gun control

The Second Amendment Takes Aim At the First

Photo-Illustration: by Curbed; Photos Getty Images

New Yorkers live our lives in public. We travel on subways and buses, sit blanket to blanket for outdoor concerts, mingle with neighbors on the stoop. When we have political gripes, we demonstrate everywhere: in Foley Square, on Fifth Avenue, or in front of Senate Majority Leader Chuck Schumer’s Brooklyn apartment building. That’s how cities work. It’s how our city works, even, fitfully, during COVID. But with June’s New York State Rifle and Pistol Association v. Bruen decision, in which the Supreme Court struck down a century-old New York State law that required proof of cause for the concealed carrying of handguns, our sense of security in crowded places may be more permanently damaged than it was by the pandemic.

The ruling was an escalation of the Court’s 2008 Heller decision that reset precedent by overlooking the first 13 words of a 27-word amendment — specifically the language about a “well regulated Militia” — and ruled that there is indeed an individual right to own and carry a gun. At a moment when mass shootings are nightmarishly commonplace, Bruen feels aggressively wrongheaded. But even if you believe (as the conservative justices say they do) that they are simply reading the Constitution closely, they have lifted the Second Amendment above the First, which explicitly sets down the “right of the people peaceably to assemble.” Those rights that have long defined this country — freedom of speech, religion, the press — are being eclipsed by another right, one that’s become an article of faith for many Americans. Our idealistic First Amendment country is being turned into a deeply cynical Second Amendment country.

Last September, the New York Civil Liberties Union and the American Civil Liberties Union jointly filed an amicus brief with the Supreme Court in support of New York’s long-standing approach to handgun limits. “This is a case about the Second Amendment,” says the brief’s summary, “but its resolution also implicates fundamental First Amendment values.” The brief goes on to argue that “self-government depends on the ability of the people to participate fully in civic, political, and economic life. People need to feel safe to vote, to go to school and work, to walk the streets, and to assemble, associate, and speak freely in public.” As one of the brief’s authors, NYCLU supervising attorney Perry Grossman, recently told me, “You need breathing space in the public sphere for civic life to occur.”

The ruling, as written by Justice Clarence Thomas, eliminates that breathing space. It advances a perception of the United States as a dystopian nation where day-to-day survival depends on being armed. Justice Samuel Alito’s concurrence to the majority opinion specifically references New York City and its purportedly dark, frightening streets. Sounding like he’s watched too many 1970s Clint Eastwood movies, Alito argues that unless residents “can brandish or, if necessary, use a handgun in the case of attack, they may be murdered, raped or suffer some other serious injury.”

“It’s bullshit. I mean, call it what it is,” asserts the NYCLU’s executive director, Donna Lieberman. “It does not reflect the reality of life in New York, which is what the case is about.”

New York governor Kathy Hochul apparently felt the same way, leading to a substantial bill (41001 in the Assembly and 51001 in the Senate) that creates more stringent (but less subjective) eligibility requirements for carrying a gun. Effective September 1, it also designates a large number of “sensitive locations” where guns are prohibited, including government buildings, houses of worship, libraries, public parks and playgrounds, zoos, and every imaginable kind of school. The subway system and other forms of public transportation are covered, as are airport terminals, bars, casinos, and venues licensed for cannabis consumption. It’s a long list.

As reassuring as it is that the state legislature is coming down on the side of the First Amendment, the idea that we need to delineate gun-free zones underscores the problem but doesn’t solve it. Sure, public streets and sidewalks that have been roped off for an event count as sensitive locations, as does “any gathering of individuals to collectively express their constitutional rights to protest or assemble.” However, public thoroughfares being used for the everyday business of going about our lives do not. Shouldn’t they be? What is more peaceable a form of assembly than the act of walking down a Fifth Avenue sidewalk?

In Lieberman’s reading of the Bruen decision (which she labels a “monumental manipulation of history”), there’s “a lot of room to protect sensitive spaces and activity that makes spaces sensitive.” But only one specific place has been labeled “sensitive” in the bill: Times Square. Yes, it’s New York City’s most iconic public place and tourist destination — 365,000 pass through daily — and it’s jammed most of the time. But it’s also the exact place that many New Yorkers pride themselves on avoiding. It’s not exactly the center of civic life.

State Senator Brad Hoylman, whose Manhattan district includes Times Square, says that he “personally led the fight to include it in the bill.” The reasons are the obvious ones, that it’s a “heavily touristed and trafficked pedestrian plaza where there are many public protests and demonstrations and assemblies of people.” The real reason Times Square needs its own designation is less obvious: It doesn’t fall under any of the other gun-free categories. It’s not a park or a public place in any normal, regulatory sense. It’s merely a confluence of streets, some of which have been closed to traffic and transformed into plazas. But so many gathering places in New York City defy categorization. What about the crowded walkways on the East River bridges or the myriad other locations where, as in Times Square, streets have been transformed into public plazas?

Hoylman says that the designation of other spots — including the World Trade Center and the entire borough of Manhattan — was debated, but nothing else made the cut. The legislators, he says, were trying their best to craft a bill with an eye toward “anticipating what a court challenge to the law might be.”

No doubt there will be many of those challenges. One of the first was filed on July 11 by Buffalo businessman and congressional candidate Carl Paladino, who likened banning guns in a public place to outlawing speaking or praying. (The example Paladino cited in interviews was McDonald’s, which doesn’t appear to fall into any of the “sensitive” categories listed in the bill. Never mind that private businesses are still allowed to ban firearms as they wish. For now, at least.)

Hoylman notes that some Republican lawmakers in Albany argued that a gun-free designation will somehow make Times Square a magnet for armed criminals. This doesn’t seem to be a concern for the Times Square Alliance, whose president, Tom Harris, calls it “fitting that Times Square, with its high volume of pedestrian traffic, be deemed a sensitive location worthy of additional scrutiny.”

Although there have been several high-profile shootings in and around Times Square in recent years — such as the one last October that led to the New York Post’s classic headline “MAN SHOOTS HIMSELF IN THE LEG WHILE URINATING IN TIMES SQUARE”nothing suggests the problem is one that will be solved by arming more people rather than fewer.

Hoylman, for his part, is concerned about what declaring one especially famous piece of New York City a gun-free zone implies about every other part of the city. It suggests that the places where we routinely go about our lives can be left to their own devices.  “We’ve had to stake out in statute where people can feel most safe,” he says, “and it’s really turned our notion of public safety on its head.”

The Second Amendment Takes Aim At the First