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.
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.
Donations tax deductible
to the full extent allowed by law.