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Federal Judge Finds Key Parts of New York’s Gun Law Unconstitutional

Federal Judge Finds Key Parts of New York’s Gun Law Unconstitutional

New York cannot make Times Square a gun-free zone.

The Second Amendment is crystal clear. “Shall not be infringed.”

U.S. District Court Judge Glenn Suddaby found critical parts of New York’s gun law, the Concealed Carry Improvement Act (CCIA), unconstitutional. He agreed to a three-day stay to give the state time to appeal to the U.S. Court of Appeals for the Second Circuit.

Six New Yorkers brought forth the suit. Suddaby dismissed their first lawsuit “on a technicality.” The plaintiffs “cleared the previous technical hurdle” with their new case.

Suddaby blocked the part where applicants must prove “good moral character” and allow authorities to review their social media profiles. The move comes a few months after SCOTUS overturned “a prior licensing regime, which required applicants prove a need for self-protection” and good moral character. The justices found it “too subjective.”

Suddaby found the new “good moral character” provision “was no better” than the original:

However, instead, the CCIA expressly prohibits the issuance of a license unless the licensing officer finds (meaning unless the applicant persuades him or her through providing much information, including “such other information required by review of the licensing application that is reasonably necessary and related to the review of the licensing application”) that the applicant is of “good moral character,” which involves undefined assessments of “temperament,” “judgment” and “[]trust[].” Setting aside the subjective nature of these assessments, shouldering an applicant with the burden of showing that he or she is of such “good moral character” (in the face of a de facto presumption that he or she is not) is akin to shouldering an applicant with the burden of showing that he or she has a special need for self-protection distinguishable from that of the general community, which is prohibited under NYSRPA. In essence, New York State has replaced its requirement that an applicant show a special need for self-protection with its requirement that the applicant rebut the presumption that he or she is a danger to himself or herself, while retaining (and even expanding) the open-ended discretion afforded to its licensing officers.

“Simply stated, instead of moving toward becoming a shall-issue jurisdiction, New York State has further entrenched itself as a shall-not-issue jurisdiction,” wrote the judge.

Suddaby continued his harsh criticism of the “good moral character” requirement:

And, by doing so, it has further reduced a first-class constitutional right to bear arms in public for self-defense (which, during the 19th and 18th centuries in America, generally came with an assumption that law-abiding responsible citizens were not a danger to themselves or others unless there was specific ground for a contrary finding) into a mere request (which is burdened with a presumption of dangerousness and the need to show “good moral character”). See NYSRPA, 142 S. Ct. at 2156 (“The constitutional right to bear arms in public for self-defense is not a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.”) (internal quotation marks omitted).

The new decision also blocked the state from implementing some gun-free zones, including city subways and Times Square:

Based on the historical analogues located thus far, it does not appear permissible for New York State to restrict concealed carry in “any place, conveyance, or vehicle used for public transportation or public transit, subway cars, train cars, buses, ferries, railroad, omnibus, marine or aviation transportation; or any facility used for or in connection with service in the transportation of passengers, airports, train stations, subway and rail stations, and bus terminals.” (as stated subsection “2(n)” of Section 4 of the CCIA). Indeed, historical analogues exist containing specific exceptions permitting the carrying firearms while travelling (presumably because of danger often inherent during travel).34

Based on the historical analogues located thus far, it does not appear permissible for New York State to restrict concealed carry in the following place: “the area commonly known as Times Square, as such area is determined and identified by the city of New York; provided such area shall be clearly and conspicuously identified with signage” (as stated in subsection “2(t) of the CCIA). Granted, one might argue that historical statutes banning the carrying of guns in “fairs or markets” are analogous to this prohibition. However, thus far, only two such statutes have been located.42 Setting aside the fact that the first one appears to apply only to carrying a gun offensively (“in terror of the Country”), and the fact that the second one appears to depend on royal reign, as stated before, two statues do not make a tradition.

As a result, the Court orders the enforcement of this provision temporarily restrained.

The state also cannot ban guns in other “sensitive” locations: healthcare buildings, libraries, public playgrounds, public parks, childcare places, facilities for those with disabilities, homeless shelters, and zoos.

