On June 28, Judge Vernon Broderick of the Southern District of New York issued a decision in Goldstein v. Hochul denying a motion for preliminary injunction of New York’s post-Bruen law designating places of worship as sensitive locations where guns are prohibited. The plaintiffs in the case wish to carry concealed firearms—for which they have concealed carry permits—at their synagogue during religious services. New York’s post-Bruen gun law, the Concealed Carry Improvement Act or CCIA, criminalizes the possession of firearms in a list of sensitive locations including “any place of worship or religious observation” (among other provisions). The state amended the law, effective May 3, 2023, in part to modify the “place of worship” ban by adding an exception for “those persons responsible for security at such place of worship.”
The bigger picture here is that a broad challenge to multiple provisions of the CCIA, Antonyuk v. Nigrelli, is pending before the Second Circuit (we covered the series of district court decisions in Antonyuk enjoining large portions of the law here, here, and here). The Second Circuit stayed the ruling in Antonyuk pending appeal and heard oral argument in the case on March 20. A decision from the Second Circuit panel can be expected shortly and, depending on the result, I believe the case is likely to ultimately be appealed to the Supreme Court—where two justices have already observed that the case implicates “novel and serious questions” and endorsed the district court decision as “thorough.”
In another CCIA opinion issued shortly after the Antonyuk oral argument, Judge Nelson Román of the SDNY stayed his decision in Frey v. Nigrelli on many aspects of the requested injunction, pending the Second Circuit’s decision in Antonyuk and in the interests of judicial economy. Judge Román did conduct a Bruen historical-tradition analysis of the state’s locational ban in Times Square (although he found no standing to challenge that provision) and on public transportation. He relied on “a historical tradition of banning firearms in ‘fairs’ or ‘markets’ or areas [where] large crowds [are present]” to conclude that the Times Square ban was likely constitutional, and he upheld the subway ban based in part on a review of evidence regarding gun restrictions by private railroad companies in the late 1800s.
Antonyuk enjoined the prohibition in places of worship, but Judge Suddaby emphasized that the language of the original ban (which did not contain a security exception) was overly burdensome when compared to potential analogues due to the absence of such an exception. Under the analysis in Antonyuk, then, the amended law may well pass constitutional muster—but this remains something of an open question. Another challenge to the “place of worship” ban, Hardaway v. Nigrelli, was consolidated with Antonyuk and is also pending at the Second Circuit (we covered the district court decision in Hardaway here).
In Goldstein, Judge Broderick first determined that certain individuals (Governor Kathy Hochul and Attorney General Letitia James) were not proper defendants because they cannot personally enforce the statute—however, the judge found that the claims were properly brought against other defendants, including the police commissioner. Judge Broderick then concluded that the plaintiffs had standing to challenge the “place of worship” ban, finding that their “desire to carry concealed firearms into places of worship” encompassed a constitutional interest and was proscribed by the CCIA.
Turning next to the likelihood of success on the merits, Judge Broderick summarized his view of locational restrictions post-Bruen:
Although the Court does not explicitly define what constitutes a sensitive place, it does address specific examples that provide lower courts with some guidelines on the limits of doctrine. For example, we know that it would be “too broad[]” to classify the entire island of Manhattan simply because it is “crowded and protected generally by the New York City Police Department.” However, it is also not so narrow that the Government must find an identical law from the relevant historical periods for the modern-day regulation to be allowed.
The judge declined to focus exclusively on the Founding era, instead observing that Bruen suggests “evidence from around both time periods [1791 and 1868] are instructive regarding the scope of the right.” The judge then relied on a multitude of state laws from the post-Civil War period banning guns in places of worship to “find[] that there is a robust tradition of considering houses of worship as Sensitive Locations.” Judge Broderick also determined that colonial era laws and antebellum public carry restrictions constituted relevant “historical precedent for the restriction of firearm-carry for law-abiding citizens either in specific physical locations or for public safety reasons”—and he summarized state-court decisions upholding those laws and, in some instances, noting that carrying guns in certain locations was “not [] appropriate,” “little short of ridiculous,” and “shocking.” Briefly addressing a handful of colonial laws that required individuals to carry guns to churches, Judge Broderick found that “these statutes are rooted in racism not the Second Amendment” and “should not be considered or at a minimum deserve little or no weight in the analysis.”
