, avoiding piecemeal litigation.

II. Standing to Challenge the Licensing Scheme Without Applying for a License

A. New York’s Distinct Standing Doctrine

The parties argued standing almost exclusively in federal constitutional terms (Article III), but the Court emphasizes that New York standing doctrine is independent of federal “case or controversy” requirements:

There is no state constitutional analogue to Article III’s “case or controversy” requirement (Society of Plastics Indus. v. County of Suffolk, 77 N.Y.2d 761, 772 (1991)).
New York requires, as a matter of prudential standing, that:
- the litigant have suffered an “injury in fact” that is “sufficiently concrete and particularized to warrant judicial intervention,” and
- the injury fall within the “zone of interests or concerns sought to be promoted or protected by the statutory provision” (Stevens v. New York State Div. of Criminal Justice Services, 40 N.Y.3d 505, 515 (2023)).
New York has not clearly adopted the federal requirement of “traceability” (causation) as articulated in Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992), though causation concepts obviously inform the analysis.

Applying those standards, the majority has little difficulty concluding that Johnson has standing:

His prosecution and conviction constitute a quintessential “concrete and particularized” injury; he has an “actual legal stake in the matter being adjudicated.”
His injury falls squarely within the “zone of interests” of the licensing provisions because, as the Court notes, “New York’s criminal weapon possession laws prohibit only unlicensed possession of handguns” (People v. Hughes, 22 N.Y.3d 44, 50 (2013)). A valid license is an affirmative defense (Penal Law § 265.20(a)(3); David, 41 N.Y.3d at 96).
The only basis for his conviction is that he possessed a handgun without a license.

B. The No‑Application Rule: Lessons from Staub and Shuttlesworth

A pivotal question is whether a person prosecuted for lacking a license must first apply for (and be denied) a license before challenging the constitutionality of the licensing regime. The trial court and the Appellate Division essentially answered “yes.” The Court of Appeals says “no,” aligning with longstanding U.S. Supreme Court precedent in the First Amendment context.

The Court relies on:

Staub v. City of Baxley, 355 U.S. 313 (1958), where a defendant was prosecuted for soliciting union membership without a permit. The Supreme Court held that “the failure to apply for a license under an ordinance which on its face violates the Constitution does not preclude review of a judgment of conviction under such an ordinance” (355 U.S. at 319).
Shuttlesworth v. City of Birmingham, 394 U.S. 147 (1969), where the defendant was prosecuted for marching without a permit under a discretionary licensing ordinance. Again, the Court held that someone criminally prosecuted under such an ordinance “may attack its constitutionality” without first applying (394 U.S. at 151).

Two differences exist between those cases and Johnson’s:

The right asserted there was the First Amendment, here it is the Second. But Bruen and McDonald v. City of Chicago, 561 U.S. 742 (2010), emphasize that the Second Amendment is not a “second-class right, subject to an entirely different body of rules” (Bruen, 597 U.S. at 70).
In New York’s scheme, lack of a license is not an element of the offense; rather, a license is an affirmative defense. The majority notes that this legislative choice cannot be allowed to insulate the licensing regime from facial challenge when the conviction’s only basis is unlicensed status.

In substance, Johnson stands in the same posture as the defendants in Staub and Shuttlesworth: prosecuted for failing to comply with an allegedly unconstitutional licensing requirement. He need not first attempt to navigate a scheme he claims is invalid on its face.

C. Distinguishing Decastro and Relying on Antonyuk

The People and the Attorney General relied heavily on United States v. Decastro, 682 F.3d 160 (2d Cir. 2012), where the Second Circuit rejected a Second Amendment challenge to New York’s licensing regime on standing grounds because the defendant had not applied for a license. The Court of Appeals distinguishes Decastro on two levels:

Federal vs. state standing. Decastro applied federal Article III standards, which do not bind New York’s state courts.
Traceability and the nature of the challenge. The Second Circuit itself, in Antonyuk v. James, 120 F.4th 941 (2d Cir. 2024), has since:
- Explained that Decastro was primarily about “traceability” – it was unclear whether New York’s licensing rules caused Decastro’s decision to purchase a firearm out of state and transport it unlawfully; and
- Limited Decastro to “challenges to a licensing rule regarding eligibility,” where the claim is that the person is personally ineligible but has never actually tested that premise through an application (120 F.4th at 979 n.21).
In contrast, when the challenge targets the licensing process or regime as such (as in Antonyuk and in Johnson), failure to apply does not defeat standing.