Suddaby concluded:

Setting aside the lack of historical analogues supporting these particular provisions, in the Court’s view, the common thread tying them together is the fact that they all regard locations where (1) people typically congregate or visit and (2) law-enforcement or other security professionals are -presumably–readily available. This is precisely the definition of “sensitive locations” that the Supreme Court in NYSRPA considered and rejected:

In [Respondents’] view, ‘sensitive places’ where the government may lawfully disarm law-abiding citizens include all ‘places where people typically congregate and where law-enforcement and other public-safety professionals are presumptively available.’ . . . It is true that people sometimes congregate in ‘sensitive places,’ and it is likewise true that law enforcement professionals are usually presumptively available in those locations. But expanding the category of ‘sensitive places’ simply to all places of public congregation that are not isolated from law enforcement defines the category of ‘sensitive places’ far too broadly. Respondents’ argument would in effect exempt cities from the Second Amendment and would eviscerate the general right to publicly carry arms for self-defense.

NSYRPA, 142 S. Ct. at 2133-34. Although historical analogues certainly exist prohibiting carrying firearms in specific places, no historical analogues have been provided prohibiting carrying firearms virtually everywhere, as the CCIA does.

The ban can remain for schools, government buildings, and worship places.

The decision is a disappointment for Democratic Gov. Kathy Hochul, who is facing GOP Rep. Lee Zeldin in November:

Gov. Kathy Hochul, who has made strengthening gun laws a campaign issue heading into a November election against GOP Rep. Lee Zeldin, called it “deeply disappointing that the Judge wants to limit my ability to keep New Yorkers safe and to prevent more senseless gun violence.”

“The Concealed Carry Improvement Act was carefully crafted to put in place common-sense restrictions around concealed carry permits,” she said in a statement.

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Comments

U.S. District Court Judge Glenn Suddaby found critical parts of New York’s gun law, the Concealed Carry Improvement Act (CCIA), unconstitutional

DUH!

The NYS legislature simply took the law that SCOTUS found wanting, changed the language, added more restrictions of place where CC is not allowed and passed it into law in short order after the NYSRPA v Bruen decision. It was doomed to fail from the outset.

Laws. We don’t need no laws. We don’t need to obey no stinking laws.

Hard to believe that NY was one of the original 13.

Same can be said for MA, RI, CT, DE, MD, NJ. And the remaining six aren’t ardent Constitution-supporters either.

Wake me up when someone with a government paycheck is found in contempt of the Supreme Court.

Colonel Travis | October 6, 2022 at 10:01 pm

This is nice. Although I am expecting the state to say GFY and find other ways to ignore Bruen.

Love this.

Florida is good with taxes and guns. Some New Yorkers are relocating rather than living in a hostile environment.

States know how to write Constitutional laws. New York didn’t even try.

    UnCivilServant in reply to Valerie. | October 7, 2022 at 7:48 am

    It’s not that they didn’t try – they expressly tried to be as defiant towards the ruling and the constitution as they could manage.

The ban can remain for schools, government buildings, and worship places.

However for worship places “the Court finds that the Constitution demands that this provision contain an exception for those persons who have been tasked with the duty to keep the peace at the place of worship or religious observation. The Court therefore orders Defendants to so construe this provision when performing their duties in their official capacities.”

I didn’t read the whole decision, just the part related to the provisions it leaves standing, in particular religious places, so I can’t comment on the rest of it. But in the small section that I read I noticed one serious error in the historical examples the judge cited to establish a tradition of banning guns in churches.

He reads the Virginia statute of 1877 as allowing people to carry at church if they have “good and sufficient cause therefor”, or if the church is on their own premises, but that’s not what it says. The law has two separate provisions. It bans “carrying any gun, pistol, … or other dangerous weapon, to any place of worship while a meeting for religious purposes is being held at such place”, and that is without any exceptions. It also bans carrying a gun anywhere on a Sunday, with the two exceptions given above; if it’s on your own premises or you have good reason. So you can’t use this statute as a precedent to require NY to make exceptions to its ban on carrying at religious events.

