While we’re keeping an eye on the West Coast, where the Ninth Circuit has yet to act on California Attorney General Rob Bonta’s request to reinstate the background checks on ammunition that was thrown out by U.S. District Judge Roger Benitez last week, we’re taking a closer look at a New York case on today’s Bearing Arms Cam & Co with attorney Amy Bellantoni, who joined the show to discuss the recent oral arguments before a Second Circuit panel in Frey v. Nigrelli.
The lawsuit challenges several aspects of New York’s carry laws including the post-Bruen ban on lawful carry on public transit, though the initial complaint was filed before the Bruen decision came down. Since then the case has ping-ponged between district court and the Second Circuit, with a three-judge panel hearing Bellantoni’s latest request for an injunction last week.
A group of New Yorkers who claim their rights to openly carry firearms on the New York City subway are protected by the Second Amendment faced a skeptical Second Circuit panel Tuesday morning.
Represented by Scarsdale-based attorney Amy Bellantoni, the trio of gun owners from Westchester and Orange counties sued New York City in 2021 because their state-issued concealed carry handgun licenses are invalid in New York City due to the city’s regulations under the Concealed Carry Improvement Act.
The Concealed Carry Improvement Act took effect in September 2022 in rapid response to the U.S. Supreme Court’s landmark Second Amendment ruling that struck down the state’s requirement for applicants to prove they had “proper cause” for a permit.
The new law, among other things, bans guns from designated “sensitive places” such as schools, playgrounds and Times Square.
On appeal the gun owners claim the regulations are “inconsistent with the text, history, and tradition of firearm regulation,” and they seek reversal of the lower court’s denial of a motion for preliminary injunction of firearm bans on public transportation such as the MTA, subway, and train cars and in Times Square.
Bellantoni tells Bearing Arms that both the state of New York and New York City officials have argued that no one’s going to get arrested and charged with carrying in New York City, so long as they have a valid permit issued in another New York county. But Bellantoni herself has a client who’s facing felony charges; a 23-year-old who was pulled over behind the wheel in the Big Apple and charged with three felonies for carrying concealed even though he has a valid New York State carry permit, which demonstrates pretty conclusively that the concerns by plaintiffs Jason Frey, Brianna Frey, Jack Cheng, and William Sappe aren’t unreasonable at all… unlike the gun control statutes in question.
Bellantoni described the oral arguments before the Second Circuit as “feisty” in nature, acknowledging that the judges had some tough questions about concealed carry on public transit.
“Bruen says we should ask how and why the regulations burden a law-abiding citizen’s right to armed self-defense,” U.S. Circuit Judge Joseph Bianco raised. “The question is how and why, in modern times, does that affect the law-abiding citizen’s right to self-defense where sensibilities may have change from being terrorized by someone who’s concealing versus the sensibilities now being terrorized by someone who’s openly carrying.
“What about historically, railway cars were subject to regulations of that type,” the Trump-appointed judge asked.
Bellantoni responded that historically those railway cars were private companies rather than government.
“We also have a body law that says the government can control the carrying of firearms on its own property,” U.S. Circuit Judge Reena Raggi interjected. “Why isn’t this the circumstance with the subway, this is basically a government-provided means of transportation, this is government property.
“There is a tradition of the government being able to limit the carrying of firearms on its property — courthouses, government buildings, etc.,” the George W. Bush-appointed judge continued. “Why doesn’t that tilt this in favor of the city and the state?”
Raggi also asked about “vulnerable populations” on the subway, specifically schoolchildren who ride the New York City subway on weekday afternoons.
“I think the ‘vulnerable population’ is a blanket that’s been recently created by the anti-Second Amendment faction,” Bellantoni replied.
As Bellantoni points out, if lawful concealed carry can be banned anywhere there might be kids present, that completely negates what the Supreme Court said in Bruen; that “sensitive places” are the exception and not the rule when it comes to the right to carry. Further, by banning lawful carry on public transportation (a prohibition, by the way, that wasn’t enacted until after the Bruen decision was handed down), New York City is stopping hundreds of thousands of riders who depend on buses and subways to get around from exercising their fundamental right to bear arms in self-defense.
According to attorneys for New York, those riders should simply get a bike if they want to carry, even though that’s simply not feasible for many of those folks. Besides, it’s up to the state to demonstrate a similar prohibition as part of the national tradition of gun ownership, and Bellantoni maintains the government has failed to meet that burden. Sure, there might have been private transportation companies that had policies banning firearms from railroad cars in the 19th century, but that was a decision made by private actors, not one imposed by the heavy hand of the government.
Regardless of what the Second Circuit panel decides, the Frey case is far from over, and I look forward to having Bellantoni back in the near future to discuss any new developments. Be sure to check out today’s conversation with Amy Bellantoni in the video window below, which also includes an interesting discussion on what made her get into Second Amendment law, what she sees as the flaws in the Bruen decision, and more.