The Second Circuit Court of Appeals is hardly friendly territory for Second Amendment advocates, but every now and then the appellate court runs across a gun control law that's so egregious it goes too far even for the 2A skeptics on the bench.
Such is the case with New York's "vampire rule," which was passed as part of the state's Concealed Carry Improvement Act in response to the Bruen decision in 2022. The legislation was hardly an improvement for gun owners, given that it made obtaining a concealed carry permit in the state even more of a burdensome process than what existed under the "may issue" regime struck down by the Supreme Court, in addition to making a variety of locations in the state off-limits to lawful carry.
Those "gun-free zones" included virtually all private property in New York, with property owners expected to post signage allowing the practice if they didn't object to guns on their premises. A district judge found that provision to be unconstitutional, and today a three-judge panel on the Second Circuit upheld that decision, ruling that the state failed to demonstrate the private property ban is in line with the nation's tradition of gun ownership and gun regulation.
FPC WIN! The Second Circuit has struck down New York's private property default carry ban (also known as the "Vampire Rule"), saying it violates the Second Amendment. https://t.co/HUHG2RhJuz pic.twitter.com/RB4nnUZmCh
— Firearms Policy Coalition (@gunpolicy) May 18, 2026
The only "vampire rule" to be upheld by the federal courts is Hawaii's, and that too is expected to be found unconstitutional when the Supreme Court issues its decision in Wolford v. Lopez in the coming weeks.
Unfortunately the same panel upheld New York's ban on concealed carry in all parks across the Empire State, though Judge Steven J. Menashi dissented from the majority opinion and would have struck down that provision as well.
I disagree with the majority that the Public Parks Provision, N.Y. Penal Law § 265.01-e(2)(d), is consistent with the nation’s historical tradition of firearms regulation. Regulations during the founding period restricted the misuse of firearms and the manner of carriage but did not prohibit carriage in public parks or other places reserved for recreation and public gatherings. The majority disregards this history on the ground that contemporary public parks are so different from founding-era public parks that the principles of firearms regulation from the founding period cannot be applied to current circumstances. Instead, the majority identifies a regulatory tradition of restricting the carriage of firearms in parks that emerged in the late nineteenth century.
In my view, the historical evidence from the founding period cannot be discounted. The public parks of that period were not so different from contemporary parks that it is impossible to identify relevant principles of firearms regulation. The Second Amendment was “intended to endure for ages to come,” McCulloch v. Maryland,17 U.S. (4 Wheat.) 316, 415 (1819), and our task is to apply its “fixed” meaning even “to circumstances beyond those the Founders specifically anticipated,” N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1, 28 (2022).
Menashi agrees with the majority that by the late 1800s a number of U.S. cities had imposed carry bans in urban parks, but argues that the proper time frame to look at is 1791, not the decades after the ratification of the Fourteenth Amendment.
If there's a silver lining in the Second Circuit's decision about New York's "gun-free" parks, it's that the panel refused to consider an as-applied challenge to the ban when it comes to non-urban parks. Instead, it denied a facial challenge to the statute by concluding the State demonstrated that it “is constitutional in some of its applications.” That suggests that an as-applied challenge to the park carry ban that focuses on non-urban parks may have more success in the Second Circuit than a facial challenge to the ban on carrying in both urban and non-urban parks.
I think Judge Menashi makes a strong argument that parks weren't off-limits to lawful carry at the time of the founding, even if those parks weren't as plentiful as they were in the latter half of the 19th century. It also appears that the state offered little-to-no evidence of a national tradition of banning lawful carry in parks dating back to 1791, and failed to show that bans were commonplace outside of crowded urban areas in the decades after the Fourteenth Amendment was ratified.
I doubt New York Attorney General Letitia James will appeal the decision striking down the state's "vampire rule" given the impending decision in Wolford, but the plaintiffs could appeal the decision upholding New York's "gun-free" parks to the Supreme Court. If the justices deny cert, they can always go back and file an as-applied challenge, so this might not be the last word from the Second Circuit on the issue of New York's decision to ban lawful carry in wilderness areas owned by the state.
