{"id":87239,"date":"2022-10-31T17:56:03","date_gmt":"2022-10-31T22:56:03","guid":{"rendered":"https:\/\/milesfortis.com\/?p=87239"},"modified":"2022-10-31T19:25:04","modified_gmt":"2022-11-01T00:25:04","slug":"87239","status":"publish","type":"post","link":"https:\/\/milesfortis.com\/?p=87239","title":{"rendered":""},"content":{"rendered":"

Always read articles at the Duke University blog<\/a> using this simple key:
\nJudge strikes down gun law -> Wrong decision, confusing, it’s Bruen’s fault
\nJudge upholds gun law -> Right decision, they did their best to make sense of Bruen<\/p>\n

Federal Judge Strikes Down New York\u2019s Ban on Firearms in Places of Worship<\/a><\/p>\n

On October 20, a federal judge in the Western District of New York issued a\u00a0decision<\/a>\u00a0in\u00a0Hardaway v. Nigrelli\u00a0<\/em>granting a motion for a temporary restraining order and enjoining New York\u2019s ban on carrying firearms in \u201cany place of worship or religious observation.\u201d \u00a0Notably, the decision by District Judge John Sinatra reached an opposite conclusion about this specific piece of New York\u2019s sensitive-places list than\u00a0an earlier decision<\/a>\u00a0by Judge Glenn Suddaby of the Northern District in\u00a0Antonyuk v. Hochul<\/em>\u00a0(Judge Suddaby\u2019s decision was appealed to the Second Circuit and is stayed pending that appeal).<\/p>\n

The plaintiffs in\u00a0Hardaway<\/em>\u00a0are a reverend and a bishop in upstate New York, both of whom have active concealed-carry licenses.\u00a0 The plaintiffs allege that they consistently carried guns on church property \u201cfor self-defense and to keep the peace,\u201d under New York\u2019s prior law which permitted license-holders to carry in most locations, and would continue doing so but for the state\u2019s\u00a0new law<\/a>\u00a0which designated places of worship (among many other locations) as sensitive places where guns are prohibited. \u00a0The judge first engaged in a lengthy standing analysis, ultimately finding that the plaintiffs face a sufficiently imminent threat of prosecution, based on statements by New York politicians and law enforcement officials that the new law would be actively enforced.<\/p>\n

Moving on to the plaintiffs\u2019 likelihood of success on the merits of their Second Amendment claims, the judge summarized the Supreme Court\u2019s Second Amendment jurisprudence, including\u00a0Bruen<\/em>, and applied the\u00a0Bruen\u00a0<\/em>test.\u00a0 New York cited laws passed by four states and two territories between 1870-1890 \u201cthat contained place of worship firearm restrictions.\u201d\u00a0 Relying on\u00a0Bruen<\/em>, the judge held that these post-ratification laws were insufficient to constitute a historical \u201ctradition\u201d because they did not \u201cshow\u00a0endurance over time<\/em>\u201d\u2014rather, in the judge\u2019s view, the laws were \u201coutliers,\u201d \u201ca handful of seemingly spasmodic enactments involving a small minority of jurisdictions governing a small minority of population\u201d passed long after 1791.\u00a0 According to the judge, \u201c[t]hese enactments are far too remote, far too anachronistic, and very much outliers\u2014insufficient, then, in the search for an American tradition.\u201d\u00a0 Emphasizing the continued danger that Americans face\u00a0outside<\/em>\u00a0of the home, the judge found that the plaintiffs were likely to succeed on their claims.<\/p>\n

The judge also rejected New York\u2019s argument that churches are analogous to historical sensitive places such as legislative assemblies, polling places, and courthouses.\u00a0 The judge found that places of worship are unsecured and visited regularly by congregants, whereas the government buildings historically designated as sensitive are heavily secured areas that citizens visit \u201csporadically.\u201d\u00a0 The judge also held that \u201c[t]he State\u2019s argument that places of worship are analogous because the exclusion supposedly also minimizes the chance of violence between those with opposing views [was] undeveloped and, in any event, belie[d] the non-confrontational purpose drawing people to houses of worship in the first place.\u201d<\/p>\n

