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More Dispatches from New York’s War on Gun Owners

Monday, September 12, 2022

More Dispatches from New York’s War on Gun Owners

Another week, another round of attacks on law-abiding gun owners in the Empire State.

1. Treating Law-abiding Gun Owners as Presumptive Criminals

On September 2, investigative journalism outlet Project Veritas posted a “leaked” New York Police Department “Legal Update Bulletin,” titled, “New York State Restrictions on Carrying Concealed Firearms.” Allegedly a newsletter from the Office of the Deputy Commissioner of the NYPD, the document instructs officers on how to address those exercising their Right-to-Carry outside the home for self-defense in the wake of the U.S. Supreme Court case NYSRPA v. Bruen and the New York State Assembly’s legislative attempt to undo the decision.

Aside from information for officers on the contours of New York’s convoluted new law, such as stressing the incomprehensible new patchwork of gun-free zones, the document notes that those exercising their Second Amendment rights are to be presumed guilty until proven innocent.

The bulletin emphasizes, “People who are carrying firearms in New York State are presumed to be doing so unlawfully, until proven otherwise.” The document goes on to explain, “Officers may stop an individual when the officer has reasonable suspicion that such individual is carrying a firearm… and may frisk that individual since the officer has reasonable suspicion that the individual is armed and dangerous.” Note that the bulletin states that this latter intrusion may occur based merely on reasonable suspicion of carrying a firearm, not suspicion that the firearm is being carried illegally.

This policy turns the American system of constitutional rights on its head. In other contexts, a law-abiding individual is free to exercise their constitutional rights without government interference unless there is reasonable suspicion the person is doing so in an illegal manner, at which point law enforcement may investigate further. The mere act of exercising the right does not alone give rise to such suspicion.

In the American system of constitutional rights, it is imperative that the burden of proving that a person has broken the law remain with the government. Consider, the District of Columbia v. Heller made clear that the Second Amendment protects the right of law-abiding citizens to keep and bear arms. Bruen held that this right extends beyond the home and that this right is not subject to the unfettered discretion of the state, but is instead enjoyed by all law-abiding Americans. In other words: it is the default that Americans have the Right-to-Carry outside the home. Therefore, carry outside the home should be considered presumptively lawful and suspicion that a person is carrying unlawfully must arise from something other than just carrying a firearm.

Here, at the whim of the state, law-abiding New Yorkers will be forced to prove that they are exercising their rights in accordance with the law. Moreover, the document does not make clear whether presenting a valid carry license will be taken as sufficient proof of legal carry or if some further open-ended investigation may be necessary.

As with all of New York’s official response to the Bruen decision, this policy does not appear to be a good faith attempt to comply with the U.S. Constitution and Supreme Court precedent. Rather, the city and state seem to be involved in an effort to discourage exercise of the Second Amendment right.

2. Door-to-Door Checks on Firearm License Applicants

More news on how New York City intends to harass law-abiding gun owners was detailed in a September 1 report from the New York Post titled, “The one who knocks: Mayor Adams vows door-to-door checks on gun permits.”

Under New York’s new carry law, prospective licensees are required to be of “good moral character.” Further, applicants are required to furnish four character references and a list of their social media accounts for police to look into. Gun owners have every reason to suspect that this “good moral character” standard is an attempt to re-enact the type of discretionary licensing scheme the court rejected in Bruen.

According to the New York Post item, vetting prospective New York City licensees will include a door-to-door investigation involving the applicant’s neighbors. Speaking of the investigations, Adams stated, “And I think those are the same skills that’s going to be used to look at not only social media but also knocking our neighbors’ doors, speaking to people, finding out who this individual is that we are about to allow to carry a firearm in our city.”

Downplaying the intrusiveness of this scheme, Adams said, “When I became a police officer, people knocked on my neighbor’s doors and interviewed them and asked what type of person am I.” Of course, no one has the constitutional right to be a law enforcement officer. The U.S. Supreme Court has made clear that individuals have a constitutional Right-to-Carry a firearm for self-defense outside the home.

3. Impermissible Gun Bans

On August 31, Adams joined Gov. Kathy Hochul (D) for a press conference celebrating New York’s legislative effort to undermine Bruen. At the event, the pair announced that “Times Square” would be deemed a “sensitive location” in which law-abiding citizens would not be allowed to exercise their Right-to-Carry at any time.

A news release from New York City accompanying the press conference contained a map of the area where firearms are prohibited. While the thought of “Times Square” will conjure images of towering neon lights and Broadway for most Americans, the new gun-free zone extends well beyond these areas. Readers fortunate enough to be unfamiliar with the city are invited to use Google Maps to peruse the largely residential blocks from W 43rd St. to W 48th St. between 8th Ave. and 9th Ave. to get an idea of what New York is attempting to shove under the “Times Square” umbrella.

A discussion of “sensitive places,” where it may be permissible to restrict the Right-to-Carry in some circumstances, featured heavily during the Bruen oral arguments and even touched upon Times Square.

Justice Amy Coney Barrett suggested, “can't we just say Times Square on New Year's Eve is a sensitive place?,” perhaps understanding the stringent security measures surrounding that event and that those measures are indicative of an actual “sensitive place.” NYSRPA counsel Paul Clement responded by stating, “the right way to think about limiting guns in Times Square on New Year's Eve is not as a sensitive place but as a time, place, and manner restriction.” Neither suggested that New York could prohibit firearms in Times Square at all times.

For her part, New York Solicitor General Barbara D. Underwood argued for a more expansive interpretation of “sensitive place” as it relates to Times Square, claiming, “Times Square on -- when the theater district – when commerce is in full swing, Times Square almost every night is shoulder-to-shoulder people.”

In his opinion in Bruen, Justice Samuel Alito rejected the notion that large swathes of a city could be designated “sensitive places” in the manner Underwood sought. After pointing to Heller’s reference to “schools and government buildings” as the type of “sensitive places” where firearms may be restricted, the justice also listed “legislative assemblies, polling places, and courthouses.” Alito went on to explain,

expanding 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… 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.

As for the “Times Square” gun ban’s practical impact on crime, consider the following story.

On August 26 a man was fatally stabbed near the intersection of 44th St. and 8th Ave. – within New York’s new “Times Square” gun-free zone. NBC New York reported, “[a suspect] is in custody on murder and criminal possession of a weapon charges… Police also recovered a pair of brass knuckles on the scene.”

What’s so strange is that the location of the crime scene happens to be a brass knuckles-free zone. In fact, according New York Penal Code Section 265.1, the entire state is a brass knuckles-free zone. Of course, the whole state is also supposed to be a murder-free zone.

New York authorities should expect their new gun-free zone to be of similar efficacy.

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Established in 1975, the Institute for Legislative Action (ILA) is the "lobbying" arm of the National Rifle Association of America. ILA is responsible for preserving the right of all law-abiding individuals in the legislative, political, and legal arenas, to purchase, possess and use firearms for legitimate purposes as guaranteed by the Second Amendment to the U.S. Constitution.