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New York State Treads on Gun Rights

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Are you a felon? You may soon be if you are caught carrying a pistol in a sensitive location in New York State. One of the hottest topics right now in the realm of 2nd Amendment rights is the “sensitive locations” debate. New York State was put on notice last year when it was decided that they could not unilaterally tread on guns rights, their response was one that was unforeseeable. They have decided to skirt the grey area of the law by restricting your ability to conceal carry in most areas of the state, which allows them to tread on these rights even more than before. If you are caught carrying in a sensitive location you will be charged with a felony.

When analyzing the Second Amendment, it’s always interesting to look at what the different Supreme Court Justices have to say about the topic. Ironically enough, Justice Ginsburg wrote, “[s]urely a most familiar meaning is, as the Constitution’s Second Amendment (‘keep and bear Arms’) and Black’s Law Dictionary indicate: ‘wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person.’” Muscarello v. United States, 524 U.S. 125, 143 (1998). Justice Scalia used this quote in Heller, when addressing what “Keep and Bear Arms” actually means under case law and the United States Constitution. District of Columbia v. Heller, 554 U.S. 570, 584 (2008).

In Heller, Justice Scalia mentioned that Second Amendment rights are not unlimited. Id. at 626. He elaborated further on this point, “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or law imposing conditions and qualifications on the commercial sale of arms.” Id. He clarified in a footnote that these are only examples, and do not constitute an exhaustive list. Id. at 627.

In New York State Rifle & Pistol Association v. Bruen, Justice Brett Kavanaugh concluded his concurrence opinion with the quote from Heller cited above. New York State Rifle & Pistol Association v. Bruen, 142 S. Ct. 2111 (2022). This same standard has now been compounded in two separate Second Amendment decisions authored by two separate Justices in the Supreme Court of the United States, which as it turns out was a grave mistake for New York citizens.

It is very obvious that the New York State Legislature, and Governor Kathy Hochul, were not fans of the holding in the Bruen case, which led to the immediate creation of the Concealed Carry Improvement Act. In response to the decision, New York amended § 265.01-E of the penal law, which is titled “Criminal Possession of a firearm, rifle or shotgun in a sensitive location.” Penal Law 265.01-E. A charge under this section of the law is a Class E felony, which could carry a sentence in state prison. Id. This list of places is an exhaustive list that has twenty sub-categories, which contain multiple areas designated as sensitive locations. Id. It would be less time consuming to list all of the places where concealed carry is permitted than it would be to list the places deemed sensitive locations.

These sensitive locations that are enumerated in the law have led to an outrage by many citizens, as well as multiple law suits. There are many good arguments that could be, and have been, articulated to show how these laws are unconstitutional, but the state is pushing forward arguing for these laws to be upheld. Specific challenges have been made regarding carrying in places of worship, as well as the presumption that concealed carry is not allowed on private property or at businesses.

The main problem we are facing today is that Justice Scalia left the door open by allowing states to endlessly add to the areas deemed to be sensitive locations. Furthermore, when Justice Kavanaugh reiterated that portion of Heller in his concurrence opinion in Bruen, he brought those ideas back to life. New York seized the opportunity to restrict concealed carry by making nearly everywhere a sensitive location, as well as the presumption that concealed carry is not allowed. The state knew that it could no longer deny pistol permits without an actual legal reason, nor require people to elaborate a reason for needing the permit. Instead, it took a different route, make it illegal to conceal carry almost everywhere in the state. Unfortunately, this has proven to be very successful.

Law abiding citizens now risk being charged with a Class E Felony for exercising their Second Amendment rights, which in the eyes of New York State is a winning situation. Challenges to these laws will end up in the Supreme Court of the United States, but until then it is important to play by the rules. Any criminal charge can affect your right to a concealed carry permit in New York, which means that the government wins. Everyone knows they are unconstitutional, but until they are successfully challenged we are forced to live under these tyrannical rules.

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