Two Federal Judges Say New York’s Presumptive Prohibition of Guns on Private Property Is Unconstitutional

After the Supreme Court upheld the right to bear arms last June, New York legislators perversely responded by imposing sweeping new restrictions on public possession of guns, banning them from a long list of locations. The broadest of those categories was “private property,” including businesses as well as residences, where carry permit holders were forbidden to bring guns unless the owner had posted “clear and conspicuous signage” allowing them or had “otherwise given express consent.”

Yesterday a federal judge issued a preliminary injunction against enforcement of that provision, which had already been blocked by another judge. Both judges said New York had failed to show that the private property rule was “consistent with this Nation’s historical tradition of firearm regulation.” That is the constitutional test prescribed by the Supreme Court’s June 23 ruling in New York State Rifle and Pistol Association v. Bruen, which upheld the right to carry guns in public for self-defense and overturned New York’s requirement that residents show “proper cause” to exercise that right.

New York’s catch-all “private property” exclusion, which New Jersey legislators have copied, is one of many restrictions that U.S. District Judge Glenn T. Suddaby deemed unconstitutional in Antonyuk v. Hochul. It is the focus of the decision that U.S. District Judge John L. Sinatra Jr. issued yesterday in Christian v. Nigrelli, and it vividly illustrates how determined anti-gun legislators are to defy Bruen.

The plaintiffs in Christian include the Firearms Policy Coalition and the Second Amendment Foundation. The lead plaintiff is Brett Christian, an Erie County resident who has a carry permit but cannot make much use of it because New York has made it a felony for him to possess a handgun in many places he routinely visits. Before that law was enacted, Sinatra notes, Christian “would typically bring [his] firearm with [him] on private property open to the public, including weekly visits to gas stations and monthly visits to hardware stores.” That is no longer allowed.

When Christian is “driving or running errands,” he is “‘unable to take any
bathroom breaks,’ pick up food, or purchase gas while carrying his firearm.” He
has to “disable and store” his handgun before driving or walking into a parking lot,
which means that he sometimes must “stop carrying for self-defense” before he
“can get physically close enough to see if any ‘clear and conspicuous signage’ exists.” Because New York’s law requires Christian to “constantly disarm” while engaged in quotidian activities, he is “left without the ability to defend” himself and is “suffering diminished personal safety on a frequent and ongoing basis.”

That situation is not merely inconvenient. It makes a mockery of the right that the Supreme Court upheld in Bruen. While hundreds of thousands of New Yorkers are notionally allowed to carry concealed handguns for self-defense, the state has made it difficult or impossible for them to actually do that without risking prosecution.

New York “argues that private property owners have always had the right
to exclude others from their property and [therefore] may exclude those carrying
concealed handguns,” Sinatra writes. “But that right has always been one
belonging to the private property ownernot to the State….Property owners indeed have the right to exclude. But the state may not unilaterally exercise that right and, thereby, interfere with the Second Amendment rights of law-abiding citizens who seek to carry for self-defense outside of their own homes.”

As Sinatra sees it, the Second Amendment requires a default rule that guns are allowed on private property unless the owner says otherwisethe opposite of the rule that New York has established. That choice, New York argues, is consistent with the historical understanding of the right to bear arms. To support that claim, it cites eight colonial or state laws enacted in the 18th and 19th centuries that restricted gun possession on private property.

Suddaby addressed those purported analogs when he issued a preliminary injunction against several provisions of New York’s law, including the private property exclusion, on November 7. He noted that “six of these eight laws appear to be what are called ‘anti-poaching laws,’ aimed at preventing hunters (sometimes only hunters who are convicted criminals) from taking game off of other people’s lands (usually enclosed) without the owner’s permission, which was a pernicious problem at the time.” He added that “barring some people from openly carrying rifles on other people’s farms and lands in 19th century America is hardly analogous to barring all license holders from carrying concealed handguns in virtually every commercial building now.”

Suddaby said just two of the eight laws cited by New York “may fairly be characterized as being anything more than mere anti-poaching laws.” A 1771 New Jersey law prohibited the carrying of “any gun” on another person’s “lands” without the owner’s “permission in writing.” An 1865 Louisiana law barred people from “carrying fire-arms on the premises or plantations of any citizen” without “the consent of the owner or proprietor.”

Suddaby did not think those two examples were sufficient to meet the historical test established by Bruen. “Even if these two lonely state laws could somehow be reasonably viewed as evidencing an established tradition (which the Court doubts they could),” he wrote, “they cannot be reasonably viewed as evidencing a representative one.” He noted that New Jersey and Louisiana together accounted for 4.2 percent of the national population in 1870.

For many businesses, Suddaby noted, it is impractical to “give express consent to each license holder on their doorstep other than by posting a sign containing a controversial message that must (by definition) be visible to all persons passing by (including potential ‘anti-gun’ customers).” One of the plaintiffs in Antonyuk, for example, “runs a small hotel/bed and breakfast for guests and faces a loss of patronage” by “gun owners who wish to travel lawfully with their firearms if he does not post a sign.” A sign is the only feasible way to meet New York’s requirement because “it is entirely impractical to provide person-by-person ‘express consent’ to each individual who stops by.” At the same time, such a sign is apt to alienate other potential customers.

Suddaby thinks that quandary raises a serious First Amendment issue because it arguably amounts to government-compelled speech. He concluded that the plaintiffs had “a strong likelihood of success” on that claim.

Suddaby said New York’s private property rule “appears to be a thinly disguised version” of a policy the Supreme Court explicitly rejected in Bruen. In that case, New York argued that “‘sensitive places’ where the government may lawfully disarm law-abiding citizens include all ‘places where people typically congregate and where law-enforcement and other public-safety professionals are presumptively available.'” The Court objected that “expanding the category of ‘sensitive places’ simply to all places of public congregation that are not isolated from law enforcement defines the category of ‘sensitive places’ far too broadly.”

Like Suddaby, Sinatra emphasizes the broad scope of New York’s private property rule. “The vast majority of land in New York is held privately, and it encompasses homes, farms, businesses, factories, vacant land, hotels, parking lots and garages, grocery stores, pharmacies, medical offices, hospitals, cemeteries, malls, sports and entertainment venues, and so on,” he writes. “These are places that people, exercising their rights, frequent every day when they move around outside their homes. The exclusion here makes all of these places presumptively off limits, backed up by the threat of prison. The Nation’s historical traditions have not countenanced such an incursion into the right to keep and bear arms across all varieties of private property.”



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