New York's gun control law does not violate the Second Amendment

The latest round of Second Amendment litigation in the Second Circuit holds that, consistent with the Second Amendment, New York can (1) prohibit carrying firearms in "sensitive locations" like the New York City subway system, the Metro-North Railroad, and Times Square, (2) prohibit "open carry," and (3) require that a state concealed-carry license holder receive a New York City-specific permit to carry a gun in New York City. These bans are most likely legal and can withstand a constitutional challenge.

The case is Brey v. City of New York, issued on September 19. The plaintiffs sought to preliminary enjoin enforcement of these gun restrictions. To win, they have to navigate the Supreme Court's ruling in New York State Rifle and Pistol Ass'n v. Bruen, issued in 2022 and which holds that gun laws violate the Second Amendment unless the government can show the current restrictions bear some relationship with the gun restrictions in place when the Second Amendment was enacted in 1791 (when the Bill of Rights were enacted). We also consider the legal landscape in 1868, when the Fourteenth Amendment, which incorporates the Bill of Rights against the states was enacted. This framework, new to constitutional law and incorporating classic "original intent" principles of constitutional interpretation, forces federal judges to master the history of gun laws, not an easy task since we are reaching back well over 100 years to solve the problems of today. 

1. On the "sensitive location" gun restrictions, the Court of Appeals (Sack, Raggin and Bianco) finds that this nation's historical tradition of gun laws has regulated firearms in crowded places. This goes back centuries, and it therefore applies to Times Square (with 300,000 visitors daily and hundreds of restaurants and other attractions, like Broadway), the subways and the railroad, where we are often packed in like sardines. Older firearms laws barred guns in enclosed crowded spaces, and nothing says enclosed crowded spaces like the New York City subway and the Metro-North Railroad. 

2. The open carry ban in New York, requiring that we conceal our guns in public, is consistent with language in Bruen stating that modern Anglo-American history has subjected us to rules guiding "the manner of carry," open carry in particular. 

3. As for the requirement that gun owners get a special city permit, even assuming this issue is properly before the Court, which can only permit a facial challenge to a statute if the law is unconstitutional in all its applications, plaintiffs cannot enjoin its enforcement because "we have a strong historical tradition of allowing localities to implement their own, often stricter, regulatory measures within their jurisdictions." Like the rest of this court ruling, the opinion cites older statutes, court rulings, and scholarship such as law review articles. 

 

One week after the Court of Appeals issued this case, it handed down another Second Amendment that for the most part upheld other portions of New York's gun control laws. And you can read all about that case tomorrow.