The Guns of Manhattan

Since Heller and McDonald are the law, holding the Second Amendment’s right to keep and bear arms as a fundamental personal right applicable to the states, the only remaining question was whether a state like New York, or more to the point, a City like New York, could just say “nah,” do as it always did with a warm hug from the Second Circuit and have the Supreme Court look away and pretend it saw nothing.

That looked pretty much to be the net outcomes until N.Y. State Rifle & Pistol Ass’n v. Bruen, where, painful as it is to say, Justice Clarence Thomas’ rationale is entirely sound.

We know of no other constitutional right that an individual may exercise only after demonstrating to government officers some special need. That is not how the First Amendment works when it comes to unpopular speech or the free exercise of religion. It is not how the Sixth Amendment works when it comes to a defendant’s right to confront the witnesses against him. And it is not how the Second Amendment works when it comes to public carry for self defense.

The logic is sound, even if the analogies fail to recognize the singular distinction between arms and speech or religion, where a negligent or malevolent error can cause another person’s death. It’s a big deal for the person killed and those who cared.

My “support” for the Second Amendment has nothing to do with any love of guns, but for an appreciation of constitutional rights, even those that might not fit comfortably with my personal interests. And as someone who has spent the bulk of his adult life walking around New York City, the particular locus of the Bruen case, I am not at all comfortable knowing that otherwise law-abiding folks are walking about packing heat.

People in New York City tend to be grouchy, overly sensitive, quick to anger and quick to act upon their anger. People in New York City tend to be a bit weird, ranging from the Woody Allen paranoia type to the full blown psychosis that is never really picked up because the nutjob doesn’t seem sufficiently different than the rest of the crazies walking the streets. It’s not that I fear guns, per se, but I fear guns in the hands of New Yorkers.

If you’ve never lived in a place where there are as many people squished together per square inch as the City, you might not understand. Going to get a cold soda on the corner can be life threatening experience, should someone walking out not be looking and bump into someone walking in. Angers will flare. Blood will boil. Then what? Sensible people elsewhere will point out that this is the wrong scenario to pull out a weapon, that there is no cause for it and this is totally wrong and irresponsible. Yeah? So? Did I not mention this was New York?

To get a carry permit in New York, you had to apply to the NYPD and prove you had a special need. Ex-cops had a special need built in, because that’s what the people at Police Legal had long ago decided. But you? Me? Not likely. There were businesses built on getting people in NYC a carry permit. My old pal Jeff, who went from law school to the permit desk at Police Legal, went into the biz after making his pension. And even these businesses were only successful in creating the appearance of a special need for their customers about half the time.

And then there are the illegal guns, carried by some for self-defense because of where they live and what they do making their continued existence tenuous, and carried by others to enforce their will and, on occasion, rob someone. It happens. Why should the self-defense folks suffer for lack of an official seal of approval from 1 Police Plaza? If anything, these are some of the most trustworthy folks, as they’ve already proven they have the self-restraint not to brandish a gun on a whim. This why a bunch of legal aid lawyers joined as amici for Bruen.

But do other New Yorkers have the self-restraint, the impulse control, to be trusted with a weapon? Do they have the good judgment to decide when it would be appropriate, not to mention lawful, to use and when it wouldn’t? Would they have the aim so as not to kill eight bystanders while missing their target, as New York’s Finest are wont to do? They say an armed populace is a polite populace. Fuggehaboutit. There have been enough guns on the streets of New York that, if this was to happen, there would be some indication of politeness. Anybody see it?

The problem isn’t that the Bruen decision, in light of the holding in Heller and McDonald, wasn’t the sound decision, even if it simultaneously was the decision that gun control advocates feared most. And notably, there are only six states affected by the decision, as the rest already have “shall issue” or some similar variation rather than “may issue” as was the case in New York City.

And if that’s what the Second Amendment provides, because that’s what the Supreme Court holds, then so be it. But just because you have a right to bear arms doesn’t mean you should, my fellow New Yorkers. Remember, pull it out at the wrong time, use it at the wrong time, and you may well spend many nights pondering the error of your ways in a cell. If you lack the judgment or temperament to carry a firearm, don’t do it. And if you’re in New York City, chances are high that a firearm will only get you in trouble and someone else (or possibly you) dead. You really don’t want that. Even if you have the right to carry, you don’t have to.

