Analysis: The New York Gun-Carry Law’s Grim Start in Court

New York’s new gun law, meant to rebuff the Supreme Court, is already having a rough go of it in federal court.

Just two weeks after a federal judge ruled broad swaths of the Concealed Carry Improvement Act (CCIA) unconstitutional in an opinion granting a Temporary Restraining Order (TRO), another federal judge did the same for the law’s felony prohibition on licensed gun carry in places of worship.

“The nation’s history does not countenance such an incursion into the right to keep and bear arms across all places of worship across the state,” Judge John Sinatra wrote in his opinion granting a TRO. “The right to self-defense is no less important and no less recognized at these places.”

Unlike the previous TRO granted against portions of the law, Judge Sinatra declined to add a temporary stay to his ruling. That means licensed gun carriers in the state are now free to carry a firearm for self-defense while attending church or any other religious institution without fear of committing a state felony. That’s a limited but key win for concealed-carry advocates.

Moreover, the decision adds to the growing body of case law examining modern gun-carry restrictions. Judge Sinatra conducted a robust evaluation of the place of worship provision utilizing the framework laid out by the Supreme Court in New York State Rifle & Pistol Association v. Bruen.

“In Bruen, the Court made the Second Amendment test crystal clear: regulation in this area is permissible only if the government demonstrates that the regulation is consistent with the Nation’s historical tradition of sufficiently analogous regulations,” Judge Sinatra wrote. “New York fails that test. The State’s exclusion is, instead, inconsistent with the Nation’s historical traditions, impermissibly infringing on the right to keep and bear arms in public for self-defense.”

New York attempted to justify its church ban by pointing to place of worship restrictions enacted in the states of Texas, Georgia, Missouri, and Virginia between 1870 and 1890. Judge Sinatra, however, was unpersuaded that such laws constituted a tradition pursuant to the Bruen test because they are “outlier” laws.

“The State relies on a few laws from the late-1800s to insist that a relevant tradition exists,” he said. “Bruen anticipates this argument. Rejecting the relevance of an outlier analogous law and state-court decisions, the Court stated that it would, ‘not give disproportionate weight to a single state statute and a pair of state-court decisions. As in Heller, we will not stake our interpretation of the Second Amendment upon a single law, in effect in a single [State], that contradicts the overwhelming weight of other evidence regarding the right to keep and bear arms for defense in public.’”

In a footnote, he explained that the laws in Georgia and Missouri, unlike New York’s current law, were ultimately interpreted to allow church leaders to decide for themselves whether to allow armed congregants. He also noted that New York failed to identify a single analogous law enacted between the time of the founding and 1870. In contrast, he documented the existence of certain colonial-era laws that actually mandated carrying firearms when attending a place of worship.

“The Constitution requires that individuals be permitted to use handguns for the core lawful purpose of self-defense,” Sinatra said. “And it protects that right outside the home and in public. Nothing in the Nation’s history or traditions presumptively closes the door on that right across every place of worship or religious observation.”

He argued that right, guaranteed by the Second Amendment, forecloses the ability of state governments to implement certain gen policies.

“New York’s exclusion violates ‘the general right to publicly carry arms for self-defense,’” he wrote. “It, too, is one of the policy choices taken ‘off the table’ by the Second Amendment.”

Federal courts have now twice sternly rebuked New York over its failure to heed the direction set forth by the Supreme Court. Aside from amending or outright repealing the CCIA, the state’s options for continuing to resist current Second Amendment jurisprudence are limited.

New York, for its part, has already appealed the first TRO to the Second Circuit Court of Appeals. It could do the same with the new order.

It has had some limited success on this front already. A Second Circuit judge threw the state a lifeline by placing an administrative stay on the first TRO issued against most of the law, allowing it to remain in full until a three-judge motions panel gets around to reviewing the validity of the TRO. That panel has yet to act so much of the law remains in force for the time being.

New York could choose to pursue the same strategy with regard to its church gun ban. But it seems likely that will only delay the inevitable. Both Judge Suddaby and Judge Sinatra have already demonstrated how the most controversial sections of the law fail under the Supreme Court’s Bruen standard. And, as Judge Suddaby pointed out in his TRO opinion, the criteria for granting a TRO and a preliminary injunction are virtually identical.

Therefore, even if New York can scuttle the TROs that continue to be issued against its law, the imminent injunction hearings seem likely to put them right back where they started.

That bodes well for gun-rights advocates, not only those directly impacted by New York’s restrictive law but for those in similarly situated states as well. California and New Jersey appear to be competing to see who can be the next former may-issue state to replicate New York’s gun restrictions. If and when those copycat bills pass, gun-rights advocates in those states will have a roadmap and caselaw for challenging those laws in court.