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. Bruen. After 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.