{"id":1539212,"date":"2022-07-05T07:50:22","date_gmt":"2022-07-05T11:50:22","guid":{"rendered":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/?p=1539212"},"modified":"2022-07-05T07:50:31","modified_gmt":"2022-07-05T11:50:31","slug":"new-york-effectively-nullifies-the-supreme-courts-latest-pro-second-amendment-decision","status":"publish","type":"post","link":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/new-york-effectively-nullifies-the-supreme-courts-latest-pro-second-amendment-decision\/","title":{"rendered":"New York Effectively Nullifies The Supreme Court\u2019s Latest Pro-Second Amendment Decision"},"content":{"rendered":"<aside class=\"mashsb-container mashsb-main mashsb-stretched\"><div class=\"mashsb-box\"><div class=\"mashsb-count mash-medium\" style=\"&quot;\"><div class=\"counts mashsbcount\">22<\/div><span class=\"mashsb-sharetext\">SHARES<\/span><\/div><div class=\"mashsb-buttons\"><a class=\"mashicon-facebook mash-medium mash-nomargin mashsb-noshadow\" href=\"https:\/\/www.facebook.com\/sharer.php?u=https%3A%2F%2Fwww.conservativenewsdaily.net%2Fbreaking-news%2Fnew-york-effectively-nullifies-the-supreme-courts-latest-pro-second-amendment-decision%2F\" target=\"_top\" rel=\"nofollow\"><span class=\"icon\"><\/span><span class=\"text\">Facebook<\/span><\/a><a class=\"mashicon-twitter mash-medium mash-nomargin mashsb-noshadow\" href=\"https:\/\/twitter.com\/intent\/tweet?text=&amp;url=https:\/\/www.conservativenewsdaily.net\/breaking-news\/?p=1539212&amp;via=ConservNewsDly\" target=\"_top\" rel=\"nofollow\"><span class=\"icon\"><\/span><span class=\"text\">Twitter<\/span><\/a><a class=\"mashicon-subscribe mash-medium mash-nomargin mashsb-noshadow\" href=\"#\" target=\"_top\" rel=\"nofollow\"><span class=\"icon\"><\/span><span class=\"text\">Subscribe<\/span><\/a><div class=\"onoffswitch2 mash-medium mashsb-noshadow\" style=\"display:none\"><\/div><\/div>\n            <\/div>\n                <div style=\"clear:both\"><\/div><\/aside>\n            <!-- Share buttons by mashshare.net - Version: 4.0.47--><div><img decoding=\"async\" src=\"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-content\/uploads\/2022\/07\/Kathy_Hochul_swearing_in_2021.jpg\" class=\"ff-og-image-inserted\" alt=\"image\" \/><\/div>\n<p>The U.S. Supreme Court has made clear that the Second Amendment guarantees law-abiding citizens the right to keep and bear arms for self-defense, both in their homes and in public. On Friday, New York responded that it didn\u2019t care.<\/p>\n<p>New York Gov. Kathy\u00a0Hochul\u00a0ushered in the long Independence Day weekend on Friday by signing into <a href=\"https:\/\/legislation.nysenate.gov\/pdf\/bills\/2021\/S51001\">law<\/a> legislation crafted in response to the Supreme Court\u2019s recent decision in <em>New York State Rifle and Pistol Association, Inc. v. Bruen<\/em>. Just more than a week earlier, the U.S. Supreme Court in <em>Bruen <\/em>had <a href=\"https:\/\/www.supremecourt.gov\/opinions\/21pdf\/20-843_7j80.pdf\">declared<\/a>\u00a0that New York\u2019s prior \u201cmay issue\u201d gun licensing scheme, which prohibited individuals from carrying concealed handguns unless they \u201cdemonstrate[d] a special need for self-protection distinguishable from that of the general community,\u201d violated the Second Amendment. In reaching that conclusion, the high court stressed that the right to \u201cbear arms,\u201d by necessity, applies outside the home.<\/p>\n<p>The New York legislature responded by calling an extraordinary session and then passing the bill Hochul signed into law on Friday. That hastily passed statute established detailed regulations governing a citizen\u2019s right to obtain a permit to carry a concealed weapon and added restrictive limits to where such concealed weapons could be carried. Both aspects of the New York legislation run headlong into the Supreme Court\u2019s analysis in <em>Bruen<\/em>\u2014and potentially First Amendment jurisprudence.<\/p>\n<h2>Overturn the Supreme Court<\/h2>\n<p>In <em>Bruen, <\/em>in declaring unconstitutional New York\u2019s \u201cmay issue\u201d gun licensing scheme, the Supreme Court stressed, \u201cto be clear, nothing in our analysis should be interpreted to suggest the unconstitutionality of the 43 States\u2019 \u2018shall-issue\u2019 licensing regimes, under which \u2018a general desire for self-defense is sufficient to obtain a [permit].\u2019\u201d The <em>Bruen <\/em>majority reasoned that \u201cbecause these licensing regimes do not require applicants to show an atypical need for armed self-defense, they do not necessarily prevent \u2018law-abiding, responsible citizens\u2019 from exercising their Second Amendment right to public carry.\u201d<\/p>\n<p>Rather, the Supreme Court continued, \u201cit appears that these shall-issue regimes, which often require applicants to undergo a background check or pass a firearms safety course, are designed to ensure only that those bearing arms in the jurisdiction are, in fact, \u2018law-abiding, responsible citizens.