No Step-Two Without a “Meaningful Constraint”: Second Circuit Upholds New York’s Ammunition Background Check Regime at Bruen’s Threshold

Introduction

In N.Y. State Firearms Ass'n v. James, No. 24-1290-cv (2d Cir. Oct. 15, 2025), the Second Circuit affirmed the denial of a preliminary injunction against New York’s Concealed Carry Improvement Act (CCIA) provisions governing ammunition sales. The challenged provisions require ammunition sellers to conduct a background check before each sale, pay a $2.50 fee per check (allocated to a state background check fund and capped at cost recovery), and register with the Superintendent of the New York State Police or otherwise involve a licensed dealer in commercial transfers.

Plaintiffs—the New York State Firearms Association (NYSFA) and several individuals—asserted that these provisions violate the Second Amendment under the framework established in New York State Rifle & Pistol Ass’n v. Bruen. The district court held that individual plaintiffs had standing but denied preliminary relief on the merits based on historical analogues. On appeal, the Second Circuit agreed that the individual plaintiffs have standing, but affirmed on different grounds: at Bruen’s first step, the plaintiffs failed to show that the provisions “meaningfully constrain” the right to keep and bear arms. Because the court found no threshold infringement of conduct covered by the Second Amendment’s text, it did not reach Bruen’s second, historical step.

Summary of the Opinion

The Second Circuit:

Confirmed standing for the individual plaintiffs. Being deterred by the background check process, fee pass-throughs, and a documented system outage constituted injuries-in-fact traceable to the Superintendent and redressable by injunctive relief.
Did not reach associational standing for NYSFA because individual standing sufficed to proceed.
Resolved the merits at Bruen step one. Because the CCIA’s ammunition provisions impose only modest, cost-recovery conditions on the commercial sale of ammunition—producing at most brief delays and a small $2.50 per-check fee on the seller—the provisions do not “meaningfully constrain” the ability to keep or bear arms.
Rejected facial and as-applied challenges on the present record:
- Facial: Immediate “proceed” responses for many transactions and modest delays for others meant there are at least some constitutional applications; thus, facial invalidation fails.
- As-applied: The record showed, at most, a one-day outage for one plaintiff and other short delays (hours to a few days) for some members—insufficient to qualify as a “lengthy” or “meaningful” constraint.
Held the $2.50 fee constitutional under an updated application of Kwong v. Bloomberg: fees capped at cost recovery and not exorbitant do not meaningfully constrain the right. The fee falls on sellers, and any pass-through is attributable to independent retail decisions.
Concluded that a registration requirement for ammunition sellers does not implicate a free-standing right to sell under the Second Amendment; purchasers have no constitutional right to a preferred retail experience or source.
Expressly disagreed with the Ninth Circuit’s recent decision in Rhode v. Bonta on both the facial-challenge and “meaningfully constrain” analyses.

The court affirmed the district court’s denial of a preliminary injunction and remanded for further proceedings while leaving open the possibility that a better-developed record could support future as-applied challenges.

