The Firearms Policy Coalition has added a new plaintiff (and a new defendant) in its lawsuit taking on the “gun-free” status of New York City’s bustling Times Square.
In an amended complaint filed on Monday, the 2A group added Orange County, New York gun owner Anthony Palma as a named plaintiff, joining Yehuda Goldberger and FPC itself in challenging the ban on lawful carry in Times Square. The group also added New York Police Superintendent Stephen James as a defendant, joining NY AG Letitia James, Manhattan DA Alvin Bragg, and NYC Police Commissioner Jessica Tisch for their roles in enforcing the carry ban.
Both the original complaint and the amended complaint filed on Monday acknowledge that the Times Square carry ban was previously upheld in a case known as Frey v. New York City, but the amended complaint argues that in that decision the Second Circuit dealt with a denial of a preliminary injunction, and the court was careful to acknowledge that it did not “determine the ultimate constitutionalityof the challenged provision.”
Just as importantly, FPC maintains that the Second Circuit got it wrong in denying an injunction against the Times Square carry ban, and for good reason. The Second Circuit panel based its decision on the premise that Times Square “is our modern-day, electrified, supersized equivalent of fairs, markets, and town squares of old.”
Why does that justify the ban? Well, the Second Circuit opined that going back to the mid-1300s, there’s a tradition in English and American law banning the carrying of weapons “in public forums and quintessentially crowded places.” The panel explicitly cited the Statute of Northhampton, as well as two colonial laws in Virginia and North Carolina, stating the laws “forbade going or riding ‘armed by night []orby day, in fairs, markets.’”
The Supreme Court noted in Bruen, however, that the Statute of Northampton is of little relevance, and pointed out that the statute was meant to prohibit “go[ing] armed to terrify the King’s subjects”, language that is largely replicated in the Virginia statute cited by the Second Circuit. As for the colonial law in North Carolina, Second Amendment attorney and scholar Stephen Halbrook has shown that the statute allowed constables to arrest those who “shall ride or go armed offensively.”
None of these historic laws, then, were outright prohibitions on carrying arms, and in fact they would appear to exempt arms carried in self-defense.
The Supreme Court has also made mincemeat of the Second Circuit’s opinion that public carriage can be prohibited in “quintessentially crowded places.” In Bruen, the justices preempted New York City seeking to turn the entirety of Manhattan into a gun-free zone on the grounds that “it is crowded and protected generally by the New York City Police Department.”
The same is true of Times Square in particular. It is crowded and generally protected by the NYPD, but it is not a “sensitive place” in any meaningful sense of that phrase. You don’t have to walk through metal detectors to enter Times Square. In fact, there are no special security measures in place in or around the blocks that comprise the Times Square district. There is nothing to distinguish Times Square from the blocks of high-rises and skyscrapers that surround it, at least in terms of security measures.
You can read FPC’s amended complaint here. I think the group makes some great arguments, but unfortunately the Second Circuit’s precedent on “sensitive places” is so terrible that even a great argument might not win the day. What we realy need is for the Supreme Court to back up what it said in Bruen and start striking down these incredibly broad restrictions on the right to carry. I’ve got my fingers crossed that the Wolford decision will be a step in that direction, but I’m not holding my breath.
Editor’s Note: The radical Left will stop at nothing to enact their radical gun control agenda and strip us of our Second Amendment rights.
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