NY Gov Hochul Rejects 2A Rights
New Gun law more restrictive than one declared unconstitutional
On June 23rd, New York State's gun law known as the Sullivan Act was declared unconstitutional in a 6-3 ruling by the U.S. Supreme Court in Bruen v. NYS Rifle and Pistol Association. Two New York State residents who were previously granted "target" permits applied for concealed carry permits. When they were rejected for failing to show "proper cause" or a special need to defend themselves outside the home, both filed suit in federal court. The court's ruling was pivotal and broad. The decision impacted the seven other "may issue" states; California, Connecticut, Delaware, Hawaii, Maryland, Massachusetts and New Jersey most of which have amended their standard to "shall issue" to comply with the ruling. The decision also clarifies how federal courts are to review legal challenges to enacted gun restrictions. The revised standard of review will likely result in the elimination of many egregious gun restrictions that impact law abiding gun owners.
The Sullivan Act enacted in 1911 regulated the issuance of concealed handgun permits which allow individuals to carry a handgun outside of the home. The law required an applicant to show "proper cause" to a licensing official who had discretion to grant or deny an applicant's request. Based on the application of that standard, the majority of applicants seeking a concealed carry permit were denied and were issued target or hunting permits which severely restricted how a gun is carried, transported and stored. New York was one of eight states with the "may issue" standard versus forty two other states which use the standard "shall issue". The latter standard requires the issuance of a concealed carry permit as long as the applicant passes a set of basic requirements.
Two New York State residents who were previously granted "target" permits applied for concealed carry permits. When they were rejected for failing to show "proper cause" or a special need to defend themselves outside the home, both filed suit in federal court. The court's ruling was pivotal and broad. The decision impacted the seven other "may issue" states; California, Connecticut, Delaware, Hawaii, Maryland, Massachusetts and New Jersey most of which have amended their standard to "shall issue" to comply with the ruling. In light of the Court's decision in Bruen, the court in each of the four other pending gun cases granted certiorari, vacated the decision and remanded the cases back for further deliberation. The cases are significant; an "Assault Weapons" ban from Maryland-Bianchi v. Frosh, a ban on high capacity magazines from California-Duncan v. Bonita & New Jersey-Association of New Jersey Rifle and Pistol Clubs v. Bruck and a similar challenge to Hawaii's "may issue" standard for concealed carry-Young v. Hawaii.
The court affirmed that the Second and Fourteenth Amendments protect an individual's right to keep and bear arms for self defense. The court built upon two prior Supreme Court cases, District of Columbia v. Heller and McDonald v. Chicago in which both held that the Second and Fourteenth Amendments protect an individual's right to keep and bear arms for self defense. In Heller, the court found that there is a constitutional right to self defense within the home and ruled that the District of Columbia's ban on handguns was unconstitutional. Later in McDonald v. Chicago, the court found that the right to keep and bear firearms was incorporated in the Fourteenth Amendment which applies to both federal and state government.
For the last decade, Federal courts have applied a two step framework. The first step was to analyze the constitutional text with history and the second step involved the application of varying levels of scrutiny to determine whether a gun restriction being challenged is constitutional. The later ranged from a rational basis test; is the regulation rationally related to a legitimate governmental interest, intermediate scrutiny; does the regulation advance an important governmental interest and must be substantially related to achieving that interest and strict scrutiny; does the regulation serve a compelling governmental interest and must be narrowly tailored to achieve that interest. The court found that the second step was one too many.
With the single step framework, the court clarified the scope of any historical review to the time when the Second Amendment was adopted in 1791 and the Fourteenth Amendment in 1868. “Constitutional rights are enshrined with the scope they were understood to have when the people adopted them.” Heller, 554 U. S., at 634–635. The court found no analogous historical evidence that American governments broadly prohibited Americans from carrying commonly used firearms in public for self defense. The court made it clear that the Second Amendment is equal to other rights enumerated in the constitution. "The constitutional right to bear arms in public for self-defense is not “a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.” McDonald, 561 U. S., at 780 (plurality opinion). Therefore the court concluded that New York's proper cause requirement violates the fourteenth Amendment and reversed.
When the Supreme Court's decision was released, Governor Hochul reacted with the arrogance of a ignorant tyrant. She referred to the court's decision as "not just reckless, it's reprehensible" and she was "sorry this dark day has come". She went on the say the state "has the power of the pen" to enact new gun restrictions and was "prepared to go back to muskets" claiming she is "just getting started". If there was any question if the Governor actually understand or read the court's decision, it was apparent that she did not on both fronts by declaring, "We are also going to create a higher threshold for those who want to receive a concealed carry permit".
