NY: General Ban on Carry for Private Property Declared Unconstitutional

On September 13, 2022, Brett Christian, the Firearms Policy Coalition, the Second Amendment Foundation, and others filed suit against the “emergency” measure pushed through the New York State legislature by Governor Hochul, in defiance of the long awaited decision in NYSR&PA v Bruen.

The Bruen decision clarified the Heller and McDonald decisions, partially restoring the right to bear arms.  The right has been incrementally infringed on for more than a hundred years, primarily under the “Progressive” political philosophy., along with its ideological breathern, the “Jim Crow” laws and Black Codes.

The Christian v. Nigrelli case, as it came to be known, pointed out the Hochel “emergency” statute violated the protections of the Second Amendment when it made all private property into “sensitive places” except where the property owners made an effort to extract themselves. From the complaint:

The [Supreme] Court also explained what courts and States could not do. In Bruen, New York attempted to characterize its pre-Bruen ban of public carry as merely a “sensitive place” restriction. Id. at 2133–34. There, the State attempted to define “sensitive places” as “all places where people typically congregate and where law-enforcement and other public-safety professionals are presumptively available.” Id. (internal quotation marks omitted). The Supreme Court rejected New York’s capacious designation of sensitive places. “[E]xpanding 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.” Id. (emphasis added). Under Bruen, the designation of “sensitive places” cannot be used to “in effect exempt cities from the Second Amendment” or “eviscerate the general right to publicly carry arms for self-defense.” Id. at 2134. Instead, the only permissible “sensitive places” are those with a “historical basis.” Id.

On November 22, 2022, eleven weeks after the case was filed, Judge John L. Sinata, Jr. posted a decision and order on the request for a preliminary injunction.

The decision struck down the private property ban on carry.

Preliminary injunctions are granted when the Plaintiffs are likely to succeed on the merits, irreparable harm would result without the injunction, and the public interest would be served.

Any time interval of infringing on fundamental, Constitutionally enumerated rights is considered to be irreparable harm.

The decision and order found the ban on carrying on private property, without the express consent of the property owner, was unconstitutional. From the decision:

Another one of New York’s new restrictions imposed in the immediate
aftermath of the Supreme Court’s Bruen decision is the private property exclusion. That new provision makes it a felony for a license holder to possess a firearm on all private property, unless the relevant property holders actually permit such possession with a sign or by express consent. 

The Supreme Court’s cases addressing the individual’s right to keep and bear arms—from Heller and McDonald to its June 2022 decision in Bruen—dictate that New York’s private property exclusion is equally unconstitutional. Regulation in this area is permissible only if the government demonstrates that the current enactment is consistent with the Nation’s historical tradition of sufficiently analogous regulations.

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. Thus, the motion for a preliminary injunction enjoining Defendants’ enforcement of this private property exclusion is granted.

Judge Sinatra refused to grant a three day stay on the decision, pending appeal.

The State of New York, in the person of the controversial Attorney General, Letitia James, is appealing the decision to the United States Court of Appeals for the Second Circuit.

Other courts in New York have been striking down the numerous unconstitutional infringements put forward by Governor Hochul’s “emergency” legislation.

The question appears to be: what will be left, if anything, after the courts are done striking down all the overreaching parts?

We will not know, in detail, until an appeal reaches the Supreme Court is decided, and published.

Opinion:

Early indications are not much of substance will be left of Hochul’s Folly, if anything.

Control of the House of Representatives has shifted to the Republicans in the mid-term elections.

It appears, for two years, the Democratic party scheme to pack the Supreme Court with Progressive (Leftist) justices will be thwarted.

The Supreme Court, in Bruen, has rendered a clear decision and guidance on how courts are to restore Second Amendment rights.

Those rights have been incrementally infringed on for over a hundred years.

Several lower courts have shown a willingness to uphold the guidance of the Supreme Court in Bruen. –

©2022 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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