However the same analysis makes me think that this VA statute is of no precedential value at all. It seems to me that it was based, not on public safety, but on enforcing the religious precepts of one particular religion, in violation of the establishment clause (if that applies to the states). Just as carrying on a Sunday (with exceptions) was banned because the legislators believed it to be an offense against their religion, which they were thus establishing as the state’s religion, carrying in church was banned because that too was against their religion. As far as they were concerned, if other religions (including other forms of Christianity) allowed or even encouraged carrying in church, tough luck for them. Since the Supreme Court’s current doctrine is that the establishment clause applies to the states, it seems to me that NY is not entitled to look to this law as any kind of precedent; just as no judge would allow NY to ban Sunday carry(!), so too it should not be allowed to ban church carry.

    DaveGinOly in reply to Milhouse. | October 7, 2022 at 12:50 pm

    Water has passed under the bridge since 1877. SCOTUS has since ruled that a person cannot be required to give up one right in order to exercise another. Therefore, you can’t be required to surrender your right to bear arms in order to exercise your right to worship.

    I ask for no special rulings or decisions concerning arms, only for our courts to consistently apply to the right to arms the same standards and principles they so eagerly apply to other rights. This would be enough to make the right secure.

      Milhouse in reply to DaveGinOly. | October 7, 2022 at 2:37 pm

      You’re missing the point. Nobody is being asked to give up any rights. The question is what are your rights? What does the RKBA include? It is crystal clear that there are exceptions, that are not and have never been included in that right. And the Supreme Court has just ruled that to decide what is and is not included in the RKBA we must look at our history. If in 1877 something was not thought of as infringing that right, that’s a reasonably good indication that it doesn’t infringe it, and it’s therefore allowed now too.

        henrybowman in reply to Milhouse. | October 9, 2022 at 1:03 am

        The law cited is pretty clearly a “blue law.” Blue laws were still a thing when I was a kid. Now they are all gone, all ruled uncostitutional. But Virginia was full of blue laws, even when I was a newlywed.

        In New England, grocery stores (among a lot of other places) had to close on Sundays. Strangely, “convenience stores” were an end-run around this regulation, so buying “bread and milk” (the RI “natural disaster plan”) at the Cumberland Farms on Sundays was a ritual.

          They still had (and may still have) weird variations on blue laws in Massachusetts. When I first moved there, I was shocked to learn that you couldn’t buy alcohol on Sundays and that you couldn’t get beer at a gas station or convenience store. You had to go to a liquor store for it (and they were closed on Sundays). I’ve always found it most strange that much of Massachusetts is peopled with good people with strong conservative values, such as supporting these blue laws, being quite religious (statues of the Virgin Mary abound in yards across the state), being very family-oriented, and the like. It’s the three uber-progressive areas of the commonwealth (Boston, the Cape, and the Berkshires) that are crazy, and they vote in much larger numbers than do the normal people. When those normal people DO vote, though, it’s historic (think Scott Brown in 2010, but that was a special election that the left thought they had sown up, so it was a bit of an outlier).

    BierceAmbrose in reply to Milhouse. | October 8, 2022 at 12:49 am

    “As far as they were concerned, if other religions (including other forms of Christianity) allowed or even encouraged carrying in church, tough luck for them.”

    Sikh doctrine requires protection of the community, and especially the congregation. How long ago did that attack on a Sikh temple make national news — 6, 8 years back? News reported the attacker being dispatched, tho AIR many mis-identified the targets as Muslim.

    BierceAmbrose in reply to Milhouse. | October 8, 2022 at 1:02 am

    New York City and State behavior on this is perfectly predictable, once you realize they’re out to encumber a prerogative they don’t agree with, but can’t ban. They play this game on multiple topics, using licensing, approvals and standards, and economic redistribution in addition to straight up laws.

What makes schools and government buildings especially ban-worthy?

    Milhouse in reply to randian. | October 7, 2022 at 9:09 am

    Read the decision (linked in the post), starting at page 30.

    According to Justice Thomas’s decision in Bruen, the test for whether a restriction on the RKBA is constitutional is neither “strict scrutiny” nor “intermediate scrutiny”, let alone “rational basis”, but rather historical tradition. The RKBA means what it has always been understood to mean, so we just need to figure out what that is.

    If there is a historical record showing that a given restriction was traditionally accepted in America, and not thought of as violating the RKBA, then it doesn’t violate it. There are a great many state statutes banning being armed at government facilities and at schools, so the judge concluded that carrying in those places was never thought of as being part of the RKBA.

