"New York's Gun Laws Sow Confusion As Nation Rethinks Regulation," says the headline over this morning's lead story in The New York Times. But after implicitly (and correctly) blaming state legislators for the "confusion," the Times identifies a different culprit in the subhead: the Supreme Court's June 23 decision in New York State Rifle & Pistol Association v. Bruen, which "overturn[ed] century-old New York gun regulations" and "produced scores of new lawsuits," leaving "jurists and citizens" to "sort out what's legal."
In Bruen, the Court held that the right to bear arms guaranteed by the Second Amendment precludes states from requiring that residents "demonstrate a special need for self-protection distinguishable from that of the general community" before they are allowed to carry handguns outside their homes. The New York State Legislature responded with a law that eliminated the state's "proper cause" requirement for carry permits but simultaneously imposed new restrictions on public possession of firearms.
"Anticipating more gun-toting," Times reporter Jonah E. Bromwich says, the legislature "made certain areas off-limits to firearms." That gloss makes the new restrictions sound prudent and modest. In reality, they are so sweeping that they create a risk of felony charges for anyone who tries to exercise the right recognized in Bruen while engaging in quotidian activities. The Times barely hints at the breadth of New York's location-specific gun bans, which is crucial in understanding why federal judges have deemed many of them unconstitutional.
Next month, the U.S. Court of Appeals for the 2nd Circuit will hear several of those cases. The plaintiffs argue that New York has defied Bruen by making it very difficult for permit holders to legally carry guns for self-protection. It is impossible to assess that claim without recognizing the vast territory covered by what the Times describes as "certain areas" that are "off-limits to firearms."
Under New York's law, possessing a gun in one of those "sensitive places" is a felony punishable by up to four years in prison. Gun owners therefore have a strong incentive to figure out where exactly they are allowed to use their carry permits. As Bromwich concedes, that is "harder than it sounds." But he does not clearly explain why.
The "sensitive places" include "private property," which covers most of the state. The law establishes a presumption that guns are not allowed on private property unless the owner has indicated otherwise with "clear and conspicuous signage" or "has otherwise given express consent." That rule poses obvious challenges for business owners and permit holders.
A business owner might be happy to serve customers carrying concealed handguns but reluctant to announce that policy with "clear and conspicuous signage" that could alienate other customers. To ascertain whether a business has posted such a notice, a carry permit holder probably will have to get close enough that he is committing a felony should it be absent. To avoid that, he has the burden of ascertaining in advance whether the owner of, say, a gas station, supermarket, or hardware store he intends to visit has "given express consent" to guns on his property.
A permit holder who is carrying a gun cannot simply ask if that's OK when he arrives at the destination, because if the answer is no he has already broken the law. He cannot park at the business and leave his gun in the car pending "express consent," because the parking lot of the business is also "private property." And even if he parks on public property, New York's law requires him to unholster his gun, unload it, and store it in "an appropriate safe storage depository out of sight from outside of the vehicle."
While doing that, the permit holder runs the risk that his actions will be misinterpreted. He will necessarily be holding a loaded firearm, however briefly, to comply with New York's storage requirements. Depending on whether bystanders happen to see the gun and how they react, that could invite police attention.
In addition to the general rule about guns on private property, New York prohibits gun possession in a long list of privately owned locations where the owner is not allowed to opt out. These include bars, restaurants with liquor licenses, cannabis shops, theaters, museums, stadiums, amusement parks, zoos, "performance venues," conference centers, banquet halls, gaming facilities, summer camps, places of worship, "educational institutions," and medical or mental health facilities. The law also bans guns on various kinds of public property, including government buildings, public transportation stations and vehicles, libraries, parks, playgrounds, schools, colleges and universities, the sites of street fairs, and "the area commonly known as Times Square."
The 15th paragraph of the Times story acknowledges that New York's definition of "sensitive places" includes "Times Square, public transit, sports venues, houses of worship and many others." But Bromwich does not mention the presumption against guns on "private property"—the broadest category—or explain the cumulative impact of these restrictions, which make it legally perilous for gun owners to use their carry permits.
The Times does mention that even permit holders who took a class in which they learned where they were allowed to have concealed handguns "inadvertently carried their weapons" in places that were "off-limits to firearms." But Bromwich attributes those mistakes to the legal challenges that produced court orders blocking enforcement of certain location-specific gun bans. Since the 2nd Circuit stayed those orders pending the state's appeals, he says, the rules changed repeatedly, forcing the instructor who teaches the class to "change his curriculum each time."
That explanation makes it seem as if the problem is the litigation provoked by New York's restrictions rather than the restrictions themselves. But New York legislators could have avoided the "confusion" described by the Times if they had simply complied with Bruen instead of attempting an end run by discovering myriad "sensitive places" they had not previously identified.
Under Bruen, gun control laws can pass constitutional muster only if they are "consistent with this Nation's historical tradition of firearm regulation." After reviewing the relevant history, U.S. District Judge Glenn T. Suddaby concluded that many of New York's "sensitive places," including bars and restaurants, entertainment venues, public transportation, and Times Square, did not meet that test based on the evidence that the state had been able to muster.
Suddaby was especially skeptical of the "private property" rule, noting that it covered "not only people's homes but all privately owned property that is not open for business to the public," along with "all privately owned property that is open for business to the public." Regarding that last category, he found "little historical precedent" for New York's anti-gun presumption. Regarding the other categories of private property, Suddaby saw merit in the plaintiffs' argument that the "express consent" requirement amounted to compelled speech in violation of the First Amendment.
U.S. District Judge John L. Sinatra Jr. reached similar conclusions about the ban on guns in houses of worship and the "private property" rule. New York "argues that private property owners have always had the right to exclude others from their property and [therefore] may exclude those carrying concealed handguns," Sinatra wrote. "But that right has always been one belonging to the private property owner—not to the State….Property owners indeed have the right to exclude. But the state may not unilaterally exercise that right and, thereby, interfere with the Second Amendment rights of law-abiding citizens who seek to carry for self-defense outside of their own homes."
The 2nd Circuit may see things differently. But is hard to deny that New York's response to Bruen is defiance disguised as compliance. You can have a carry permit, the state says, but good luck using it.
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