27 thoughts on “The Guns of Manhattan

  1. Ly

    That last paragraph is spot on. Unfortunately, way to frequently those are the ones who end up in the news giving gun-grabbers ammunition for their attempts.

    Also wonder how this is going to interact with the bills currently making their way through congress.

    1. Edward M

      The age limit will surely run afoul of SCOTUS. And who knows? Maybe then the radical 5 will all become Constitutional Carry enthusiasts

  2. Turk

    I remain hopeful that with strict mandatory training to get a license, restrictions from taking it to crowded areas and demanding insurance, that few will be able to (or want to) get one, thereby leaving them to the target shooters and shop owners.

    Of course, I’ve been wrong before, having never thought SCOTUS would flip the 2A from a collective right to a personal one.

    Gonna be a shit ton of new regs being offered with an accompanying shit ton of litigation.

    1. Kathleen E. Casey

      I hope the decision benefits not only target shooters and shop owners but also, in addition to shop owners, as Justice Alito recognized, other victims of criminals “armed and undeterred by the Sullivan Law. …These people reasonably believe that unless they can brandish or, if necessary, use a handgun in the case of attack, they may be murdered, raped, or suffer some other serious injury. …The solicitor general was asked whether such a person would be issued a carry permit if she pleaded: ‘[T]here have been a lot of muggings in this area, and I am scared to death.’ The solicitor general’s candid answer was ‘in general,’ no. To get a permit, the applicant would have to show more—for example, that she had been singled out for attack.” That’s the way it was. Wait for something to happen to you to prove a special need. If you get away alive.

  3. Paleo

    Well written and right on point.

    I wonder from personal experience if so much of the angst from these 2A decisions is overdone . Like you I’m not a gun guy but I support these decisions because I want our rights expanded and protected. All of them. But I live in Texas, where our deep red leadership trips over itself with the rapidity with which they expand gun rights. I can’t even remember all of the laws they’ve passed, but I know over the last 20 years they’ve allowed concealed carry and they’ve specifically said you can carry on a college campus (real bad idea). They’ve allowed open carry. And last September concealed carry without a license became legal.

    Every change was met with wailing and gnashing of teeth, but then time moved forward and nothing really changed. Honestly, I don’t ever really think about it, but the number of people I’ve seen open carrying is precisely zero. I think you allude to the reason it’s that way in your post, but most bad people who want to carry are already doing it. These laws generally only affect “good guys” (and gals) who are reasonable and responsible anyway. And decisions like this eliminate one source of government unequal treatment and wipes out the excuse for a whole lot of bullshit searches.

    Hopefully y’all have the same experience we have down here and life doesn’t noticeably change.

  4. PML

    Being from upstate NY and discussing this with other “Gun Nuts”, yea we own lots of them. We think that what will happen is that in order to limit pistols in the city, NYS will implement all kinds of restrictions and rules that will also limit those living in rural NY and this will only lead to more lawsuits and more defiance of these new rules. I give you the SAFE act as an example. To be truthful most upstate residents could not have cared less about the gun laws in NYC as we don’t go there, mostly by choice.

  5. Hal

    Scott,

    I’ll be rereading this, and reflecting upon it further, but after one read through I think you may be giving New Yorkers short shrift.

    Florida, home of “Florida man” of various new stories and Onion parodies, adopted a “shall issue” methodology in 1986. It’s been a while since I checked, but when I last did so, Florida had issued nearly two million concealed carry permits. Their revocation rate was less than 0.1%. That is those who’ve had their permits revoked for any reason whatsoever, not simply because they used, or threatened to use, a firearm to harm someone.

    Texas, home of… Texans, hasn’t had a shall issue system for as long (and has recently moved to permitless carry). They’ve reported a revocation rate of 0.2%.

    Vermont, where I live, has had permitless carry for over a century and consistently has among the lowest rates of murder and other violent crimes in the nation.

    None of this means that New Yorkers will behave as Floridians, Texans, and Vermonters have. Still, there’s little reason to think that otherwise reasonable, law abiding people will suddenly engage in violence over getting jostled on the street (people are jostled on the streets of Miami, Dallas, and Burlington, too).

