Appeals court reserves decision on constitutionality of New York gun law

Mar. 21—NEW YORK CITY — For just over two and a half hours Monday, a three-judge panel of the U.S. Second Circuit Court of Appeals seemed to struggle to find a framework to determine if New York's Concealed Carry Improvement Act (CCIA) is constitutional.

The justices listened to arguments in four related cases concerning the CCIA, including one brought by Niagara Falls pastor Jimmie Hardaway Jr. of Trinity Baptist Church and others. One of the three justices hearing the arguments suggested that whatever constitutional determination they made was likely to be reviewed by the U.S. Supreme Court.

"We're going to have to make a rule," Justice Gerald F. Lynch said in discussing a challenge to a provision of the CCIA that requires private property owners, in particular businesses open to the public, to "make known" whether person's licensed to carry concealed weapons can bring those firearms into the property.

Pete Patterson, an attorney representing persons challenging the CCIA, told the justices that the "plain text" of the Second Amendment "gives a right to carry" to people entering private property.

"That's what the plain test means," Lynch asked, his voice rising. "I can't tell you, you can't enter my home with a gun?"

Patterson then agreed that Lynch could keep someone from bringing a gun into his home.

In the case of Hardaway and Rev. Larry Boyd, pastor of Open Praise Full Gospel Baptist Church in Buffalo, along with two national pro-gun groups — Las Vegas-based Firearms Policy Coalition and Bellevue, Washington-based Second Amendment Foundation — justices were considering a challenge to a provision of the CCIA that bars individuals from bringing firearms into places of worship.

Hardaway and Boyd have argued that they would suffer irreparable harm, and that their Second Amendment rights would be violated, if the places of worship restriction was not blocked. In an affidavit accompanying the original lawsuit, Hardaway acknowledges that he is a member of the two pro-gun groups involved in the case and that he is licensed to carry a handgun in New York.

"Prior to the enactment and enforcement of the Place of Worship Ban, I would consistently carry a firearm on Trinity Baptist Church's premises," Hardaway said in an affidavit. "I would intend to keep carrying for self-defense and to keep the peace at Trinity Baptist Church."

U.S. District Court Judge John L. Sinatra Jr., of the Western District of New York in Buffalo, granted Hardaway and Boyd a temporary restraining order (TRO) and then a preliminary injunction, blocking the enforcement of the places of worship restriction.

New York Attorney General Letitia James appealed Sinatra's decisions to the Second Circuit and asked the appeals court to block his rulings. A different panel of Second Circuit judges, other than the one that conducted Monday's hearing, heard that request and issued a stay of Sinatra's decisions, which effectively reinstated the CCIA and the places of worship restriction.

Hardaway and Boyd asked the U.S. Supreme Court to intervene and overturn the stay. They argued that their rights under the Second Amendment had been "indefinitely suspend(ed)."

In January, the high court, without any noted dissents, allowed the stay to remain in place while the Second Circuit proceedings continued.

Much of the controversy over the CCIA centers on restrictions, approved by the New York State Legislature on places were people are permitted to carry concealed weapons. The U.S. Supreme Court, in its decision in the case of New York State Rifle & Pistol Association, Inc. v. Bruen, found that the bearing of arms could be restricted in so-called "sensitive places."

Sinatra acknowledged that ability in his ruling, but said New York went too far in designating "sensitive places."

"In Bruen, the (Supreme Court) made the Second Amendment test crystal clear: regulation in this area is permissible only if the government demonstrates that the regulation is consistent with the Nation's historical tradition," Sinatra wrote. "New York fails that test. The State's exclusion is, instead, inconsistent with the Nation's historical traditions."

Esther Murdukhayeva, arguing on behalf of the state attorney general told, the court that, "New York properly designed places of worship as sensitive locations in which firearms could not be carried." Murdukhayeva told the justices that Sinatra erred in "discarding" expert testimony that demonstrated that the CCIA was consistent with the nation's historic traditions.

But Justice Eunice C. Lee and Lynch pressed the state attorney to explain "how we find what is a sensitive place."

"There are two different pathways," Murdukhayeva said. "A sensitive place can be sensitive because it is identical to historically sensitive place locations or, independently, because its shares features of relevant historically sensitive places. Places of worship passes both tests."

Murdukhayeva also challenged Sinatra's insistence that historic traditions had to have been established at the time of the nation's founding,

"The Second Amendment does allow the government, categorically, to prohibit the presence of firearms in sensitive places, even if there are people who want to carry firearms in those places," Murdukhayeva told the court.

John Ohlendorf, the attorney representing Hardaway and Boyd, pushed back aggressively, telling the justices that the "plain text" of the Second Amendment would allow the pastors to carry guns in their churches, except for the CCIA.

"The plaintiffs are Americans and they wish to carry firearms," Ohlendorf said. "That shifts the burden (to New York state) to prove their regulations are consistent with the nation's historic traditions."

"When the states started to impose these regulations about churches they didn't just do it, they did it and either no one challenged it or when someone did challenge it, courts said ... "That's the most ridiculous thing I've ever heard." That was the unanimous response from courts, at the time, to challenges against these laws," Lynch replied.

When Ohlendorf described those cases as "outliers", Lynch questioned that claim.

"How do we know (they're outliers)," Lynch asked. "Up until 2008, that's what the Supreme Court thought about the Second Amendment. This is a somewhat selective reading of history we engaged in here. "

But Ohlendorf said the Supreme Court, in the 2008 case known as Heller, rejected its prior precedents, expanding the scope of the Second Amendment.

"Anyone can go into a church with a gun," Lynch asked.

"Certainly," Ohlendorf said. "That's our view."

Hardaway has maintained that his church has an "open-door policy" that carries risk over "who will walk in the door for services." The pastor also claims that the "horrific murders" of nine parishioners at Emanuel African Methodist Episcopal Church in Charleston, South Carolina, in 2015, has "stiffened (his) resolve to carry for self-defense and to keep the peace at Trinity Baptist stronger."

Struggling to determine a uniform standard to define "sensitive places recognized at the nation's founding", Lynch noted that the Supreme Court Justice Clarence Thomas, who wrote the majority opinion in Bruen, listed as examples, state capitols, polling places and courthouses.

"I'm glad they had courthouses on the list. I'm sure Justice Thomas is too," Lynch said. "We have to do some kind of analysis of what are sensitive places and what aren't and teh kind of rule we make is going to have profound implications."

The justices also heard a request from Niagara County District Attorney Brian Seaman, who asked that them to rule on whether, under the current stay allowing the CCIA to be enforced while its constitutionality is under review, he is required to bring cases for violations of the act. Attorney Brian Crosby, appearing on behalf of Seaman, told the justices the DA was in an untenable position.

"He is being asked to potentially prosecute violations of the act and then if its found unconstitutional downstream, after the matter has been prosecuted, as a Class E felony having to relieve in some fashion the prior conviction," Crosby said.

Lynch suggested that Seaman, who has discretion in the cases he prosecutes, could simply wait for a constitutional determination.

"He's deciding which (cases) are worthy of prosecution," Lynch said. "That's his discretion, that's his power, that's his authority. That's what district attorneys do. That's their job. That's why they pay him the big bucks."