Though they may no longer limit the issuance of carry permits to those who can sufficiently demonstrate a special need, several states are now set on imposing comprehensive restrictions on where and when carry permits are valid.
Such restrictions are set to create a legal minefield for gun owners newly able to receive carry permits. They’re also likely destined to result in legal battles for many years to come.
In reaction to the Supreme Court’s decision striking down the state’s previous gun carry regime, New York passed a new law designed to dramatically restrict how permitted gun owners can carry within the state. Working off of the Supreme Court’s holding that gun restrictions in sensitive places are permissible under the history and tradition of the Second Amendment, the new law takes an expansive view of what constitutes a “sensitive place.” As such, it deems all government property, health care facilities, churches, schools, public transportation, protest locations, establishments that sell alcohol, and the entirety of Times Square “sensitive places” where licensed carry is criminally prohibited.
It also flips the traditional understanding of private property exceptions on its head by rendering all private business establishments presumptively off-limits for gun carry unless a business owner explicitly authorizes licensed carry with a visible sign on the premises.
Licensed gun carriers who find themselves carrying a firearm in one of the newly designated sensitive places would be subject to a Class E felony, punishable by up to four years in prison.
Governor Kathy Hochul (D.) acknowledged the predicament she was creating for carriers when the new law was under consideration. When asked by reporters where permit holders would actually be able to legally carry, she responded “probably some streets.”
By barring legal gun carry from so many places, coupled with stiff criminal sanctions for violations, New York gun owners face a new paradigm. They can now attain carry licenses, but for all intents and purposes cannot use that license to carry a firearm in most areas outside the home without facing legal peril. That’s despite the Supreme Court expressly ruling that lawful citizens have a protected right to bear arms outside the home for self-defense less than a month ago.
This new “shall issue, may carry” paradigm may not be limited to New York either. Other formerly may-issue jurisdictions are currently working on new laws designed to prohibit licensed gun carry in various locations.
A new California bill would deem carry illegal on all school grounds, college and university campuses, government and judicial buildings, medical facilities, public transit, public parks, playgrounds, public demonstrations, and any place where alcohol is sold.
Likewise, county officials in Montgomery County, Maryland—the state’s most populous county—are working on a bill that would ban licensed carry within 100 yards of any location defined as a space for “public assembly.” Critics have charged that the law’s vague definition of public assembly would make a vast array of spaces off-limits to licensees.
“The biggest issue is what’s defined as public assembly,” Deryck Weaver, a local gun store employee, told the Washington D.C. Fox affiliate. “Because we don’t have a lock gate on our parking lot, the parking lot is considered a place of public assembly even though it’s private property.”
But while the legislative onslaught is beginning to gain steam in many of the states impacted by the Bruen decision, the staying power of such efforts is questionable. The Supreme Court directly addressed the idea of broad “sensitive places” exceptions for gun carry in Bruen, and it would appear to cast doubt on the new tactics being employed.
“[E]xpanding the category of ‘sensitive places’ simply to all places of public congregation that are not isolated from law enforcement defines the category of ‘sensitive places’ far too broadly,” the Court wrote. “Respondents’ argument would in effect exempt cities from the Second Amendment and would eviscerate the general right to publicly carry arms for self-defense that we discuss in detail below. Put simply, there is no historical basis for New York to effectively declare the island of Manhattan a ‘sensitive place’ simply because it is crowded and protected generally by the New York City Police Department.”
This argument will almost certainly be used to challenge New York and any subsequent jurisdictions that pass restrictive carry laws under a “sensitive places” framework. New York’s new presumption of gun carry prohibition on private property is already facing a legal challenge. There will almost certainly be an avalanche of additional lawsuits to follow as more and more jurisdictions take this approach.
Until those are all resolved, gun owners in affected states will have to live with the new “shall issue, may carry” reality for the time being.