    IIRC, Florida denied permits to felons/ the dishonorably discharged, those adjudicated mentally defective or who’d been involuntarily committed, and anyone w/ a restraining order or outstanding warrants. I’m not sure what they required in the way of training or what a permit costs, but as long as the requirements/ costs aren’t too onerous, I imagine such measures would pass muster.

    Heinlein famously opined that, “An armed society is a polite society”. NYC may find that going to a “shall issue” methodology is actually salubrious. (Fingers crossed.)

    Thanks for your thoughtful analysis.

    1. Mike V.

      I saw a study a few years ago that said between 1986 and 2006 more cops were convicted of crimes in Florida than were carry permit holders. As a percentage of the population, people who go to the trouble of getting a carry permit are the most law abiding people on the planet.

  6. James Turner

    “The logic is sound, even if the analogies fail to recognize the singular distinction between arms and speech or religion, where a negligent or malevolent error can cause another person’s death.”

    I disagree. There’s a very long history of a person speaking to crowds about attacking a different person or group, on the basis of whatever, and the same crowd beating them to death with their hands and feet. The Internet is more efficient than speech in the public park. Guns are more efficient than hands and feet. The Constitution and its Amendments don’t address efficiency.

    “They say an armed populace is a polite populace. Fuggehaboutit. There have been enough guns on the streets of New York that, if this was to happen, there would be some indication of politeness. Anybody see it?”

    I disagree. New York has suppressed the size of the armed populace to a small minority for over a century. Only after a few years of issuing hundreds of thousands, perhaps millions, gun carry permits, will that above theory be tested.

  7. Keith

    Seems like a good time to drop your standard admonition: you can beat the rap, but you won’t beat the ride.

    To the crux of your post, having seen the results of similar zoning rules struck down (sure we can’t keep “those people” out, but that doesn’t mean “here”, right?), I have no doubt the legal landscape with adapt as it’s always done.

    The rationale is entirely sound, but I’m not used to such a simple and full throated defense of core rights from SCOTUS. But, I’m open to seeing how this removal of a two-step process for rights will affect the others in the bundle. Do we get so many exceptions to 4th, 5th and 6th amendment rights? Do we just ask if it implicates the first amendment and do away with FDA or commercial signage or other first amendment rules that can’t pass strict scrutiny?

    Lots of questions to come.

  8. B. McLeod

    Here in the flats, we’ve had open carry for a long time. The social norm is still not to do it. I don’t know very many people who carry concealed, either. The few folks I know who do that are people who cared enough, back in the day, to get their training and permit.

    Open carry in an urban center invites trouble, and most people understand that. The only occasions on which I have seen it has been the gun zealot events where participants want to make a point that they are armed, and “protests” by the local BLM crowd. When that folderol is taking place, sensible people steer clear of the whole area.

    With concealed carry, you can avoid the problem of the weapon actually inciting trouble. It is still a potential liability in the sense that you can’t let an attacker take it. Putting on the hidey holster and taking your gun to town involves a pre-commitment to use it in some circumstances where there otherwise might not even be a consideration of lethal force. That, and the many possibilities for things to otherwise go south, has continued to be a limitation on the exercise of second amendment rights by thinking people.

  9. DaveL

    I hope you won’t take this as overly glib, but you’ll get used to it. When states started turning to “shall issue” permits, there was no end of “experts” and pundits predicting blood in the streets. It didn’t happen. When jurisdictions started relaxing rules about carry in churches, or college campuses, they again predicted blood in the streets. It didn’t happen. Then states started following Vermont’s lead and allowing concealed carry without a permit. More predictions, more blood in the streets that never materialized.

  10. Hunting Guy

    I live in Tucson.

    Lots of guns and if you know what to look for, lots of concealed carry. You occasionally see a rancher or hunter doing open carry but it’s rare.

    The shootings we have here are basically done by felons that are barred from having firearms, gangbangers and cartel members fighting over territory, drugs, and human trafficking.

    Like Florida and Texas we don’t have bloodbaths here.

    I think you don’t give your fellow NY denizens enough credit. Right now, if they carried a gun, they were breaking the law. Law abiding folks went unarmed. That will change and I think things will work out like other states that do “must issue.” In other words, once the novelty wears off, things will go back to normal but people will have a means of defense against the pointless violence we see in NY.

  11. Anonymous Coward

    I think your NYC Snob is showing through. Shall issue carry will work like it did in every other state, apart from someone finding a way to add graft.
    On the positive side, more people carrying should reduce the popularity of beating up Hasidim and pushing Chinese onto subway tracks.