Johnson’s situation resembles Antonyuk: he contests the constitutional validity of the licensing framework that makes licensure a prerequisite to lawful handgun possession, not merely an “eligibility rule” as to his personal status.

D. Alignment and Tension with Other States

The majority notes that its standing holding aligns New York with:

Massachusetts (Commonwealth v. Rodriguez, 496 Mass. 627, 267 N.E.3d 77 (2025)), and
California (People v. Bey, 108 Cal. App. 5th 144, 328 Cal. Rptr. 3d 904 (2025)),

both of which allowed criminal defendants charged with firearms offenses to challenge licensing regimes despite not having applied for licenses.

It contrasts this with Rhode Island’s State v. Ortiz, 317 A.3d 737 (R.I. 2024), which found the defendant lacked standing to challenge licensing statutes on similar facts. Thus, Johnson marks a conscious choice by New York’s highest court to follow a more permissive standing approach for criminal defendants in Second Amendment licensing cases.

III. Severability, Facial Challenges, and the Survival of New York’s Licensing Scheme After Bruen

A. Narrowing the Question: What Was Actually Preserved?

A critical procedural move by the Court is its insistence on the specificity requirement for preservation. It reviews Johnson’s trial motion to dismiss and finds that he raised only one sufficiently specific argument:

that Bruen’s invalidation of the “proper cause” requirement rendered New York’s entire firearm licensing scheme facially unconstitutional.

His later, more targeted objections to particular provisions (good moral character, age 21, felon prohibition, etc.) were raised for the first time on appeal and are not considered by the Court of Appeals. Thus, the merits question is tightly framed:

Does Bruen’s holding on “proper cause” automatically invalidate all of New York’s licensing provisions, such that any prosecution premised on the need for a license is unconstitutional?

B. Bruen’s Narrow Holding and Endorsement of Licensing Generally

The Court emphasizes that Bruen addressed only the “proper cause” requirement – the discretionary requirement that applicants show a special need for self‑defense distinguishable from the general public. Bruen:

Did not evaluate or invalidate New York’s other licensing criteria.
Expressly distinguished “may-issue” regimes that granted broad official discretion (like New York’s old proper cause rule) from “shall‑issue” regimes, which it described as presumptively permissible so long as they contain objective criteria and do not give licensing officials too much discretion.
Specifically noted that many states require background checks and firearms safety training, and nothing in the Second Amendment barred those sorts of conditions (597 U.S. at 38 & n.9).

Concurring Justices in Bruen reiterated that the Second Amendment allows various longstanding restrictions: bans on felons, the mentally ill, and guns in “sensitive places” (597 U.S. at 79–81 (Kavanaugh, J., concurring); id. at 72 (Alito, J., concurring)).

The Court of Appeals takes these passages as strong evidence that the U.S. Supreme Court did not intend Bruen to be read as an automatic demolition of all firearm licensing systems, but only of discretionary “special need” requirements inconsistent with the original public meaning of the Second Amendment.

C. New York Severability Doctrine

Whether the invalid “proper cause” requirement taints the entire licensing framework is a matter of state severability law. The Court restates the classic New York test:

The question is “whether the legislature, if partial invalidity had been foreseen, would have wished the statute to be enforced with the invalid part exscinded, or rejected altogether” (CWM Chem. Servs., L.L.C. v. Roth, 6 N.Y.3d 410, 423 (2006), quoting People ex rel. Alpha Portland Cement Co. v. Knapp, 230 N.Y. 48, 60 (1920)).

Factors include:

The text and structure of the statute.
The centrality of the invalid provision to the legislative scheme.
Evidence of legislative intent, including subsequent legislative action.

D. The Structure of the Licensing Scheme and Legislative Intent

The Court notes that New York’s licensing regime, as codified in Penal Law § 400.00, is “detailed and multi‑faceted,” and that the “proper cause” requirement was but one strand. The scheme includes:

Eligibility criteria (Penal Law § 400.00(1)), e.g.:
- Minimum age (21 years).
- Good moral character.
- No prior felony conviction.
- No unlawful use of controlled substances.
Types of licenses (Penal Law § 400.00(2)).
Procedures for applying, investigating, and deciding applications (§ 400.00(2)–(5)).

