New York Defies Supreme Court

(For Now, At Least)

Imagine that you go to DMV to get a driver’s license. You meet the age requirement, pass the driving test, the written test, and the vision test, have never had a license revoked or suspended, and have no DUI/DWI convictions or unpaid traffic tickets, and you have proof of liability insurance. You’re ready to write DMV a check, and the clerk says “Hold on. Why do you need a driver’s license? Where do you need to go? Why do you need to go there? You could just walk, ride a bicycle, or take a cab or a bus. You can have groceries delivered to your doorstep. I don’t think you need a driver’s license. Application rejected.”

Last week, the Supreme Court, by 6-3, in New York State Rifle & Pistol Assn. v. Bruen, said that New York—the state that gave us the 19th century Freethought Movement of anarchists, free-lovers, wife-swappers, cross-dressers, women suffragists, abolitionists, communists, utopians, Democratic socialists, birth controllers, eugenicists, Prohibitionists, Electoral College opponents, anti-Christian heretics, atheists, secular humanists, agnostics, and the feminist/anti-religionist children’s book The Wonderful Wizard of Oz, the author of which advocated exterminating Native Americans—can no longer refuse to give you a handgun-carrying license on a similarly preposterous basis.

Brief Background

When the Second Amendment was adopted, a license was not required to carry a gun concealed for protection. In the 1800s, some states prohibited carrying various weapons concealed. In most cases, state courts upheld these prohibitions. A notable exception is the Kentucky Supreme Court’s decision in Bliss v. Commonwealth (1822), which struck down an act of the legislature prohibiting carrying concealed. Mr. Bliss had been convicted of carrying a sword concealed in a cane. The court said: “The right (to carry concealed) existed at the adoption of the (state) constitution. . . . Diminish that liberty, therefore, and you necessarily restrain the right; and such is the diminution and restraint, which the act in question most indisputably imports, by prohibiting the citizens wearing weapons in a manner which was lawful to wear them when the constitution was adopted.” (Emphasis added.)

Adversarial state court decisions could not be appealed to the Supreme Court, because the Bill of Rights originally prohibited only the federal government from infringing the rights and freedoms it guarantees. With respect to the right to keep and bear arms, the Court stated that limitation in U.S. v. Cruikshank (1876). After the Fourteenth Amendment was ratified in 1868, its Due Process Clause was used by the Court to “incorporate” various provisions of the Bill of Rights against the states and localities. However, the Court did not incorporate the Second Amendment until McDonald v. Chicago (2010). McDonald struck down handgun bans in Chicago and a few nearby municipalities, applying the Court’s decision two years earlier in District of Columbia v. Heller, which struck down a handgun ban in the District, a federal enclave. Because the Second Amendment now applies against the states, plaintiffs challenging New York’s handgun-carry license law could raise a Second Amendment claim.

Issues in the Case

Today, 49 states have handgun-carrying licenses or permits. (Vermont has never required a license to carry a gun.) Of the 49, 43 states issue a license to any applicant who meets fixed, objective, statewide criteria that apply to all applicants equally. Generally, an applicant must be of minimum age, have no criminal or other disqualifying record (e.g., drug addict, illegal alien, adjudicated mental incompetent), meet a training requirement, and pay a fee.

Until the Court’s decision in Bruen, the other six states—solidly-Democrat New York, California, Hawaii, Maryland, Massachusetts, and New Jersey—allowed license-issuing authorities to deny licenses to qualified applicants on some arbitrary basis. New York allowed a license to be denied if the applicant had not demonstrated “proper cause.” Being generally concerned for your safety was not enough. Living or working in a high-crime neighborhood and having to take a bus home alone at night, after work, was not enough. To satisfy the “proper cause” requirement, you might have needed a court order against a stalker, or have been robbed multiple times. And even that might not have been enough.

The Supreme Court’s Decision

The Court said that bearing arms away from home for defensive purposes is an activity clearly protected by the text of the Second Amendment and, therefore, the only permissible restrictions on that activity are those that are consistent with the history and tradition of handgun-carrying laws in this country. Perhaps recognizing that a variety of gun laws that violate the Amendment’s intent have been on the books during much of that “history,” Justice Amy Coney Barrett, in her concurring opinion, suggested that courts’ “prevailing understanding of an individual right” should be based upon what the Framers of the Constitution understood that right to be when the Constitution was ratified, not upon “freewheeling reliance on historical practice from the mid-to-late 19th century,” a period during which, she didn’t mention, a slew of states imposed previously unknown laws prohibiting carrying concealed weapons. Justice Barrett also didn’t mention that licenses were not required in 1791.

In the end, six justices found that New York’s “proper cause” requirement (and the other five states’ similar requirements) was an outlier, thus unconstitutional. The Court then required the outlier states to make their laws like those of the other 43 states. It also said that they could continue to prohibit carrying in “sensitive locations,” but instructed them to not go overboard about it.

New York’s Response

Within days, New York imposed its new law, and not only thumbed its nose at the Court’s requirement that it be consistent with the history and tradition of handgun-carrying laws, it also created a new array of restrictions and applied them not only to applicants for handgun-carrying licenses, but also to applicants for licenses to acquire or possess a handgun or a semi-automatic rifle (other than an “assault weapon,” which, for the time being, is prohibited in New York). New York is one of a dozen or so states that requires a license or permit to purchase and/or possess one or another type of gun.

New York’s new law requires that license applicants “meet in person with the licensing officer for an interview” and provide, among other information:

·      Names and contact information for the applicant’s current spouse, or domestic partner, any other adults residing in the applicant’s home, including any adult children of the applicant, and whether or not there are minors residing, full time or part time, in the applicant’s home;

·      Names and contact information of no less than four character references who can attest to the applicant’s good moral character and that such applicant has not engaged in any acts, or made any statements that suggest they are likely to engage in conduct that would result in harm to themselves or others;

·      A list of former and current social media accounts of the applicant from the past three years to confirm the information regarding the applicants (sic) character and conduct.

The four new requirements, like the “proper cause” requirement, are outliers in the history of laws related to handgun-carrying licenses and to acquiring or possessing handguns or semi-automatic rifles, and for that reason are likely to be struck down in court.

New York’s new list of “sensitive locations” where carrying any firearm is now prohibited likely contains some locations the Court will find acceptable, such as courthouses and polling places, and others it will find unacceptable, such as some of these:

Any private property unless the owner has posted a sign granting you permission to carry (verbal permission is not enough); places of worship or religious observation; libraries, public playgrounds and parks, and zoos; pretty much any educational institution, pre-school through university, including nurseries and summer camps; any place used for the performance (sic), art entertainment, gaming, or sporting events such as theaters, stadiums, racetracks, museums, amusement parks, performance venues, concerts, exhibits, conference centers, banquet halls, gaming facilities, and video lottery terminal facilities; pretty much any location related to any of New York’s vast array of social services programs; shelters for the homeless, runaway youths, families, adults, domestic violence victims, and people displaced by emergencies; any place, conveyance, or vehicle related to public transportation or public transit, such as subways, trains, buses, ferries, railroads, omnibuses, marine or aviation transportation; any public sidewalk or other public area restricted from general public access for a limited time or special event that has been issued a permit for such time or event by a governmental entity, or subject to specific, heightened law enforcement protection, or that has otherwise had such access restricted by a governmental entity; any gathering of individuals to collectively express their constitutional rights to protest or assemble; and Times Square.

Plans to challenge the new law in court are underway.

© 2022 Mark Overstreet