  12. Rxc

    Does this mean that I can carry my Swiss army knife in my luggage when I visit relatives in NYC, without hout having to worry about getting arrested?

    And do I no longer have to worry about the federally required flare pistol on my boat. When I travel up the Hudson, or up the East River?

  13. Hunting Guy

    One issue is how self-defense shootings will be handled. Will the DA find some way to charge the shooter with something or will common sense prevail?

    Is there a castle doctrine or stand your ground law in place?

    Some white guy gets mugged and shoots his POC attacker, will there be riots?

    Can you force someone to have insurance? What if he can’t afford it, will they be denied a permit?

    There are lots of things to be decided as stuff goes forward.

    I don’t think it will be as bad as the doomsayers are yelling, but given the NY background it will be different from TX or AZ which have always had a gun culture.

  14. MG

    The biggest upside I see from this ruling is that the people who follow the law will jump through the hoops to get a permit, and then they can legally carry a weapon. In my experience, the impulsive people who pull a gun for no reason aren’t big on paperwork. This will just protect law abiding citizens who live in a bad neighborhood from being shaken down and arrested if a new mayor brings back random stop and frisk. The ones who are more likely to misuse a weapon were probably going to carry a gun whether it was legal or not.

  15. Mark Dwyer

    In considering whether there is a right to abortion, the Supreme Court thinks it critical that abortion results in the death of a fetus. But somehow the effects of a right to carry a pistol on the subway, including death, seem irrelevant when one considers the reach of the supposed private right to bear arms. And any regulation of that right.

    Not that inconsistency in matters of constitutional interpretation, even if it occurs over a short period of days, should now surprise us.

    “If you lack the judgment or temperament to carry a firearm, don’t do it.”

    Good advice, Scott! But alas, on its face directed at folks who won’t appreciate it.

    1. SHG Post author

      Years ago, my buddy Jeff, then working at Police Legal, asked me if I wanted a carry permit. I thought about it for a bit, then decided I did not. I don’t want to shoot anyone, so no reason to carry a gun. I’m hopeful others, in their sober moments, will make the same choice.

      1. Howl

        I have a couple of permits that allow legal carry in 32 states. Yet, I usually don’t. It’s a matter of being able to choose when to do so. As the saying goes, better to have it and not need it, than to need it and not have it. Like insurance. Life insurance.
        I don’t want to shoot anybody, either. That’s the second-to-last thing I want to happen.
        The last thing I want to happen is the violent death of me or a loved one.

      2. MIKE GUENTHER

        No right thinking person wants to shoot anyone. I know I don’t. But at the same time, I did go through the steps to get the required permit so I could conceal carry. We live in a rural area and the sheriff is more than a few minutes away. (Besides, cops have no constitutional duty to protect you, or so I’ve heard.)

        I’ve been the victim of a mugging and it was not a fun experience. And I was much younger and more able to physically defend myself 40 years ago. Even when you give the mugger what he wants, which I did, they will often beat or kill you just for the hell of it anyway.

  16. JD

    Considering that its a felony to get training without a pistil license and Hochul has said training will be a requirement to get a pistol license, its going to be years and more litigation before anything changes south of Westchester.

  17. Mike V.

    “Remember, pull it out at the wrong time, use it at the wrong time, and you may well spend many nights pondering the error of your ways in a cell.”

    43 state already have “shall Issue” permit systems. The fear of “blood running in the streets” has been prophesied each time a state enacted the system, yet it never seems to bear out. I taught carry permit classes for 20 years and will tell you that the people that go to the effort of getting their carry permits are the most law abiding people on the planet. I’d expect uses of lawful self defense to rise in New York, but that is not necessarily a bad thing. In fact, an attorney specializing in self defense might have a lucrative practice there.

  18. Mike V.

    Little noticed in the orders yesterday (6/30/22), ASSN. OF NJ RIFLE, ET AL. V. BRUCK (Magazine limits), DUNCAN, VIRGINIA, ET AL. V. BONTA (Magazine limits), BIANCHI, DOMINIC, ET AL. V. FROSH (AR-15 Ban) were remanded for further consideration in light of the Bruen decision. This bodes ill for the gun control crowd, it was almost a “Don’t make us go there” hint.

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