Last Thursday, the Supreme Court held in New York State Rifle & Pistol Association v. Bruen, that New York’s policy of limiting licenses to carry pistols to those who can show “proper cause” is unconstitutional under the Second and Fourteenth Amendments. I will have more to say in the coming days about some of the deeper legal and constitutional issues in the case. But for now, I want to respond to Governor Kathy Hochul’s June 24 press release that the Supreme Court decision “has no immediate impact on firearm licensing or permitting.” I think her immediate reaction is off base; in the immediate term, there are two significant repercussions of the Supreme Court’s decision.
First, New York licensing authorities are now obligated to issue carry licenses to those applicants suitable to be licensed. Licensing authorities no longer have the ability to deny licenses for lack of proper cause. When Illinois’s complete ban on public carry was struck down in Moore v. Madigan, the Seventh Circuit delayed the effective date of its decision until Illinois could create a handgun licensing scheme. No such delay will or should occur here because New York already has a stringent handgun licensing system in place. New York licensing authorities are obligated to now issue carry licenses without regard to whether an applicant “needs” to carry a firearm for self-defense outside the home.
Second, I believe that current carry license holders effectively have unrestricted pistol licenses. To explain why, I have to wind through some technicalities of New York law.
For regular civilians, New York issues two basic types of handgun licenses: premises and carry. Premises licenses are valid only for a specific home or place of business. Carry licenses are issued “without regard to employment or place of possession.” New York also recognizes two types of licensing restrictions: statutory and administrative. Statutory restrictions are restrictions imposed by New York law, and their violation carries a misdemeanor penalty. See N.Y. Penal Law § 400.00(17). For example, upstate pistol license holders generally may not carry their pistols into New York City without the approval of the New York City Police Department, and premises licensees may not carry firearms in public. Administrative restrictions come from the licensing officer, and include, for example, carry licenses marked “hunting and target shooting only.” (They were the type of restriction at issue in Bruen.)
While I agree with Gov. Hochul that Bruen does not change the immediate impact of a statutory restriction on a firearm license, administrative restrictions are different. Unlike statutory restrictions, administrative restrictions are not provided for in New York law, and their violation carries no penalty. New York courts have nevertheless allowed licensing officials to impose these restrictions as part of their inherent power to issue licenses. Although a carry license authorizes a person to carry a handgun “without regard to employment or place of possession,” state courts have been of the opinion that the legislature did not intend to generally authorize a person who had some proper cause to carry (e.g., hunting or target shooting) to carry a concealed weapon at all times and in all places. So New York courts have recognized the power of licensing officials to restrict licenses for specific times or purposes. But because the restrictions are administrative, their violation carries no statutory penalty; at most, courts have recognized that licensing officials may suspend or revoke licenses for individuals who carry weapons outside the purposes for which the licenses are issued. So a restricted license operates as a conditional threat: the licensee receives a license to carry a pistol “without regard to employment or place of possession,” but the licensee is also on notice that the licensing official will revoke the license if he carries a handgun outside those restrictions.
Bruen, I believe, significantly changes the effect of these administrative restrictions. A licensing official would act unconstitutionally if he revoked a carry license simply because the person carried a firearm in public for purposes of lawful self-defense. Bruen holds that such conduct is constitutionally protected. And state law does not recognize the legal effect of administrative restrictions; individuals issued restricted carry licenses technically have full statutory authority to carry handguns anywhere in New York (except in New York City, schools, and some other locations prohibited by law), regardless of the administrative restrictions stamped on the license. So Huchul’s statement that “[t]hose wishing to change their permit status to acquire an ‘unrestricted carry’ permit must file an application” is, I believe, mistaken. The only application an upstate carry licensee would need to file is permission to bring the gun within New York City, if he wished to do so.
The legislature is meeting in special session now to respond to the Supreme Court’s decision. I expect that New York will make it virtually impossible to carry firearms, except on the street. New York will likely ban guns in public transit, restaurants, theaters, government buildings, and a slew of other places. Most significantly, New York may prohibit handguns on all private property, except where express consent has been given to bring the gun onto it. For upstate residents who already have unrestricted licenses, the irony will be that Bruen will leave them with much fewer carry rights than they had before the decision came down.
It will be also interesting to see how New York drafts this legislation. If the new rule is that handguns are prohibited on private property except where the private property holder expressly allows, retired and out of state law enforcement officers may find it very difficult to carry their weapons in New York. Perhaps the legislature will carve a special exemption for them. Although if New York is basing this law on respecting private property rights, it is difficult to understand why retired officers with no law enforcement authority should have more leeway to carry guns against the private property owner’s wishes than individuals who have not served in law enforcement. In drafting this legislation, New York may find the political and legal landscape messier than they recognize.
Finally, I am skeptical that the legislation they draft will actually be sound public policy. By effectively banning the carrying of weapons except on sidewalks and streets, New York is effectively authorizing the carrying of weapons only in private motor vehicles. This may be the worst of all worlds. Guns in cars have little self-defense value, except when motorists are traveling. But guns left unattended in cars will have significant value to thieves and may fuel a steep increase in guns diverted into the criminal market. We will see if any legislative provisions respond to such unintended consequences. In the main, I expect New York’s response to be guided by a culture-war mentality of fighting back against the Supreme Court decision to the maximum extent possible, and not by an effort to have sound public policy that minimizes the risks of gun violence.
Update: some minor corrections.