NY GUN LAW: Concealed Revealed

By Reuvain Borchardt

George Mocsary, a Second Amendment scholar who teaches at the University of Wyoming College of Law, discusses New York State’s response to a recent Supreme Court ruling that deemed New York gun laws unconstitutional. Professor Mocsary was born and raised in New York City, and attended law school at Fordham, where he graduated first in the Class of 2009. He has written law-review articles on the Second Amendment and is a co-author of the first-ever law-school casebook on the subject, and his work has been cited by the U.S. Supreme Court.

New York State recently passed new gun laws in response to the Supreme Court ruling, New York State Rifle & Pistol Association, Inc. v. Bruen, which was decided in June. First of all, tell us about the Bruen ruling.

Bruen said that a state or municipality that regulates carrying firearms in public —  it particularly looked at concealed carry, which is what was challenged there — can’t condition the issuance of that license to carry publicly on some kind of special need that’s greater than the need of any ordinary citizen to defend himself or herself.

Most states issue licenses on a “shall issue” basis, which means if you’re not a criminal or a drug addict, if you’re sane, if you take a firearm safety class, you have to be issued a license to carry a concealed weapon. But in New York and several other jurisdictions, the issuing authorities had discretion in whether they would issue you a license to carry concealed in public. You had to prove some special need beyond a normal self-defense purpose to the satisfaction of the issuing authorities.  In practice, that meant that most of the people issued licenses were connected people — politicians, retired police, the spouses of police officers, famous people, etc.

So, after the Supreme Court deemed New York’s law unconstitutional in Bruen,tell us about the law New York passed in response.

New York enacted a law that has a ton of requirements for getting a concealed-carry license. Two are particularly troubling. First, you have to be of “good moral character.” Whether one is of good moral character is still subject to the full discretion of the issuing authorities, and they can look, for example, at your social media accounts in making that determination. Second, it listed an extraordinary number of places as so-called “sensitive locations.”

The Supreme Court, in District of Columbia v. Heller in 2008, said that restricting carrying of guns in some sensitive locations is acceptable. But New York made a very, very broad list of sensitive locations. Religious institutions are included, whether or not the pastor or rabbi or board of elders of the institution would allow carrying guns there. Times Square is a sensitive location. Public transit is a sensitive location. Any private business is, by default, a sensitive location, and the only way one can carry in a business is if the business owner affirmatively puts a sign in the window saying that you may carry guns there.

So it seems New York is saying that if we can’t restrict who carries guns, instead we’ll restrict where the guns can be carried.

Correct. And it’s doing that far more broadly than for which there’s any precedent in history.

There are also additional requirements for training.

Yes, it’s 16 hours classroom and two hours live-fire training. Compare that with other states, where the norm is typically eight hours classroom training. Illinois requires 16 hours’ total. Some states require four. Some don’t require any.

And what about the fees to get a license?

New York City is very expensive. It’s over $400 once you’ve factored in the application fee and the fingerprint fee. The norm in most places is about $100. In Illinois, for example, it’s $150. Other states are less.

So if someone in New York City wants to apply for a gun license today, take us through the process they would go through.

The applications in New York City are quite lengthy. Before the new law was passed, it would take months to get approved. I suspect it’ll take quite a bit longer now. You’ll also have to show in the application that you went through the required training, which itself will be a lengthy process if you include scheduling it in advance, going to multiple sessions, and so on.

At some point, once the division of the Police Department that reviews the licenses approves it, they’ll send you the license, then you can go buy a handgun to carry in public. But under New York licensing laws they will then give you a separate registration coupon for each firearm. Each time you wanted to buy a gun, you’d have to get separate registration, which is, in effect, permission to buy an individual firearm. And each firearm in New York has to be registered.

What is your view of the constitutionality of these new regulations?

On the whole, they’re exceedingly broad. Some undoubtedly are fine. But some are definitely unconstitutional.

A particularly problematic one is the one where the default is that you can’t carry in public into a business without the business owner affirmatively allowing it. That turns the way these things work on its head. It’s difficult to say how carry in public is allowed if the default is that it’s not allowed in a public accommodation, like a business. Another problematic one is Times Square — and it’s especially problematic for people living in Times Square. A gun owner who lives in Times Square and wants to carry his or her firearm outside can’t actually wear it concealed, but has to take it in a case, leave Times Square, and then put on the firearm in a way that it’s constantly concealed. Because you’re never — at least according to the state, though the statute arguable allows it — allowed to carry openly in New York — the firearm can’t be visible to a passerby.