Judge Sinatra granted a TRO enjoining New York\u2019s ban on guns in \u201cplaces of worship or religious observation,\u201d effective immediately with no stay, and set a preliminary injunction hearing for November 3. \u00a0There is no indication that the state has yet appealed the decision or requested a stay pending appeal, which would mean that the restraining order is currently in effect.<\/p>\n

Hardaway<\/em>\u00a0reaches a contrary result to\u00a0Antonyuk<\/em>, which just three weeks ago\u00a0upheld<\/em>\u00a0New York\u2019s prohibition on guns in places of worship contingent on the state construing the provision to include an exception \u201cfor those persons who have been tasked with the duty to keep the peace.\u201d\u00a0 In\u00a0Antonyuk<\/em>, Judge Suddaby weighed the exact same set of historical laws relied upon in\u00a0Hardaway<\/em>:\u00a0 laws passed between 1870 and 1890 in\u00a0Georgia<\/a>,\u00a0Texas<\/a>,\u00a0Virginia<\/a>,\u00a0Missouri<\/a>, and the Arizona and Oklahoma territories. \u00a0But Judge Suddaby found that three historical laws constitute a tradition and, applying that threshold, upheld New York\u2019s places of worship prohibition with an added exception for those responsible for keeping the peace in a church.\u00a0 Judge Sinatra, on the other hand, used some unspecified higher number of laws as the cutoff.\u00a0 Four state and two territorial laws were not sufficient, in his view, to form a tradition and were all outliers.\u00a0 It\u2019s difficult to say which approach is more faithful to\u00a0Bruen<\/em>, but\u2014given such disparate outcomes at the district-court level\u2014it\u2019s clear that some guidance from the appellate courts is urgently needed.<\/p>\n

The\u00a0Hardaway\u00a0<\/em>opinion also highlights an issue lurking within\u00a0Bruen<\/em>\u2019s historical test which I\u2019ve\u00a0written about<\/a>\u00a0before: judges seem all too willing to credit \u201ccolonial\u201d history, even when that history is much further in time from the Founding than contrary post-ratification history.\u00a0\u00a0Bruen<\/em>\u00a0states that \u201clate-19th-century evidence cannot provide much insight into the meaning of the Second Amendment when it contradicts earlier evidence.\u201d\u00a0 But \u201cearlier evidence\u201d here should only be persuasive to the extent it might illustrate the scope of the right established\u00a0at the Founding<\/em>.\u00a0 The further back in time from the Founding one ventures, the less likely that evidence is to shed light on the meaning of the amendment ratified in 1791.\u00a0 Both\u00a0Antonyuk\u00a0<\/em>and\u00a0Hardaway<\/em>\u00a0point to early-1600s laws requiring white men to carry guns to church, with Judge Sinatra\u2019s opinion noting that New York\u2019s late-1800s evidence is suspect especially in light of \u201ccolonial-era enactments that, in fact,\u00a0mandated<\/em>\u00a0such carry at places of worship.\u201d\u00a0 The judge cites a 2014 law review article by Benjamin Boyd titled\u00a0Take Your Guns to Church<\/em><\/a>.<\/p>\n

Many of the colonial-era laws Boyd catalogues\u00a0long<\/em>\u00a0pre-date the Founding and ratification of the Bill of Rights (his article cites to other sources for some of these colonial-era laws, including Clayton Cramer\u2019s\u00a0Colonial Firearms Regulation<\/em><\/a>).\u00a0 Boyd starts his colonial journey with a 1619 Virginia law requiring weapons to be brought to church on the Sabbath.\u00a0 Of eight colonial laws summarized in Boyd\u2019s article, six were passed between 1619 and 1643\u2014the other two were passed in 1738 and 1743, respectively.\u00a0 So, the vast majority of these laws were passed\u00a0150 years or more<\/em>\u00a0prior to ratification of the Bill of Rights, in British colonies.\u00a0 Yet, to Judge Sinatra, a law passed in a U.S. state in 1870\u201480 years after ratification and a mere two years after the 14th<\/sup>\u00a0Amendment was ratified\u2014is \u201cfar too remote [and] far too anachronistic.\u201d\u00a0 How can that possibly be?\u00a0\u00a0Bruen\u00a0<\/em>itself cautioned that a colonial law passed \u201croughly a century before the founding sheds little light on how to properly interpret the Second Amendment\u201d and noted that \u201c[h]istorical evidence that long predates either date [1791 or 1868] may not illuminate the scope of the right if linguistic or legal conventions changed in the intervening years.\u201d<\/p>\n

