I have previously written about how New York has proven time and time again as the gift that keeps on giving for the National Rifle Association (NRA) and gun-rights groups. New York Democrats continue to pass laws that are virtually guaranteed to be struck down and further reinforce Second Amendment rights. The latest provision involves the possible criminal prosecution for possessing a gun on private property if owner has not approved such possession on the premises.
New York Democrats have passed a series of laws that led to catastrophic losses in federal court, including the recent major ruling in New York State Rifle & Pistol Association, Inc. v. Bruen. This includes openly gaming litigation to the irritation of individual justices.
After each loss, the same politicians circle the firing squad again and pass the next round of questionable gun limits. New York Democratic Gov. Kathy Hochul promised such legislation within an hour of the release of Bruen. It passed with the help of a special session in the resumption of this inexorable cycle and has already resulted in court losses. Now there is a new such ruling against the law.
In New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111 (2022), the Supreme Court rejected the prior New York law under the Second Amendment to publicly carry firearms for self-defense. The Court held that New York’s “proper cause” licensing regime unconstitutionally infringed this right. New York responded roughly a week later with Senate Bill S51001 (June 30, 2022, Extraordinary Session). The new law created a target rich environment for new challenges.
The new decision comes from Judge John Sinatra (W.D.N.Y.) in Christian v. Nigrelli: where the court ruled that the private property exclusion violates the Second Amendment.
The state might have been able to reinforce an important right of private business owners to exclude guns with a reasonable drafting of the law. Instead, it sought to use the issue to effectively ban guns from “sensitive” and privately owned areas.
Gov. Kathy Hochul again made the case against her own state in ill-considered comments where she proclaimed that S51001 “makes ‘no carry’ the default for private property” by “establish[ing] that private property owners must expressly allow a person to possess a firearm, rifle, or shotgun on their property[.]” That default is the problem.
The provision at issue is § 265.01-d:
Criminal possession of a weapon in a restricted location.
1. A person is guilty of criminal possession of a weapon in a
restricted location when such person possesses a firearm, rifle, or shotgun and enters into or remains on or in private property where such person knows or reasonably should know that the owner or lessee of such property has not permitted such possession by clear and conspicuous signage indicating that the carrying of firearms, rifles, or shotguns on their property is permitted or has otherwise given express consent.
Plaintiff Brett Christian complained that he is:
“unable to carry firearms on his person throughout the State because of S51001’s designation of private property, even private property open to the public, as “restricted locations.” Christian Dec. ¶¶ 10, 11. Christian brings his firearm with him on private property open to the public, such as weekly visits to gas stations and monthly visits to hardware stores. Christian Dec. ¶ 10. He intended to continue to do so, but for the enactment and enforcement of S51001. Christian Dec. ¶ 10. Moreover, since S51001 bars even “entering” these locations, Plaintiff will need to disable and store his firearms before driving his vehicle or walking into parking lots, which means in some instances, Plaintiff will need to stop carrying for selfdefense before he can get physically close enough to see if any “clear and conspicuous signage” Case 1:22-cv-00695-JLS Document 19-1 Filed 09/28/22 Page 14 of 30 10 exists permitting him to carry. Christian Dec. ¶ 11. Not only does this put Plaintiff at risk of uncomfortable situations with passersby observing him disable and store his firearms, but the fact he has to constantly disarm greatly reduces his ability to defend himself throughout the State. Christian Dec. ¶¶ 11, 12.”
The court found a sufficient injury and a substantial likelihood of prevailing on the constitutional violation.
“In sum, the vast majority of land in New York is held privately, and it encompasses homes, stores, businesses, factories, vacant land, hotels, parking lots and garages, grocery stores, pharmacies, medical offices, hospitals, cemeteries, malls, sports and entertainment venues, and so on. These are places that people exercising their rights, frequent every day when they move around outside their homes. The exclusion here makes all of these places presumptively off limits, backed up the by the threat of prison. The Nation’s historical traditions have not countenanced such an incursion into the right to keep and bear arms across all varieties of private property spread across the land. The right to self-defense is no less important and no less recognized on private property.”
Unfortunately, there is no evidence that New York is committed to ending its historical use of a circular firing squad on Second Amendment rights. Hochul used the law to rally support from voters despite this likely outcome. It is all crushingly predictable. Hochul won the election and yet another provision in the law was found unconstitutional. As a result, New Yorkers have once again strengthened Second Amendment precedent in support of gun rights.
There is the opinion granting the preliminary injunction: Christian v. Nigrelli