A three-judge panel in the Court of Appeals for the Second Circuit has vacated the New York law banning the carry of firearms in church, citing the First Amendment.
After the June 22, 2022, publishing of the Bruen decision on the Second Amendment, several states took active measures to defy the Supreme Court. The foremost of these was New York. Governor Kathy Hochul took the extreme measure of convening an extraordinary session dedicated to circumventing the Bruen decision, which she called “reckless and reprehensible.” From ny.gov:
“The Supreme Court’s reckless and reprehensible decision to strike down New York’s century-old concealed carry law puts lives at risk here in New York,” Governor Hochul said. “Since the decision was released, I have been working around the clock with our partners in the legislature to craft gun safety legislation in response to this ruling that will protect New Yorkers. My number one priority as Governor will always be to keep New Yorkers safe.”
New York is one of a handful of states with severe restrictions on the ownership and carry of firearms in the United States. Evidence is decidedly mixed as to whether such laws have any effect on overall homicide or suicide rates.
The laws were passed with excessive speed. They were quickly challenged as violating the Second Amendment as restored by the Supreme Court in the Heller decision in 2008, applied to the states in the McDonald decision in 2010, confirmed to apply to all bearable arms, modern and ancient, with the Caetano decision in 2016, and finally, refined in the Bruen decision to stop lower courts from interpreting the Second Amendment into non-existence.
Several preliminary injunctions were granted with the understanding that many, if not most, of the plethora of unusual restrictions passed in the extraordinary session in New York obviously violated the Second Amendment.
Four cases were combined by the Second Circuit. A three-judge panel of the Circuit published an opinion on December 8th, upholding some preliminary injunctions and striking down others. This article explains one that has escaped the attention of most other reporters. One of the restrictions in the law was a blanket ban on the carry of firearms in religious institutions such as churches and synagogues. As the lawsuits proceeded, the New York legislature met again and changed the law in an attempt to moot the religious challenges. The change allowed churches to have designated security personnel carry firearms on church property.
The three-judge panel used the change in the law to find several plaintiffs no longer had standing, leaving one religious plaintiff, Pastor Spencer, and his church. The panel found the ban on possession of firearms in church violated Pastor Spencer and his congregation’s First Amendment rights to the free exercise of religion. From the Opinion in Antonyuk v Chiumento p. 157:
The central argument advanced by the Spencer Plaintiffs is that the CCIA impedes their religious duty to protect the congregation by carrying firearms in their church and inviting congregants to do the same. A faith organization has a cognizable interest in eliminating barriers to its religious practice, including when the barriers primarily impact its adherents’ conduct.
One of the reasons the panel found the restriction on carry by Spencer and his congregation was the restriction did not apply to retail establishments.
But more broadly, the CCIA is not neutral because it allows the owners of many forms of private property, including many types of retail businesses open to the public, to decide for themselves whether to allow firearms on the premises while denying the same autonomy to places of worship. By adopting a law that applies differently as to places of worship (alongside the other enumerated sensitive places) than to most other privately owned businesses and properties, the CCIA is, on its face, neither neutral nor generally applicable.
The three-judge panel affirmed the preliminary injunction (finding the ban on firearms in the church to be unconstitutional), but only for Pastor Spencer and his church.
For the reasons set forth above, we VACATE the district courts’ preliminary injunctions in Antonyuk and Hardaway against enforcement of § 265.01-e(2)(c) but AFFIRM the preliminary injunction issued by the district court in Spencer, which prohibits enforcement of§ 265.01-e(2)(c)against “Pastor Spencer, the [Tabernacle Family] Church, its members, or their agents and licensees.” 648 F. Supp. 3d at 471.67
The arguments against the ban of firearms in churches because of the First Amendment guarantee of the free exercise of religion are robust. This correspondent has made the argument in several other articles over the years. Several states have laws banning firearms in churches. Those laws are likely to be struck down following this argument.
Individual churches retain their power to restrict the carry of weapons on their property. It is unconstitutional for the state to ban the carry of weapons in churches under both the Second Amendment and the First Amendment.
About Dean Weingarten:
Dean Weingarten has been a peace officer, a military officer, was on the University of Wisconsin Pistol Team for four years, and was first certified to teach firearms safety in 1973. He taught the Arizona concealed carry course for fifteen years until the goal of Constitutional Carry was attained. He has degrees in meteorology and mining engineering, and retired from the Department of Defense after a 30 year career in Army Research, Development, Testing, and Evaluation.