As Dru Stevenson has\u00a0observed<\/a>, \u201ceras in the distant past seem closer together in our perception than recent events separate[d] by the same amount of time.\u201d\u00a0 This is a documented phenomenon in psychology known as \u201ctemporal compression.\u201d\u00a0\u00a0Researchers have found<\/a>\u00a0\u201cevidence that memories are [] logarithmically compressed with time: the farther from the present the memory, the less discriminable it is from an earlier memory.\u201d\u00a0 It stands to reason that historical analysis is susceptible to this same fallacy, and that judges and lawyers must guard against it when examining the historical record.\u00a0 It is tempting to lump all of colonial history together as close in time to 1776\u2014the most salient historical date, the signing of the Declaration of Independence\u2014because that is how our minds naturally perceive history.\u00a0 But the colonial period, which one might date to the 1607 establishment of Jamestown, stretched for almost 200 years.\u00a0 Why should a cluster of laws passed in certain British colonies in the early 1600s be more indicative of an American tradition codified in 1791 than laws passed from 1870-1890 (a conclusion that\u00a0Hardaway<\/em>\u00a0and other decisions treat as obvious)?<\/p>\n

Moreover, the two \u201cbring your gun to church\u201d laws passed closer in time to the actual Founding, in Virginia and South Carolina in 1738 and 1743, respectively, warrant a closer look.\u00a0 As Carol Anderson describes in her recent book\u00a0The Second<\/em>, Southern militia and gun laws in the 1700s were motivated by \u201can overwhelming fear among whites of the enslaved\u2019s capacity and desire for retribution\u201d that led certain colonies to pass laws effectively deputizing the white male militia into a slave-patrol force also prepared to suppress any slave rebellion.\u00a0 And Virginia and South Carolina were\u00a0the<\/em>\u00a0two colonies with the consistently highest slave populations.\u00a0\u00a0By 1710<\/a>\u00a0Blacks outnumbered whites in South Carolina, and, as of the 1780 census, South Carolina was 53.9% Black and Virginia was 41% Black\u2014the highest percentages by far in what would become the original 13 states.\u00a0 There is little doubt, then, that the Virginia and South Carolina laws requiring militiamen to attend church armed were intended to address concerns about slave uprisings.\u00a0 Indeed, Professor Anderson describes how the 1739 Stono Rebellion in South Carolina was conducted \u201c[u]nder the cover of the Sabbath.\u201d<\/p>\n

These two laws were a direct response to slave-uprising concerns and not a recognition of any kind of widely-accepted right to bring guns to places of worship.\u00a0 Notably, the very fact that South Carolina\u2019s law was enacted in response to Stono suggests that the idea of having guns in church was not longstanding or deeply-rooted; rather, it was necessitated by the perceived exigency of potentially imminent slave rebellions and the need to keep Blacks enslaved in the colony.<\/p>\n","protected":false},"excerpt":{"rendered":"

Always read articles at the Duke University blog using this simple key: Judge strikes down gun law -> Wrong decision, confusing, it’s Bruen’s fault Judge upholds gun law -> Right decision, they did their best to make sense of Bruen Federal Judge Strikes Down New York\u2019s Ban on Firearms in Places of Worship On October … Continue reading “”<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[23,11,9,95],"tags":[],"class_list":["post-87239","post","type-post","status-publish","format-standard","hentry","category-courts","category-crap-for-brains","category-enemies-foreign-domestic","category-mendacity"],"_links":{"self":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/87239","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=87239"}],"version-history":[{"count":3,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/87239\/revisions"}],"predecessor-version":[{"id":87242,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/87239\/revisions\/87242"}],"wp:attachment":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=87239"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=87239"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=87239"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}