The Volokh Conspiracy

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N.Y. Law Banning Gun Carrying in Churches (Including by People Authorized by the Church) Struck Down


From Hardaway v. Nigrelli, decided yesterday by Judge John L. Sinatra, Jr. (N.D.N.Y.):

Eight days after the Supreme Court struck down New York's unconstitutional "proper cause" requirement for conceal-carry licenses, the State responded with even more restrictive legislation, barring all conceal-carry license holders from vast swaths of the State. The complaint and motion in this case focus solely on one aspect of the new legislation, namely, the portion making it a felony for such a license holder to possess a firearm at "any place of worship or religious observation."

Ample Supreme Court precedent addressing the individual's right to keep and bear arms—from Heller and McDonald to its June 2022 decision in Bruen—dictates that New York's new place of worship restriction is equally unconstitutional. In Bruen, the Court made the Second Amendment test crystal clear: regulation in this area is permissible only if the government demonstrates that the regulation is consistent with the Nation's historical tradition of sufficiently analogous regulations. As set forth below, New York fails that test. 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….

Reverend Dr. Jimmie Hardaway, Jr. and Bishop Larry A. Boyd filed this lawsuit on October 13, 2022, and are joined by institutional plaintiffs, Firearms Policy Coalition, Inc. ("FPC"), and Second Amendment Foundation ("SAF")…. Hardaway and Boyd, leaders of their respective churches, "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." They allege that, as "leaders of their churches, they would be authorized to carry on church premises to keep the peace, and would do so, but for Defendants' enforcement of the unconstitutional laws, regulations, policies, practices, and customs at issue in this case." In particular, they seek to prevent the enforcement of New York's new law that makes it a felony to carry firearms at all places of worship and religious observation….

The State argues that the place of worship exclusion complies with Bruen. The State cites to 1870-1890 enactments by four states (Texas, Georgia, Missouri, and Virginia) and the territories of Arizona and Oklahoma that contained place of worship firearm restrictions. This does not carry the State's burden, as explained below.

At the outset, as the Supreme Court has made clear, individuals have the right to carry handguns publicly for self-defense. New York's exclusion is valid only if the State "affirmatively prove[s]" that the restriction is part of the Nation's historical tradition of firearm regulation. The test is rigorous because the Second Amendment is the very product of an interest balancing, already conducted by "the People," which "elevates above all other interests the right of law-abiding, responsible citizens to use arms for self-defense." …

New York's restriction finds no analog in any recognized "sensitive place." In Bruen, the Court noted: "[a]lthough 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—we are also aware of no disputes regarding the lawfulness of such prohibitions …. And 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." Id. (emphasis in original).

In particular, places of worship or religious observation are unsecured, spiritual places that members of the public frequent as often as daily as part of day-to-day life, and encounter vast numbers of other people there—as they do anywhere in public. In contrast, legislative assemblies, polling places, and courthouses are civic locations sporadically visited in general, where a bad-intentioned armed person could disrupt key functions of democracy. Legislative assemblies and courthouses, further, are typically secured locations, where uniform lack of firearms is generally a condition of entry. The State's argument that places of worship are analogous because the exclusion supposedly also minimizes the chance of violence between those with opposing views is undeveloped and, in any event, belies the non-confrontational purpose drawing people to houses of worship in the first place. The argument would apply nearly everywhere in public. The places of worship and religious observation exclusion thus finds no analogy in Bruen's recognized sensitive places.

Nor is there an American tradition supporting the challenged law here. As in Bruen—where, "apart from a handful of late-19th-century jurisdictions, the historical record compiled by [the State] does not demonstrate a tradition of broadly prohibiting the public carry of commonly used firearms for self-defense"—the State does not demonstrate a tradition of broadly prohibiting the public carry of commonly used firearms for self-defense at all places of worship or religious observation across the state.

Nevertheless, the State relies on a few laws from the late-1800s to insist that a relevant tradition exists. Bruen anticipates this argument. Rejecting the relevance of an outlier analogous law and state-court decisions, the Court stated that it would "not give disproportionate weight to a single state statute and a pair of state-court decisions. As in Heller, we will not 'stake our interpretation of the Second Amendment upon a single law, in effect in a single [State], that contradicts the overwhelming weight of other evidence regarding the right to keep and bear arms for defense' in public." …

Here, the State cites to 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. The notion of a "tradition" is the opposite of one-offs, outliers, or novel enactments. Rather, "tradition" requires "continuity."

These enactments are of unknown duration, and the State has not met is burden to show endurance over time. As a result, the Court is left with a handful of seemingly spasmodic enactments involving a small minority of jurisdictions governing a small minority of population. And they were passed nearly a century after the Second Amendment's ratification in 1791. These outlier enactments also contrast with colonial-era enactments that, in fact, mandated such carry at places of worship. These enactments are far too remote, far too anachronistic, and very much outliers—insufficient, then, in the search for an American tradition….

For instances of effective defensive gun uses in church shootings, see the Colorado Springs New Life Church shooting and the Antioch (Tenn.) Burnette Chapel Church of Christ shooting, though of course these are just anecdotal illustrations.

Congratulations to Nicolas J. Rotsko (Phillips Lytle LLP), and David H. Thompson, John W. Tienken, and Peter A. Patterson (Cooper & Kirk, PLLC), who represent the plaintiffs. Note that one of the plaintiffs is the Firearms Policy Coalition; I have consulted for the FPC, but I haven't been involved in this case.