The majority finds it “implausible” that the Legislature would have wanted all of these provisions to collapse simply because one discretionary standard for public carry was invalidated. It reasons that:

The Legislature’s overarching intent is to “regulate the lawful purchase, possession, and use of firearms,” not to condition the entire licensing system on the survival of “proper cause.”
The licensing statute is functionally divisible: many of its provisions apply to acquisition and possession unrelated to the challenged “proper cause” component.
Most significantly, after Bruen the Legislature enacted the CCIA, which retained many of the same eligibility and procedural provisions, while adjusting others and replacing “proper cause” with a shall‑issue model. This post‑Bruen legislative response is strong evidence that lawmakers viewed the other requirements as valid, separable, and worth preserving.

On this basis, the Court holds that the “proper cause” requirement is severable; its invalidation by Bruen does not bring down the entire pre‑CCIA scheme.

E. The Extraordinary Burden of a Facial Challenge

In addition to severability, the Court invokes the intrinsically high bar for facial challenges. Citing Owner Operator Independent Drivers Assn., Inc. v. New York State Dept. of Transportation, 40 N.Y.3d 55 (2023), and echoing U.S. Supreme Court formulations, the Court notes that:

A facial challenger bears an “extraordinary burden” of proving that “no set of circumstances exists under which the [statute] would be valid” (Rahimi, 602 U.S. 680, 693 (2024), quoting prior cases).
The statute must suffer from “wholesale constitutional impairment” (Owner Operator, 40 N.Y.3d at 61).

Johnson’s broad theory – that once “proper cause” falls, all licensing falls – cannot satisfy this standard. The Court points to one obvious example: the felon disqualification.

Penal Law § 400.00(1) bars convicted felons from obtaining licenses.
Johnson does not argue this provision is unconstitutional.
The Court notes that recent Supreme Court and federal appellate decisions, including Rahimi, indicate that “the Second Amendment permits the disarmament of individuals who pose a credible threat to the physical safety of others” (602 U.S. at 693), and that multiple circuits have upheld federal felon-in-possession bans against Bruen challenges (e.g., United States v. Duarte, 137 F.4th 743 (9th Cir. 2025); Vincent v. Bondi, 127 F.4th 1263 (10th Cir. 2025); United States v. Hunt, 123 F.4th 697 (4th Cir. 2024), cert. denied, 145 S. Ct. 2756 (2025)).

Without deciding definitively that every such provision is constitutional, the Court finds ample reason to believe there are at least “some of [the licensing scheme’s] applications” that are valid – which by itself defeats a facial challenge.

F. Bruen’s Historical Tradition Test: Not Triggered by This Particular Claim

Johnson argued that the People must demonstrate that every element of New York’s licensing system is consistent with the “Nation’s historical tradition of firearm regulation” as required by Bruen for Second Amendment challenges. The Court rejects this framing.

It agrees that, in a case where a discrete licensing provision is challenged on Second Amendment grounds, Bruen’s history‑and‑tradition test would govern, as federal courts have done in litigation over CCIA provisions (Antonyuk, 120 F.4th at 987). But:

Johnson did not preserve any discrete attack on a particular requirement (such as good moral character, age 21, or the felon prohibition).
His sole preserved claim is derivative: that Bruen’s invalidation of “proper cause” necessarily implodes the entire licensing scheme.
That is a question of severability and the structure of New York’s statutes, not of Second Amendment history.

Consequently, the Court holds that the People were not required in this case to produce historical analogues for each licensing condition. It limits its holding to the proposition that Bruen did not facially invalidate New York’s entire licensing regime, because “proper cause” is severable and at least some applications of the remaining provisions appear constitutionally permissible.

The Court notes that this approach is consistent with the Illinois Supreme Court’s recent decision in People v. Thompson, 2025 IL 129965, which likewise concluded that Bruen’s express endorsement of shall-issue licensing “obviate[d] the need” to apply the full historical-tradition analysis to a broad facial challenge to a licensing system.

G. Convergence with Other States on Severability

The Court points to further national consensus on severability after Bruen:

California courts have held that “good cause” provisions in California’s public-carry licensing laws are severable; invalidating them under Bruen does not render the entire scheme unconstitutional (In re D.L., 93 Cal. App. 5th 144 (2023); Bey, 108 Cal. App. 5th at 166).
The Massachusetts Supreme Judicial Court in Rodriguez rejected a facial challenge to that state’s licensing scheme because prohibitions on firearm possession by felons or violent criminals were consistent with the Second Amendment, so the scheme had at least some valid applications.

Johnson thus situates New York firmly within a growing body of post‑Bruen state case law that:

Severs unconstitutional discretionary-need requirements from licensing statutes; and
Preserves the bulk of objective licensing frameworks as compatible with the Second Amendment, at least in facial terms.

