A three-judge panel for the United States Court of Appeals for the Second Circuit has upheld the “sensitive area” provision of New York State’s Concealed Carry Improvement Act (CCIA).
The CCIA bans the carrying of firearms in Times Square and on public transportation. Shortly after New York State lost at the Supreme Court in New York Rifle & Pistol Association v. Bruen, the state legislature held an emergency session to pass a response to the historic defeat. Because of Bruen, the Empire State’s “may issue” concealed firearms carry scheme was struck down as unconstitutional. SCOTUS stated that a gun law must be consistent with the text, tradition, and history of the Second Amendment from the founding era. All states had to become “must issue.” The court stated that certain areas could be designated as “sensitive,” such as court and government buildings, but the designation must be used sparingly. It cannot be applied simply because a large number of people gather in a location.
The CCIA did just that and banned firearms in Times Square because of the large number of people gathered there. Many other places were included in the law as “sensitive.” Various lawsuits have emerged, suing New York State over what some have called “thumbing their nose” at the Supreme Court due to the Bruen decision. One of the cases was Frey v. Cheng. The case challenged the CCIA provision that banned the carrying of guns in Times Square and the Subways.
At the District Court level, the judge ruled that the plaintiffs did not have standing to sue over the restrictions imposed by the CCIA. The plaintiffs appealed to the United States Court of Appeals for the Second Circuit. The case was assigned to a three-judge panel, which consisted of two Republicans and one Democratic judge. With a favorable makeup of the panel, many were hopeful for a pro-gun ruling.
The first issue the panel decided on was whether the plaintiffs had standing to sue. The Circuit Court disagreed with the District Court on the issue. They ruled that the plaintiffs had standing to sue. Then the court proceeded to examine the constitutionality of the law by conducting a Bruen analysis.
In a Bruen analysis, the first step is to look at the original text and meaning of the Second Amendment. The courts have held that “the people” are at least Americans who have reached the age of majority, which in the United States is 18 years of age. Handguns are bearable arms, so the Second Amendment covers the plaintiffs’ conduct. Because of those reasons, the plaintiff’s conduct is presumptively constitutional.
The second step is where the burden falls to the state. They must show that a law is consistent with the nation’s history and tradition of firearms regulation by using historical analogues.
Most of the state’s examples were far removed from the founding era, which most consider to be the ratification date of the Second Amendment in 1791. However, some argue it is the ratification date of the Fourteenth Amendment in 1868. New York State’s examples were from the early 1900s and a North Hampton law from the 1300s. Many thought the lack of historical analogues would be the death of the law, but the judges said they took a “flexible” approach to applying the Bruen standard and upheld the law.
“There is perhaps no public place more quintessentially crowded than Times Square,” the judges wrote. “In short, Times Square is our modern-day, electrified, supersized equivalent of fairs, markets, and town squares of old. We therefore need not stretch the analogy far,’ to conclude that [the law] is entirely consistent with our historical tradition of regulating firearms in quintessentially crowded places.”
The decision wasn’t the one that plaintiff Jason Frey wanted to hear, but he was not too surprised because of past anti-gun rulings from the Second Circuit.
“The mental gymnastics used to reference laws from before the nation was formed show us just how deep the hatred for our Second Amendment is to some of these people that currently hold positions of power,” said Mr. Frey.
The plaintiffs could request an en banc review from the full bench or could go directly to SCOTUS. There is no guarantee that either request will be granted.
About John Crump
Mr. Crump is an NRA instructor and a constitutional activist. John has written about firearms, interviewed people from all walks of life, and on the Constitution. John lives in Northern Virginia with his wife and sons, follow him on X at @crumpyss, or at www.crumpy.com.
