On October 6, Judge Glenn T. Suddaby of the Northern District of New York issued a decision partially granting a request for a temporary restraining order of New York’s revised gun law (the Concealed Carry Improvement Act, or CCIA). The CCIA was passed on July 1, about a week after Bruen, and took effect on September 1. Judge Suddaby had previously dismissed a challenge to the law by the same named plaintiff for lack of standing, in an order that also contained 22 pages of dicta suggesting that the judge believed much of the new law to be unconstitutional. I covered that opinion here. This time around, Judge Suddaby concluded that the plaintiffs did have standing, relying primarily on the fact that certain plaintiffs submitted sworn declarations stating that they intended to violate portions of New York’s law, which is now in effect. Thus, there was no procedural obstacle, and the opinion proceeded to evaluate the plaintiffs’ likelihood of success on their constitutional challenges to various provisions of the law.
Judge Suddaby’s opinion includes a lengthy footnote justifying his decision to accept assignment of the new case as a “related case” to the first one that was dismissed for lack of standing, under the Northern District’s court rules. According to the judge, because the new case involves nearly-identical legal issues and substantially overlapping parties, judicial efficiency dictated that he accept it as related rather than allow it to be assigned to a different judge.
At the outset, Judge Suddaby made two observations about the Bruen test. He articulated a standard for judging historical laws under which “a historical statute cannot earn the title ‘analogue’ if it is clearly more distinguishable than it is similar to the thing to which it is compared.” Second, he stated that he would “generally . . . look to instances where there have been three or more . . . historical analogues (specifically, three or more historical analogues from states, given that such analogues from territories deserve less weight under NYSRPA . . .).” In other words, Judge Suddaby found that three historical laws is the relevant cutoff—anything less than three is an “aberration” or a “mere trend,” but adoption by a majority of states at the time is not required.
The opinion then considered the state’s “good moral character” requirement, which was included in the law pre-Bruen. The CCIA added a definition of “good moral character” and also required that concealed-carry permit applicants provide certain information to the licensing officer to prove good moral character. Judge Suddaby found that the definition improperly omits a self-defense exception and places the burden of proof on the applicant to rebut a presumption of dangerousness or bad moral character, rather than requiring the state to rebut a presumption that the applicant has good moral character, by preponderance of the evidence. The opinion stated that this formulation both runs afoul of the holding in Bruen because it results in a subjective standard, and is not historically supported by loyalty oaths because those laws generally assumed that individuals were entitled to possess a gun unless the state first made a finding of dangerousness. Judge Suddaby drafted a revised version of the moral character requirement and directed state licensing officials to construe the statute as he re-wrote it.
The judge upheld the requirement to submit character references and other information required by the licensing officer, and to complete 18 hours of gun training. However, Judge Suddaby found that mandating applicants to attend an in-person interview, submit a list of family and cohabitants, and provide social media account information were requirements not analogous to any historical hurdle and therefore unconstitutional. As to the social media requirement, Judge Suddaby analogized to Founding-era pamphlets published pseudonymously and observed that an analogous law requiring disclosure of such material “would be surprising given that the Constitution—and sometimes the Bill of Rights—was vigorously debated in public by individuals who both used pseudonyms and carried guns.”
Turning to sensitive places, Judge Suddaby first noted that he reads Bruen to “indicate a skepticism of . . . expan[ding sensitive places beyond government buildings and schools] based on the historical record.” Second, he clarified that the sensitive places list does not “rise or fall in its entirety,” but rather is evaluated location-by-location. However, New York must put forward evidence of a historical tradition of regulation for each location. The opinion upheld New York’s prohibition of guns in government buildings, polling places, and schools, locations specifically endorsed by the Supreme Court. The judge also found that the state could prohibit guns on sidewalks and in public areas used for government events, in places of worship if an exception is made “for those persons who have been tasked with the duty to keep the peace,” and at public assemblies where individuals gather to protest or express constitutional rights. In each instance, the opinion cited historical statutes restricting guns in these or similar locations, or referred to the Supreme Court’s statements about the sensitive places doctrine.
In all other locations, the judge said, the government cannot prohibit guns—including summer camps, public transportation, entertainment venues, locations where alcohol is served, Times Square, libraries, parks, zoos, mental health centers, homeless shelters, domestic violence centers, childcare providers, and others. For example, Judge Suddaby wrote that historical laws banning guns in “fairs and markets” were not widespread and are not analogous to a blanket prohibition in Times Square because they only barred the “offensive” carrying of weapons.
