A federal judge yesterday issued a temporary restraining order (TRO) against enforcement of New York's ban on firearms in "any place of worship or religious observation." U.S. District Judge John Sinatra Jr. concluded that the rule, part of a law that New York legislators passed after the Supreme Court overturned the state's "proper cause" requirement for concealed-carry permits, "impermissibly infring[es] on the right to keep and bear arms in public for self-defense."
Sinatra's decision in Hardaway v. Nigrelli comes two weeks after U.S. District Judge Glenn T. Suddaby issued a broader TRO against New York's law in Antonyuk v. Hochul. The two rulings do not bode well for politicians who try to defy the Supreme Court's June 23 ruling in New York State Rifle and Pistol Association v. Bruen by imposing new restrictions on the right to bear arms.
The lead plaintiffs in Hardaway are the Rev. Jimmie Hardaway Jr., pastor of Trinity Baptist Church in Niagara Falls, and Bishop Larry Boyd, pastor of Open Praise Full Gospel Baptist Church in Buffalo. They "wish to exercise their fundamental, individual right to bear arms in public for self-defense by carrying concealed firearms on church property in case of confrontation to both themselves and their congregants."
Hardaway and Boyd, whose lawsuit was joined by the Firearms Policy Coalition and the Second Amendment Foundation, are licensed to carry concealed handguns and had consistently done so on church grounds as a safeguard against violent intruders. But New York's law—which prohibits guns in myriad "sensitive locations," including churches—made that precaution a Class E felony, punishable by up to four years in prison.
Under Bruen, the state has the burden of showing that such location-specific gun bans are "consistent with this Nation's historical tradition of firearm regulation," which requires identifying analogous restrictions that have long been recognized as constitutional. "New York fails that test," Sinatra writes. "The State's exclusion is, instead, inconsistent with the Nation's historical traditions, impermissibly infringing on the right to keep and bear arms in public for self-defense."
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."
New York argued that laws enacted by four states (Georgia, Texas, Virginia, and Missouri) and two territories (Arizona and Oklahoma) between 1870 and 1890 showed that its ban was consistent with the historical understanding of the right to bear arms:
• An 1870 Georgia law prohibited the carrying of pistols or revolvers in "any place of public worship."
• An 1870 Texas law made it a misdemeanor, punishable by a fine, to bring firearms into "any church or religious assembly." That law did not apply to "any person or persons whose duty it is to bear arms on such occasions in discharge of duties imposed by law."
• An 1877 Virginia law prescribed a fine for bringing a "dangerous weapon" to "any place of worship" during services. It made an exception for anyone who "had good reason" to carry a weapon "in the necessary defense of his home, person or property." The same law made it illegal for someone to carry a weapon on Sunday "at any place other than his own premises" unless he had "good and sufficient cause therefor."
• An 1883 Missouri law said anyone convicted of carrying a firearm into "any church or place where people have assembled for religious worship" could be punished by a fine of $25 to $200 and/or five days to six months in jail.
• Under an 1889 Arizona law, someone who carried a firearm into "any church or religious assembly" would face a fine of $50 to $500, plus confiscation of the weapon.
• An 1890 Oklahoma law made it illegal to carry a weapon into "any church or religious assembly." It included an exception for anyone "whose duty it is" to "suppress breaches of the peace."
As Sinatra sees it, those examples do not meet the test established by Bruen. "Where a governmental practice has been open, widespread, and unchallenged since the early days of the Republic," the Supreme Court said in that case, "the practice should guide our interpretation of an ambiguous constitutional provision." But it added that "to the extent later history contradicts what the text says, the text controls," because "post-ratification adoption or acceptance of laws that are inconsistent with the original meaning of the constitutional text obviously cannot overcome or alter that text."
