This is a guest post based on a paper that was presented at the 2023 Firearms Law Works-In-Progress Workshop. The Workshop is held each year on a home-and-away basis with the Duke Center for Firearms Law.
Since its enactment in July of last year, New York’s Concealed Carry Improvement Act (CCIA) has been subject to a barrage of litigation in federal courts. This is hardly surprising, as the law presumptively bans carry nearly everywhere in the state. In fact, Governor Kathy Hochul admitted as much when, after being asked where carry license holders couldcarry under the law, she replied, “Probably some streets.” The day the Supreme Court handed down Bruen, Hochul signaled that she would “fight back.” The Governor had indicated earlier that she didn’t want to “telegraph” her strategy due to concern that the Court would “write around it.”
From public transportation, to restaurants that serve alcohol, theaters, libraries, museums and even Times Square, vast portions of the state are completely closed off to concealed carry. The law also contains a default rule that firearms are banned on all private property unless the owner or lessee indicates otherwise, such as through signage. The CCIA also fortifies the state’s requirement that applicants for carry licenses prove good moral character, defined in the new statute as “having the essential character, temperament and judgement necessary to be entrusted with a weapon and to use it only in a manner that does not endanger oneself or others.” One federal judge speculated that this standard may be impossible to satisfy for those seeking to use a gun in self-defense because it does not carve out an exemption for endangering others during a case of justified self-defense.
It’s hard to reconcile this law with the Second Amendment, particularly when Bruen held that carrying firearms in public (outside of sensitive locations) is protected by the Constitution. It’s also extremely difficult to read the CCIA and presume that the New York legislature engaged in a good faith attempt to comply with Bruen’s demands. In a vacuum, some of these provisions, like the good moral character requirement, could be enforced fairly by merely assessing whether a particular applicant is dangerous. But, for decades, New York officials have attempted to frustrate the ability of average citizens to simply possess a firearm. Under New York City’s regulations, the NYPD may examine an applicant’s past arrests, even if those arrests did not result in a conviction. In one particularly egregious case, the NYPD denied an applicant a license to keep a handgun in his own home because he failed to disclose a sealed arrest from nineteen years prior in which he was found not guilty. In a case postdating both Heller and McDonald, a judge upheld the denial, reasoning, astonishingly, that the “possession of a handgun is a privilege, not a right.” More recently, after the state legislature repealed a law banning possession of “gravity knives,” a notoriously vague classification that legislators concluded had resulted in disproportionate arrests of minority New Yorkers, the NYPD resurrected an archaic public transportation regulation in order to continue enforcing the ban on New York City’s subways and buses.
The state’s new sensitive place and private property laws fare no better. The CCIA carves out no fewer than twenty sensitive locations, along with dozens of subcategories. In conjunction with the law banning firearms on private property by default, the CCIA works to effectively ban carry almost everywhere in the state, aside from one’s own property, public streets and sidewalks. Bruen makes clear that such a scheme violates the Constitution: “[T]here is no historical basis for New York to effectively declare the island of Manhattan a ‘sensitive place’ simply because it is crowded and protected generally by the New York City Police Department.” As a Manhattan resident, I have yet to see a single storefront with a “Guns Allowed” sign. Effectively, New York has declared Manhattan, if not the entire state, a “sensitive place.”
To be sure, both Heller and Bruen bless the presumptive lawfulness of banning firearms in locations like government buildings, schools, and polling places (although it isn’t clear that a straightforward application of Bruen’s own analytical approach would support the constitutionality of all of these bans), and some of New York’s own named sensitive places might well be permissible under that precedent. But the vast majority don’t appear to have any solid footing in the nation’s historical tradition of firearm regulation, and their combined effect is such that they render half of the Second Amendment’s operative clause a near nullity. Although I argue that many of the individual sensitive place designations are unconstitutional alone, when considered in combination they effectively exempt cities from the Amendment’s protections. Confronted with a similar circumstance, a divided panel of the Seventh Circuit struck down various Chicago zoning ordinances that, in combination, made it effectively impossible for gun ranges to operate within city limits. While states and localities maintain sweeping zoning authority under their police power, the court in Ezell engaged in heightened scrutiny of the restrictions because they implicated the Second Amendment. Although Bruen abrogated that decision’s reliance on means-end scrutiny, it did not abrogate common sense insofar as multiple permissible regulations may, when acting in concert, account for an undue burden on a constitutional right. As noted above, Bruen makes clear that states cannot effectively declare cities off limits to firearms. Through this lens, assessing the CCIA isn’t quite that complicated, as most of its individual provisions are unconstitutional under Bruen’s framework even when the state’s police power is accounted for, as I argue in my forthcoming Fordham Law Review article.