The most important distinction about gun ownership is the word lawful. Not only do Americans rely on the Constitution and the Second Amendment as found in the Bill of Rights, they abide by the law as responsible gun owners. Yet Hochul seems to believe that guns even in the hands of those who abide by the law is not different than criminals who illegally possess firearms. When Anne McCloy of WRGB CBS 6 News Albany asked the Governor, Do you have numbers to show that its the concealed carry permit holders that are committing crimes?, the Governor responded with, I don't need to have numbers. I don't need to have a data point to say this. I know that I have a responsibility for this state to have sensible gun safety laws."
The Governor than called an emergency session of the legislature to pass new gun laws. Instead of allowing the regular legislative process to move forward which would give residents and legislators three days to review the proposed legislation as well as submit amendments, the Governor issued a message of necessity which bypassed the normal legislative process. Her actions denied any citizen input and only gave legislators a few hours to read and vote on the proposed legislation. While the bill was being debated, the Governor held a news conference in which she stated, "Our state will continue to keep New Yorkers safe from harm, even despite this setback from the Supreme Court." She went on to say "They may think they can change our lives with the stroke of a pen, but we have pens, too." The special session which began on Thursday June 30th ended on Friday July 1st with the Governor's signature. The New York Concealed Carry Improvement Act takes effect on September 1, 2022.
One of the most egregious and unconstitutional provisions of the new concealed carry law is what the law defines as sensitive and restricted locations. Historically a sensitive location was deemed as courthouses, government buildings where a legislature holds meetings, polling places and schools with limitations. Private businesses are usually allowed the right to restrict guns on their property by displaying a clear and conspicuous sign. The new law actually nullifies the courts ruling in Bruen as expands where guns are prohibited making it a legal question as to where they are allowed. The new law makes all private property in New York state a “restricted location” by default unless the property owner displays a sign saying guns are welcome. When the Governor was asked what public places would be left where guns could be carried prior to passage of the new gun law, her response, "probably some streets". Any violation related to having a lawful handgun in a sensitive and or restricted area is a class E felony which would upon conviction bar an individual for life from owning a firearm. The new law defines sensitive locations are defined as:
(a) any place owned or under the control of federal, state or local government, for the purpose of government administration, including courts; (b) any location providing health, behavioral health, or chemical dependence care or services; (c) any place of worship or religious observation; (d) libraries, public playgrounds, public parks, and zoos; (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; (f) nursery schools, preschools, and summer camps; (g) the location of any program licensed, regulated, certified, operated, or funded by the office for people with developmental disabilities; (h) the location of any program licensed, regulated, certified, operated, or funded by office of addiction services and supports; (i) the location of any program licensed, regulated, certified, operated, or funded by the office of mental health; (j) the location of any program licensed, regulated, certified, operated, or funded by the office of temporary and disability assistance; (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; (l) residential settings licensed, certified, regulated, funded, or operated by the department of health; (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; (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; (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) 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; (q) any location being used as a polling place; (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; (s) any gathering of individuals to collectively express their constitutional rights to protest or assemble; (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.
Congressional candidate Carl Paladino, the first of many expected to challenge the new gun law was the first to file suit which seeks to overturn the state's definition of sensitive locations. Hochul responded by issuing a dishonest statement, "We worked intentionally with top legal minds in this country to craft legislation, working with the legislature to make sure this met all constitutional requirements and thresholds, it was not rushed other than the fact that the Supreme Court took away the right of the Governor to protect the people in her state. Several additional suits have recently been filed challenging other aspects of the new law. A suit challenging many aspects of the new law has been filed by the Gun Owners of America, a facial challenge involving the requirement to provide social media passwords when applying for a concealed carry permit and a suit challenging New York's so called Assault weapons ban.
The three branches of government, the legislative, executive and judiciary are regulated by the separation of powers doctrine which acts as a check and balance on the three branches of government to limit any concentration of power. In this case, Governor Hochul has partnered with the New York legislature to nullify the Supreme Court's ruling in Bruen, violate the Bill of Rights as it relates to Second Amendment and violate the Fourteenth Amendment's equal protection clause by created an unequal legal scheme in the regulation of firearms. While Kathy Hochul embodies tyranny, arrogance and rank stupidity, her actions prove once again the truth behind Lord Acton's famous quote, "Absolute power corrupts absolutely". The decision in Bruen was very clear as it relates to the issuance of concealed carry permits and the judicial standard of review for a challenge to a governmental gun restriction. Therefore the only thing certain standing between our liberty and tyranny is the time it will take for a federal court to rebuke Hochul and the legislature.