In the 2008 District of Columbia v. Heller U.S. Supreme Court decision, Justice Antonin Scalia contemplated potential location restrictions governments could impose on the exercise of Second Amendment rights. Justice Scalia noted that the Heller decision’s determination that the Second Amendment protects an individual right to keep and bear arms did not cast doubt on the validity of “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings.”
When the Court confirmed that there is a Second Amendment Right-to-Carry outside the home for self-defense in New York State Rifle & Pistol Association v. Bruen (2022), Justice Clarence Thomas expounded upon the “sensitive place” question. Justice Thomas noted,
the historical record yields relatively few 18th- and 19th-century “sensitive places” where weapons were altogether prohibited—e.g., legislative assemblies, polling places, and courthouses—we are also aware of no disputes regarding the lawfulness of such prohibitions… We therefore can assume it settled that these locations were “sensitive places” where arms carrying could be prohibited consistent with the Second Amendment. And courts can use analogies to those historical regulations of “sensitive places” to determine that modern regulations prohibiting the carry of firearms in new and analogous sensitive places are constitutionally permissible.
Justice Thomas went on to note that New York’s attempts expand the notion of “sensitive place” well beyond any reasonable parameters were unacceptable.
...expanding the category of “sensitive places” simply to all places of public congregation that are not isolated from law enforcement defines the category of “sensitive places” far too broadly. [New York’s] argument would in effect exempt cities from the Second Amendment and would eviscerate the general right to publicly carry arms for self-defense...
Despite Justice Thomas’s command, in the wake of the Bruen case an intransigent New York set about prohibiting firearms in all manner of what the state dubiously defined as “sensitive locations.” Perhaps the most transparently ludicrous so-called “sensitive location” is the New York City subway.
NY PENAL § 265.01-e. “Criminal possession of a firearm, rifle or shotgun in a sensitive location,” provides,
1. A person is guilty of criminal possession of a firearm, rifle or shotgun in a sensitive location when such person possesses a firearm, rifle or shotgun in or upon a sensitive location, and such person knows or reasonably should know such location is a sensitive location.
2. For the purposes of this section, a sensitive location shall mean:
…
(n) any place, conveyance, or vehicle used for public transportation or public transit, subway cars, train cars, buses, ferries, railroad, omnibus, marine or aviation transportation; or any facility used for or in connection with service in the transportation of passengers, airports, train stations, subway and rail stations, and bus terminals;
Of course, the New York City subway system shares almost nothing in common with the “sensitive places” the U.S. Supreme Court outlined in Heller and Bruen. Almost no place could be less analogous to the Court’s enumerated locales.
Some Americans might struggle to name a less “sensitive place” east of Los Angeles’s Skid Row. Others might wonder how any place that so openly tolerates, or even domiciles, vagrants, criminals, and the violently mentally ill could ever be described by that adjective.
The Manhattan Institute’s City Journal has been at the forefront of covering New York City’s degraded public transit. In a piece from last summer titled, “How to Get the Subways Under Control,” former NYPD Commissioner William Bratton and Manhattan Institute Fellow Rafael Mangual noted,
In a 2022 Quinnipiac poll, just 15 percent of New Yorkers said that they felt “very safe” on the subways. This spring, a survey by the Citizens Budget Commission of New York found that 78 percent of residents did not feel safe riding the subway at night last year—a 24-percentage-point increase from 2017.
A December 2024 piece from Mangual titled, “When Will New York City Get Serious About Subway Safety?,” explained,
Between 2000 and 2019, the New York City subways saw an average of 2.2 murders per year. Since 2020, the city has averaged eight murders a year—a nearly four-fold increase—despite significantly lower ridership, which means that the risk of such incidents is even higher than the raw numbers suggest.
The New York subway has gotten so bad that the citizen volunteer group the Guardian Angels has begun patrolling the system again.
Then there are the shocking incidents that put an exclamation point on just how unsensitive the New York Subways are.
On December 22, a woman sleeping on a Brooklyn subway train was allegedly set ablaze by a man in the country illegally. The aftermath of the grotesque act was captured on video and widely shared on social media. The 57-year-old victim died of her injuries.
On January 1, a man in Manhattan’s Chelsea neighborhood was minding his own business when he was pushed from behind and onto the subway tracks just before an oncoming train pulled into the station. According to the New York Times, the 45-year-old victim suffered “a ruptured spleen, four broken ribs and a fractured skull.” The alleged perpetrator has been charged with attempted murder.
Describing the alleged perpetrator’s criminal history, the Times noted that he,
had a string of arrests for assault, harassment and weapons possession, according to police and court records. He has an open case in Brooklyn criminal court, where he is facing harassment and assault charges for throwing bleach on a woman and trying to kick down her door, according to a criminal complaint.
Once again, the disgusting act was captured on video.
On January 8, the New York Post reported on the alleged attack of a prominent woman at Manhattan’s 23rd street subway station. According to the Post, the victim took to social media to explain that as she entered the station, “an individual with a shopping cart began screaming at me and spat in my hair.” The Post reported that she went on to note, “I am shaken, with a bruised ankle and a sore shoulder from being pushed into the wall.” The post explained that a suspect was caught at the station, but that he “was released on a desk appearance ticket.”
The Post and others took particular interest in the story because the alleged victim is an advocate for Manhattan’s new congestion pricing toll, which has the effect of urging more people to utilize New York’s subway system.
With the New York politicians unwilling to budge on gun-free zones, and seemingly unwilling to ensure safety on the New York subways, it is incumbent on the courts to ensure citizens can exercise their right to defend themselves in this most unsensitive place.
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