The Post-Bruen New York and California Punitive Gun Control Laws are Clearly Unconstitutional

After Bruen, a notable noncomplier is New York Governor Kathy Hochul. She also follows in the footsteps of her predecessor, Andrew Cuomo. Both passed their big gun control bills by sending a “message of necessity”—a maneuver to prevent legislative hearings and to deprive legislators of time to read a bill before they vote on it. As the New York State Sheriffs’ Association explained:

The new firearms law language first saw the light of day on a Friday morning and was signed into law Friday afternoon. A parliamentary ruse was used to circumvent the requirement in our State Constitution that Legislators—and the public—must have three days to study and discuss proposed legislation before it can be taken up for a vote. The Legislature’s leadership claimed, and the Governor agreed, that it was a “necessity” to pass the Bill immediately, without waiting the Constitutionally required three days, even though the law would not take effect for two full months.

The Sheriffs’ Association criticized “thoughtless, reactionary action, just to make a political statement,” and “the burdensome, costly, and unworkable nature of many of the new laws’ provisions.” “We do not support punitive licensing requirements that aim only to restrain and punish law-abiding citizens who wish to exercise their Second Amendment rights.”

The New York county clerks had no opinion on gun policy but focused instead on workability. As the Association of Clerks wrote to the governor, “[i]n haste to pass the new regulations as a reaction to the recent United States Supreme Court ruling, the process as it stands now will be riddled with complex, confusing and redundant barriers of compliance.”

But the governor was moving too fast to care about reality. A reporter asked her, “do you have the numbers to show that it’s the concealed carry permit holders that are committing crimes?” She answered, “I don’t need to have numbers. I don’t have to have a data point to point to to say this is going to matter.” Where will concealed carry permit holders be allowed to carry? “Probably some streets,” she explained. This directly contradicts Bruen’s rule that “expanding the category of ‘sensitive places’ simply to all places of public congregation that are not isolated from law enforcement defines the category . . . far too broadly.”

Yet the first reason why the new New York law is unconstitutional has nothing to do with the right to bear arms. The law designates an enormous variety of places as “sensitive locations.” Not only does the law prohibit concealed carry licensees from bringing their guns into these locations, the law makes felons of proprietors, owners, and employees who simply possess arms in the location. Thus, a doctor who runs her own practice cannot have a handgun in a lock box in her office. A church cannot have volunteer security guards, such as the former police officer who thwarted a mass shooter at the New Life Church in Colorado Springs in 2007. The same goes for every school of any level, government or independent, regardless of what school wants.

Under the new law, licensed carry is also banned in all forms of public transportation, including in one’s own car on a ferry. All these restrictions defy Bruen’s rule that “new” (emphasis in original) types of “sensitive places” may be authorized by analogy to sensitive places from the nineteenth century and before. Ferries, churches, and doctors’ offices are not “new,” nor are restaurants with a liquor license that serve meals to customers who don’t order drinks. Nor are entertainment facilities. Firearms possession is also forbidden at “any gathering of individuals to collectively express their constitutional rights to protest or assemble.” In other words, if two dozen members of the county branch of New York’s Conservative Party gather anywhere (even in a private home) for a meeting, they may not protect themselves.

Beyond the enumerated list of sensitive locations, bringing a gun into any building is a felony, unless the owner has posted a permission sign or granted express permission. And permit applicants must submit “a list of former and current social media accounts of the applicant from the past three years.” 

In California, S.B. 918, presently before the legislature, would expand no-carry areas in a manner similar to New York’s. For the time being, California Attorney General Rob Bonta has urged county sheriffs to apply the statutory “good moral character” on the model of the Riverside County Sheriff’s Department: “Legal judgments of good moral character can include . . . absence of hatred and racism, fiscal stability[.]” The attorney general added that “social media accounts” were fair game for inquiry. Further, denials could be based on “[a]ny arrest in the last five years, regardless of the disposition,” or any conviction in the last seven.

UCLA law professor Eugene Volokh suggests that it is plainly unconstitutional to deny the exercise of constitutional rights because of an arrest without a conviction. Likewise, under the First Amendment, “[t]he government can’t restrict ordinary citizens’ actions—much less their constitutionally protected actions—based on the viewpoints that they express.” For example, some people, such as followers of author Robin DiAngelo, believe that white people are inherently and irredeemably toxic. Other people, such as many in Hollywood, express hatred of conservatives. Wrongful as these views might be, under the First Amendment they are not a lawful basis for government retaliation. Volokh is also skeptical about the denial of rights for “[l]ack of ‘fiscal stability’—which may simply mean being very poor or insolvent.” Indeed, poor people are generally at greater risk of criminal attack than are wealthier people.

— David Kopel in Restoring the Right to Bear Arms: New York State Rifle & Pistol Association v. Bruen