The Second Amendment, Guns on Private Property, Guns in Parks, and “The Fifth Element”

From today’s Second Circuit decision in Christian v. Keane, in an opinion by Judge Joseph Bianco, joined by Judge Eunice Lee and, as to the Private Proverty Provision, Judge Steven Menashi:

These two appeals involve Plaintiffs’ Second Amendment challenge to New York’s Concealed Carry Improvement Act (“CCIA”) provisions prohibiting firearm possession in two types of locations: (1) private property “where [a] person knows or reasonably should know that the owner or lessee of such property has not permitted such possession by clear and conspicuous signage indicating that the carrying of [guns] on their property is permitted or by otherwise giving express consent; and (2) “sensitive locations. Plaintiffs challenge the Private Property Provision, as applied to private property open to the public. Plaintiffs asserted only a facial challenge to the Public Parks Provision in the district court, but now also seek to raise an as-applied challenge based upon its application to rural parks.

We conclude that the Private Property Provision, as applied to private property open to the public, is unconstitutional because the State did not carry its burden of demonstrating that the restriction falls within our Nation’s historical tradition of gun regulations, as required under the framework set forth in New York State Rifle & Pistol Association, Inc. v. Bruen (2022). On the other hand, we conclude that the Public Parks Provision survives Plaintiffs’ facial challenge because the State has carried its burden of showing that regulation is consistent with our Nation’s historical tradition of banning gun possession in urban public parks. Finally, we decline to address any as-applied challenge to the Public Parks Provision, to the extent it applies to rural parks, because Plaintiffs failed to raise that challenge in the district court.

Judge Menashi dissented in part as to the Public Parks Provision.