When Freedom is Treated as a Felony

posted on March 7, 2023
No Guns illustration
Illustration: Gary Locke

Many of the best jokes have a grain of truth about them, and so it is with the old line that, when you stop to think about it, gun control is rather easy to achieve. First, you make it illegal for anyone who is crazy to own a gun. Second, you assume that anyone who wants to own a gun must be crazy. And, presto, there you have it! Gun control!

Alas, since the U.S. Supreme Court announced its decision in Bruen, this joke has come to accurately describe the approach that has been taken by many of the states at which the decision was primarily aimed. Having been told in no uncertain terms that they are no longer permitted to prevent law-abiding Americans from legally carrying firearms, states such as New York and New Jersey got busy trying to find other ways to disarm the public. In particular, New York and New Jersey have been engaged in an attempt to define what counts as a “sensitive place” so broadly that the concept has ended up covering virtually everywhere that a concealed carrier might plausibly go.

Or, to render it in familiar terms: First, you make it illegal to carry a gun in a “sensitive” place. Second, you assume that all places are “sensitive.” And, presto, there you have it! A near-total prohibition on the right to bear arms.

Think that this is an exaggeration? Think again. In Bruen, the majority noted that, historically, Americans were presumptively permitted to carry firearms in “locations frequented by the general community,” providing that they were not engaged in an attempt to breach the peace or injure others. Certainly, there were exceptions to this rule—exceptions that include legislative assemblies, polling places and courthouses. But, as the Court concluded, the fact that a handful of special cases has always existed does not mean that the government has carte blanche to ban firearms wherever it wishes. “Expanding the category of ‘sensitive places’ simply to all places of public congregation that are not isolated from law enforcement,” the majority in Bruen ruled, “defines the category of ‘sensitive places’ far too broadly,” and, in practice, “would eviscerate the general right to publicly carry arms for self-defense.”

Which, of course, is exactly what New York has attempted to do. Among the places that the state legislature has tried to turn into “gun-free zones” are Times Square, all public parks, the subway, all public transportation and all restaurants, bars, theaters, libraries and more. New Jersey followed New York by banning carry in all parks, beaches, movie theaters, schools, colleges, cemeteries, government buildings and restaurants that serve alcohol; also, like New York, they also prohibited concealed carry in any private establishment that doesn’t explicitly tell people they can carry on the premises.

These laws are too clever by half. The U.S. Supreme Court has long frowned on attempts to prevent Americans from exercising their constitutional rights by attacking those rights indirectly, and there is no reason to assume that it would regard the abuse of “sensitive places” laws any differently. Just as it is not legal for a state to impose special taxes on ink and paper in an attempt to circumvent the protections included within the First Amendment, so it cannot be acceptable for a state to hand out concealed-carry permits in compliance with the law, but make it impossible for those permits to be practically used. Whether they like it or not, New York, New Jersey and any other holdouts will—unless the courts also opt to ignore the plain wording of the Second Amendment—be brought into line with the U.S. Constitution. The only choice before them now is whether they will do it voluntarily, or be ordered into compliance by a judge. 


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