Frey / Cheng v NY City

In the decision New York Rifle & Pistol Association v. Bruen, the Supreme Court of the U.S. (SCOTUS) 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.

Shortly after the Bruen decision, the NY Legislature met in an emergency session and passed the Concealed Carry Improvement Act (CCIA) which, amongst other things, banned firearms in Times Square because of the large number of people gathered there. (Many other places were also included as “sensitive.”) Various lawsuits have emerged and one of the cases was Frey / Cheng v NY City. The case challenged three provisions of CCIA:

• The ban on carrying guns in Times Square, the New York City subway, and the Metro-North commuter rail system.

• The state ban on open carry.

• The requirement that even licensed gun owners obtain a separate, city-specific permit to carry in New York City.

The District Court judge ruled that the plaintiffs did not have standing to sue over the restrictions imposed by the CCIA. This would have killed the case if not appealed.  The plaintiffs did appeal to the United States Court of Appeals for the Second Circuit.

In September, the Appeals Court Three-Judge Panel disagreed with the District Court and decided that the plaintiffs do have standing to sue.  This was not a final ruling on the law’s constitutionality.  The panel only decided that the plaintiffs have standing to sue. The case now returns to the lower court to hear the actual case.

The plaintiffs also sought to put the law on hold until the case could be decided.  However, the three-judge panel would not issue a stay in the enforcement of the law while the case is being decided.  For now, carrying a firearm in Times Square, on the subway, or on commuter trains remains a felony—even for licensed concealed carriers. Open carry remains entirely banned statewide, and anyone licensed outside New York City still needs a special city permit to carry there.

It is interesting to consider one of the reasons the appeals court used when deciding that the plaintiffs are “unlikely to succeed on the merits.”

The Bruen decision says laws have to have historical analogies going back to the ratification date of the 2nd Amendment; what was the meaning of the words and historical analogies at that time? Most consider that date to be the ratification date of the Second Amendment in 1791. However, some argue it is the ratification date of the Fourteenth Amendment in 1868, when 2A was applied to the states.  One of NY State’s examples of a ‘historical tradition’ was far removed from either founding era; a North Hampton law from the 1300s having to do with Fairs.

The judges said they took a “flexible” approach to applying the Bruen standard and upheld the law.  The judges wrote: “There is perhaps no public place more quintessentially crowded than Times Square…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 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.  He said: “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.”

The plaintiffs’ attorney, Amy Bellantoni, blasted the decision: “The Second Circuit decision is disappointing, but not unexpected considering its palpable disdain for the Second Amendment.”

As to the stay in enforcement while the case is being heard, the plaintiffs could request an en-banc review from the full bench of the appeals court or could go directly to SCOTUS. There is no guarantee that either request will be granted.  As of this date we have not heard of a decision.

The actual case is still to be heard in the district court.