Handguns in public places: where a 2nd Amendment expert sees NY headed – Gothamist
A recent U.S. Court of Appeals ruling upheld most of New York state's new restrictions on acquiring and carrying concealed handguns in public.
Nobodys expecting that to be the final word.
The Dec. 8 ruling by a three-judge panel of the Second Circuit was the most significant decision on firearms since the U.S. Supreme Court in New York State Rifle & Pistol Assn. Inc. v. Bruen struck down the state's highly restrictive, century-old handgun law in June 2022.
Gov. Kathy Hochul and the Legislature quickly followed the Supreme Court decision by enacting a host of new restrictions on acquiring and carrying concealed handguns in public measures the appellate court has now largely approved.
"All Things Considered" host Sean Carlson recently discussed the appellate courts ruling and whats ahead with Jacob Charles, a constitutional scholar and gun law expert at Pepperdine University's Caruso School of Law in Los Angeles who's been following the New York case.
Heres a transcript of their conversation, which has been lightly edited for clarity.
Charles: There are three main parts to this opinion. One is that the court analyzed the changes to the handgun licensing law that New York made in direct response to the decision that struck down the states handgun law. In response, New York enacted provisions that restricted guns from a whole host of locations that it deemed sensitive. And then, finally, the appellate court addressed one other aspect of the law, which presumptively made it off limits to carry guns on private property unless you had an owner's permission to do so.
And in each one of those aspects, the court upheld most of the provisions and struck down some parts of it. So, with the licensing law, the court said it's OK for New York to require an individual to show good moral character in order to get a permit to carry a gun in public, but New York can't require individuals to disclose all of their social media accounts as part of that review, including those that they might use anonymously.
With respect to sensitive places, the court said it's OK for New York to restrict guns in places like behavioral health centers and public parks and zoos. But the court did say that the First Amendment, the free exercise clause of religion, restricts the state from banning guns in places of worship.
And with respect to restricted locations, the court said that New York cannot tell gun owners that it's presumptively off limits to carry guns in private places that are open to the public, like say malls, unless a property owner gives permission to do so. Instead, a property owner can object to that and can say no guns on the property, but New York can't change the default presumption about allowing guns on that property.
I think what we've seen in lower courts as a response to the Supreme Court's decision last year is that there's a lot of difficulty applying this new historical methodology, where the court requires a regulation today to be consistent with the historical tradition of firearms regulation in order to be constitutional.
What the Second Circuit does in this opinion is it views the historical record at a higher level of generality. And it reads the Supreme Court's decision to say, "We look at that record holistically," not looking for, "Was there a regulation on guns in parks in 1791? Instead, we say, "What was the rationale for restricting guns in certain places in the olden days? And does that rationale support regulations today?"
So to give just one example, the court said, Well, we find from the historical record that there's a tradition of regulating guns in public forums in quintessentially crowded places, and that kind of principle can support a modern regulation.
I think one of the flashpoints, if this does go up to the Supreme Court, is going to be this good moral character requirement. One of the things that the Supreme Court faulted in New York's prior licensing law was for having too much discretion in the hands of licensing agents.
Here, the good moral character requirement has a statutory definition, so it kind of constrains discretion more than the prior framework had. And the Second Circuit here read that as just a proxy for dangerousness. But I think there could be debate. So the flashpoint, I think, if there's further appeal on that licensing provision, will be whether this good moral character requirement actually does constrain the discretion of licensing officials to the extent that the Supreme Court seems to suggest the Second Amendment demands.
Yeah, I think certainly as a result of the Bruen decision, the Supreme Court's decision that struck down the old licensing law, there is undoubtedly going to be more guns in public spaces.
As a result of this ruling, [however,] I'm not quite sure that's right, because the only places that this ruling says that New York cannot restrict guns to are places of worship and private property that's held open to the public. But the opinion also makes clear that those private property owners can themselves prohibit guns in those spaces.
So if a place of worship doesn't want guns, they can just say, "No guns are allowed here." If a mall or shopping center or other business that's held open to the public doesn't want guns, this ruling doesn't make them accept guns on their property. So, as a result of this decision, it's only those places that actually want guns on their property, that the decision mandates they have those guns.
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Handguns in public places: where a 2nd Amendment expert sees NY headed - Gothamist