New York Passes Additional Gun Laws Certain to Trigger New Constitutional Challenges

We have previously discussed how New York has proven the gift that keeps on giving for gun rights advocates. New York Democrats have passed a series of laws that led to catastrophic losses in federal court, including the recent major ruling in New York State Rifle & Pistol Association, Inc. v. BruenAfter each loss, the same politicians circle the firing squad again and pass the next round of questionable gun limits. New York Democratic Gov. Kathy Hochul promised such legislation within an hour of the release of Bruen.  It has now passed with the help of a special session in the resumption of this inexorable cycle.

The Concealed Carry Improvement Act passed 43-20 and has some elements likely to pass constitutional muster like barring concealed weapons from certain sensitive places and taking a gun safety course.  However, other elements are more questionable.

Even the limits on sensitive places are likely to be challenged. After Bruen was handed down recognizing that some sensitive places could be constitutionally permissible, Hochul went on television to say in a mocking tone that they would just come up with a long list of sensitive places.  At the time I remarked that it was a rather foolish statement since that clip will be cited by challengers to show a clear attempt to undermine the ruling with yet another transparent loophole argument.

The list would seem to cover most areas outside of the home, including government buildings; any location providing health, behavioral health or chemical dependence care or services; any place of worship or religious observation; libraries; public playgrounds; public parks; zoos; the location of any state funded or licensed programs; educational institutions both in elementary and higher education; any vehicle used for public transportation; all public transit including airports and bus terminals; bars and restaurants; entertainment, gaming and sporting events and venues; polling places; any public sidewalk or public area restricted for a special event; and protests or rallies.

It is hard not to see that listing as an obvious effort to do precisely what Hochul said: to recreate the ban by including virtually every location as a “sensitive area.” Indeed, the Court stressed that few locations historically met such a definition:

“Although 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. … We therefore can assume it settled that these locations were ‘sensitive places’ where arms carrying could be prohibited consistent with the Second Amendment. 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.”

One of the most questionable elements is the requirement that gun owners show “good moral character.” That obviously raises comparisons to the invalid Sullivan Act of 1911, giving local officials discretion over who can carry concealed guns based on a showing of “proper cause.”  The Court rejected the notion that citizens must prove their need to use an individual right as opposed to the government shouldering the countervailing burden:

“We know of no other constitutional right that an individual may exercise only after demonstrating to government officers some special need. That is not how the First Amendment works when it comes to unpopular speech or the free exercise of religion. It is not how the Sixth Amendment works when it comes to a defendant’s right to confront the witnesses against him. And it is not how the Second Amendment works when it comes to public carry for self-defense.

New York’s proper-cause requirement violates the Fourteenth Amendment in that it prevents law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms.”

Under the New York law, applicants must undergo “enhanced screening” with in-person interviews and submit to reviews of their social media, including required access to social media. That provision seems ripe for challenge on a host of grounds, including the denial of free speech and associations rights.

The law seems another overreach by the state. As I noted earlier, New York has thus far been about as effective in curtailing gun rights as Monty Python’s “Judean People’s Front Crack Suicide Squad” was effective in combating Roman occupation.

After all, who needs Texas when gun rights advocates have New York?

The new firearm law will take effect on September 1. A challenge is expected no later than September 2.

107 thoughts on “New York Passes Additional Gun Laws Certain to Trigger New Constitutional Challenges”

  1. Although I generally abhor any law that provides continuing penalties assessed on a daily basis, like many of the EPA’s rules, there needs to be a case where these would be permitted.

    Assessing those types of penalties against government officials that continually disobey laws like this case would be the example of those who should be subject to such penalties.

  2. A minority report that favors government agents and criminals, and condemns people… persons in civil society.

    That said, human rights and demos-cracy are deplorable, a “burden”, to be aborted under an ethical religion and color of law.

  3. Jonathan: I beg to differ. It is the ideological right-wing of the Supreme Court that is the “gift that keeps on giving”. To the Catholic Church, evangelicals and GOP controlled states Alioto, a conservative Catholic, says: ” I have always thought women should be governed by the laws of the 17th century. So Roe v. Wade is gone. Overturning a 50 year precedent? No problem. And don’t worry, LGBTQ rights will be our priority in the next term”. Next the NRA and the arms industry steps up and demands every one be allowed to pack a gun anytime, any place. The Court majority responds: “Don’t worry. We have you covered. And if any state tries to pass a new gun control law we will strike that down too”. Then a football coach, with hat in hand, is next in line and pleads with the Court: “My school district says I can’t have my players, students and parents kneel down and pray after a game. That’s wrong and against my religion.” The majority is sympathetic: “We agree. But we will have overrule decades of precedents that say even voluntary school prayer violates the Constitution. No problem. We’ve overturned precedent before and we can do it again. Gutting the Establishment Clause is a no brainer. You want school prayer, you’ve got school prayer”. The fossil fuel industry then steps up and pleads with the Court: “The EPA is killing us with regulations regarding limiting climate-warming emissions. Can’t you give us some relief?”. The majority is sympathetic: “You want more dirty air? You’ve got more dirty air. Besides, we don’t agree with all those doomsday global warming tree huggers anyway!”.

