OSD 190: Balancing act
Judge Glenn Suddaby of the Northern District of New York issued a temporary restraining order this week blocking enforcement of much of the Concealed Carry Improvement Act, the law that New York passed this summer to restrict gun carry post-Bruen. The state is appealing, and the restraining order could be stayed pending the resolution of the underlying lawsuit, but for now large parts of the CCIA are on hold.
Suddaby’s order halts enforcement of:
The majority of the sensitive places restrictions, including bans on carry in places where alcohol is served, entertainment venues, and public transit.
The catchall ban on carry on all private property, except where the owner has posted a sign explicitly saying that carry is allowed
The “good moral character” requirement
The requirement that carry permit applicants submit their social media profiles for review by police
The requirement that applicants submit to an in-person meeting with police
The requirement to submit “names and contact information for the applicant’s current spouse, or domestic partner, any other adults residing in the applicant’s home, including any adult children of the applicant, and whether or not there are minors residing, full time or part time, in the applicant's home”
Response was what you’d expect all around:
The CCIA’s supporters work from a familiar premise: the state has an interest in promoting public safety, the people have an interest in their gun rights, and so the just way to make gun laws is for the state to weigh those two interests against one another and find a balance. The hard part about interest-balancing is that it all depends on how much weight you give to each side. On guns, interest-balancing tends to weigh gun rights at roughly zero. That’s how you get “balanced” laws that make it a felony to have the wrong shape of grip on your rifle.
The reaction to Suddaby’s order isn’t really about carry itself. Well, ok, it is a bit. But the apoplexy is about something deeper:
The entire project of gun control is founded on interest-balancing.
Bruen said that interest-balancing on gun laws is unconstitutional.
Suddaby’s order is a sign that lower courts are taking that seriously.
#2 was a concern for some in the reaction to Bruen, but it would have been easy for them to hope that the case would be narrowed from below like Heller was. #3 means that’s increasingly unlikely.
That’s a much bigger question than any particular law. If interest-balancing is no longer an acceptable defense of a gun control law, any argument of the form “something must be done about <gun/accessory/practice>, because <purported consequence>” won’t just be debated skeptically in court, it won’t even be heard.
That’s a less radical change than it sounds like — it’s how most rights are already treated.
From the Heller decision:
We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding “interest-balancing” approach. The very enumeration of the right takes out of the hands of government — even the Third Branch of Government — the power to decide on a case-by-case basis whether the right is really worth insisting upon.
Suddaby’s order is one of the first post-Bruen examples of a court taking that to heart. It’ll be interesting to see what the next ones are.
This week’s links
We enjoyed this hour-long chat with Isaac Botkin about guns, technology, and the intersection of those two industries.
Thanks to reader João for sending in this, as he put it, most American math lesson.
And in at least this case, the stated justification is trivial paperwork errors.
In a statement at the end of the article, the state attorney general’s office implicitly acknowledges that this happened.
Video from Reason magazine.
And the best kind of support is to rock some merch and spread the word. Top-quality hats, t-shirts, and patches.
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