The U.S. Supreme Court has made clear that the Second Amendment guarantees law-abiding citizens the right to keep and bear arms for self-defense, both in their homes and in public. On Friday, New York responded that it didn’t care.
New York Gov. Kathy Hochul ushered in the long Independence Day weekend on Friday by signing into law legislation crafted in response to the Supreme Court’s recent decision in New York State Rifle and Pistol Association, Inc. v. Bruen. Just more than a week earlier, the U.S. Supreme Court in Bruen had declared that New York’s prior “may issue” gun licensing scheme, which prohibited individuals from carrying concealed handguns unless they “demonstrate[d] a special need for self-protection distinguishable from that of the general community,” violated the Second Amendment. In reaching that conclusion, the high court stressed that the right to “bear arms,” by necessity, applies outside the home.
The New York legislature responded by calling an extraordinary session and then passing the bill Hochul signed into law on Friday. That hastily passed statute established detailed regulations governing a citizen’s right to obtain a permit to carry a concealed weapon and added restrictive limits to where such concealed weapons could be carried. Both aspects of the New York legislation run headlong into the Supreme Court’s analysis in Bruen—and potentially First Amendment jurisprudence.
Overturn the Supreme Court
In Bruen, in declaring unconstitutional New York’s “may issue” gun licensing scheme, the Supreme Court stressed, “to be clear, nothing in our analysis should be interpreted to suggest the unconstitutionality of the 43 States’ ‘shall-issue’ licensing regimes, under which ‘a general desire for self-defense is sufficient to obtain a [permit].’” The Bruen majority reasoned that “because these licensing regimes do not require applicants to show an atypical need for armed self-defense, they do not necessarily prevent ‘law-abiding, responsible citizens’ from exercising their Second Amendment right to public carry.”
Rather, the Supreme Court continued, “it appears that these shall-issue regimes, which often require applicants to undergo a background check or pass a firearms safety course, are designed to ensure only that those bearing arms in the jurisdiction are, in fact, ‘law-abiding, responsible citizens.’” Those “shall-issue” regimes, the Bruen court explained, “likewise appear to contain only ‘narrow, objective, and definite standards’ guiding licensing officials, rather than requiring the ‘appraisal of facts, the exercise of judgment, and the formation of an opinion.’”
Significantly, though, the Supreme Court in Bruen stressed that “because any permitting scheme can be put toward abusive ends, we do not rule out constitutional challenges to shall-issue regimes where, for example, lengthy wait times in processing license applications or exorbitant fees deny ordinary citizens their right to public carry.” New York’s just-passed “shall-issue” permitting scheme sidles toward abusive ends, although it remains too early to judge if the state crossed the constitutional line suggested in Bruen—that regulations that “deny ordinary citizens their right to public carry” run afoul of the Second Amendment.
Want Self-Defense? Let’s Inspect Your Speech
Among other things, to obtain a conceal-carry permit in New York, an applicant must complete 16 hours of in-person live curriculum and two hours of a live-fire range training course. In addition to completing the forms and providing details of other individuals residing in the same abode, applicants must also provide the licensing officer with four character references and “a list of former and current social media accounts of the applicant from the past three years.”
The ability of ordinary New Yorkers to affordably access in-person training courses, in addition to any permitting fees, raises one question that will likely find itself litigated. However, a bigger constitutional issue looms with the law’s requirement that applicants provide a list of social media accounts.
The statute provides that licensing officers need that information to determine if a candidate has “good moral character,” which is defined as meaning “having the essential character, temperament and judgment necessary to be entrusted with a weapon and to use it only in a manner that does not endanger oneself or others.” But requiring applicants to disclose to government officials their protected speech, which likely includes political speech and possibly speech engaged in anonymously, raises serious First Amendment concerns not yet analyzed by the courts.
Should that portion of the statute withstand a constitutional challenge—something likely coming in the days or weeks ahead—individuals denied permits based on their social media speech will likely challenge those individual decisions in what is called an “as-applied challenge.” Such claims will likely succeed, too, if the permitting officials’ decision-making process reveals they possess limitless discretion to conduct an ad hoc, rudderless review of social media accounts to deny permits.
Likewise, if non-violent comments trigger an assessment that someone lacks good moral character based on the viewpoint expressed, the denial of a conceal-carry permit will trigger a First Amendment challenge.