    It’s like the ice cream truck has broken down in the middle of a hot day and the driver is throwing candy and ice cream out to eager children in the street. Decades of court precedents go out the window. It’s a free for all. Nothing will stand in the way of the right-wing agenda of the Court majority. But the reaction of the American has been predicable. Respect for the Court is now at its lowest people in recent memory. And how does the Court respond? It erects huge metal barricades around the SC building to protect itself from the wrath of the people–with a large sign in front that reads: “WARNING: ONLY THOSE WITH CAUSES WE AGREE WITH ARE PERMITTED ENTRY!” This will be one of Trump’s lasting legacies. He packed the Court with zealots who share his view that the power of the wealthy and corporations take precedent and the rights of the American people to clean air, clean water, a safe planet and the right of women to control their own bodies be damned!

    Next on the agenda of the majority’s agenda? In the next term the Court has agreed to hear a case out of N .Carolina. The GOP controlled legislature is challenging a state supreme court decision that ruled GOP gerrymandered districts are unconstitutional under the state’s constitution, The GOP is pushing the so-called “Independent-State-Legislature” (ISL) theory to justify its challenge. ISL posits that a state legislature, in federal elections, can decide to appoint a slate of presidential electors the legislature prefers–regardless of the popular vote. ISL is the theory John Eastman advocated when he told Mike Pence he could decide which electors to accept. Trump loves the idea. If he were to decide to run in 2024 he could get GOP legislatures to ignore the popular vote and appoint electors that supported him. If the present right-wing cabal on the SC agrees with the GOP in N. Carolina the Constitution goes out the window and our democratic republic. Hold on to your socks folks!

    1. My sentiments exactly, Dennis. Every time Turley tries to take a victory lap over a Democratic legislative defeat, we should all remember that his comments are based on one fundamental flaw: that the SCOTUS, with its radical right-wing bent, is legitimately there rolling back our rights and shoving their radical beliefs down our throats because the democratic process resulted in their presence on the Court. They are not legitimate–Alito, Kavanaugh, Barrett and Gorsuch all lied about their views of Roe just to get the power needed to take away womens’ fundamental right to privacy and bodily autonomy. Each of these losers was nominated by someone who LOST the popular vote, and the latter three were nominated by someone who cheated his way into office because all polls predicted he would lose. Gorsuch is there because McConnell had the power to prevent Obama, who legitimately won his election and re-election, from getting a vote on Merrick Garland, based on the flimsy premise that the election was so close that it wouldn’t be fair. That logic was tossed aside when RBG died and the election was only weeks away. That’s how Barrett got shoved onto the Court. Dozens of witnesses begged to be allowed to testify about their knowledge of Kavanaugh and his proclivities and misconduct, but were denied by Republicans. The fallout of all of this is the stripping away of rights guaranteed by the Constitution, especially the rights based on the Fourth and Fourteenth Amendments. The majority of Americans do NOT agree with reversing Roe, they do not agree that there is any fundamental right to pack a gun wherever and whenever someone wants to without any background check for mental illness or criminal history, and to purchase high-capacity magazines for machine guns designed to kill the maximum number of people in the shortest time possible. Most Americans want greenhouse gas emissions to be lowered. We all know what individual rights are next on the agenda because Thomas told us: same-sex marriage, contraception and the right of adults to engage in consensual sexual acts. Whenever someone suggests diluting the effect of these radicals to have a SCOTUS that is more representative of the views and values of the majority of Americans, Turley accuses them of “court packing’. Well, that’s what we have now: an illegitimate POTUS who cheated his way into office and who stuffed the SCOTUS with radicals for political reasons–because it brings the Evangelicals to the polls. Individual rights of privacy and autonomy in personal conduct have been stripped away, and there’s more to come.

      1. How many falsehoods, misrepresentations and absurdities can be offered in one (run-on) paragraph? Thanks to Natacha, now we know: a myriad!

      2. “Every time Turley tries to take a victory lap over a Democratic legislative defeat…”

        Natacha, Professor Turley gave your goofy trolls the gift of the century when he didn’t include a “Dislike” button on his comment board.

        A “Mute” button would have been even better.

    2. Whatever your education cost you from whoever you paid, you are a fool if you don’t ask for a refund! Poop for brains!

  4. “sensitive places”

    What the hell is the meaning of a “sensitive” place?

    Is that a place where people are more prone to emotional breakdowns, if they see a gun?

    A place where skin is more susceptible to penetration by a bullet?

    A hangout for snowflakes?

    1. Ironically, for most people their sensitive places are very close to where they carry their concealed weapons.

  5. When a law fails to protect the innocent what do the powers to be do? they pass another law.

  6. “. . . the requirement that gun owners show ‘good moral character.’”