Take some of the sensitive places, for instance. Setting aside the handful that Heller and Bruen acknowledged as permissible (i.e., government buildings and polling places), what obvious historical analogue is there for banning firearms in restaurants that serve alcohol? New York points to nineteenth century statutes that banned carrying firearms whileintoxicated, but this appears to me to impose a materially different burden on arms bearers than the CCIA. Consider also the public transportation carry ban. New York has failed to identify a single example of a U.S. jurisdiction prohibiting firearms on public transportation in its briefs. Of course, “public” transportation systems were often under private ownership during the relevant period of historical inquiry, but that surely doesn’t mean that states were powerless to regulate that enterprise.
Additionally, consider the default rule banning firearms on private property. Its academic defenders argue that the law doesn’t implicate the Second Amendment because it only shapes a default rule consistent with a property owner’s common law right to exclude, allowing property owners to choose to allow or prohibit firearms on their property. I’m not convinced. As an initial observation, the text of the Second Amendment draws no public/private distinction. I am also hesitant to incorporate into this context wholesale principles of property law, particularly where the textual threshold that Bruen requires to bring conduct within the Second Amendment’s ambit is so low.
Consider also Hochul’s justification for the default rule: it “gives power to business and property owners to decide whether or not they want guns in their establishments, which could include bars, restaurants, shops or grocery stores.” Setting aside the fact that the CCIA would brand anyone bringing a firearm into a bar or most restaurants a felon regardless of the owner’s wishes, the law gives businesses no such power. Instead, it exempts certain groups from the default rule, including police, both active and retired, security guards, judges, and hunters. In a previous post, Andrew Willinger suggested that “[o]ne common thread uniting these groups is that most have previously undergone some form of heightened firearms training, beyond what is required to obtain a concealed-carry license in New York.” This is certainly true, but, as Robert Lieder points out, it wasn’t the state’s justification for the law. And, in any event, it seems to me that a hunter carrying firearms on private property creates more danger than someone carrying for self-defense because the former intends to discharge his or her firearm whereas the latter does not. The state’s rationale seems entirely contrived and a pretext to prevent license holders from carrying a firearm outside their homes. If Hochul and the legislators truly wanted to give business and property owners the power to decide whether they want guns in their establishments, why exempt anyone aside from active police in exigent circumstances? Consider that the Ninth Circuit struck down a California provision exempting retired police from the state’s assault weapons ban. The court noted that the exemption was wholly contrary to the legislature’s stated goal of reducing the number of assault weapons in the state. When one realizes that default rules are inherently sticky—that is, when presented with different, perhaps even better, terms, parties will often abide by the default for various reasons—it becomes obvious why New York established this default.
Soon we will see the Second Circuit’s forthcoming opinion in Antonyuk v. Nigrelli, a case which challenges large portions of the CCIA including several of its licensing prerequisites (i.e., the good moral character requirement, character references, disclosure of cohabitants, an in-person interview, and a social media review), many of the sensitive place restrictions, and the private property default rule. Although the standard for appellate review of a preliminary injunction is abuse of discretion, I suspect that the Second Circuit will be less skeptical of the CCIA than the district court was. However, based on oral arguments, specifically comments by Judge Gerald Lynch, I also suspect that the Second Circuit will affirm the district court’s injunction at least as to the private property default rule and the ban on carrying in public parks. Given the prevalence of similar Bruen-response legislation—New Jersey, Maryland, and Hawaii passed similar laws after New York, and California and Massachusetts are considering similar laws—I would be surprised if the Supreme Court does not take up the issue of the default rule or sensitive place restrictions soon, particularly given its increasing willingness to grant certiorari in Second Amendment cases.