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The legal wrangling comes after the Supreme Court placed new limits earlier this year on the restrictions states and localities can impose on where people can carry firearms. For now, it’s left to lower courts to hash out how that looks in practice.
Legal battles are getting underway that could eventually determine just how much latitude states and localities have in the wake of a recent U.S. Supreme Court ruling to ban people from carrying guns into places like subways, bars and theaters.
A federal judge ruled earlier this month that New York’s firearms laws broke limits that the Supreme Court set on governments barring people from carrying guns in public. But legal experts say the ruling does little to clear up the mystery of how judges around the country will interpret the high court’s new legal standards for gun laws.
In the Oct. 6 order, federal judge Glenn Suddaby, of New York’s Northern District, rejected large portions of a law New York lawmakers passed after the Supreme Court threw out gun laws there and in five other states in June.
The Supreme Court ruling in New York State Rifle & Pistol Association v. Bruen, written by Justice Clarence Thomas, signaled that the conservative court would only allow gun laws that hew to an “enduring American tradition permitting public carry” that dates to the founding era.
For now, determining what that means will be left up to different lower courts to decide. And states and localities seeking to adopt strict gun laws that adhere to the Supreme Court opinion are likely to be met with lawsuits by Second Amendment advocates, as New York was.
Suddaby’s ruling, which has been stayed while it is appealed by the state, is notable because it was the first indication of how courts could interpret the Bruen decision.
To the applause of gun rights supporters, Suddaby ruled that, in order to fit with the Supreme Court’s requirement that laws have to comply with America’s “tradition”, at least three states have to have passed similar laws in the nation’s early years.
He ruled, among other things, that New York’s regulation banning guns on subways and in bars did not meet the standard because of a lack of similar laws in the 1700s and 1800s. The judge also struck down as unconstitutional the state’s prohibition on carrying guns in performance venues, like stadiums and theaters, along with museums. Suddaby also rejected a ban on carrying guns in Times Square.
Suddaby did allow New York to continue restricting people from taking guns to polling places, nursery schools, and pre-schools, as well as other schools and universities. But he ruled that guns could not be barred at summer camps, drug treatment centers, libraries, public parks, zoos, or child care centers where there could be security.
If upheld by the Second U.S. Circuit Court of Appeals, Suddaby’s ruling would be the standard in the states where that court has jurisdiction: New York, Connecticut and Vermont.
But challenges to laws elsewhere—including a suit seeking to undo Washington, D.C.’s ban on people carrying loaded guns on the subway and on public buses—would be decided by other courts and judges who could read the Supreme Court decision differently.
As a result, there could be a hodgepodge of rulings around the country about how strongly state and local governments can regulate guns without violating the Second Amendment.
Eric Ruben, a law professor at Southern Methodist University in Dallas, said in an interview that Suddaby, “made a number of decisions about what history matters and what history doesn’t matter that other judges will not agree with.”
Ruben, who is also a fellow at the Brennan Center for Justice pointed, for example, to Suddaby’s requirement that portions of New York’s law had to have at least three “historical analogues” in order to stand.
“It didn’t provide a whole lot of explanation for why three is the magic number,” Ruben said.
Esther Sanchez-Gomez, litigation director for Giffords Law Center, which advocates for stronger gun regulations, said the New York ruling “doesn’t have much of an impact” on what lawmakers in other parts of the country can feel they can do as they consider passing gun laws.
“Legislators in those places should feel free” to consider barring guns in so-called “sensitive” places, like public transportation, despite the ruling in New York, Sanchez-Gomez said in an interview. Giffords made a case for expanding the places where guns are barred in a policy memo for states and localities shared exclusively with Route Fifty in July.
Around the country, states are still trying to respond to the Supreme Court’s ruling in Bruen, which struck down as unconstitutional a previous New York gun law.
That earlier law blocked people from carrying guns unless they could prove a need. The nationwide ruling struck down similar restrictions in California, Hawaii, Maryland, Massachusetts and New Jersey, but left the door open for governments to impose restrictions on guns in certain “sensitive places.” The court, though, did not say what places it would allow.
New York lawmakers rushed to pass new laws despite the uncertainty.
California’s state Senate passed legislation to more closely scrutinize people before granting them firearms carry permits. The bill would deny the permits for an array of reasons, including convictions for violent crimes, an assessment from a psychiatrist that a person is dangerous, or if a person seeking a permit has made disturbing posts on social media.
The California proposal would also restrict guns from being carried in places like schools, bars, playgrounds and bingo halls. The bill died in the state’s Assembly, although its sponsor, Sen. Anthony Portantino, has vowed to push for it again next session.
New York’s case remains in flux. On Wednesday, the U.S. Court of Appeals for the Second Circuit did grant a request by the state’s attorney general, Letitia James, to temporarily allow the state’s laws to remain in place until Suddaby’s decision is appealed.
The Bruen decision has spurred challenges to other gun laws as well. One case that will be decided in a court outside of the Second Circuit will look at whether the District of Columbia can continue to ban guns on the Metro public transit system.
In June, a week after the Supreme Court decision, three D.C. residents and one from Virginia filed a suit in the U.S. District Court for the District of Columbia challenging D.C.’s ability to ban guns on the subway and on buses within its city limits.
The lawsuit pointed to the standards the Supreme Court had set.
“There is not a tradition or history of prohibitions of carrying firearms on public transportation vehicles,” the suit said. “Public transportation systems did not exist as they do today at the founding of the nation. However, there was plainly a tradition of firearms carry when citizens traveled from their homes.”
D.C. Attorney General Karl Racine argued against turning too much to history to judge the need for gun laws in modern times. There is “no sensible reason to assume that the desolate roadways of the 19th century are at all analogous to the Metro’s gated, underground, and densely packed transit zones,” he argued in a court filing last month.
It remains to be seen how the D.C. district court will rule. Suddaby, in the New York case, ruled the state could not bar guns on public transportation, as well as other transportation facilities including bus terminals, “based on the historical analogues located thus far.”
As for blocking guns from bars, he ruled that the court had only been able to find one law from the nation’s early days that banned guns in establishments where alcoholic beverages were served—short of his three-state standard.
With Times Square he acknowledged two statutes meant to keep guns out of fairs or markets, which could be considered similar. But, he wrote, “two statutes do not make a tradition.”
He also noted that the Supreme Court decision said it would be too broad to apply the “sensitive places” label to all places where people congregate and where law enforcement is present.
The New York ruling was praised by gun rights groups, including the Gun Owners of America.
Sanchez-Gomez, on the other hand, criticized the idea of using historical precedent as a test, in part because it’s not entirely certain what laws were on the books more than a century ago. “We haven’t discovered all of the gun legislation that has existed,” she said. “The history here isn’t settled.”
Joseph Blocher, co-director of Duke Law School’s Center for Firearms Law, offered a similar view. “I think the decision is, unfortunately, a good example of the historical slicing and dicing we’re likely to see after Bruen,” he said in an email.
“Some judges will be inclined to label historical laws as ‘outliers’ and disregard them, or to read too much into historical silences—like a lack of gun regulation at summer camps,” Blocher added. “Or to create these novel rules about how many historical examples are required.”
Kery Murakami is a senior reporter for Route Fifty.