BENJAMIN AYANIAN
After having one of its firearms regulations struck down in court, New York state has decided to replace it with a blatantly unconstitutional package, attempting to infringe, again, on Second Amendment rights.
Just a couple of weeks ago, the Supreme Court struck down a New York firearms regulation that would have required individuals to show “proper cause”—i.e., “demonstrate a special need for self-protection distinguishable from that of the general community”—in order to obtain a concealed carry permit in the state. This burdensome rule made it impossible for ordinary, law-abiding citizens to legally carry a concealed firearm outside of their homes.
Justice Clarence Thomas, writing for the majority in NYSRPA v. Bruen, pointed out that “To confine the right to ‘bear’ arms to the home would nullify half of the Second Amendment’s operative protections.” The New York regulation was ultimately ruled unconstitutional because it was inconsistent with historical firearms restrictions in this country—virtually none of which “operated to prevent law-abiding citizens with ordinary self-defense needs from carrying arms in public for that purpose.”
In other words, there needs to be some path, with objective criteria, for law-abiding citizens to legally carry arms.
In spite of this recent ruling, New York just passed a slew of regulations regarding “licensing and other provisions related to firearms,” and some are even more subjective and restrictive than the “proper cause” requirement the Supreme Court just overruled.
Instead of needing “proper cause” to obtain a concealed carry permit, New Yorkers are now required to possess “good moral character,” defined as “having the essential character, temperament and judgment necessary to be entrusted with a weapon and to use it only in a manner that does not endanger oneself or others.” This standard is incredibly subjective, failing to create a clear path for law-abiding citizens to “bear” arms.
Under the new law, anyone seeking a concealed carry permit in New York will have to, among other things, submit to an interview by the licensing office and provide “a list of former and current social media accounts…from the past three years to confirm the information regarding the applicant’s character and conduct.”
Individuals’ constitutional rights cannot be subject to the opinions of state officials sifting through social media pages. This process of analyzing social media content lacks any formal standards—which would be impossible to create anyway—and welcomes arbitrary discrimination.
On top of the clear procedural issues with the new law, the statute substantively prohibits the carrying of firearms—even if a permit is ultimately obtained. According to the legislation, “a person is guilty of criminal possession of a firearm…in a sensitive location when such person possesses a firearm…in or upon a sensitive location, and such person knows or reasonably should know such location is a sensitive location.”
The law proceeds to list an unimaginable number of locations as “sensitive,” including all of Times Square, nearly all spaces for indoor public gathering, any place where multiple people gather to protest, and much more. The law leaves one with little idea as to where it is legal to carry a concealed firearm in New York.
There are pieces of this new legislation that, while arduous, would likely be upheld in court, such as requiring 16 hours of classroom instruction, 2 hours at a firing range, and an 80 percent score or better on a written exam before obtaining a concealed carry permit. In a concurring opinion on Bruen, Justice Brett Kavanaugh emphasized that measures of this nature were not being questioned by the Court.
But there is no way to construe the New York legislature’s arbitrary processes and draconian restrictions as constitutionally permissible following the Supreme Court’s ruling in Bruen. The new law simply creates no objective path for law-abiding citizens to carry concealed firearms outside of their homes, leaving too much to the discretion of licensing officials and barring individuals from carrying firearms in a large number of places.
The state’s new carry law reflects an utter disregard for the Supreme Court’s recent decision, as well as the spirit and text of the U.S. Constitution. The new regulations—I expect—will be swiftly challenged and struck down as well.
