On October 20, a federal judge in the Western District of New York issued a decision in Hardaway v. Nigrelli granting a motion for a temporary restraining order and enjoining New York’s ban on carrying firearms in “any place of worship or religious observation.” Notably, the decision by District Judge John Sinatra reached an opposite conclusion about this specific piece of New York’s sensitive-places list than an earlier decision by Judge Glenn Suddaby of the Northern District in Antonyuk v. Hochul (Judge Suddaby’s decision was appealed to the Second Circuit and is stayed pending that appeal).
The plaintiffs in Hardaway are a reverend and a bishop in upstate New York, both of whom have active concealed-carry licenses. The plaintiffs allege that they consistently carried guns on church property “for self-defense and to keep the peace,” under New York’s prior law which permitted license-holders to carry in most locations, and would continue doing so but for the state’s new law which designated places of worship (among many other locations) as sensitive places where guns are prohibited. The 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.
Moving on to the plaintiffs’ likelihood of success on the merits of their Second Amendment claims, the judge summarized the Supreme Court’s Second Amendment jurisprudence, including Bruen, and applied the Bruen test. New York cited laws passed by four states and two territories between 1870-1890 “that contained place of worship firearm restrictions.” Relying on Bruen, the judge held that these post-ratification laws were insufficient to constitute a historical “tradition” because they did not “show endurance over time”—rather, in the judge’s view, the laws were “outliers,” “a handful of seemingly spasmodic enactments involving a small minority of jurisdictions governing a small minority of population” passed long after 1791. According to the judge, “[t]hese enactments are far too remote, far too anachronistic, and very much outliers—insufficient, then, in the search for an American tradition.” Emphasizing the continued danger that Americans face outside of the home, the judge found that the plaintiffs were likely to succeed on their claims.
The judge also rejected New York’s argument that churches are analogous to historical sensitive places such as legislative assemblies, polling places, and courthouses. 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 “sporadically.” The judge also held that “[t]he State’s 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.”
Judge Sinatra granted a TRO enjoining New York’s ban on guns in “places of worship or religious observation,” effective immediately with no stay, and set a preliminary injunction hearing for November 3. There 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.
Hardaway reaches a contrary result to Antonyuk, which just three weeks ago upheld New York’s prohibition on guns in places of worship contingent on the state construing the provision to include an exception “for those persons who have been tasked with the duty to keep the peace.” In Antonyuk, Judge Suddaby weighed the exact same set of historical laws relied upon in Hardaway: laws passed between 1870 and 1890 in Georgia, Texas, Virginia, Missouri, and the Arizona and Oklahoma territories. But Judge Suddaby found that three historical laws constitute a tradition and, applying that threshold, upheld New York’s places of worship prohibition with an added exception for those responsible for keeping the peace in a church. Judge Sinatra, on the other hand, used some unspecified higher number of laws as the cutoff. Four state and two territorial laws were not sufficient, in his view, to form a tradition and were all outliers. It’s difficult to say which approach is more faithful to Bruen, but—given such disparate outcomes at the district-court level—it’s clear that some guidance from the appellate courts is urgently needed.
The Hardaway opinion also highlights an issue lurking within Bruen’s historical test which I’ve written about before: judges seem all too willing to credit “colonial” history, even when that history is much further in time from the Founding than contrary post-ratification history. Bruen states that “late-19th-century evidence cannot provide much insight into the meaning of the Second Amendment when it contradicts earlier evidence.” But “earlier evidence” here should only be persuasive to the extent it might illustrate the scope of the right established at the Founding. 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. Both Antonyuk and Hardaway point to early-1600s laws requiring white men to carry guns to church, with Judge Sinatra’s opinion noting that New York’s late-1800s evidence is suspect especially in light of “colonial-era enactments that, in fact, mandated such carry at places of worship.” The judge cites a 2014 law review article by Benjamin Boyd titled Take Your Guns to Church.
Many of the colonial-era laws Boyd catalogues long pre-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’s Colonial Firearms Regulation). Boyd starts his colonial journey with a 1619 Virginia law requiring weapons to be brought to church on the Sabbath. Of eight colonial laws summarized in Boyd’s article, six were passed between 1619 and 1643—the other two were passed in 1738 and 1743, respectively. So, the vast majority of these laws were passed 150 years or more prior to ratification of the Bill of Rights, in British colonies. Yet, to Judge Sinatra, a law passed in a U.S. state in 1870—80 years after ratification and a mere two years after the 14th Amendment was ratified—is “far too remote [and] far too anachronistic.” How can that possibly be? Bruen itself cautioned that a colonial law passed “roughly a century before the founding sheds little light on how to properly interpret the Second Amendment” and noted that “[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.”
As Dru Stevenson has observed, “eras in the distant past seem closer together in our perception than recent events separate[d] by the same amount of time.” This is a documented phenomenon in psychology known as “temporal compression.” Researchers have found “evidence that memories are  logarithmically compressed with time: the farther from the present the memory, the less discriminable it is from an earlier memory.” 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. It is tempting to lump all of colonial history together as close in time to 1776—the most salient historical date, the signing of the Declaration of Independence—because that is how our minds naturally perceive history. But the colonial period, which one might date to the 1607 establishment of Jamestown, stretched for almost 200 years. 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 Hardaway and other decisions treat as obvious)?
Moreover, the two “bring your gun to church” laws passed closer in time to the actual Founding, in Virginia and South Carolina in 1738 and 1743, respectively, warrant a closer look. As Carol Anderson describes in her recent book The Second, Southern militia and gun laws in the 1700s were motivated by “an overwhelming fear among whites of the enslaved’s capacity and desire for retribution” 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. And Virginia and South Carolina were the two colonies with the consistently highest slave populations. By 1710 Blacks outnumbered whites in South Carolina, and, as of the 1780 census, South Carolina was 53.9% Black and Virginia was 41% Black—the highest percentages by far in what would become the original 13 states. 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. Indeed, Professor Anderson describes how the 1739 Stono Rebellion in South Carolina was conducted “[u]nder the cover of the Sabbath.”
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. Notably, the very fact that South Carolina’s 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.