Two weeks ago, a federal judge issued a temporary restraining order against many of the restrictions on public possession of guns that New York imposed after the Supreme Court upheld the right to bear arms last June. Unfazed by that warning, New Jersey legislators this week advanced a strikingly similar bill that includes a subjective standard for issuing carry permits and sweeping, location-specific restrictions that make it legally perilous even for permit holders to leave home with guns.
In his October 6 ruling, U.S. District Judge Glenn T. Suddaby concluded that both of those regulatory strategies seemed inconsistent with what the Supreme Court said in New York State Rifle and Pistol Association v. Bruen. The parallels between the New York law that Suddaby rejected and New Jersey's A4769, which the Assembly's Judiciary Committee approved on Monday, suggest that anti-gun politicians in some states will not comply with Bruen until further litigation compels them to do so.
New York eliminated its requirement that permit applicants show "proper cause," a rule that the Supreme Court said violated the Second Amendment because it gave local licensing officials too much discretion in deciding who could carry handguns in public for self-defense. But legislators retained and elaborated on a requirement that applicants demonstrate "good moral character," to be assessed based on at least four character references, an in-person interview, and statements made on social media, along with any "other information" that licensing officials deem relevant.
Although Suddaby let the character-reference requirement stand, he blocked enforcement of New York's demand for information about social media accounts, the interview requirement, and mandatory disclosure of information about everyone in the applicant's household. He said the state had failed to show those rules were "consistent with this Nation's historical tradition of firearm regulation"—the constitutional test prescribed by Bruen. More generally, Suddaby said New York's nebulous "good moral character" standard created a presumption of dangerousness that applicants had to rebut, thereby "retaining (and even expanding) the open-ended discretion afforded to its licensing officers."
The authors of A4769, which is sponsored by New Jersey Senate President Nicholas Scutari (D–Linden) and Assembly Speaker Craig Coughlin (D‒Woodbridge Township), are following the same game plan. The bill would eliminate New Jersey's "justifiable need" test for a carry permit, which the state stopped enforcing after Bruen. But A4769 would still require applicants to persuade state or local police officials that they do not pose a threat to themselves or others. As in New York, that assessment includes character references, an interview, and "publicly available statements posted or published online by the applicant." That last provision makes exercising the right to bear arms contingent on how an applicant has exercised the right to freedom of speech.
New York's law lists 20 categories of "sensitive locations" where permit holders are not allowed to carry guns. They extend far beyond schools, government buildings, polling places, and other gun-free locations that Suddaby thought could be justified by historical precedents.
New York's list includes public transportation, bars, restaurants, entertainment venues, gambling facilities, stadiums, parks, playgrounds, summer camps, zoos, libraries, museums, and "the area commonly known as Times Square," among many other places where people might want to carry handguns for self-protection. The law also establishes a default rule barring permit holders from carrying guns on "private property" unless the owner posts "clear and conspicuous signage" contradicting that presumption or "has otherwise given express consent."
Suddaby concluded that the state had failed to justify many of those restrictions, including the general ban on private property. "The Court respectfully reminds Defendants that, because the Second Amendment's plain text covers the conduct in question (carrying a handgun in public for self-defense), 'the Constitution presumptively protects that conduct,'" he wrote. "Defendants must then rebut the presumption by 'demonstrat[ing] that the regulation is consistent with this Nation's historical tradition of firearm regulation.'"
Not to be outdone, Scutari and Coughlin want to ban guns in 25 categories of "sensitive places," many of which overlap with New York's list. The bill includes a similar general rule for private property, "including but not limited to residential, commercial, industrial, agricultural, institutional or undeveloped property." On any private property not specifically covered by the other categories, carrying a concealed handgun would be a crime unless the "the owner has provided express consent or has posted a sign indicating that it is permissible." And just in case the 24 other categories of "sensitive locations" prove inadequate, the list includes "any other place in which the carrying of a handgun is prohibited by statute or rule or regulation promulgated by a federal or State agency or by municipal ordinance or regulation."
Under New York's law, carrying a gun in a forbidden location is a Class E felony, punishable by up to four years in prison. The New Jersey bill would make it a third-degree crime, punishable by three to five years in prison. So even someone who managed to obtain a carry permit would have to think carefully about trying to use it, asking whether he is apt to enter any of the myriad places that the state has deemed "sensitive."