IV. Clarifying Key Legal Concepts

1. Appeal Waiver

An appeal waiver is a defendant’s agreement, typically as part of a plea bargain, not to challenge the conviction or sentence on direct appeal beyond certain limited grounds. In New York:

It must be knowing, intelligent, and voluntary.
It cannot waive non‑waivable claims (competency, voluntariness of the plea, jurisdictional defects, illegal sentences, constitutional speedy trial, and now facial constitutional challenges to the statute of conviction).
When valid, it bars most other claims, including many constitutional arguments and suppression issues.

2. Facial vs. As‑Applied Constitutional Challenges

A facial challenge asserts that a statute is unconstitutional in all its possible applications. The challenger must show that “no set of circumstances” exists in which the law is valid, or that it suffers “wholesale constitutional impairment.” A successful facial attack invalidates the statute entirely.
An as‑applied challenge contends that, even if the law is generally valid, its application to the challenger’s specific facts or circumstances violates the Constitution.

Johnson involves only a facial challenge: Johnson did not argue that the licensing scheme was unconstitutional specifically as applied to him; rather, he argued it was invalid across the board because of Bruen.

3. Severability

Severability asks whether the valid portions of a statute can stand if another portion is unconstitutional. Courts look to legislative intent and statutory structure:

If the Legislature would have enacted the remaining provisions even without the invalid part, and those provisions can function independently, they are “severable.”
If the invalid part is so central that the Legislature would have rejected the entire statute without it, severability fails and the whole enactment falls.

In Johnson, the Court finds that the “proper cause” requirement is severable from the balance of New York’s handgun licensing system.

4. Standing, Injury in Fact, and Zone of Interests

Standing determines who is entitled to bring a case. Under New York’s prudential standing doctrine:

The plaintiff (or defendant raising a constitutional claim) must suffer an injury in fact – a real, concrete harm, not hypothetical or generalized.
The harm must fall within the zone of interests that the statute or constitutional provision is meant to protect or regulate.

Johnson’s conviction for unlicensed possession is unquestionably an injury in fact, and because New York’s handgun possession crimes are structured around licensure, his injury lies squarely within the licensing laws’ zone of interests.

5. “Proper Cause,” “May‑Issue,” and “Shall‑Issue” Licensing

Before Bruen, New York employed a “may‑issue” regime for public carry:

Licensing officials could issue or deny permits based on discretionary criteria, notably “proper cause” – typically requiring applicants to show a particularized, extraordinary need for self‑defense.
Bruen held this violates the Second Amendment because it transforms the right to bear arms into a privilege for the few who can demonstrate special need.

“Shall‑issue” regimes, by contrast:

Require issuing authorities to grant licenses to applicants who meet objective, neutral criteria (age, background check, training, etc.).
Allow some degree of regulation, but without broad discretionary denial power.
Were explicitly approved in Bruen as generally compatible with the Second Amendment.

New York’s post‑Bruen CCIA moves toward a shall‑issue structure, though the constitutionality of particular CCIA provisions is being litigated in federal court (e.g., Antonyuk).

6. Bruen’s “Historical Tradition” Test

Bruen held that:

When the Second Amendment’s plain text covers an individual’s conduct (e.g., carrying a handgun in public for self‑defense), the government must justify regulation by showing it is consistent with the nation’s historical tradition of firearm regulation.
That inquiry looks to whether modern regulations have historical analogues in 18th‑ and 19th‑century law.

In Johnson, the Court of Appeals does not apply this framework in detail because the only preserved claim is about the knock‑on effect of Bruen on severability, not about the constitutionality of any specific licensing requirement under the historical-tradition test.

V. Impact and Future Implications

A. Criminal Appeals and Plea Bargaining

1. Defense Strategy
Defense lawyers in New York should draw several lessons:

Preservation is essential. Facial constitutional challenges, including those based on Bruen, must still be raised with specificity in the trial court to be reviewable.
Appeal waivers no longer bar facial challenges. A defendant can agree to a broad appeal waiver yet still litigate, on appeal, a properly preserved facial challenge to the statute or integral regulatory scheme under which he was convicted.
As‑applied challenges can still be waived. Most other constitutional claims – suppression issues, as‑applied Second Amendment challenges, procedural objections – remain subject to valid appeal waivers.

Practically, counsel may:

Be more willing to advise clients to accept favorable pleas and appeal waivers where a serious facial challenge has been preserved, given that such a challenge will survive.
Need to carefully distinguish in their motions and appellate briefs between facial and as‑applied theories, since only the former enjoy non‑waivable status.

