The Second Circuit Court of Appeals seems to have some difficulty recognizing the Second Amendment as a fundamental civil right. This is the same appellate court that upheld New York's "may issue" licensing laws that were struck down by the Supreme Court, and in the three years since the court has yet to find any major flaw with the post-Bruen laws enacted by New York Democrats.
That streak continues, with a Second Circuit panel on Friday declaring that the plaintiffs who are challenging, among other things, a number of New York City's "gun-free zones" aren't likely to be successful and denying their request for a preliminary injunction.
The Second Circuit today upheld the denial of a preliminary injunction against New York’s bans on carry in Times Square and on public transportation, open carry ban, and requirement for a separate permit to carry in NYC. The court however reversed the district court’s… pic.twitter.com/ieMS2H3iON
— Firearms Policy Coalition (@gunpolicy) September 19, 2025
The Second Circuit took its sweet time in issuing its decision, which may be another example of appellate courts slow-walking decisions in an attempt to keep these cases away from the Supreme Court for as long as possible. Oral arguments were held in January, 2024, so it took almost two years for the panel to decide that the New York laws being challenged are likely to survive constitutional scrutiny.
You can read the entire opinion here, but I'm going to focus on what the panel had to say about New York's ban on lawful concealed carry in and around Times Square and on public transportation; both crowded places, but also places where there is no real heightened security measures in place.
... we scoured the history books and concluded that our Nation has a “well-established and representative tradition of regulating firearms in public forums and quintessentially crowded places, enduring from medieval England to Reconstruction America and beyond.” In so concluding, we first pointed to a British statute from 1328—the Statute of Northampton—which forbade going or riding “armed by night []orby day, in fairs, markets.” Two states, Virginia and North Carolina, “passed statutes at the Founding that replicated the medieval English law prohibiting firearms in fairs and markets, i.e., the traditional, crowded public forum” (stating that “no man, great or small, of what condition,” except ministers of justice, shall “go nor ride armed by night nor by day, in fairs or markets, or in other places, in terror of the country”).
Looking to the Reconstruction era, we determined that three other states (Texas, Missouri, and Tennessee) and two territories (Oklahoma and Arizona) similarly passed laws prohibiting weapons in public forums and crowded places. see1869–70 Tenn. Pub. Acts 23 (prohibiting carriage of deadly weapons by “any person attending any fair, race course, or other public assembly of the people”); 1870 Tex. Gen. Laws 63 (prohibiting firearms in “place[s] where persons are assembled for educational, literary or scientific purposes, or into a ball room, social party or other social gathering”); 1883 Mo. Laws 76 (barring firearms in “any school room or place where people are assembled for educational, literary or social purposes” and “any other public assemblage of persons met for any lawful purpose”); 1889 Ariz. Sess. Laws 17 (prohibiting carrying “a pistol or other firearm” to “any church or religious assembly, any school room, or other place where persons are assembled for amusement or for educational or scientific purposes, or into any circus, show or public exhibition of any kind, or into a ballroom, social party or social gathering, or to any election precinct on the day or days of any election . . . or to any other public assembly”); 1890 Okla. Sess. Laws 496 (prohibiting carriage of a firearm in places “where persons are assembled for. . . amusement, or for educational or scientific purposes, or into any circus, show or public exhibition of any kind, or into any ball room, or to any social party or social gathering”).
There are some serious problems here, and it's not the first time the Second Circuit has relied on this flawed analysis. In fact, these laws were first cited in the Antonuk decision, with the panel today reiterating that these laws represent a "national tradition" of restricting firearms in "crowded places."
There were 13 states at the time the Second Amendment was adopted, and only two of them had laws that prohibited firearms in "fairs and markets, or in other places". That's hardly representative of a national tradition, especially when those statutes specifically forbade carrying "in terror of the country"; which presumably left carriage that wasn't intended to spark terror a perfectly legal exercise.
The panel's reliance on 19th century law is even worse. There were 38 states in 1883, and according to the Second Circuit three of them had laws prohibiting firearms in places like fairs, public assemblies, or social gatherings. None of those laws specifically prohibited carrying guns in "crowded spaces", mind you, but even if they did three states (and two territories) cannot be representative of a national tradition of gun ownership.
In Bruen, the Supreme Court explicitly stated that "there is no historical basis for New York to effectively declare the island of Manhattan a 'sensitive place' simply because it is crowded and protected generally by the New York City Police Department." But that's exactly what Times Square and the New York City subway systems are; crowded places protected generally by the NYPD. If the island of Manhattan can't be designated a "gun-free zone" based solely on those characteristics, then it makes no sense to argue that those characteristics allow for particular locations on that island to be off-limits to lawful concealed carry.
The panel declared that Times Square is "our modern-day, electrified, supersized equivalent of fairs, markets, and town squares of old." Even assuming that is the case, then laws preventing the carriage of guns with the intent to terrify might be justifiable under the Second Amendment, but not a blanket prohibition on carrying a concealed firearm; which, given that its concealed, isn't going to terrify anyone because they won't know that it's being carried.
The panel argued that, "for similar reasons, we have no trouble holding that Section 265.01-e(2)(n),as it applies to the Subway and Metro-North, is consistent with that tradition" of banning guns in crowded public spaces.
... once the familiar command—“stand clear of the closing doors”—sounds and the car doors slam shut, riders are sealed within the slender metal tube until, absent misadventure, they emerge at the next station stop.Firearm prohibitions in subway and train systems are therefore especially akin to those historical laws that specifically singled out enclosed crowded spaces, such as ballrooms, as places where prohibiting firearm carriage was appropriate.
A subway car is akin to a ballroom or a "fandango"? Give me a break.
The panel argues that, since railroads didn't exist in the United States until the 1820s, there are no relevant historical analogues at the time of the Founding. Fair enough, but what about the distinct lack of laws forbidding firearms on railroad cars in the 19th century?
Those railroad networks were largely operated by private corporations throughout the 19th century, and it was not until the 20th century that government entities began operating their own rail and subway systems. Thus, the lack of historical government gun regulations specifically targeting public transport systems is attributable to this “dramatic technological change[] [that] may require a more nuanced approach” under Bruen’s analogical method, 597 U.S. at 27, and therefore has little bearing on the constitutionality of our modern-day regulations.
This is absurd. The Second Circuit cited a handful of 19th century laws that barred lawfully carried firearms in churches, circuses, racetracks, and ballrooms. All of those locations were operated by private corporations or individuals, yet a handful of states enacted restrictions on carriage in those places. If that matters, then the fact that states did not generally impose bans on carrying on railways should matter too.
The Second Circuit panel is disregarding history that's inconvenient to New York's gun laws and placing too much weight on the few statutes that buttress New York's position in order to justify the "gun-free zones" in question. In doing so, though, they've also completely ignored what the Supreme Court has said about the nature of "sensitive places." Will a majority of the justices allow this injustice to stand when the Frey case reaches their doorstep? I certainly hope not, but the Court has disappointed me too many times over the past few years for me to be all that optimistic.
Editor's Note: Unelected federal judges are making a mockery of our Second Amendment rights.
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