The Empire (State) Strikes Back by Steve Dallas
Summer is the time for movie sequels. Heroes return for yet another adventure, from Tom Cruise’s “Maverick” to Marvel Comics’ “Thor.” Villains resurrect their evil schemes, be they the Joker from “Batman” or the Sith Lords of “Star Wars.”
There isn’t a new “Star Wars” movie this summer. However, in New York, gun owners are seeing their own unfortunate sequel, as empress wannabe Kathy Hochul’s Empire Strikes Back against the Second Amendment.
Less than a week after the United States Supreme Court came out with a full-throated support for the right of self-defense, Darth Hochul and her Democrat minions (with no Republican votes) passed some of the most draconian gun control laws in American history, all aimed directly at law-abiding gun owners, not at criminals.
In New York State Rifle and Pistol Association v Bruen, the high court struck down New York's requirement that an unrestricted handgun permit applicant demonstrate a "special need… distinguishable from that of the general community”, if he or she wanted to carry for self-defense. As SCOPE members know, the state’s licensing process was entirely discretionary, arbitrary - and in many jurisdictions - licensing officers (usually the county judge) simply refused to issue permits for self-defense outside the home. In Bruen, the Court ruled that these arbitrary restrictions were unconstitutional and violated the Second Amendment's guarantee to keep "and bear" arms for self-defense. Because the “special need for self-protection” was “distinguishable from that of the general community,” the law amounted to a prohibition on ordinary citizens exercising their constitutional right to bear arms outside the home. Quoting District of Columbia v Heller (2008), Justice Clarence Thomas observed, “A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all.” He also pointed to the need for "narrow, objective, and definite standards" guiding licensing officials. Therefore, the Court invalidated New York’s law.
Unfortunately, in doing so, the court also observed that some restrictions on firearms were potentially consistent with the Second Amendment. Justice Brett Kavanaugh’s concurrence reiterated language from Heller and McDonald v Chicago: “[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”
Like an exhaust port on the Death Star, this small opening was enough for Hochul to unleash her full assault on the Second Amendment. Declaring that New York would restrict guns to the point where gun owners in the State would "go back to muskets," she called the Democrat-controlled Legislature back from recess to pass an “objective” permit law that contains no “special need” requirement for conceal carry, which now requires:
disclosure of an applicant’s social media accounts going back three years. (Plus, the government can request any other information that is "reasonably necessary and related" to the process, which means any information, including, perhaps, ideological viewpoints);
In terms of the conditions and qualifications on the commercial sale of arms, the new law creates new hurdles to purchasing both guns and ammunition. In lieu of (or in addition to), the current federal instant NICS check, the New York State Police will be tasked with conducting the checks for every firearm and ammunition purchase made in New York State. Also, “there shall be a statewide license and record database specific for ammunition sales” and the legislation would require that firearms dealers record all ammunition sales in the database.
Finally, in what appears to be the most blatant rebellion against the Bruen ruling, Hochul has criminalized, as a felony offense, concealed carry in perhaps 98% of the state. The legislation creates the crime of possession of a firearm, rifle or shotgun in a "sensitive location,” which are defined as:
Any place, or the location of any program, licensed, regulated, or operated by DOH, OASAS, OCFS, OMH or OPWDD;
Homeless shelters, youth homes, family shelters, DV shelters, etc.;
Entertainment venues such as stadiums, concert halls, racetracks, museums amusement parks, conference centers, etc.;
Under threat of becoming a felon, the gun owner has the burden to know he or she is in a sensitive location, even if there is no sign indicating that it is a sensitive location.
Hochul, when asked where permit holders would be allowed to carry weapons, smugly replied, "probably some streets."
Because nearly all of the state is now defined as a forbidden zone except for “some streets,” a person who leaves a firearm in his or vehicle is required to lock it in a fireproof and impact-proof vehicle safe or face a misdemeanor charge and up to a year in jail. At home, safe storage requirements would attach when a person cohabitates with any individual under the age of 18, up from 16.
These new requirements will generally take effect September 1, 2022, to allow DCJS additional time for implementation, and some sections will go into effect April 1, 2023.
Republican lawmakers are already raising concerns, not only about the fairness and practicality of the new laws, but also their constitutionality, contending many of the new measures have already been ruled unconstitutional by the Supreme Court. In fact, in Bruen, the Court flagged some limits on shall-issue regimes: “[B]ecause any permitting scheme can be put toward abusive ends, we do not rule out constitutional challenges to shall-issue regimes where, for example, lengthy wait times in processing license applications or exorbitant fees deny ordinary citizens their right to public carry.”
As Justice Thomas noted, The point of a fundamental right is that one must be able to exercise it. The phrase “keep and bear arms” in the Second Amendment would be rendered practically meaningless if New York’s gun regulations had been allowed to stand because the average citizen could only keep a gun at home, not bear it elsewhere. He further specifically stated “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.” If New York cannot effectively declare an entire city a “sensitive place” under Bruen, it stands to reason it cannot constitutionally declare ninety-eight percent of the state to be “sensitive.”
Beyond Second Amendment concerns, asking applicants to sign away their privacy rights for social media accounts, raises a potential violation of their First Amendment rights.
Given the above, it is all but certain that litigation to overturn some, or all, of Hochul’s latest attack on the Second Amendment will occur. In fact, in Washington D.C., four gun owners have filed a lawsuit against the District, arguing that the District’s ban on carrying firearms on the D.C. subway is unconstitutional in light of the Supreme Court’s recent decision in Bruen. Expect a similar challenge in regard to New York’s transit system.
However, these court cases will not resolve the issue overnight. We cannot expect New York’s appellate judges, many (if not most) of whom were appointed by democrats, to suddenly become enamored with the Second Amendment because the Supreme Court said so. Democrat-controlled courts will resist Bruen the same way they resisted Heller. It would be surprising if the Supreme Court returns to the issue in less than a decade.
While we wait for the courts, our gun rights are once again in the hands of elected officials and we need to insist they support us. Vote only for Second Amendment friendly candidates at every level: Federal, state and local (even town, village and school boards). We have just seen the lengths that democrats will go to in order to deprive us of our constitutional rights. This especially includes your local judges and the people who appoint appellate judges (the president and governor). Do not accept “I can’t comment,” or “let’s see how it plays out in court,” or “the governor will remove me if I defy the law” as an answer. And, never assume that any Democrat candidate will support the Second Amendment, no matter what he or she says. Remember: When Hochul ran for Congress in rural Western New York, she pretended to be pro-gun, and even received an NRA endorsement before being converted to “the dark side.” A similar “conversion” befell Senator Kristin Gillibrand and even Joe Biden once remarked, in 1985, “I have never believed that additional gun control or federal registration of guns would reduce crime,” before becoming a gun-grabbing zealot.
It may take many years, and many “sequels,” in court and at the ballot box, to win against the evil empire. However, New Yorkers fought for decades, if not a century, for our Second Amendment rights and we will not stop now. May the Constitution be with us, always.