“Sensitive Places” in the Modern City: Times Square and Public Transit Upheld; Open-Carry Bans and City-Specific Permits Presumptively Constitutional after Bruen

Introduction

In Frey v. City of New York, No. 23-365-cv (2d Cir. Sept. 19, 2025), the Second Circuit affirmed the denial of a preliminary injunction sought in a pre-enforcement Second Amendment challenge to three features of New York’s post‑Bruen firearms regime: (1) the Concealed Carry Improvement Act’s (CCIA) designation of Times Square and public transit (the New York City Subway and the Metro‑North Railroad) as “sensitive places” where carry is prohibited; (2) New York’s ban on open carry (while allowing only licensed concealed carry); and (3) New York City’s requirement that a state licensee obtain a city‑specific supplemental permit to carry within the five boroughs.

Plaintiffs Jason Frey and William Sappe—each holding a New York State concealed carry license—sought to enjoin these provisions before any criminal enforcement against them. The district court denied relief; the court of appeals now affirms, concluding that on the preliminary record the government showed each challenged measure is consistent with the Nation’s historical tradition of firearm regulation under New York State Rifle & Pistol Association v. Bruen, 597 U.S. 1 (2022). The panel also corrects the district court’s standing analysis as to the open‑carry claim (finding standing) but ultimately holds plaintiffs are unlikely to prevail on the merits.

Summary of the Opinion

Sensitive places: The Second Circuit holds that prohibiting firearms in Times Square and on public transit fits within a longstanding tradition of regulating guns in quintessentially crowded public forums (fairs, markets, public assemblies, ballrooms, and similar venues), sustained by statutes and judicial decisions spanning from medieval England through Reconstruction. Plaintiffs are unlikely to succeed on the merits.
Open carry: The court finds plaintiffs do have standing to bring a pre‑enforcement challenge (correcting the district court), but concludes they are unlikely to succeed because history shows states may eliminate one mode of public carry (open or concealed) so long as the other remains available for self‑defense. New York’s choice to permit concealed carry while banning open carry is therefore likely constitutional.
City-specific permit: The court treats shall‑issue licensing regimes as presumptively constitutional under Bruen. Plaintiffs failed to identify any concrete defect (e.g., discretion, delays, or fees) in New York City’s supplemental permit process. Independently, the City’s added permit requirement aligns with a deep tradition of more stringent urban gun regulation and municipal permitting.
Methodology: Relying on Heller, Bruen, Rahimi, and its own Antonyuk decision, the court endorses analogical reasoning that focuses on how and why a regulation burdens the right. Reconstruction‑era history is especially probative where Founding‑era evidence is equivocal and does not contradict the later tradition.
Disposition: Affirmance of the denial of a preliminary injunction; remand for further proceedings, with a reminder that ultimate merits remain open to fuller historical development.

Analysis

I. Framework and Method

The court applies Bruen’s two-step approach:

Step one: If the Second Amendment’s plain text covers the conduct, the burden shifts to the government.
Step two: The government must show the regulation is consistent with the Nation’s historical tradition of firearm regulation. The inquiry turns on why and how the law burdens the right. Analogy suffices; a historical twin is not required.

Two interpretive points drive the court’s approach:

1791 and 1868: Without resolving whether 1791 or 1868 “controls” for state regulations, the court treats both eras as focal. Where Founding-era evidence is sparse or indeterminate, later history—especially Reconstruction—can illuminate the right’s public understanding.
Constitutional “liquidation”: Citing Heller, Bruen, and Madison’s “liquidation” concept, the court emphasizes that sustained post‑enactment practice and contemporaneous judicial approvals may settle ambiguous constitutional meaning, so long as later history does not contradict earlier understandings.

II. Precedents and Authorities Driving the Outcome

District of Columbia v. Heller, 554 U.S. 570 (2008): Recognizes an individual right to keep and bear arms, while identifying “longstanding” exceptions, including prohibitions in “sensitive places” and regulations on carrying concealed weapons, supported by 19th‑century decisions.
McDonald v. City of Chicago, 561 U.S. 742 (2010): Incorporates the Second Amendment against the states; reiterates Heller’s assurance regarding “sensitive places.”
Bruen, 597 U.S. 1 (2022): Establishes the text‑and‑history test; endorses analogical reasoning; confirms the permissibility of sensitive‑place restrictions and manner‑of‑carry regulation; treats shall‑issue licensing as presumptively constitutional.
United States v. Rahimi, 602 U.S. 680 (2024): Refines Bruen’s analogical method, emphasizing that why and how a regulation burdens the right are central to the historical inquiry; confirms the test is not “trapped in amber.”
Antonyuk v. James, 120 F.4th 941 (2d Cir. 2024): Provides an extensive survey of sensitive‑place history and endorses the use of Reconstruction‑era sources when Founding‑era evidence is equivocal; recognizes urban “crowded forum” restrictions as part of “immemorial” tradition.
Standing and preliminary injunctions: Winter v. NRDC; Clapper v. Amnesty International; Holder v. Humanitarian Law Project; Steffel v. Thompson; County of Nassau v. Leavitt and related Second Circuit standards requiring a “clear or substantial likelihood of success” when enjoining government action.
Licensing: Giambalvo v. Suffolk County (2d Cir. 2025) and Maryland Shall Issue v. Moore (4th Cir. 2024, en banc) treat nondiscretionary shall‑issue regimes as presumptively constitutional and identify concrete features (delays, fees, discretion) that could rebut the presumption in a particular case.