    George S in reply to randian. | October 7, 2022 at 11:25 am

    The only reason to ban guns at a particular location is if the presence of a firearm creates a danger. That is why law enforcement personnel cannot enter a prison with their sidearm. Since it applies to everybody, there is no issue with the constitution. But a school or government building? The only way for that to be acceptable is if everybody — police included — are not permitted to carry a weapon. Otherwise that restriction infringes on the right to keep and bear arms.

      Milhouse in reply to George S. | October 7, 2022 at 2:42 pm

      The only reason to ban guns at a particular location is if the presence of a firearm creates a danger.

      Says who? And who, if not the state legislature, has the authority to decide what constitutes a danger?

      That is why law enforcement personnel cannot enter a prison with their sidearm. Since it applies to everybody, there is no issue with the constitution.

      That’s completely wrong. A total ban on guns everywhere would be unconstitutional even if it included LEOs.

      But a school or government building? The only way for that to be acceptable is if everybody — police included — are not permitted to carry a weapon. Otherwise that restriction infringes on the right to keep and bear arms.

      Still wrong. Where did you get this idea that the RKBA depends on whether there are exceptions? This is not the Equal Protection clause of the 14th amendment! The RKBA has always had exceptions, such as violent felons. That doesn’t invalidate it for everyone else! The question is only whether there is a RKBA in schools and government buildings. Whether there ever was one. And the historical evidence seems to indicate that there isn’t and never was such a right in such places. Since the Supreme Court now says, hot off the presses, that the only relevant test is history, that’s how the lower courts have to go.

        henrybowman in reply to Milhouse. | October 9, 2022 at 1:18 am

        .

        That is why law enforcement personnel cannot enter a prison with their sidearm. Since it applies to everybody, there is no issue with the constitution.

        That’s completely wrong. A total ban on guns everywhere would be unconstitutional even if it included LEOs.

        He didn’t say everywhere. He said prisons.

        The RKBA has always had exceptions, such as violent felons.

        No it hasn’t. At least not if they were alive after serving their sentences. As Tennessee v. Garner points out, “The common law rule is best understood in light of the fact that it arose at a time when virtually all felonies were punishable by death.”

        i disagree strongly with you that possession of guns in schools “was never a right,” as people of my generation had still not lost it, along with possession of guns on aircraft.

I notice they don’t ban gangs of black girls dresses as aliens accosting white women on the subway…

    guyjones in reply to Dimsdale. | October 7, 2022 at 10:12 am

    Sociopath criminals’ “right” to attack law-abiding citizens with impunity and without fear of arrest or prosecution is a premise which the vile Dumb-o-crats will tenaciously fight to preserve.

Maybe Mayor Adams should change the Times Square sign to “Self-Defense Free Zone”

“Common sense restrictions” and “emergency powers” did not factor when the Bill of Rights was written for the simple reason that tyrants would cite those exceptions to usurp freedom. The Left agrees that restrictions do not supersede rights when states passed laws that burdened the “Right to Privacy” by mandating that abortion clinics have emergency room provisions such as physician admitting privileges and insurance. The left was happy those laws were struck down because it infringed on abortion rights. And abortion kills more people than do guns.

    Milhouse in reply to George S. | October 7, 2022 at 2:47 pm

    But there were restrictions when the BOR was written. None of the rights it protects were absolute then, which means they’re still not absolute. The RKBA must not be infringed; no exceptions. But what is an infringement? Not everything is. Some restrictions do not infringe the right, and those are permitted. The only question for the courts is which restrictions these are, and how do we know?

    It’s the same as the freedom of speech. It may not ever be abridged, but not every restriction on speech abridges the freedom. The exceptions to the first amendment, i.e. the restrictions that were never part of the freedom in the first place and therefore don’t abridge it, are well known. The courts have hashed them out over the last century or so. The exceptions to the RKBA are not so well known, because for most of the last 200 years the courts have ignored the whole subject. So now that they are finally taking the 2A seriously they must figure out what is an infringement and what is not.

Substitute “spitefully crafted” for “carefully crafted” and the Governor’s statement would be truthful.

Bruen just keeps on giving. If I were gay I would be gay for Justice Thomas.

Not to beat a dead horse, and I don’t want to address guns in government buildings, but the line “The ban can remain for schools … and worship places” only makes sense if there have never been mass-shootings in schools and ‘worship places’. And I’m afraid there have.

