In a striking rebuke to American freedom—and to the U.S. Supreme Court—the U.S. Court of Appeals for the Second Circuit ruled that New York’s “sensitive-place” restrictions can continue to prohibit concealed-carry holders from being armed citizens in many of the places where they most need to be able to practice this constitutional right.
This case was argued on Jan. 30, 2024. It then took the Second Circuit over a year and a half to concoct its historically convoluted position on how citizens can practice their Second Amendment rights.
A thoughtful and thorough review of the history of this right is, as this opinion notes, mandated by the U.S. Supreme Court in New York State Rifle & Pistol Association v. Bruen (2022), but the time it took for the court to issue its opinion is not, to put it mildly, reflected in the quality of its analysis.
This court’s examination of history cherry picks laws and regulations in old England and in a handful of states. This opinion even includes a lengthy footnote casting doubt on its own claims about a number of these laws, but the judges behind this ruling say they are nevertheless right to allow New York state and New York City to regulate this right away—indeed to turn it into a felony in some cases —on many streets, on public transportation and much more.
“Because Bruen did not ‘provide an exhaustive survey of the features that render regulations relevantly similar under the Second Amendment,’ … we attempted to undertake that endeavor at some length in Antonyuk. There, we explained that ‘courts must be particularly attuned to the reality that the issues we face today are different than those faced in medieval England, the Founding Era, the Antebellum Era, and Reconstruction … . Thus, a lack of distinctly similar historical regulations during one or more of those time periods ‘may not be reliably dispositive in Second Amendment challenges to laws addressing modern concerns,’” ruled the Second Circuit.
With that sweep of a pen, they allowed state and local governments to pervasively strip this civil-right from law-abiding Americans.
The court even found that reasoning from “historical silence” is “risky,” so this court decided to simply fill in the silence with carry bans that required a malintent requirement not present in the New York laws.
Ultimately, the court’s “logic” leads directly to the outcome Justice Clarence Thomas expressly condemned in Bruen, when he wrote that “expanding the category of ‘sensitive places’ simply to all places of public congregation that are not isolated from law enforcement defines the category of ‘sensitive places’ far too broadly. Respondents’ argument would in effect exempt cities from the Second Amendment and would eviscerate the general right to publicly carry arms for self-defense that we discuss in detail below. … Put simply, there is no historical basis for New York to effectively declare the island of Manhattan a ‘sensitive place’ simply because it is crowded and protected generally by the New York City Police Department.”
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