Analysis

Precedents Cited and Their Influence

Heller (2008) and McDonald (2010): Recognize an individual right to keep and bear arms and incorporate it against the states. Heller also identifies “laws imposing conditions and qualifications on the commercial sale of arms” as “presumptively lawful,” which undergirds the Second Circuit’s view that modest administrative burdens (forms, processing time) do not inherently infringe the right.
Bruen (2022): Establishes a two-step test—(1) whether the Second Amendment’s text covers the conduct; (2) if so, whether the regulation is consistent with the Nation’s historical tradition. The Second Circuit applies a threshold inquiry at step one: for regulations of ancillary conduct (acquisition, transport, storage), the conduct is covered only if the law “meaningfully constrains” keeping or bearing arms.
Rahimi (2024): Reaffirms the demanding standard for facial challenges—plaintiffs must show “no set of circumstances” in which the law is valid. Here, because many transactions receive immediate approval and others face only short delays, the court found constitutional applications and rejected facial invalidation.
Kwong v. Bloomberg (2d Cir. 2013): Fee jurisprudence carried forward post-Bruen. The court harmonizes Kwong with Bruen by using Kwong’s cost-recovery principle and reasonableness to assess whether a fee “meaningfully constrains” the right at Bruen’s step one. Exorbitant fees (Bruen n.9) could trigger concerns, but the $2.50 per-check fee, capped at cost recovery, does not.
Vereen (2d Cir. 2025) and Gazzola (2d Cir. 2023): Provide the “meaningfully constrain” standard for ancillary conduct. Gazzola also clarifies that buyers have no right to a store in a specific location or to a frictionless retail experience.
Giambalvo (2d Cir. 2025), Frey (2d Cir. 2025), Maryland Shall Issue (4th Cir. en banc 2024), McRorey (5th Cir. 2024), Manney (9th Cir. 2024), and B & L Prods. (9th Cir. 2024): Collectively underscore that short delays and routine processing burdens do not implicate the Second Amendment’s text; the right does not guarantee convenience or immediate fulfillment.
Nguyen v. Bonta (9th Cir. 2025): Provides a contrast; rate limits (one gun per 30 days) may “meaningfully constrain” acquisition—illustrating the line between mere inconvenience and substantial impediment.
Antonyuk v. James (2d Cir. 2024): On standing and burdens, including that compelled disclosure of anonymous speech in licensing processes can create a significant constitutional burden by pitting Second Amendment rights against First Amendment rights—a scenario not present here.
Winter (2008), Cent. Rabbinical (2d Cir. 2014), Sussman (2d Cir. 2007): Set the rigorous standard for preliminary injunctions, especially when enjoining governmental action taken in the public interest; plaintiffs must demonstrate a clear or substantial likelihood of success.
Standing cases: TransUnion, Lujan, Clapper (injury-in-fact, imminence, and speculative harms); Antonyuk (pre-enforcement injury where conduct is arguably proscribed); Earls and Horne (once one plaintiff has standing, courts may proceed without deciding the others).
Rhode v. Bonta (9th Cir. 2025): The Second Circuit respectfully disagrees with Rhode’s approach to facial challenges and the “meaningfully constrain” threshold, emphasizing differences in statutory schemes and record evidence and reaffirming a stricter facial-challenge standard.

Legal Reasoning

1) Standing

The court reaffirmed that plaintiffs deterred from engaging in arguably protected conduct by a challenged regime suffer injury-in-fact, even if they decline to proceed through the process. Here:

Three plaintiffs alleged they would have purchased ammunition but for the background check and associated fee passed through by some retailers—enough for injury and traceability under Antonyuk.
One plaintiff attempted purchases but was blocked by a statewide database outage; declarations of repeated outages made future injury non-speculative under Clapper.
Another plaintiff wished to sell ammunition to a friend but refrained due to potential penalties; under the “arguably proscribed” standard, fear of enforcement sufficed.

2) Bruen’s Step One: The “Meaningfully Constrain” Threshold

The court applied a threshold inquiry: when a law regulates ancillary conduct (acquisition of ammunition), the Second Amendment’s text is implicated only if the law “meaningfully constrains” the ability to keep or bear arms. This filters out mere inconveniences and routine administrative frictions attendant to presumptively lawful commercial sale regulations recognized in Heller.

Background checks and waiting times

Facial challenge fails: Because the system produces immediate “proceed” results for many transactions, there exist constitutional applications. Facial invalidation requires showing no valid applications (Rahimi), which plaintiffs could not do.
As-applied record is insufficient: A single-day outage and declarations of delays from several hours up to nine days do not amount to the “lengthy” delays that Second Circuit and sister-circuit precedents have required to find a meaningful constraint. The court also notes that, while ammunition may be purchased more frequently than firearms, plaintiffs offered no robust evidence of cumulative delays across multiple transactions that materially frustrate access.

The $2.50 fee on sellers

Fee placement matters: The fee is imposed on sellers, not purchasers. Any pass-through to consumers is a discretionary retail decision that breaks the chain of constitutional causation (McRorey).
Kwong remains viable post-Bruen: Harmonized with Bruen’s plain-text inquiry, a cost-recovery fee that is not exorbitant does not meaningfully constrain the right. The statute caps the fee at actual direct and indirect administrative costs and the record contains unrebutted evidence that $2.50 will not exceed those costs.
Facial challenge by purchasers cannot succeed: Plaintiffs did not plausibly show all sellers pass through the fee; where sellers do not pass it through, purchasers experience no burden.

Seller registration/intermediary requirement

No free-standing Second Amendment right to sell ammunition; retail regulation of sellers does not itself implicate the text of the right.
From the purchaser’s vantage point, the Second Amendment does not guarantee a preferred store, short travel, or a frictionless retail experience (Gazzola; B & L Prods.).

3) Why the court did not reach history (Bruen’s step two)

Because plaintiffs did not cross Bruen’s threshold—that the Second Amendment’s text covers the regulated conduct—the court had no need to evaluate historical tradition. The opinion thus preserves the district court’s denial of a preliminary injunction but on Bruen step-one grounds.

