New York fights to reinstate gun ban on private land open to public

MANHATTAN (CN) — New York state on Wednesday asked a Second Circuit panel to reverse a lower court ruling that barred restrictions on concealed firearm carry on private property unless expressly allowed by the property owner.

Brett Christian of Cheektowaga, New York, challenged the 2022 Concealed Carry Improvement Act, claiming it prevents him from carrying a gun “for self-defense purposes when going about his day-to-day life,” including in local parks, while hiking on trails and when using Buffalo’s metro rail system.

A Western District of New York judge found the law unconstitutional as it relates to private property open to the public, calling it “a result dictated by the teaching of the Supreme Court’s recent cases addressing individual Americans’ right to keep and bear arms.”

New York argues that the lower court overlooked new evidence when the case was remanded following a previous Second Circuit ruling affirming its preliminary injunction. But judges on the panel seemed skeptical that the state law should be allowed to stand.

U.S. Circuit Judge Steven Menashi, a Donald Trump appointee, drew a parallel Wednesday to the First Amendment, noting that a property owner could limit those activities on their own land.

“But could the government pass a law that says the default rule in the state of New York is that you’re not allowed to engage in offensive speech or religious observance on private property unless the private property owner affirmatively authorizes you to?” the judge asked.

Assistant solicitor general Sarah Coco said the Legislature’s intent was not to limit Second Amendment rights, but to make property owners aware that, following the Supreme Court’s ruling in Bruen , concealed carry would be allowed by default.

“The state is simply making sure that property owners do have an opportunity to consent,” Coco said. “In many cases, the property owner may not know that someone is coming onto their property armed.”

U.S. Circuit Judge Joseph F. Bianco, a Donald Trump appointee, offered: “Common sense tells us that most [property owners] are not going to affirmatively consent.”

Coco replied that it’s improper to assume the effect of the law.

“The effect will depend on what property owners do,” she said.

With some prompting from Menashi, attorney Peter A. Patterson, of the Washington-based firm Cooper & Kirk representing the plaintiff, distinguished the New York law from historical precedent intended to regulate hunting and trespassing activities involving guns.

“We’re not saying people can go and just randomly fire firearms on somebody’s property,” Patterson said.

Menashi pointed out several times that the law appears to be “based on the premise that the presence of a gun is a threat to public safety.”

Patterson took up the argument.

“This is only about carrying in places the state has not deemed sensitive,” he said. “It is just, ‘We think the presence of a firearm is a public safety issue’ … That is incompatible with the Second Amendment.”

Responding to the idea that the law is designed to address property owners’ right to ban concealed carry, Patterson said it was beside the point.

“They can start an ad campaign to let people know that they have this right, but this is not about property rights at all,” he said.

U.S. Circuit Judge Eunice C. Lee, a Joe Biden appointee, rounded out the panel, which reserved judgment.

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