2. Prosecutorial and Judicial Responses
Prosecutors may:

Respond, as the concurrence predicts, by offering somewhat less generous plea terms in cases where defendants assert facial challenges.
Insist on clarity in plea colloquies and written waivers to ensure that only non‑waivable claims survive.

Trial judges must:

Continue to ensure that appeal waivers are knowing and voluntary.
Be attentive to whether defendants are preserving facial constitutional challenges, which will survive into the appellate phase despite the waiver.

B. Second Amendment Litigation and New York’s Gun Laws

1. Stability of Licensing After Bruen
On the Second Amendment front, Johnson is reassuring for proponents of regulation:

It confirms that Bruen did not automatically invalidate New York’s entire handgun licensing system; only the “proper cause” requirement was incompatible with the Second Amendment.
The Court aligns with other state high courts that have severed invalid discretionary standards and preserved the rest of their licensing regimes.
It implicitly signals that many core constraints – such as disqualification of felons – are at least plausible candidates for upholding under Bruen and Rahimi.

2. Future Challenges to Discrete Licensing Provisions
At the same time, Johnson leaves wide open:

Whether particular elements of New York’s licensing law (pre‑CCIA or under the CCIA) are constitutional under Bruen’s historical-tradition test – e.g., good moral character requirements, references checks, training mandates, extensive sensitive‑place designations.
Whether the combination of numerous “objective” conditions might, in aggregate, amount to a de facto barrier inconsistent with the Second Amendment, even if each component is not facially invalid.

Those issues will likely be litigated:

In federal court, as part of ongoing challenges to the CCIA (Antonyuk and its progeny), and
In New York state courts, where defendants charged with firearms offenses raise discrete Second Amendment attacks in a properly preserved manner.

C. Standing and Access to Constitutional Review

Johnson’s standing holding has broader implications beyond firearms:

It underscores that New York’s standing doctrine is more flexible than federal Article III doctrine and that “traceability” is not rigidly required in the federal sense.
It confirms that individuals prosecuted under licensing‑based criminal statutes generally have standing to challenge the upstream licensing criteria, even if they never applied for a license.

This promotes meaningful access to constitutional review for people who may reasonably believe that application would be futile, burdensome, or itself unconstitutional, especially where the licensing regime is argued to be invalid on its face.

D. Appellate Workload and Judicial Economy

There is some tension between the majority’s and concurrence’s predictions about workload:

The concurrence predicts more appeals and strained judicial resources due to the proliferation of facial Second Amendment challenges after Bruen.
The majority expects a limited impact, relying on the strict preservation requirement and the high substantive bar for facial challenges, and suggesting that prompt resolution of valid facial claims ultimately saves resources.

In practice, trial courts and intermediate appellate courts will be gatekeepers, dismissing unpreserved and plainly insubstantial facial challenges. But where a serious facial claim is properly raised by a convicted defendant, higher courts will no longer be able to avoid its resolution by invoking an appeal waiver.

VI. Conclusion

People v. Johnson is an important decision in three respects.

It establishes, for the first time in New York, that facial constitutional challenges to criminal statutes and closely integrated regulatory schemes are non‑waivable on appeal, even when the defendant has executed a valid appeal waiver as part of a plea bargain. This places such challenges alongside speedy trial claims, illegal sentences, and jurisdictional defects as core matters of systemic fairness and authority that cannot be contracted away.
It clarifies New York’s standing doctrine in the context of licensing and the Second Amendment, holding that a defendant convicted of unlicensed handgun possession has standing to challenge the licensing scheme without first applying for a license, in line with Staub, Shuttlesworth, and sister‑state decisions.
It reaffirms the viability, post‑Bruen, of New York’s handgun licensing framework as a whole. By treating the invalid “proper cause” requirement as severable and highlighting the extraordinarily demanding standard for facial challenges, the Court ensures that the bulk of the licensing regime – including disqualifications for felons and other foundational conditions – remains intact unless and until successfully challenged on a more targeted basis.

Together, these holdings shape the contours of New York criminal practice and Second Amendment litigation going forward: they preserve the efficiency and finality benefits of plea bargaining while safeguarding a narrow but crucial avenue of appellate review for structural constitutional defects; they guarantee defendants access to constitutional adjudication of licensing schemes that form the foundation of criminal liability; and they signal a cautious, severability‑oriented approach to integrating Bruen into state law, one that neither overreads nor ignores the Supreme Court’s direction.