So once the Times Square resident takes it out of the area in a case, he or she has to put it on concealed in a way that it’s never visible to anyone else. The only way to do that is go into a business or other private area and put it on in the bathroom or similar space. But the default is that guns are banned in businesses unless an owner puts a sign in the window saying that firearms are allowed.

So you can’t put it on in the street, because then it would be visible. And you can’t put it on in a store bathroom, since they’re banned in stores by default.

This effectively means it’s impossible for someone who lives in Times Square to ever carry a gun anywhere.

And to make the provision about businesses worse, it exempts police officers, off-duty police officers, and retired police officers. If this provision were really about respecting the rights of property owners, than all situations that didn’t involve a justified trespass — a police officer responding to a situation — would require the property owner’s permission. If this were really about property owners’ wishes not to have guns on property, then certainly off-duty and retired police would not be exempted from the requirement that property owners affirmatively post their consent to firearms on their premises. Neither should on-duty police stopping in for lunch, for example.

Which of the new regulations do you believe are constitutional?

The one that prevents carry in government buildings or in polling places. And the Court explicitly said that schools are included in the definition of sensitive places.

A case was just brought challenging the new regulations. The judge threw out the case, saying the plaintiffs lacked standing to sue, but the judge was critical of the rules themselves. Tell us about that case.

The judge essentially said, as I’ve been saying here, that these restrictions are way too broad, and that they include way too much in the definition of sensitive locations. But he said that the plaintiff lacked standing, because he wasn’t in danger at that point of criminal liability for breaking the law.

For a legal challenge to be brought, the Constitution requires a “case or controversy.” The judge said that even though this law is bad, the person bringing the challenge is not properly positioned actually to bring the challenge.

What would have to happen for plaintiffs to have standing to challenge these laws? Would the plaintiff have to actually get arrested carrying a gun in one of these places?

That would be one way to do it. Another is the plaintiff has to say affirmatively, in the proper legalese, that he would like to go into Times Square with his gun, and but for this law, he’s not doing so, and that there’s a credible threat of prosecution if he does so.

The judge dismissed the case “without prejudice,” which means the plaintiffs can refile. Since then, another plaintiff has refiled, presumably having met the proper requirements.

Since the plaintiff lacked standing in that case, was it appropriate for the judge to actually discuss the merits of the case? Should he have just said that the case is dismissed for lack of standing and not discussed the merits?

Judges routinely talk about things unrelated to the bases of their decisions. That language in an opinion is called “dicta.” People differ on whether that’s proper or not. But judges do it all the time.

We’ve already had three big gun cases in the past 15 years, all of whose rulings favored the gun owners: Heller,which said the federal government can’t ban someone from keeping a handgun in their home; McDonald,which said that state and local governments can’t ban someone from keeping a handgun in their home; and now Bruen, which threw out restrictions on who may carry guns in public.

Are there any other Second Amendment lawsuits in the pipeline that the Supreme Court might take up soon?

After Bruen was decided, there were cases in many federal circuits where the plaintiffs thought current law in that circuit was in conflict with the Bruen decision.

If I had to guess, I think the next big Second Amendment case that the Supreme Court is going to take will be a ban on so-called “assault weapons,” which are banned in several places. In most or almost all of those circuits where a ban on so-called “assault weapons” was upheld, new plaintiffs filed new cases challenging the laws. Now those have to make their way up through the court system, from the district courts to the circuit courts, and then eventually to the Supreme Court. That will take a few years.

If such a case comes before the Court as presently constituted, how do you think the Court will rule? Also, how do you think the Court will rule if it gets a case challenging the new New York law?

I make it a policy not to read the Supreme Court tea leaves. But in my opinion, many parts of the new New York law are unconstitutional. And the bans on so-called “assault weapons” are especially unconstitutional because they’re based on arbitrary criteria.

Does New York currently have the most restrictive gun laws of any state?

It’s up there. New Jersey, Massachusetts, California, are also quite draconian. It’s part of the reason I’ll probably never leave Wyoming.

That was actually going to be my last question! You were born and raised in New York City, and gaduated summa cum laude from Fordham Law School. Now you’re teaching law and living in Wyoming. Is that because of Wyoming’s permissive gun laws?

That’s not why I came here. But now that I’m here, in a state that actually respects the Second Amendment, I hope never to leave.

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rborchardt@hamodia.com

This interview originally appeared in Hamodia’s Prime magazine.