Massive Constitutional Suspension Zones
The larger constitutional problem with New York’s revised conceal-carry law concerns the state’s attempt to, in essence, declare most public spaces “sensitive locations” in which guns cannot be carried even by permitted individuals. Specifically, the statute makes it a felony to carry firearms “in or upon a sensitive location,” then provides an exhaustive list of sensitive locations which, because of its constitutional significance, is excerpted in full below:
(a) any place owned or under the control of federal, state or local government, for the purpose of government administration, including courts;
(b) any location providing health, behavioral health, or chemical dependance care or services;
(c) any place of worship or religious observation;
(d) libraries, public playgrounds, public parks, and zoos;
(e) the location of any program licensed, regulated, certified, funded, or approved by the office of children and family services that provides services to children, youth, or young adults, any legally exempt childcare provider; a childcare program for which a permit to operate such program has been issued by the department of health and mental hygiene pursuant to the health code of the city of New York;
(f) nursery schools, preschools, and summer camps;
(g) the location of any program licensed, regulated, certified, operated, or funded by the office for people with developmental disabilities;
(h) the location of any program licensed, regulated, certified, operated, or funded by office of addiction services and supports;
(i) the location of any program licensed, regulated, certified, operated, or funded by the office of mental health;
(j) the location of any program licensed, regulated, certified, operated, or funded by the office of temporary and disability assistance;
(k) homeless shelters, runaway homeless youth shelters, family shelters, shelters for adults, domestic violence shelters, and emergency shelters, and residential programs for victims of domestic violence;
(l) residential settings licensed, certified, regulated, funded, or operated by the department of health;
(m) in or upon any building or grounds, owned or leased, of any educational institutions, colleges and universities, licensed private career schools, school districts, public schools, private schools licensed under article one hundred one of the education law, charter schools, non-public schools, board of cooperative educational services, special act schools, preschool special education programs, private residential or non-residential schools for the education of students with disabilities, and any state-operated or state-supported schools;
(n) 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;
(o) any establishment issued a license for on-premise consumption pursuant to article four, four-A, five, or six of the alcoholic beverage control law where alcohol is consumed and any establishment licensed under article four of the cannabis law for on-premise consumption;
(p) any place used for the performance, art entertainment, gaming, or sporting events such as theaters, stadiums, racetracks, museums, amusement parks, performance venues, concerts, exhibits, conference centers, banquet halls, and gaming facilities and video lottery terminal facilities as licensed by the gaming commission;
(q) any location being used as a polling place;
(r) any public sidewalk or other public area restricted from general public access for a limited time or special event that has been issued a permit for such time or event by a governmental entity, or subject to specific, heightened law enforcement protection, or has otherwise had such access restricted by a governmental entity, provided such location is identified as such by clear and conspicuous signage;
(s) any gathering of individuals to collectively express their constitutional rights to protest or assemble;
(t) 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.
Merely skimming these provisions confirms the breadth of the new law, which leaves New York residents with few public places where they may legally carry a gun for self-defense. That bottom line strikes to the core of the Supreme Court’s ruling in Bruen that the Second Amendment guarantees a right for law-abiding, responsible citizens to carry a firearm in public for purposes of self-defense. New York’s expansive list of supposedly “sensitive locations” likewise ignores the Supreme Court’s analysis in Bruen.
Americans Have Long Carried Guns Everywhere
In Bruen, the Supreme Court noted that Heller’s decision that the Second Amendment’s right to keep and bear arms constituted an individual right independent of militia service also spoke of “longstanding” “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings.”
Bruen then noted that “the historical record yields relatively few 18th- and 19th-century ‘sensitive places’ where weapons were altogether prohibited—e.g., legislative assemblies, polling places, and courthouses,” adding there was no apparent dispute “regarding the lawfulness of such prohibitions.” Accordingly, the court in Bruen assumed it is “settled that these locations were ‘sensitive places’ where arms carrying could be prohibited consistent with the Second Amendment.”
As for what other locations may qualify as “sensitive places,” Bruen noted that “courts can use analogies to those historical regulations of ‘sensitive places’ to determine that modern regulations prohibiting the carry of firearms in new and analogous sensitive places are constitutionally permissible.” The court added that it had “no occasion to comprehensively define ‘sensitive places’ in this case,” but explained that “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.”
Yet New York’s legislature on Friday appeared to do just that by including public parks and zoos, museums, art exhibits, and permitted gatherings among other locations that qualify as “sensitive places.” While some of the locations identified, such as courts, polling places, and legislative assemblies, clearly qualify as “sensitive places,” many others included in the new law will likely fail to pass constitutional scrutiny, especially under the now-governing Bruen standard.
Back to the Courts for Who Knows How Long
Under Bruen, to survive a Second Amendment challenge, the government must affirmatively prove “that the regulation is consistent with this Nation’s historical tradition of firearm regulation.” Accordingly, New York will have the burden of proving that the locations identified as “sensitive places” were treated as such historically or did not exist historically but represent a modern analog to other historical “sensitive places.”
Briefing from the Bruen case suggests New York will be unable to do so for many of the public places listed in its new law. Specifically, the Independent Institute submitted an amicus curiae, or friend of the court, brief urging the court “to clarify that the sensitive place aside in Heller does not mean that the government has carte blanche to decree ‘gun free’ any public area that it desires.”
On the contrary, the brief argued that few public places qualify as sensitive places, providing a detailed historical analysis that revealed, “for the most part, they included places where government officials met to conduct the core functions of government (e.g., state legislatures and courthouses), polling places, and schools—but, regarding the final category, the prohibition applied only to students.”
Based on its review of the historical record, the Independent Institute concluded that public parks, parking lots, and houses of worship did not qualify as “sensitive areas,” and encouraged the Supreme Court to say as much, noting that “mischief” “can occur if the court refrains from providing the requisite guidance to future courts in the Second Amendment context.”
The Supreme Court did not heed the warning, however, and on Friday, New York proved the amicus curiae correct. So, it will soon be back to the courts.