\u2019\u201d Those \u201cshall-issue\u201d regimes, the <em>Bruen <\/em>court explained, \u201clikewise appear to contain only \u2018narrow, objective, and definite standards\u2019 guiding licensing officials, rather than requiring the \u2018appraisal of facts, the exercise of judgment, and the formation of an opinion.\u2019\u201d<\/p>\n<p>Significantly, though, the Supreme Court in <em>Bruen <\/em>stressed that \u201cbecause any permitting scheme can be put toward abusive ends, we do not rule out constitutional challenges to shall-issue regimes where, for example, lengthy wait times in processing license applications or exorbitant fees deny ordinary citizens their right to public carry.\u201d New York\u2019s just-passed \u201cshall-issue\u201d permitting scheme sidles toward abusive ends, although it remains too early to judge if the state crossed the constitutional line suggested in <em>Bruen<\/em>\u2014that regulations that \u201cdeny ordinary citizens their right to public carry\u201d run afoul of the Second Amendment.<\/p>\n<h2>Want Self-Defense? Let\u2019s Inspect Your Speech<\/h2>\n<p>Among other things, to obtain a conceal-carry permit in New York, an applicant must complete 16 hours of in-person live curriculum and two hours of a live-fire range training course. In addition to completing the forms and providing details of other individuals residing in the same abode, applicants must also provide the licensing officer with four character references and \u201ca list of former and current social media accounts of the applicant from the past three years.\u201d<\/p>\n<p>The ability of ordinary New Yorkers to affordably access in-person training courses, in addition to any permitting fees, raises one <a href=\"https:\/\/www.scotusblog.com\/2022\/06\/a-minor-impact-on-gun-laws-but-a-potentially-momentous-shift-in-constitutional-method\/\">question<\/a> that will likely find itself litigated. However, a bigger constitutional issue looms with the law\u2019s requirement that applicants provide a list of social media accounts.<\/p>\n<p>The statute provides that licensing officers need that information to determine if a candidate has \u201cgood moral character,\u201d which is defined as meaning \u201chaving 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.\u201d But requiring applicants to disclose to government officials their protected speech, which likely includes political speech and possibly speech engaged in anonymously, raises serious First Amendment concerns not yet analyzed by the courts.<\/p>\n<p>Should that portion of the statute withstand a constitutional challenge\u2014something likely coming in the days or weeks ahead\u2014individuals denied permits based on their social media speech will likely challenge those individual decisions in what is called an \u201cas-applied challenge.\u201d Such claims will likely succeed, too, if the permitting officials\u2019 decision-making process reveals they possess limitless discretion to conduct an ad hoc, rudderless review of social media accounts to deny permits.<\/p>\n<p>Likewise, if non-violent comments trigger an assessment that someone lacks good moral character based on the viewpoint expressed, the denial of a conceal-carry permit will trigger a First Amendment challenge.<\/p>\n<h2>Massive Constitutional Suspension Zones<\/h2>\n<p>The larger constitutional problem with New York\u2019s revised conceal-carry law concerns the state\u2019s attempt to, in essence, declare most public spaces \u201csensitive locations\u201d in which guns cannot be carried even by permitted individuals. Specifically, the statute makes it a felony to carry firearms \u201cin or upon a sensitive location,\u201d then provides an exhaustive list of sensitive locations which, because of its constitutional significance, is excerpted in full below:<\/p>\n<blockquote class=\"wp-block-quote\">\n<p>\u00a0(a) any place owned or under the control of federal, state or local government, for the purpose of government administration, including courts;<\/p>\n<p>(b) any location providing health, behavioral health, or chemical dependance care or services;<\/p>\n<p>(c) any place of worship or religious observation;<\/p>\n<p>(d) libraries, public playgrounds, public parks, and zoos;<\/p>\n<p>(e) the location of any program licensed, regulated, certified, funded, or approved by the office of children and family services that provides services to children, youth, or young adults, any legally exempt childcare provider; a childcare program for which a permit to operate such program has been issued by the department of health and mental hygiene pursuant to the health code of the city of New York;<\/p>\n<p>(f) nursery schools, preschools, and summer camps;<\/p>\n<p>\u00a0(g) the location of any program licensed, regulated, certified, operated, or funded by the office for people with developmental disabilities;<\/p>\n<p>(h) the location of any program