    Milhouse in reply to Wim. | October 8, 2022 at 10:09 pm

    Why does it only make sense if there have never been shootings there? What has that got to do with it? The RKBA does not depend on a place’s history, or on crime records, or on anything except the historical record of what kind of restrictions have been accepted in our tradition. And there’s plenty of evidence that Americans have historically accepted restrictions on being armed in schools and government buildings, so the judge could not rule those restrictions unconstitutional.

Let’s look at this issue from a different perspective. What we have is one side that wishes to be able to defend themselves and another side that believes individuals should rely upon the state for protection. How about we make everyone happy and split the difference?

Where the State wishes to preclude the most effective tool for self defense, a firearm, in a govt building then the State assumes the burden of protection by stipulating to an affirmative duty to protect the individuals within that building. Same for individual property owners who seek to bar firearms from their premises. Everywhere else individuals can choose to carry a firearm to protect themselves.

Of course the folks who claim the State will protect individuals won’t agree to that. Why? Several reasons;
1. They don’t like firearms nor individual liberty
2. They don’t actually believe individuals should be able to protect themselves anywhere
3. They don’t believe in the State confronting, arresting or incarcerating criminals
4. They know that the State can’t protect citizens

They won’t admit any of this. They will obscure their beliefs behind layers of red herrings; training, extreme scenarios, modern customs, weak precedent and bad faith arguments.

Bottom line is the social compact calls for order and safety. If the State is unable or unwilling to assume the duty to provide that safety in public spaces then individuals must be free to create their own safety.

    BierceAmbrose in reply to CommoChief. | October 8, 2022 at 1:33 am

    “What we have is one side that wishes to be able to defend themselves and another side that believes individuals should rely upon the state for protection.”

    More generally it’s about *agency* to borrow the term. Life or death stakes with a gun is just an extreme example. It’s all about agency — you don’t get any. The rest is just window dressing.

    The problem is that farms aren’t run for the benefit of the livestock, and sometime human’s treated as livestock notice this.

    Another Ed in reply to CommoChief. | October 8, 2022 at 3:51 pm

    “… another side that believes individuals should rely upon the state for protection”

    The government has no duty to protect the citizens in general, so reliance on that protection is foolish. Do not be foolish.

    From 12/202018:
    “Following last February’s shooting at Marjory Stoneman Douglas High School in Parkland, Florida, some students claimed local government officials were at fault for failing to provide protection to students. The students filed suit, naming six defendants, including the Broward school district and the Broward Sheriff’s Office , as well as school deputy Scot Peterson and campus monitor Andrew Medina.
    On Monday, though, a federal judge ruled that the government agencies ” had no constitutional duty to protect students who were not in custody.”
    This latest decision adds to a growing body of case law establishing that government agencies — including police agencies — have no duty to provide protection to citizens in general:
    “Neither the Constitution, nor state law, impose a general duty upon police officers or other governmental officials to protect individual persons from harm — even when they know the harm will occur,” said Darren L. Hutchinson, a professor and associate dean at the University of Florida School of Law. “Police can watch someone attack you, refuse to intervene and not violate the Constitution.”
    The Supreme Court has repeatedly held that the government has only a duty to protect persons who are “in custody,” he pointed out.”

    https://mises.org/power-market/police-have-no-duty-protect-you-federal-court-affirms-yet-again

    This concept that the government has no duty to protect the citizens was reaffirmed this week by the District of Columbia District Court of Appeals in Hoodbhoy v. District of Columbia:

    https://www.youtube.com/watch?v=LN7w6Ow6LXI

    https://www.dccourts.gov/sites/default/files/2022-09/Hoodbhoy%20v.%20DC%2020-CV-293.pdf

    Milhouse in reply to CommoChief. | October 8, 2022 at 10:11 pm

    Where the State wishes to preclude the most effective tool for self defense, a firearm, in a govt building then the State assumes the burden of protection by stipulating to an affirmative duty to protect the individuals within that building.

    That’s your opinion of what ought to be, but it’s not the law. If we were writing the constitution now, you could propose that this be included in it. But we’re not, and the constitution we have now, at least according to the Supreme Court, does not include any such provision.