MANHATTAN (CN) — A group of New Yorkers who claim their rights to openly carry firearms on the New York City subway are protected by the Second Amendment faced a skeptical Second Circuit panel Tuesday morning.
Represented by Scarsdale-based attorney Amy Bellantoni, the trio of gun owners from Westchester and Orange counties sued New York City in 2021 because their state-issued concealed carry handgun licenses are invalid in New York City due to the city’s regulations under the Concealed Carry Improvement Act.
The Concealed Carry Improvement Act took effect in September 2022 in rapid response to the U.S. Supreme Court’s landmark Second Amendment ruling that struck down the state's requirement for applicants to prove they had “proper cause” for a permit.
The new law, among other things, bans guns from designated "sensitive places" such as schools, playgrounds and Times Square.
On appeal the gun owners claim the regulations are “inconsistent with the text, history, and tradition of firearm regulation,” and they seek reversal of the lower court’s denial of a motion for preliminary injunction of firearm bans on public transportation such as the MTA, subway, and train cars and in Times Square.
One plaintiff-appellant, William Sappe, says he wants to openly carry a firearm for self-protection in the gun-free Times Square because his business involves transporting “substantial amounts of cash, diamonds, and jewelry for high-end jewelers” in Midtown Manhattan's Diamond District.
Another plaintiff-appellant, Jason Frey, says he wants to carry a gun while he travels to New York City from Westchester County in order to “get goodies at Junior’s,” travel to Murray’s Bagel’s in Manhattan, and visit friends in Williamsburg, Brooklyn.
Challenging the denial of their motion for injunction, the gun owners claim in their appeals brief that the historical argument proffered by the state and city of New York for gun restrictions “not only falls outside of the founding era, they also conflict with the plain text of the Second Amendment.”
“Formal licensing did not in the founding era,” Bellantoni said during oral arguments on Tuesday morning. “I believe our founding fathers would have deemed that repugnant to the Constitution to go Britain and asked for permission to be armed, I don’t think we’d be standing here as America if that was the case.”
The three-judge panel on Tuesday referred to New York Rifle and Pistol Association v. Bruen, a U.S. Supreme Court decision that changed how states determine who may carry a concealed weapon in public. Under Bruen, a “historical analogue” must exist — a similar law restricting firearms at the time the Second Amendment was ratified — for a present-day firearms restriction to pass muster.
“Bruen says we should ask how and why the regulations burden a law-abiding citizen’s right to armed self-defense,” U.S. Circuit Judge Joseph Bianco raised. “The question is how and why, in modern times, does that affect the law-abiding citizen’s right to self-defense where sensibilities may have change from being terrorized by someone who’s concealing versus the sensibilities now being terrorized by someone who’s openly carrying.
“What about historically, railway cars were subject to regulations of that type,” the Trump-appointed judge asked.
Bellantoni responded that historically those railway cars were private companies rather than government.
“We also have a body law that says the government can control the carrying of firearms on its own property,” U.S. Circuit Judge Reena Raggi interjected. “Why isn’t this the circumstance with the subway, this is basically a government-provided means of transportation, this is government property.
“There is a tradition of the government being able to limit the carrying of firearms on its property — courthouses, government buildings, etc.,” the George W. Bush-appointed judge continued. “Why doesn’t that tilt this in favor of the city and the state?”
Raggi also asked about “vulnerable populations” on the subway, specifically schoolchildren who ride the New York City subway on weekday afternoons.
“I think the ‘vulnerable population’ is a blanket that’s been recently created by the anti-Second Amendment faction,” Bellantoni replied.
Taking an interpretation of “historical analogue” even further back, Bellantoni told the judges: “There isn’t one case the state or the city has shown that supports the idea that there is a tradition of regulating or banning open carry — open carry has been around since the cave man.”
The gun owners’ motion to enjoin the state’s firearm laws was denied last year, with U.S. District Judge Nelson Roman finding they are unlikely to succeed on the merits of their Second Amendment claims.
Both Raggi and Bianco suggested directly to Bellantoni that the appellants had again not demonstrated a sufficient likelihood of success for the panel to grant the injunctive relief they sought.
New York assistant solicitor general Philip Levitz similarly noted during oral arguments on Tuesday that “the record here is clearly insufficient for the plaintiffs to prevail.”
Elina Durker, an attorney for the city of New York, wrote in an appeals brief the “public interest tips decidedly against a preliminary injunction,” which she said “would dispense with important public safety provisions, potentially leading to panic and deaths.”
Bill Clinton-appointed U.S. Circuit Judge Robert Sack rounded out the panel, which did not indicate when a ruling will be issued.
Bellantoni said that if the case returns to the lower court, she will make a motion for summary judgment.
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