It is clear from Suddaby's ruling that New York had trouble supplying historical evidence to support its capacious understanding of that term. In the landmark 2008 case District of Columbia v. Heller, the Supreme Court described "laws forbidding the carrying of firearms in sensitive places such as schools and government buildings" as "longstanding prohibitions." But in Bruen, the justices noted that "the historical record yields relatively few 18th- and 19th-century 'sensitive places' where weapons were altogether prohibited." They included "legislative assemblies, polling places, and courthouses."
Is banning guns from, say, movie theaters, restaurants, subway stations, parks, or zoos analogous enough to those "longstanding prohibitions" that it can pass constitutional muster? Suddaby thought not, and New Jersey legislators provide little reason to question that judgment.
"Previously, application of the justifiable need standard minimized the serious dangers of misuse and accidental use inherent in the carrying of handguns in a public place," the introduction to A4769 says. "Given the likelihood that a much greater number of individuals will now qualify to carry handguns in public, it is now both necessary and appropriate to clearly identify in the law those sensitive places where, due to heightened public safety concerns, carrying a weapon of any kind, including a handgun, is not permissible. These prohibitions are based on common sense principles and historical analogues."
It is reasonable to predict that respecting the right to bear arms will result in more law-abiding people carrying guns in public places. But that expectation cannot expand the definition of "sensitive places" beyond the historical understanding of that concept when the Second Amendment was ratified or when the 14th Amendment made it applicable to state and local governments.
The bill claims its location-specific bans "are rooted in history and tradition." That evidence, it avers, is sufficient to cover "various forms of transportation and public infrastructure," "parks and other recreation spaces," "places where intoxicating substances are sold," and "places where large groups of individuals congregate." Yet Suddaby was notably unimpressed by the historical analogs that New York cited in support of such sweeping claims.
Suddaby noted, for example, that "historical analogues exist containing specific exceptions permitting the carrying firearms while travelling (presumably
because of danger often inherent during travel)." New York managed to locate one historical precedent for banning guns from businesses where alcohol is served: an 1890 Oklahoma law. "Setting aside the fact that Oklahoma was merely a territory in 1890 (thus depriving this statute of any more than 'little weight,' pursuant to [Bruen])," Suddaby observed, "one example does not a tradition make." Suddaby likewise did not think that three statutes "prohibiting persons from carrying firearms in 'ball rooms' or 'social parties,'" two of which were territorial laws, provided adequate grounding for New York's provision banning guns in "amusement parks, performance venues, concerts, exhibits, conference centers, banquet halls, and gaming facilities."
A4769 also says "the historical record" supports "restriction of firearm possession on private property when the owner has not given their consent." But defending the prerogatives of private property owners does not require a default anti-gun rule that can be overridden only by a sign or another indication of "express consent." Even business owners who are happy to serve permit holders carrying concealed handguns may be reluctant to advertise that fact, lest they alienate other customers with strong anti-gun views.
Contrary to New York's claim that it is defending property rights, Suddaby noted, the state is "making a decision for private property owners that they are perfectly able to make for themselves…as well as arguably compelling speech on a sensitive issue." In any case, he added, "this policy dispute is irrelevant, because it does not regard the Supreme Court's 'historical tradition' standard."
The shakiness of the historical evidence offered by New York and New Jersey is not surprising, because the main point of these restrictions is to make exercising the right to bear arms as difficult as possible. As the Firearms Policy Coalition notes, the New Jersey bill's "farcical list of prohibitions on where and how to carry arms" creates "a de facto ban on effective armed self defense." Politicians who support such legislation see themselves as responding to a public safety emergency created by the Supreme Court's insistence that the Second Amendment means what it says.
New York and New Jersey are not alone in resisting the implications of that conclusion. A California bill with a similarly long list of gun-free locations nearly passed in September and is expected to be reintroduced in December. In the meantime, California Attorney General Rob Bonta says, the state will continue to enforce its "good moral character" requirement for permit applicants, which he thinks "remains constitutional." Bonta has suggested that assessment could include opinions expressed on social media, insofar as they might reflect on an applicant's "honesty," "respect for the law," and "absence of hatred and racism."
Massachusetts Attorney General Maura Healey likewise thinks her state's "suitability" requirement for carry permit applicants is unaffected by Bruen. Similarly, Connecticut Attorney General William Tong argues that Bruen does not mean his state can no longer require that a carry permit applicant be "a suitable person." He promises to defend "some of the strongest gun laws in the nation."
Most states have long allowed law-abiding residents to carry guns for self-defense as long as they meet a short list of objective criteria, and that policy has not produced the bloody catastrophes that anti-gun politicians foresee. But a few outliers seem determined to defy the Constitution and the Supreme Court for as long as they can.
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