licensed, regulated, certified, operated, or funded by office of addiction services and supports;<\/p>\n<p>(i) the location of any program licensed, regulated, certified, operated, or funded by the office of mental health;<\/p>\n<p>(j) the location of any program licensed, regulated, certified, operated, or funded by the office of temporary and disability assistance;<\/p>\n<p>(k) homeless shelters, runaway homeless youth shelters, family shelters, shelters for adults, domestic violence shelters, and emergency shelters, and residential programs for victims of domestic violence;<\/p>\n<p>(l) residential settings licensed, certified, regulated, funded, or operated by the department of health;<\/p>\n<p>(m) in or upon any building or grounds, owned or leased, of any educational institutions, colleges and universities, licensed private career schools, school districts, public schools, private schools licensed under article one hundred one of the education law, charter schools, non-public schools, board of cooperative educational services, special act schools, preschool special education programs, private residential or non-residential schools for the education of students with disabilities, and any state-operated or state-supported schools;<\/p>\n<p>(n) any place, conveyance, or vehicle used for public transportation or public transit, subway cars, train cars, buses, ferries, railroad, omnibus, marine or aviation transportation; or any facility used for or in connection with service in the transportation of passengers, airports, train stations, subway and rail stations, and bus terminals;<\/p>\n<p>(o) any establishment issued a license for on-premise consumption pursuant to article four, four-A, five, or six of the alcoholic beverage control law where alcohol is consumed and any establishment licensed under article four of the cannabis law for on-premise consumption;<\/p>\n<p>(p) any place used for the performance, art entertainment, gaming, or sporting events such as theaters, stadiums, racetracks, museums, amusement parks, performance venues, concerts, exhibits, conference centers, banquet halls, and gaming facilities and video lottery terminal facilities as licensed by the gaming commission;<\/p>\n<p>(q) any location being used as a polling place;<\/p>\n<p>(r) 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 has otherwise had such access restricted by a governmental entity, provided such location is identified as such by clear and conspicuous signage;<\/p>\n<p>(s) any gathering of individuals to collectively express their constitutional rights to protest or assemble;<\/p>\n<p>(t) the area commonly known as Times Square, as such area is determined and identified by the city of New York; provided such area shall be clearly and conspicuously identified with signage.<\/p>\n<\/blockquote>\n<p>Merely skimming these provisions confirms the breadth of the new law, which leaves New York residents with few public places where they may legally carry a gun for self-defense. That bottom line strikes to the core of the Supreme Court\u2019s ruling in <em>Bruen <\/em>that the Second Amendment guarantees a right for law-abiding, responsible citizens to carry a firearm in public for purposes of self-defense. New York\u2019s expansive list of supposedly \u201csensitive locations\u201d likewise ignores the Supreme Court\u2019s analysis in <em>Bruen.<\/em><\/p>\n<h2>Americans Have Long Carried Guns Everywhere<\/h2>\n<p>In <em>Bruen, <\/em>the Supreme Court noted that <em>Heller<\/em>\u2019s decision that the Second Amendment\u2019s right to keep and bear arms constituted an individual right independent of militia service also spoke of \u201clongstanding\u201d \u201claws forbidding the carrying of firearms in sensitive places such as schools and government buildings.\u201d<\/p>\n<p><em>Bruen <\/em>then noted that \u201cthe historical record yields relatively few 18th- and 19th-century \u2018sensitive places\u2019 where weapons were altogether prohibited\u2014e.g., legislative assemblies, polling places, and courthouses,\u201d adding there was no apparent dispute \u201cregarding the lawfulness of such prohibitions.\u201d Accordingly, the court in <em>Bruen <\/em>assumed it is \u201csettled that these locations were \u2018sensitive places\u2019 where arms carrying could be prohibited consistent with the Second Amendment.\u201d<\/p>\n<p>As for what other locations may qualify as \u201csensitive places,\u201d <em>Bruen <\/em>noted that \u201ccourts can use analogies to those historical regulations of \u2018sensitive places\u2019 to determine that modern regulations prohibiting the carry of firearms in new and analogous sensitive places are constitutionally permissible.\u201d The court added that it had \u201cno occasion to comprehensively define \u2018sensitive places\u2019 in this case,\u201d but explained that \u201cexpanding the category of \u2018sensitive places\u2019 simply to all places of public congregation that are not isolated from law enforcement defines the category of \u2018sensitive places\u2019 far too broadly.