The plaintiffs in Goldstein also brought First Amendment, equal protection and vagueness challenges to the CCIA’s “place of worship” ban. The judge rejected the plaintiffs’ First Amendment challenges because “[c]arrying a gun is not a religious act and cannot be analogized to praying or being able to enter one’s house of worship.” He determined that the equal protection challenge could not succeed because plaintiffs had not shown they were treated differently from similarly situated groups under a generally applicable ban and because no allegations suggested that any such differential treatment is based on their religion. Finally, Judge Broderick rejected the vagueness challenge because “the term ‘place of worship’ has a long history of being used within a legal context and also has a clear and broadly understood common meaning.”
I suspect that New York’s May amendment to exempt those “responsible for security” at a place of worship from the locational ban moots ongoing legal challenges to that specific portion of the CCIA. And I also believe the Second Circuit will reverse that aspect of Antonyuk based on the changed factual circumstances. That said, Judge Broderick’s analysis is generally compelling in that it provides a persuasive explanation for why the absence of specific locational regulations (in the same place) at the time of the Founding should not be outcome-determinative. The Court in Bruen observed that “the historical record yields relatively few 18th– and 19th-century ‘sensitive places’ where weapons were altogether prohibited.” And “legislative assemblies,” which Bruen identifies as a settled sensitive location, where by no means off limits to guns in most places for much of early American history—Judge Broderick notes, for example, that “throughout the mid-nineteenth century, U.S. Congresspeople were regularly armed when they attended Congress.” While the district court decision in Antonyuk generally looked for historical “twins,” or historical laws that banned guns in the same location as the modern law, I think Goldstein is likely correct that the inquiry should be broader given that even those specific locations where the Supreme Court has endorsed locational bans on gun carrying were not widely regulated at the time of the Founding.
Ultimately, Judge Broderick found that “the number of historical legislative references that support a finding that a house of worship is a sensitive place far surpasses the number of references cited in Bruen and Heller as support for finding schools and government buildings as sensitive places.” The historical laws banning guns specifically in churches date from the post-Civil War period. But I think it’s a fair interpretation of Bruen to analyze to early public carry restrictions more broadly, lest Bruen be applied as a “straightjacket.” Bruen also makes the presence or lack of “disputes regarding the lawfulness of such prohibitions” constitutionally relevant, hence Goldstein’s reliance on case law from the mid-late 1800s regarding the impropriety of public carry of firearms in certain locations.
I think the opinion is most subject to push back on the date question, as Judge Broderick relies heavily on laws and cases from the post-Civil War era. But that is ultimately a question on which the Supreme Court will have to provide additional guidance. By declining to decide whether challenges to state laws under the incorporated Second Amendment should rely on a historical record close in time to 1791 or 1868, and by substantively addressing potential analogues up to 1900 when deciding a state-law challenge, the Bruen court did not clearly instruct courts to focus narrowly on the Founding era (and the opinion could even be read to suggest the opposite). I’ve written about that issue here and here and I see a strong argument for Reconstruction era evidence playing a major role in state-law challenges, but I also believe that Judge Broderick’s decision to “look to both time periods for historical evidence” is defensible under current precedent.
This is not an issue that arises naturally in Rahimi because that case deals with a Second Amendment challenge to federal law. However, it is possible the government may advance a “total re-speaking” theory and attempt to rely on Reconstruction era history in Rahimi. While regulatory interventions specifically addressing the problem of guns and domestic violence are a very recent innovation, more general interventions did exist in earlier time periods and some courts in the Reconstruction era did uphold assault convictions based on domestic violence (albeit while noting that “gentle restraint” was permissible).
One final observation about Goldstein involves the judge’s decision to disregard colonial laws requiring some citizens to bring their guns to places of worship at certain times:
The laws cited by Plaintiffs concerning the mandatory carry of firearms in places of worship are rooted in racial supremacy, and had the reprehensible and shameful goal of preserving slavery. They should not be considered or at a minimum deserve little or no weight in the analysis of the history and tradition of the regulation of firearm carry by law-abiding citizens for self-defense.
That conclusion seems correct to me. Unlike Reconstruction era history, where the relationship between gun regulation and race was often complex, there seems to be uncontroverted evidence that the colonial bring-your-gun-to-church laws were motivated by racism (and, as I’ve previously written, most of these laws were passed long prior to 1791, even though we tend to treat the colonial period as a single, compressed era). Judge Broderick’s point here, however, is also relevant to the history of the Second Amendment itself. As illustrated in a recent exchange on the blog between Noah Shusterman and Carl Bogus, many historians believe that slave control played some role in the decision to draft and ratify the Second Amendment—but how that motivation stacks up against other factors, such as pro-militia sentiment and fear of large standing armies, is hotly contested.
