This post is part of a mini-symposium on “Private Property and the Second Amendment,” which includes Jake Charles’ post Bruen, Private Property & the Second Amendment, and Robert Leider’s post Pretextually Eliminating the Right to Bear Arms through Gerrymandered Property Rules. Stay tuned for additional response posts that will run on the blog in the coming weeks.
In his post Pretextually Eliminating the Right to Bear Arms through Gerrymandered Property Rules, Robert Leider argues that one of New York’s post-Bruen legislative responses—switching the default rule governing when permitted gunowners may carry on private property—is unconstitutional. Professor Leider professes that he is “genuinely unsure whether a state has the power to change the default rule on all private property.” However, he argues that the law New York passed, and the one New Jersey recently enacted, do not actually change the default rule as they claim to do because the laws exempt various groups from compliance. In other words, certain individuals are excused from the private-property default rule by virtue of their current or past position of employment or for other reasons, and those groups may carry on private property even when the property owner has not posted a sign specifically allowing firearms to be carried. Functionally, the New York law does this by exempting such individuals from the criminal statute prohibiting possession of a weapon in a “restricted location.”
While Professor Leider observes that New Jersey’s statute is different from, and potentially broader than, New York’s in terms of the exemptions it grants from the private-property default rule, this response focuses only on the New York law passed in July.
New York exempts the following groups from the “restricted location” provision:
(a) police officers as defined in section 1.20 of the criminal procedure law;
(b) persons who are designated peace officers as defined in section 2.10 of the criminal procedure law;
(c) persons who were employed as police officers as defined in section 1.20 of the criminal procedure law, but are retired;
(d) security guards as defined by and registered under article seven-A of the general business law who has been granted a special armed registration card, while at the location of their employment and during their work hours as such a security guard;
(e) active-duty military personnel;
(f) persons licensed under paragraph (c), (d) or (e) of subdivision two of section 400.00 of this chapter while in the course of his or her official duties;
(g) persons lawfully engaged in hunting activity.
One common thread uniting these groups is that most have previously undergone some form of heightened firearms training, beyond what is required to obtain a concealed-carry license in New York. New York now requires that concealed-carry applicants complete 18 total hours of training, including “a minimum of two hours of a live-fire range training course,” and meet certain proficiency benchmarks. But the exempted categories of individuals have completed firearms training that often vastly exceeds this requirement, in both time and scope. The NYPD explains that recruits “must successfully complete fifteen days of training at the Firearms & Tactics Section . . . [which] includes five days of basic firearms instruction, and ten days of tactical training.” The state’s Department of Criminal Justice Services provides that, in order to become a registered security guard, applicants “must have a valid New York State pistol license . . . and must complete a 47-Hour Firearms Training Course.” Hunters must complete a 7-hour training course that covers firearms-safety topics, although completion of that course “[g]enerally . . . does not qualify [one] to obtain a pistol permit in New York State.” Designated peace officers are required by statute to undergo additional training, and active-duty military members will, in all likelihood, have completed quite lengthy and challenging small-arms training.
While a comprehensive examination of each category is beyond the scope of this post, the point is that the vast majority of individuals exempted from the New York provision were required to complete additional firearms training beyond even what the state now mandates for a concealed-carry handgun license, to become part of that category in the first place. Category (f)—which includes state court judges and messengers employed by banking institutions—appears to be the only group exempted under the law with no express additional training requirement. The listed categories also likely encompass most New York citizens who would have been required to complete additional firearms training (although further research would be necessary to verify, for example, whether groups such as prison guards are fully covered by the “designated peace officer” exemption). Notably, one might also expect that the exempted individuals are among the most likely in the state to have undergone implicit or unconscious bias training; for example, the NYPD began a comprehensive training program on those issues in 2018.
Perhaps the easiest response here is that the statute exempts not only active-duty police officers but, as Professor Leider observes, also retired police officers—who, presumably, are not required to be up-to-date with firearms training in retirement. However, relying solely on the retired police officer exemption is a slender reed upon which to base a claim of “clear” pretext. Moreover, a retired police officer will have completed numerous hours of on-the-job firearms training throughout his or her career, and exempting this group may simply recognize the reality that a certain cumulative volume of training is considered sufficient (even without any ongoing requirement).
One should not be so certain then, that the exemptions themselves are evidence that the law is a “pretext . . . overtly defying Bruen.” Bruen itself endorsed numerous state licensing laws with objective training requirements, and the concurring opinion by Chief Justice Roberts and Justice Kavanaugh specifically deemed lawful shall-issue regimes that require “training in firearms handling and in laws regarding the use of force, among other possible requirements.” Bruen has no problem with training requirements generally—although the majority opinion is clear that licensing rules could be subject to an as-applied challenge if overly burdensome in practice. Bruen also does not speak to, and certainly does not clearly prohibit, a multi-tiered licensing system where the ability to carry in certain locations is dependent upon completing some extra level of training beyond the base level required for a permit (one can imagine a similar system being used in the sensitive-places context, where only those with enhanced training may carry in locations where guns are generally prohibited). The Court might have issues with such a framework, which few if any states currently utilize, but Bruen simply doesn’t expressly say anything one way or another about its constitutionality.
There also doesn’t seem to be a historical problem with a multi-tiered licensing system, at least not under Bruen’s analysis. All gun licensing is of relatively recent vintage, but that didn’t stop the Court from endorsing a broad range of objective requirements in the licensing context. And, as Jake Charles has observed (and Professor Leider agrees), “New York freely allows these property owners to opt-in to be a gun-friendly zone.” Setting a default rule that accounts for the fact that private property owners may prefer different approaches for those with, and without, extensive firearms training is still a default from which owners may deviate—and, notably, it is a default more accommodating of public carry than banning all permitholders from carrying without express consent of the owner.
New York’s law, of course, does not enact a multi-tiered system based directly on past training. But the exceptions to the “restricted location” provision accomplish the same functional end: the individuals who are allowed to carry even in businesses where owners have not given permission are, overwhelmingly, those who have received comprehensive firearms training above and beyond the ordinary license holder. New York’s approach may be the only practical way for a state to enact this system in the near term. By exempting categories of individuals who have completed prior advanced training by virtue of their employment status, or otherwise, the state has created a separate licensing “tier” without the administrative burden (on both the state and license applicants) of verifying past training-course completion. By focusing on those who are not exempted, and failing to closely examine why the listed groups are exempted, Professor Leider concludes far too quickly that this aspect of New York’s law merely caters to “politically favored groups.”
If New York had exempted only those individuals with a certain number of documented hours of firearms training within the past 10 years from the “restricted location” provision, would that law also be “clearly a pretext”? To the contrary, nothing in Bruen prohibits such an approach, or a similar regulatory system which ties public carry in certain locations to heightened training. It’s not clear to me how this approach would ultimately fare under Bruen, and the state may need to remove exemptions for certain groups (such as state court judges) and also offer enhanced training to members of the general public that would similarly exempt them from the “restricted location” ban. But the possibility that objectively-grounded training considerations underlie New York’s list of exempted groups is one reason to doubt Professor Leider’s assertion that New York’s private-property regulation is clearly pretextual and should be struck down entirely on that basis.