4) Treatment of Rhode v. Bonta

The Second Circuit expressly disagreed with Rhode’s approach:

Different statutory schemes: California’s regime placed fees on purchasers and reportedly limited the time window to buy after approval; New York’s does not. New York also may return “immediate” approvals.
Facial challenge standard: The court faulted Rhode for not applying the “no set of circumstances” test with sufficient rigor.
Meaningful constraint: Hypothetical or minor delays do not transform a background check regime into a universal constraint; the Second Circuit requires concrete, substantial impediments.

Impact

1) Clarifies Bruen’s threshold in the Second Circuit

The decision crystallizes that courts need not conduct an historical analysis unless plaintiffs show, with evidence, that a regulation of ancillary conduct “meaningfully constrains” the ability to keep or bear arms. Minor delays, routine administrative steps, and small, cost-recovery fees typically will not suffice.

2) Guidance for states designing ammunition regulations

Background checks that frequently return immediate approvals and produce only short delays are unlikely to implicate the Second Amendment’s text.
Cost-recovery fees imposed on sellers (and demonstrably capped by statute) remain robust against facial challenges by purchasers.
Licensing/registration requirements for sellers and intermediaries are within the ambit of presumptively lawful commercial sale regulations.

3) Litigation strategy and evidentiary burdens

Facial challenges will be difficult to sustain where the regime has plainly constitutional applications (e.g., immediate approvals).
As-applied challenges may succeed with a developed record showing sustained outages, systemic mismatches, widespread denials to eligible purchasers, or cumulative, repeated delays that materially impede access to ammunition.
Fee challenges require proof of either exorbitance or that the fee meaningfully constrains access; plaintiffs must grapple with fee placement (on sellers) and the independent-pass-through problem.

4) Circuit dynamics and potential for Supreme Court review

The Second Circuit’s explicit disagreement with the Ninth Circuit’s Rhode majority tees up a developing split on the interaction of facial-challenge doctrine and the “meaningfully constrain” threshold for ammunition background checks. This divergence, if it persists, may invite further Supreme Court clarification on Bruen step one and the treatment of cost-based, seller-imposed fees.

Complex Concepts Simplified

Bruen’s two steps:
- Step one: Does the Second Amendment’s text cover the conduct at issue? For ancillary conduct (like buying ammunition), coverage exists only if the law “meaningfully constrains” keeping or bearing arms.
- Step two: If so, is the regulation consistent with the Nation’s historical tradition of firearm regulation?
“Meaningfully constrain” vs. inconvenience: The right is not a guarantee of convenience. Short waits, paperwork, and modest fees that simply pay for the system’s administration generally do not count as constitutional constraints.
Facial vs. as-applied challenges:
- Facial: The challenger must show the law has no constitutional applications.
- As-applied: The challenger shows the law is unconstitutional under their specific facts, often requiring substantial, concrete evidence of burdens.
Presumptively lawful commercial sale regulations: Heller recognizes that governments can impose conditions and qualifications on the commercial sale of arms; such measures carry a presumption of validity.
Fees after Bruen: Cost-recovery fees that are not exorbitant do not trigger a historical analysis because they do not meaningfully constrain the right (Kwong as harmonized with Bruen).
Pass-through pricing: When a fee is imposed on sellers, a retailer’s decision to pass that fee on to customers is a private, independent choice, breaking the chain of constitutional causation for facial challenges by purchasers.
Standing in pre-enforcement challenges: Plaintiffs need not violate the law to sue; it is enough if their intended conduct is arguably proscribed and they reasonably fear enforcement, or if system failures and delays deter them from exercising the right.

Conclusion

N.Y. State Firearms Ass'n v. James establishes a clear and disciplined application of Bruen’s threshold in the Second Circuit: courts will not engage in historical analysis unless the plaintiff first shows that a regulation meaningfully constrains the ability to keep or bear arms. New York’s ammunition background check regime—featuring frequent immediate approvals, only modest delays, a cost-capped $2.50 fee imposed on sellers, and seller-registration requirements—does not cross that threshold on the present record. The court’s reconciliation of Kwong with Bruen confirms that non-exorbitant, cost-recovery fees associated with lawful sales administration typically do not implicate the Second Amendment’s text.

While the panel affirms denial of preliminary relief, it expressly leaves room for as-applied challenges supported by robust evidence of sustained, systemic burdens—such as widespread outages, cumulative and significant transaction delays, or proof that fees or practices functionally prevent eligible citizens from purchasing ammunition. In the meantime, the decision offers state and local governments a blueprint for designing ammunition-sale regulations that are likely to withstand preliminary constitutional scrutiny, and it signals a meaningful divergence from the Ninth Circuit’s approach in Rhode, with potential implications for future Supreme Court review.