One of the most wide-ranging challenges to New York’s comprehensive post-Bruen gun regulatory framework was brought in Antonyuk v. Bruen. There, the court struck down many provisions of the new law. I wrote about the court’s ruling for Slate and, as you can tell from the piece, I think the Antonyuk court bungles much of the analysis. Andrew has also covered the decision multiple times on this blog – here, here, and here. While Antonyuk is important, there are also other ongoing challenges to New York’s new law, including a decision in Hardaway v. Negrelli from October 20, which takes an even more expansive view of the Second Amendment than (the already expansive view of) the Antonyuk court. Andrew summarized the decision in Hardaway here, focusing on its analysis of colonial-era history. This post examines other aspects of the decision and how Hardaway is emblematic of the inconsistent and unpredictable results in the lower courts since Bruen.
The issue in Hardaway concerned one specific place where New York’s new law prohibits guns: “any place of worship or religious observation.” In Antonyuk, despite striking down locational restrictions in lots of places, including airports, summer camps, domestic violence shelters, and others, the court actually upheld most of the place-of-worship ban. It considered a variety of historical statutes and concluded that New York can generally bar guns from those places, but that the provision must “contain an exception for those persons who have been tasked with the duty to keep the peace at the place of worship or religious observation.”
The court’s opinion in Hardaway runs for 40 pages. Most of those pages are factual background, standing analysis, and then a staggering 14 pages that consists almost entirely of select quotations from Heller, McDonald, and Bruen. Those pages were not, for the most part, spent teasing out the ways to implement the Court’s ruling, but instead purely copied-and-pasted from the earlier opinions. The court spent fewer pages applying the relevant test to the facts than it did excerpting snippets from that trio of cases.
In describing Bruen’s history & analogy test, the court several times emphasized the “high bar” that Bruen set up. It then underscored that “[t]he test is rigorous because the Second Amendment is the very product of an interest balancing” by the People. But that makes no sense as a rationale for making the implementing test demanding. The “because” in the court’s sentence conflates two separate issues: (1) how rigorous the test should be, and (2) whether the “balance” should be struck by history. An affirmative answer to the latter does not imply any particular answer to the former. The balance struck in the Amendment could favor broad or narrow protection for the right (or broad or narrow as applied to different issues); saying history settles the Amendment’s scope doesn’t tell us how wide that scope is. After all, that’s usually the question in a case like Hardaway. In other words, even if you believe that the balance was struck at the founding, nothing about that fact says anything about how rigorous the test should be to smoke out violations. The test is (or should be) calibrated to find violations, whether the balance struck in the Amendment favors broad or narrow protection for the right. If anything, the court’s conflation of these two issues shows that support for a historical approach to the Second Amendment isn’t really about originalism so much as it is about expanding gun rights.
In applying the test, the court first breezily cruised past the step one “plain text” inquiry. Instead of an analysis, the court simply stated that, just as for the plaintiffs in Bruen, the Second Amendment “presumptively guarantees Plaintiffs’ right to ‘bear’ arms in public for self-defense—and it does so as well at places of worship, which are open to all comers.” It’s not clear why the plain text covers bearing in that particular location—which after all is the precise question in this case. And, on this reading, the plain text inquiry is basically superfluous when a person claims a right to carry their gun anywhere. It’s also not clear what the “all comers” descriptor is doing. Might the court reach a different step one conclusion as to places that are not generally open to the public (like, I suspect, is true for at least some (many?) places of worship)?
In moving to the historical second step, the court noted that New York identified church-ban laws enacted in the two decades following ratification of the 14th Amendment “by four states (Texas, Georgia, Missouri, and Virginia) and the territories of Arizona and Oklahoma.” Those were not enough. Unlike the sensitive locations Bruen highlighted, said the court, “places of worship or religious observation are unsecured, spiritual places that members of the public frequent as often as daily as part of day-to-day life, and encounter vast numbers of other people there—as they do anywhere in public.” Seeming to echo a theme that Joseph Blocher and Reva Siegel are developing about at least one of the purposes of the sensitive-places doctrine, the court said the Bruen-identified locations were spaces in which armed violence “could disrupt key functions of democracy.” Not so for churches.
Then, in assessing New York’s proffered analogues, the court highlighted a phrase from Bruen about “an enduring American tradition of state regulation” and said that since seven similar (modern) laws imposing may-issue licensing were insufficient in Bruen, then seven laws must also be insufficient to justify New York’s church ban. (The court did not discuss—or acknowledge—the notion that the number of contemporary jurisdictions with such a law is not the same as searching for a historical tradition.) The court did not quote any of the laws New York cited, but said there were “a handful” and that there were also “[a] few additional municipal enactments of similar vintage,” but the latter did not alter its conclusion. As to the state’s examples:
The notion of a “tradition” is the opposite of one-offs, outliers, or novel enactments. Rather, “tradition” requires “continuity.” These enactments [New York cited] are of unknown duration, and the State has not met is burden to show endurance over time.
(Footnotes and citations omitted; emphasis in original). The court also invoked the evolution of some of the historical laws to suggest that the tradition relaxed its treatment of guns in churches over time: “As to Georgia and Missouri, the enactments apparently evolved in any event, to allow church leaders to decide the issue for their own churches.” That seemed reason to discount them—or possibly to deny them any weight at all.
In sum, the court concluded, it was left with “a handful of seemingly spasmodic enactments” that were “very much outliers—insufficient, then, in the search for an American tradition.” Unlike the court in Antonyuk, the court here did not allow the ban to remain in effect generally, with only a special carve-out for peace-keeping, but instead found it unconstitutional in toto.
The court also found that the plaintiffs had established they would suffer irreparable harm in the absence of an injunction. Churches are sites of protected First Amendment activity. Plus, according to the court, churches can be dangerous places:
Law-abiding citizens are forced to forgo their Second Amendment rights to exercise their First Amendment rights to free exercise of religion, or vice versa. And they are forced to give up their rights to armed self-defense outside the home, being left to the mercy of opportunistic, lawless individuals who might prey on them and have no concern about the place of worship exclusion.
In other words, criminals don’t follow the law. (Besides being a reductive gun-rights talking point, it’s also not the case that all those bent on doing harm flout gun laws—see, e.g., the many January 6th insurrectionists who left their guns at home, or at a staging area in Virginia, rather than take them into D.C. precisely because of the District’s strict gun laws.)
Like other recent decisions, the court’s opinion here reduces hard questions about the scope of the Second Amendment and Bruen’s methodology to simple ones that generate easy answers with minimal analysis. The court invoked themes concerning the endurance, enforcement, and evolution of historical gun laws, labelling those it chose to ignore as outliers, anachronistic, remote, or irrelevant with almost no analysis at all. How long do laws have to “endure” to count? When does a change in regulatory framework mark an “evolution” of tradition as opposed to merely a different judgment by a different set of legislators? Why don’t local laws count? And why does the state have to put forward more than seven historical analogues to show a tradition?
This last question is all the more urgent—and the lack of an answer all the more concerning—because other courts have already reached inconsistent conclusions: the Antonyuk court said it required three laws for a tradition and expressly rejected the statements by a Texas court in McGraw v. FPC that the existence of laws in nearly half the states was insufficient. Now Hardaway comes in between the two, leaving state governments with no idea whether three, seven, or many more laws are needed to justify a modern regulation. Not only are the answers missing, but so too is any principled explanation for how to arrive at one. Bruen, in short, continues to license unbounded judicial discretion that permits federal courts to implement their policy preferences in the guise of historical fact-finding.