This past summer, the Supreme Court radically refashioned the Second Amendment. Blue states like New York scrambled to enact new gun safety laws to deal with the decision. Those measures are already falling like dominoes.
In New York State Rifle & Pistol Association v. Bruen, the court declared unconstitutional New York’s 110-year-old license requirement for concealed handgun carrying. Justice Clarence Thomas’s majority opinion held that New York could not require license applicants to show a heightened need for self-defense different from the community at large. As significant as that holding is—about a quarter of Americans lived in jurisdictions with similar laws—Bruen’s impact extends much further. The court crafted a brand new, still ill-defined test for Second Amendment cases going forward. Under that novel test, courts hearing Second Amendment claims may no longer ask if a challenged law is effective at reducing gun violence. Instead, they may only uphold gun laws that are grounded in “this Nation’s historical tradition of firearm regulation.”
That test is revolutionary. Laws enacted in the days of horses and buggies now dictate whether, for example, the current Delaware legislature can restrict the making of 3D-printed firearms to licensed gun manufacturers. (One federal court has, post-Bruen, said no.)
As expected, the application of Bruen’s novel test in the lower courts has been troubling so far.
A Thursday decision by a federal court in upstate New York is a case in point. In that case, Antonyuk v. Hochul, U.S. District Judge Glenn Suddaby put on hold significant portions of a recently enacted New York law regulating guns in the aftermath of Bruen. Among other things, the new law replaced the old permit scheme with new or modified requirements for applicants, including an 18-hour training course, names of references, an in-person interview, a list of social media accounts, and proof of good moral character. The law also designated a large number of sensitive places as gun-free zones, like schools, parks, and Times Square.
Suddaby’s analysis shows the vacuity of Bruen’s history-only test. To be satisfied that a provision is rooted in historical tradition, he said he would need to see three analogous firearm laws in the 18th or 19th century. Why three? No one really knows. One law can’t form a “tradition,” Suddaby said, citing the Supreme Court’s historical analysis in Bruen. And, well, two laws might “come closer to constituting a tradition, [but] they can also appear as a mere trend.” And trends, apparently, can’t be traditions. So three it is. If the government can’t produce at least three analogous gun laws from before Teddy Roosevelt’s presidency, then it can’t regulate today. The analysis that follows from this strange method would be hard to parody.
Consider the social media disclosures. Unconstitutional, said the court. Why? Because “an insufficient number of historical analogues exists requiring a list of social media accounts for the past three years.” Just read that line again slowly and ask yourself, what are we even doing here? Suddaby is left analogizing social media accounts to pseudonymously published “political pamphlets or newspaper articles” in the founding era. Finding no old statutes saying that early American (white, male) citizens had to disclose such information to carry guns in public, the court struck the provision.
Or take the court’s treatment of the provision requiring an applicant to show “good moral character.” An applicant shouldn’t have to show anything, said the court. Rather, the state should have to disprove a presumption of good moral character, and that by a burden of proof the court itself fashioned. The result? A federal judge in Syracuse is, quite literally, re-writing New York’s laws. The good moral character requirement, he said, “can be rendered constitutional only if it were considered as containing the following changes.” Suddaby proceeded to draft a modified statute that’s totally different from the one that New York lawmakers actually passed. One wonders about the sincerity of conservative hackles over judges “legislating from the bench” when a George W. Bush-appointed judge drafts legislation for New York and “orders Defendants to so construe those provisions when performing their duties in their official capacities.” Will any concerned conservatives respond that the way to stop creating legislation from the bench is to stop legislating from the bench?
The court also took an axe to New York’s list of gun-free sensitive locations. Parsing the historical pedigree of particular places, Suddaby found an abundance of silence in the historical record. For example, although he acknowledged the rich history of gun prohibitions in schools and universities, apparently New York went too far. According to the judge, a longstanding history of banning guns in schools can’t support banning them in summer camps, where kids often go when school’s out—and which did not exist when the Second Amendment was ratified. “[T]he Court,” he wrote, “cannot find these historical statutes analogous to a prohibition on ‘summer camps.’” If that tradition isn’t analogous enough, it’s hard to know what could be found in the antebellum United States to support such a law.
How about airports? Surely those are quintessential sensitive locations. Nope. With little analysis, Suddaby said tradition comes up short. Public transit (subway, busses, ferries) and transportation facilities (bus terminals, train stations) all fall too. Guns in Grand Central, because the Constitution demands it.
The court’s excision of sensitive places is broad and deep. It cuts out literally dozens of enumerated locations from which the New York legislature sought to prohibit guns, including Times Square, establishments serving liquor, cannabis dispensaries, theaters, stadiums, amusement parks, libraries, playgrounds, childcare programs, places serving individuals with developmental disabilities, homeless and family shelters, domestic violence shelters, and more.
For any one of these locations, arguments abound for taking into consideration the vastly different landscape confronting our forebears and for attending to the underlying rationale for treating places as sensitive at all. As the federal appeals court in the District of Columbia said in a prior case, places are sensitive because of “the people found there” or the “activities that take place there.” Domestic violence shelters bring this into stark relief. For most of American history, there was no concept that domestic violence would be a matter of concern for the criminal law. Imagine, then, how utterly strange the notion of domestic violence shelters would have been, let alone the suggestion that the head of the family unit couldn’t bring his guns to such a facility. Yet the people who take refuge at shelters today are among society’s most vulnerable, and guns pose a unique threat there given the strong connection between firearms and intimate partner violence.
Suddaby addressed none of this. In his defense, neither did Bruen. And that’s the real problem. This decision is just an extreme example of what it looks like to implement Bruen’s unjustified and unjustifiable method. Unless the Supreme Court changes course, we’ll only see more unfortunate decisions like Antonyuk that tie the hands of democratically elected legislatures in the face of an often silent past.