Finally, the opinion evaluated the portion of the CCIA that makes privately-owned property a “restricted location” unless the owner expressly allows guns to be carried. While Judge Suddaby believes that the state is “making a decision for private property owners that they are perfectly able to make for themselves,” he also wrote that “this policy dispute is irrelevant, because it does not regard the Supreme Court’s ‘historical tradition’ standard.” Because historical laws only restricted the carrying of guns on “inclosed” farmland for anti-poaching reasons, Judge Suddaby found, the state today is only allowed to switch the default rule for fenced-in farmland—not for all privately-owned businesses and buildings. Judge Suddaby stayed his order for three business days “to allow [New York] to seek emergency relief in the Second Circuit.”
The opinion uses an extremely narrow frame to evaluate potential analogues to locations on New York’s sensitive places list. Do historical laws banning guns in schools support a prohibition on guns in summer camps? No, the opinion says, without any analysis. May guns be banned on the subway and other modes of public transportation? No, because historical laws banning concealed carry often made explicit exceptions for travelers, as travel was considered dangerous. Are historical laws prohibiting guns at “public assemblies” sufficient to support a modern ban on guns in stadiums, performance venues, and concert halls? No, the judge says, because in his view “the term ‘public assembly’ appears somewhat like the term ‘popular assembly,’” which “appears to involve a focus on one’s constitutional rights.” Are historical laws banning guns on enclosed farms or plantations analogous to a modern law enacting a presumption that guns are prohibited in privately-owned businesses? No, because the historical laws did not apply to buildings, only farmland.
Take Judge Suddaby’s conclusion that “the Court cannot find . . . historical statutes [banning guns in schools] analogous to a prohibition on ‘summer camps.’” Why is that the case? Of course schools are not the same as summer camps, but they seem analogous in almost any relevant way: the group of people located there is the same (students, or school-aged children), the general reason for the venue’s existence is quite similar (education and social activity), and the reasons why the government might prohibit guns in that location are likely identical (children are an especially vulnerable population, and the presence of guns increases the risk of tragic misuse by children).
This example is indicative of Judge Suddaby’s blinkered examination of the historical record—there is often no detailed analysis of whether historical and modern laws were comparably justified. Rather, the inquiry turns on either the burden question or the judge’s own subjective impression of the two sets of laws. If the burden (not being able to bring a gun into a school) is identical, then the modern law is supported; but if the burden is even slightly different or the judge finds that the laws might have been enacted for different purposes, then the state is out of luck. Laws prohibiting guns in schools were almost certainly justified in comparable ways to a modern ban on guns in summer camps, and historical laws banning guns in places of public assembly were likely justified on similar grounds as modern statutes banning guns in stadiums, concert halls, and bars. One would never know that from the opinion, however, because it contains only laundry-list citations to historical statutes, accompanied occasionally by judicial speculation about why those laws were enacted. For example, the opinion concludes that, “on their face, the purpose of those statutes [restricting guns on enclosed lands] appears to be merely to stop poaching.” But, surely, it’s often not possible to glean the purpose of a statute from its face, and the opinion conducts no analysis of the legislative history or any secondary-source records that might show what the animating purpose was behind any of these laws.
In certain instances, the opinion also seems to give greater weight to exceptions in historical statutes than to the historical prohibitions themselves. History tells us that guns can be banned in church only with certain exceptions, and that prohibitions on concealed carry must always contain an exemption for travelers. This approach takes historical imitation too far. It should not be that modern-day legislators must mimic historical statutes verbatim; rather, as the majority opinion in Bruen explains, “even if a modern-day regulation is not a dead ringer for historical precursors, it still may be analogous enough to pass constitutional muster.” Bruen itself is clear on this point, and it’s difficult to view the imposition of historical exceptions as anything other than a requirement of complete overlap.
One final problem with Bruen’s test that comes through all too clearly here is its treatment of territorial laws. Judge Suddaby is certainly correct in his application of Bruen: the majority opinion demands an approach that gives territorial laws little to no weight. But what possible justification is there for discarding a law passed in a U.S. territory 12 years after the ratification of the 14th Amendment (as the opinion does to an Oklahoma law banning guns in any place where alcohol was sold), while placing great importance on a law passed in Virginia in 1632 that required masters of the family to bring guns to church? The Virginia law was passed more than 150 years before Virginia became a state. In looking at history, Judge Suddaby, in his own words:
construes NYSRPA as treating relevance as controlled by a sort of dimmer switch whose slide lever darkens a room at the top and bottom of the control panel but fills the room with light as it approaches the middle (representing our insight into the public understanding of the amendments that were ratified by three-fourths of the state legislatures in 1791 and 1868).
Fair enough, perhaps, but one would imagine that the lights are switched off entirely back in 1632. And, as I’ve previously written, Bruen’s treatment of territorial gun laws is odd and ignores the fact that the federal Second Amendment applied directly in the territories. Judges applying Bruen will almost certainly continue to use the decision to illuminate only those portions of the historical record that produce their desired outcome.