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Expect more ‘weird’ court rulings on New York gun laws and other states’ restrictions
By
Herb Pinder
and
Olivia Ebertz
Published Oct 18, 2022
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By
Herb Pinder
and
Olivia Ebertz
Published Oct 18, 2022
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Times Square remains a “gun free zone," likewise the New York City subway, theaters and bars – this after a federal appellate court last week restored new gun-carrying restrictions that were partially blocked by a U.S. District Court judge.
But it’s hardly the last word on the New York restrictions.
The New York measures were enacted after the U.S. Supreme Court in June invalidated a century-old state law that kept a tight lid on permits allowing licensed gun owners to carry concealed handguns in public.
On Wednesday, the U.S. Court of Appeals for the Second Circuit gave New York officials more time to enforce the new restrictions, which make guns off-limits in a long list of public places, including Times Square and on public transportation. In the meantime, a three-judge panel will consider whether to put the measures on hold for longer.
The appellate court decision came after U.S. District Court Judge Glenn Suddaby temporarily blocked some of the new restrictions, concluding in an Oct. 6th opinion they likely ran afoul of the Supreme Court’s latest guidance on firearms.
Morning Edition host Michael Hill recently discussed the legal back-and-forth with Duke Law School Professor Joseph Blocher, who is co-director of the Duke Center for Firearms Law.
Their conversation has been lightly edited for clarity and content.
Michael Hill: Professor, good morning.
Joseph Blocher: Thank you so much for having me on.
MH: New York officials and New Jersey officials, too, continue to press for ways to keep legal guns out of public places. Remind us how the Supreme Court has made that an exceedingly difficult proposition.
JB: Well, in June of this year, the Supreme Court handed down a decision called New York State Rifle & Pistol Assn. Inc. v. Bruen, in which it struck down New York's “may issue” licensing regime, which required a person to show good cause in order to get a permit to carry a handgun in public.
And, in response to that decision, a lot of states, including New York and New Jersey, have either passed or are considering what are sometimes called “sensitive places” restrictions to keep guns out of particular places (including Times Square, public transportation, schools, government buildings, polling places, entertainment venues, and a long list of other places).
MH: The recent district court ruling speaks at length about a need to find a “historical analogue” for any gun restriction to pass muster. What does this mean in practical terms? It's a really important feature going forward, isn't it?
JB: It is. And, actually, that is, I think, the central question. What the Supreme Court said in Bruen is that evaluating the constitutionality of gun laws going forward is a solely historical matter – that we look just to the constitutional text and to constitutional tradition and not, for example, to questions like, “Well, does this gun law work in preventing deaths or preventing terror and intimidation?” And that is a radical new approach to constitutional law, which raises all kinds of hard questions.
MH: I'm wondering what does this mean for a technology like “ghost guns,” which didn't exist when the Second Amendment was hatched?
JB: Uh, just this [past] week, in fact, the Federal District Court struck down the federal law that requires serial numbers to be placed on guns, analogizing back to the founding era, into the mid-1800s, saying that, well, they didn't require serial numbers then.
Serial numbers are one thing, but you could ask the same question about, let's say AR-15-style rifles, what are sometimes called assault weapons, right? How meaningfully similar are they really to the kind of black powder muskets that we saw in circulation in 1791 when the Second Amendment was ratified?
MH: I'm wondering if courts are missing the mark on this when you start thinking about what states and cities and counties are up against in real time right now.
JB: I think this is one of the central problems with the Bruen test that the Supreme Court gave us, that it is willfully disdainful of modern empirical evidence. You know, we've seen from Centers for Disease Control and Prevention data that we’re seeing the highest number of recorded gun deaths in decades, and we're facing a world of gun violence, which is just radically different from anything that was imaginable in 1791. And so, comparing those two things, I think is going to continue to give weird answers.
MH: The district court ruling criticized New York for reducing what it called a “first class constitutional right” – the right to bear arms in public for self-defense – into a “mere request.” Is the Supreme Court likely to see matters that way if the New York challenges get that far?
JB: So, there is this sense that the Second Amendment right is being subject to some kind of persecution and second-class status. Now, on the other hand, it's hard to point to another constitutional right which raises the same kind of immediate visceral public safety implications as the right to keep and bear arms, especially in crowded public places like those that are covered by the New York law.
MH: Professor, we've seen opinion polls showing the public favoring more gun constrictions than are on the books. Is this another case where the Supreme Court majority is out of step with the public?
JB: It might well be, but I do want to emphasize that a lot of the forms of gun regulation that command enormous public support are still constitutional, no matter how one reads the Bruen decision.
And so the failure to have more robust gun regulations is still a failure of politics, not something we can attribute to the court.
MH: Professor Joseph Blocher is the co-director of the Duke Center for Firearms Law. Professor, thank you so much for joining us and for speaking with us.
JB: Thank you so much for having me.
Tagged
Times Square
supreme court
gun control
Herb Pinder
Herb is the editor of the Race & Justice unit. Got a tip? Email [email protected] or Signal 917-922-2497.
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Olivia Ebertz
Olivia is a former WNYC and Gothamist assistant producer.
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Gothamist is funded by sponsors and member donations
Gothamist is funded by sponsors and member donations
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