The Court cautioned against giving evidence from the late 19th century too much weight: Since "post-Civil War discussions of the right to keep and bear arms 'took place 75 years after the ratification of the Second Amendment, they do not provide as much insight into its original meaning as earlier sources.'" The justices also said territorial laws carry "little weight," because they "appear more as passing regulatory efforts by not-yet-mature jurisdictions on the way to statehood, rather than part of an enduring American tradition of state regulation."
Sinatra does not think the analogs cited by New York establish such a tradition. The state cites "a handful of enactments in an attempt to meet its 'burden' to demonstrate a tradition of accepted prohibitions of firearms in places of worship or religious observation," he writes. "The notion of a 'tradition' is the opposite of one-offs, outliers, or novel enactments. Rather, 'tradition' requires 'continuity.'"
The six laws "are of unknown duration," Sinatra writes, "and the State has not met [its] burden to show endurance over time." Hence "the Court is left with a handful of seemingly spasmodic enactments involving a small minority of jurisdictions governing a small minority of population" that "were passed nearly a century after the Second Amendment's ratification in 1791." Those "outlier enactments," Sinatra adds, "contrast with colonial-era enactments that, in fact, mandated such carry at places of worship." He concludes that the laws "are far too remote, far too anachronistic, and very much outliers," making them "insufficient" to establish "an American tradition."
Suddaby, who concluded that New York had failed to justify many of its location-specific gun bans, was more impressed than Sinatra by the historical evidence regarding firearms in church. "Based on the historical analogues," he wrote, "it is permissible for New York State to generally restrict concealed carry in 'any place of worship or religious observation.'" But he noted that three of the six laws cited by New York included "one or more of the following four exceptions: (1) for those bound by 'duty' to bear arms at the place of worship; (2) for those possessing 'good and sufficient cause' to carry a gun at the place of worship; (3) for those serving as 'peace officers' at the place of worship; and (4) for those for whom the place of worship is 'his own premises.'"
Taken together, Suddaby said, those provisions "suggest that there also exists a tradition of permitting an exception to this prohibition for those persons who have been tasked with the duty to keep the peace at the place of worship." He also noted that "the vast majority of the states in 1868 [when the 14th Amendment, which made the Second Amendment applicable to the states, was ratified] did not have this restriction at all." Suddaby concluded 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."
That category presumably would include pastors such as Hardaway and Boyd as well as designated congregants. Their concerns cannot be lightly dismissed given horrifying crimes such as the massacres at Emanuel African Methodist Episcopal Church in Charleston, the Tree of Life synagogue in Pittsburgh, and the First Baptist Church in Sutherland Springs, Texas.
The plaintiffs' motion for a TRO and a preliminary injunction notes that "the recent history of violence in churches, particularly the murder of nine parishioners in Charleston's Emanuel African Methodist Episcopal Church in 2015, has reaffirmed Reverend Hardaway's conviction to carry for self-defense and to keep the peace at his church." Since the Charleston shooting, it says, Hardaway "has almost always carried a firearm for self-defense on Sundays and at services until the effective date of the Place of Worship Ban."
New York says that is now a felony. "The Nation's history does not countenance such an incursion into the right to keep and bear arms across all places of worship across the state," Sinatra writes. "The Constitution requires that individuals be permitted to use handguns for the core lawful purpose of self-defense. And it protects that right outside the home and in public. Nothing in the Nation's history or traditions presumptively closes the door on that right across every place of worship or religious observation."
Although Sinatra's ruling is limited to this one provision of New York's law, he notes the perversity of the state's response to Bruen. "Eight days after the Supreme Court struck down New York's unconstitutional 'proper cause' requirement for conceal[ed]-carry licenses," he writes, "the State responded with even more restrictive legislation, barring all conceal[ed]-carry license holders from vast swaths of the State."
That regulatory strategy has not fared well in the courts so far, which has not stopped other states from copying it. New Jersey and California are both considering bills that would ban firearms from a long list of "sensitive" places, making it legally perilous even for someone with a carry permit to leave home with a gun.