Frey v. City of New York, No. 23-365 (2d Cir. 2025)

In New York Rifle & Pistol Association v. Bruen, the court stated that certain areas could be designated as “sensitive,” (such as court and government buildings) but the designation must be used sparingly. It cannot be applied simply because a large number of people gather in a location.

NYS’ misnamed Concealed Carry Improvement Act (CCIA) ignored Bruen and banned firearms in Times Square because of the large number of people gathered there. Many other places were included in CCIA as “sensitive.” Various lawsuits have emerged, suing New York State over what some have called “thumbing their nose” at the Supreme Court under the Bruen decision.  One of those is Frey v City of New York.

Highlights of Justia Opinion Summary about Frey v City of New York:

The plaintiffs objected to three main provisions:

the prohibition on carrying firearms in designated “sensitive locations” (specifically Times Square, the New York City subway, and the Metro-North rail system);       

the statewide ban on open carry of firearms;

and the requirement that state concealed carry license holders obtain a separate, city-specific permit to carry a firearm in New York City.

The plaintiffs sought a preliminary injunction to prevent enforcement of these provisions, arguing they violated the Second Amendment.  The United States District Court for the Southern District of New York denied the motion for a preliminary injunction…On appeal, the United States Court of Appeals for the Second Circuit (a three-judge panel) affirmed the district court’s order...The court concluded that each challenged provision—sensitive location restrictions, the open carry ban, and the city-specific permit requirement—fell within the nation’s historical tradition of firearm regulation and did not violate the Second Amendment.

The court found that:

the government had demonstrated a historical tradition of regulating firearms in crowded public places, supporting the sensitive locations restrictions;            

regarding the city-specific permit, the court determined that localities have historically imposed their own firearm regulations...

In the Frey case, New York State’s examples were from the early 1900s and a North Hampton law from the 1300s. Many thought the lack of historical analogues would be the death of the law, but the judges said they took a “flexible” approach to applying the Bruen standard and upheld the law.  The judges wrote “…In short, Times Square is our modern-day, electrified, supersized equivalent of fairs, markets, and town squares of old. We therefore need not stretch the analogy far,’ to conclude that [the law] is entirely consistent with our historical tradition of regulating firearms in quintessentially crowded places.”

The court’s ruling brings up a continuing issue in many similar cases that will require the Supreme Court of the United States (SCOTUS) to decide; do historical analogues concerning the 2nd Amendment go back to the founding era, which most consider to be the ratification date of the Second Amendment in 1791, or does 2nd Amendment history begin with the ratification date of the Fourteenth Amendment in 1868.

And what could be more of a “flexible” approach than the court saying: it also concluded that the open carry ban was consistent with historical regulations that allowed states to prohibit one form of public carry (open or concealed) as long as the other remained available.  Based on this logic, the 1st Amendment’s “Congress shall make no law respecting an establishment of religion” would not stop NY State from banning, for instance, the Catholic Church since other Christian churches are available.

The decision wasn’t the one that plaintiff Jason Frey wanted to hear, but he was not too surprised because of past anti-gun rulings from the Second Circuit.  “The mental gymnastics used to reference laws from before the nation was formed show us just how deep the hatred for our Second Amendment is to some of these people that currently hold positions of power.” 

All this was over the request for a preliminary injunction.  The plaintiffs could request an en banc review from the full bench or could go directly to SCOTUS. There is no guarantee that either request will be granted.