I’m actually not old enough to remember when the ACLU stood for protecting all of our rights, including our Second Amendment right to keep and bear arms. For as long as I’ve been covering 2A issues, the advocacy group has taken a dim view of our right to armed self-defense, though there have been a couple of notable exceptions at the state level, including the Texas State Rifle Association and the ACLU’s Texas branch teaming up to take on a state law regarding “traveling” with a firearm a decade-or-so ago. The ACLU has also spoken out against “no fly, no buy” bills that would prohibit those on the No Fly List from being able to purchase a gun, though the group’s main objection has to do with the No Fly List itself and not its impact on law-abiding gun owners specifically.
The head of the New York Civil Liberties Union, then, isn’t speaking out of turn by bashing the Supreme Court’s decision in New York State Rifle & Pistol Association v. Bruen. She’s simply continuing a longstanding tradition within the ACLU and its affiliates of pretending the Second Amendment isn’t a real right, and therefore not worthy of the organization’s protection or support.
“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.”
… 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.
Lieberman and writer Karrie Jacobs are convinced that by upholding the right to armed self-defense in public, the Supreme Court has somehow taken aim at the First Amendment; specifically, the right to “peaceably assemble.”
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.
There’s a lot to unpack here, but let’s start with the fact that, as unique as New York City might be, the Constitution still applies there. The Bruen decision undid New York’s “justifiable need” provision to obtain a concealed carry license, but all that really did was bring the state (and a handful of other “may issue” regimes) into line with what is already the case in the vast majority of the country. The 40+ “shall issue” states have never turned their back on peaceable assemblies, the right to worship (or not) as you please, or freedom of speech because they’ve elevated the Second Amendment above all others. It does, however, exist alongside every other right protected by the Constitution, and that is a new development in New York; one that’s being fought by anti-gun politicians even those organizations that ostensibly exist to defend our civil rights.
But let’s not ignore the fact that even while New York City makes it virtually impossible for average citizens to obtain a carry license, violent crime is still on the rise across the Big Apple. In fact, on Sunday night a dozen people were shot, one fatally, in separate incidents across the five boroughs. The absence of law-abiding gun owners doesn’t translate into a lack of armed criminals, and I’m puzzled why Jacobs believes that legal gun owners negate our right to peaceably assemble when she clearly doesn’t believe the same holds true for those willfully engaging in violent crimes.
Jacobs and the NYCLU’s Lieberman take issue with what they see as a lack of “sensitive places” in New York’s response to Bruen, despite the fact that the new list of “gun-free zones” includes not just Times Square but public transportation, houses of worship, hospitals, day cares, and virtually every private business (unless they specifically post signage alerting patrons that guns are allowed. Their real problem isn’t that we’re “elevating” the Second Amendment above all other rights. It’s that the state of New York (and New York City) can no longer pretend that right doesn’t exist… at least not without legal consequences.