\u201d<\/p>\n<p>Yet New York\u2019s legislature on Friday appeared to do just that by including public parks and zoos, museums, art exhibits, and permitted gatherings among other locations that qualify as \u201csensitive places.\u201d While some of the locations identified, such as courts, polling places, and legislative assemblies, clearly qualify as \u201csensitive places,\u201d many others included in the new law will likely fail to pass constitutional scrutiny, especially under the now-governing <em>Bruen <\/em>standard.<\/p>\n<h2>Back to the Courts for Who Knows How Long<\/h2>\n<p>Under <em>Bruen<\/em>, to survive a Second Amendment challenge, the government must affirmatively prove \u201cthat the regulation is consistent with this Nation\u2019s historical tradition of firearm regulation.\u201d Accordingly, New York will have the burden of proving that the locations identified as \u201csensitive places\u201d were treated as such historically or did not exist historically but represent a modern analog to other historical \u201csensitive places.\u201d<\/p>\n<p>Briefing from the <em>Bruen <\/em>case suggests New York will be unable to do so for many of the public places listed in its new law. Specifically, the Independent Institute submitted an amicus curiae, or friend of the court, <a href=\"https:\/\/www.supremecourt.gov\/DocketPDF\/20\/20-843\/184389\/20210720142052897_20-843%20Amicus%20Independent%20Institute.pdf\">brief<\/a> urging the court \u201cto clarify that the sensitive place aside in <em>Heller <\/em>does not mean that the government has carte blanche to decree \u2018gun free\u2019 any public area that it desires.\u201d<\/p>\n<p>On the contrary, the brief argued that few public places qualify as sensitive places, providing a detailed historical analysis that revealed, \u201cfor the most part, they included places where government officials met to conduct the core functions of government (e.g., state legislatures and courthouses), polling places, and schools\u2014but, regarding the final category, the prohibition applied only to students.\u201d<\/p>\n<p>Based on its review of the historical record, the Independent Institute concluded that public parks, parking lots, and houses of worship did not qualify as \u201csensitive areas,\u201d and encouraged the Supreme Court to say as much, noting that \u201cmischief\u201d \u201ccan occur if the court refrains from providing the requisite guidance to future courts in the Second Amendment context.\u201d<\/p>\n<p>The Supreme Court did not heed the warning, however, and on Friday, New York proved the amicus curiae correct. So, it will soon be back to the courts.<\/p>\n<hr class=\"wp-block-separator\" \/>\n<p>\n  Margot Cleveland is The Federalist&#8217;s senior legal correspondent. She is also a contributor to National Review Online, the Washington Examiner, Aleteia, and Townhall.com, and has been published in the Wall Street Journal and USA Today. <\/p>\n<p>Cleveland is a lawyer and a graduate of the Notre Dame Law School, where she earned the Hoynes Prize\u2014the law school\u2019s highest honor. She later served for nearly 25 years as a permanent law clerk for a federal appellate judge on the Seventh Circuit Court of Appeals. Cleveland is a former full-time university faculty member and now teaches as an adjunct from time to time. <\/p>\n<p>As a stay-at-home homeschooling mom of a young son with cystic fibrosis, Cleveland frequently writes on cultural issues related to parenting and special-needs children. Cleveland is on Twitter at @ProfMJCleveland. The views expressed here are those of Cleveland in her private capacity.<\/p>\n","protected":false},"excerpt":{"rendered":"<p>The U.S. Supreme Court has made clear that the Second Amendment guarantees law-abiding citizens the right to keep and bear arms for self-defense, both in their homes and in public.<\/p>\n","protected":false},"author":499,"featured_media":2315279,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_mo_disable_npp":"","fifu_image_url":"","fifu_image_alt":"","footnotes":""},"categories":[],"tags":[],"class_list":["post-1539212","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry"],"_links":{"self":[{"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/posts\/1539212","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/users\/499"}],"replies":[{"embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/comments?post=1539212"}],"version-history":[{"count":0,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/posts\/1539212\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/media\/2315279"}],"wp:attachment":[{"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/media?parent=1539212"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/categories?post=1539212"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/tags?post=1539212"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}