    “Under the New York law, applicants must undergo ‘enhanced screening’ with in-person interviews and submit to reviews of their social media, including required access to social media.” (JT)

    Psychiatry in the service of tyranny. That sounds ominously familiar.

  7. What exactly doe those politicians think this is going to accomplish?

    Susie wants to use a gun to rob people. Joe to murder people. But then they think, what: “We better not do so at a church, park, restaurant, because we don’t want to commit the crime of having a gun at a ‘sensitive place’?”

    That’s as idiotic as saying: Let’s have a speed limit, to keep fleeing felons from speeding while they’re fleeing.

    The motivation behind such “laws” is obvious: To use fascist controls to keep the innocent from acting on a right.

  8. Professor Turley, I realize that this is off topic but couldn’t find another way of communicating the following. My understanding of New York State abortion law is that a woman can have an abortion up to the moment of delivery. In view of Dodd, which gives the individual States the right to establish their own laws governing abortion, under what grounds could a third party intervene in New York State to stop a woman from aborting a fetus that is 8 months post gestation and by all standards is fully viable? How would you expect the current Supreme Court to find if a request to intervene on behalf of the fetus was denied at the trial and appellate level?

    Thank you for considering my request.

  9. So they keep losing the cases but they continue to spend government funds in a failing attempts to end the possession of firearms. Why should we be surprised. Those tax dollars keep poring in so they can just keep wasting the hard earned money of the tax payers not only in this area but many others. You see, they believe the tax money belongs to them. The suicide film exactly depicts what they are doing yet New Yorkers keep voting them into office. Insanity displayed in New York and in the Monty Python film. Well done Professor. Well done.

    1. As far as New York’s new gun bill. Isn’t it like the fox protecting the hen house? The bill states that one has to have good moral character in other to have a gun on them in most places. We have most all politicians in New York that have NO MORAL CHARACTER, yet they will have themselves decide who has GOOD MORAL CHARACTER!! NO! Back to the Supreme Court. Most of what that bill says will fail in the Supreme Court, because there are also infringments on other Amendments!! The Constitution defends our liberties people. Can you imagine trashing this document! The left would have us as slaves!

    2. TIT: you don’t speak for “we”, nor are you qualified to attack “them”. Your kind are in the minority. You, like Karen S., pick up the “Us vs. Them” rhetoric preached to you by Pastor Hannity and Pastor Tucker, but the lies they preach (the biggest of which is that “you” are the majority) do not reflect the values or beliefs of most Americans, who support criminal and mental health background checks, limits on purchase of high-capacity magazines for machine guns, which have no purpose other than to kill the maximum number of people in the shortest time possible (which is what “assault rifles” are–the modern version of machine guns). The majority want guns banned in airports, schools, churches, sports arenas, concerts and wherever large crowds gather. Gov. Hochul is heeding the values and beliefs of her constituency. It is insane to believe that the framers of our Constitution intended for a mentally ill 18 year old misfit to be able to purchase a machine gun and high-capacity magzines without any governmental oversight.

  10. The NY Supreme Court case pivoted on the fact that some people were allowed and some who were equally trained and qualified were subjectivity not allowed by a nebulous bureaucratic process to conceal carry

    NY can vote greater restrictions as long as they are reasonable, constitutionally sound and equally applied. I agree that if the legislature drums up arbitrary rules they will face a losing battle in the courts.

    They would be wise to study states who have stricter carry rules that have withstood constitutional scrutiny. Start there. It should not be viewed as a zero sum game. Why have many leaders lost the art of negotiation? Maybe they never understood how it works in the first place. You tell me your interests and I lay out my interests and we hammer out a deal that satisfies the key components of both parties.

    Where there is a will, there is a way. It can be accomplished.

    1. Well, they did! But it will go back to the Supreme court! It infringes on other amendment rights. Who are the politicians to judge who has good moral character, when most all politicians in NY have NO MORAL CHARACTER!! NO! Back to the Supreme Court!! The American people have gun rights, PERIOD!! That is stated clearly in the Constitution!! The left is all about COMPLETE CONTROL OVER AMERICAN LIVES!!

  11. I gather gun advocates here would prefer open carry vs. concealed carry. Gun holsters becoming a modern day codpiece as a fashion statement.

    1. Not likely. Justice Thomas has cited the Northhamption Statute of 1328 England, which prohibited open carry if the carrier brandished dangerous and unusual weapons that would terrify the public.

      Rapid-fire, rapid-reload long guns like AR-15s which can mow down persons at 1/sec are such terrifying weapons. There isn’t time to intervene before many are killed.

      1. Pbinca,

        Northhamption Statute of 1328 England?

        Talk about your stare decisis!

        1. This is the new conservative way to rationalize policy-making where the Constitution and Congress are silent on the issue — look to “history and tradition”. Talk about free reign to do anything you want as a Judge.

          1. Pbinca,

            Just about any SC decision can be rationalized one way or the other. The deck was stacked in favor of white Christian propertied men from the get-go. No wonder Conservatives favor relying upon history and tradition ab initio.

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