2nd Circuit: NY Ban on Firearms in Places of Worship Violates Free Exercise Rights

 Antonyuk v. Chiumento, (2d Cir., Dec. 8, 2023), is a 261-page opinion upholding in part and rejecting in many other respects constitutional challenges to New York's Concealed Carry Improvement Act.  One of the constitutional challenges which the court upheld was a claim by a pastor and his church that applying a firearms ban to non-security personnel in places of worship violates the Free Exercise and Establishment Clauses.  In the case, the pastor alleged that the New York restrictions interfere with his religious duty to protect his congregation by being armed in church and by inviting other congregants with concealed carry licenses to bring their firearms. In accepting that argument, the court said in part:

[T]he 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 State provides no explanation for why leaders of religious groups in general, and the Plaintiffs specifically, are less able to “eject persons carrying firearms” than any other property owner who is permitted to make a free choice whether to allow firearms on their premises.... A place of worship that prohibits guns will be equally reliant on the police and the criminal law to eject a person carrying a firearm, whether it does so pursuant to a sensitive place designation or a church policy. Either way, someone will have to call the cops. And if the State has determined that places of worship must be designated as sensitive places because criminal trespass law is not enough to keep out guns, then the decision to regulate places of worship more assiduously than other locations amounts to an unequal pursuit of the interest in preventing gun violence. Such an approach is understandable, but unconstitutional....

Reuters reports on the decision.

Court Refuses To Enjoin New York's Ban On Firearms In Places of Worship

In Goldstein v. Hochul, (SD NY, June 28, 2023), a New York federal district court refused to issue a preliminary injunction in a challenge to New York's 2022 Concealed Carry Improvement Act that bans carrying firearms in "sensitive locations," including "any place of worship or religious observation."  The suit, filed by an Orthodox Jewish congregation, its president, and Jewish residents of New York who say that they have carried handguns for self-defense in synagogues. The court rejected Second Amendment, First Amendment Free Exercise, Equal Protection, and void-for vagueness challenges to the law. Discussing plaintiffs' Second Amendment challenge, the court said in part:

Beyond the historical record of laws restricting the carrying of firearms in places of worship, there is also historical precedent for the restriction of firearm-carry for law-abiding citizens either in specific physical locations or for public safety reasons....

The laws cited by Plaintiffs concerning the mandatory carry of firearms in places of worship are rooted in racial supremacy, and had the reprehensible and shameful goal of preserving slavery. They should not be considered or at a minimum deserve little or no weight in the analysis of the history and tradition of the regulation of firearm carry by law-abiding citizens for self-defense. However, the fact that these regulations existed suggests that legislatures have long exercised significant regulatory power over firearm carry, and individuals’ ability to carry firearms in houses of worship.

Responding to plaintiffs' Free Exercise and equal protection claims, the court said in part:

Plaintiffs’ claim that their religious practice is burdened by the Challenged Provision of the CCIA because they would prefer to worship while carrying a firearm does not establish a free exercise claim. Having a preference to worship while carrying a firearm is not a religious practice.....

The Challenged Provision applies to all individuals, regardless of their religious beliefs, practices, or identity. Individuals of all religions or no religion are forbidden from possession of firearms in places of worship.

Suit Challenges New York Ban on Firearms in Houses of Worship

Suit was filed this week in a New York federal district court challenging the constitutionality of New York's ban on carrying firearms in houses of worship. The complaint (full text) in His Tabernacle Family Church, Inc. v. Nigrelli, (WD NY, filed 11/3/2022) alleges that the ban violates the free exercise, Establishment Clause, Second Amendment, and equal protection rights of a church and its pastor.  The complaint says in part:

S51001 forbids Pastor Spencer and the Church’s members, under threat of criminal penalties, from exercising their religious conviction to carry firearms into the Church to protect themselves and other congregants.....

[S51101]  subjects houses of worship to disfavored treatment while treating comparable secular organizations, such as retail stores or restaurants, more favorably than those offering religious exercise....

A church’s authority over who may enter the sanctuary and under what circumstances lies at the very heart of “the general principle of church autonomy” protected by the Establishment Clause.....

First Liberty issued a press release announcing the filing of the lawsuit. Last month, in another case, the same court issued a temporary restraining order barring enforcement of this statutory provision. (See prior posting.)

NY Gun Ban at Places of Worship Violates 2nd Amendment

In Hardaway v. Nigrelli, (WD NY, Oct. 20, 2022), a New York federal district court issued a temporary restraining order barring enforcement of the provision in New York law that prohibits possession of firearms at "any place of worship or religious observation." The suit was filed by two clergy who allege that as leaders of their churches they want to carry firearms on church premises to keep the peace. The court concluded that the state restriction violates the Second Amendment, saying in part:

Here, the state cites to a handful of enactments in an attempt to meet its "burden" to demonstrate a tradition of accepted prohibitions of firearms in places of worship or religious observation.... The notion of a "tradition" is the opposite of one-offs, outliers, or novel enactments....

[T]he Nation's history does not countenance such an incursion into the right to keep and bear arms across all places of worship across the state. The right to self-defense is no less important and no less recognized at these places.

Volokh Conspiracy has more on the decision. [Thanks to Steven H. Sholk for the lead.]