III. Sensitive Places: Times Square and Public Transit

The court treats Times Square and public transit as modern analogues to historic “quintessentially crowded” venues—fairs, markets, and public assemblies—where guns were traditionally restricted to preserve order and prevent panic and violence.

Historical pillars:

Statute of Northampton (1328), with Founding-era echoes in Virginia and North Carolina forbidding going “armed” in fairs and markets. While later courts read Northampton to target going “armed to the terror” of the people, those enactments still show longstanding sensitivity to carriage in crowded public fora.
Reconstruction-era statutes spanning Tennessee, Texas, Missouri, Arizona, Oklahoma, Georgia, Idaho, Montana, and others that barred firearms in places of public assembly (schools, churches, ballrooms, social gatherings, exhibitions, election precincts) and “public gatherings.”
State supreme courts upholding such measures (e.g., Andrews v. State, English v. State, State v. Shelby) as consistent with the right to bear arms.

Application to Times Square:

Times Square is the paradigmatic modern “crowded public forum”: hundreds of thousands of daily visitors, dense commerce, and frequent civic assemblies and demonstrations.
How and why: The law temporarily forecloses carry in a narrowly defined, congested area to prevent disorder and mass‑casualty risk—the same justification underlying historic bans in markets, fairs, and public assemblies.

Application to the Subway and Metro‑North:

Modern rail and subway travel postdates the Founding, but Bruen’s analogical method accommodates new technology. Confined, crowded cars are closely analogous to historically regulated enclosed assemblies (e.g., ballrooms).
The court takes judicial notice of contemporary ridership levels, underscoring density and confinement. Lack of Founding‑era transit laws is explained by technological absence, not by a constitutional prohibition on regulation.

Note: Although some 19th‑century private railroads forbade guns by company rule, the Second Circuit did not need to rely on private policies; the public tradition of restricting guns in crowded, enclosed spaces sufficed.

IV. Open Carry: Standing Corrected; Merits Fail

Standing. The district court erred in finding no standing. Plaintiffs plausibly alleged they refrain from open carry solely to avoid arrest and prosecution, satisfying pre‑enforcement standing under Holder and Steffel. Redressability is met even if an injunction would not eliminate all barriers (e.g., permit or revocation risks), because enjoining the specific criminal prohibition would alleviate at least some concrete risk (arrest/incarceration) and thereby reduce the chill.

Merits. Plaintiffs are nonetheless unlikely to succeed. Bruen and Heller recognize a robust tradition of “manner” regulation: jurisdictions may eliminate one mode of carry (open or concealed) if the other remains available for self‑defense. Nineteenth‑century statutes widely banned concealed carry, and courts repeatedly upheld those bans. New York’s inverse choice—prohibiting open carry while authorizing licensed concealed carry—burdens the right in a comparable way and for the same reasons (public peace and prevention of sudden violence), satisfying Bruen’s how and why inquiry. The Second Circuit also notes additional historical support for open‑carry restrictions emerging in the late 19th and early 20th centuries, though it did not need to rely on them at this stage.

V. New York City’s Supplemental Permit: Presumptively Constitutional and Historically Grounded

As to New York Penal Law § 400.00(6), the court treats shall‑issue licensing as presumptively constitutional under Bruen. Plaintiffs mounted a facial challenge but did not identify any problematic features (e.g., discretion, protracted delays, or exorbitant fees) that would overcome the presumption. A mere additional, nondiscretionary local permit requirement, even if it imposes a short wait, is a de minimis burden insufficient to show a constitutional violation in a facial, pre‑enforcement posture.

Independently, the court finds strong historical support for municipal or city‑specific regulation: 19th‑century statutes and ordinances frequently vested cities with authority to license, restrict, or even prohibit public carry within municipal limits, reflecting the “firearm localism” tradition—stricter gun rules in dense urban settings (e.g., Buffalo’s permit ordinances; New York City’s 19th‑century rules; municipal bans; territorial laws for settlements and towns).

VI. Procedural Posture and Standards

Standard of review: The denial of a preliminary injunction is reviewed for abuse of discretion, with legal errors and clearly erroneous factual findings corrected. The court may affirm on any ground supported by the record.
Heightened merits showing: Because plaintiffs sought to enjoin government action, they had to show a clear or substantial likelihood of success on the merits, not merely a “serious question.”
Scope of ruling: The court emphasizes that preliminary rulings do not resolve the ultimate constitutionality of the challenged provisions, which remains open for further historical development and adjudication on a full record.

Impact

Sensitive places clarified for modern cities: Times Square and mass transit are now strong Second Circuit exemplars of modern “sensitive places,” grounded in a centuries‑long tradition of restricting arms in crowded public forums and enclosed assemblies. Expect jurisdictions to cite Frey when defending transit and urban‑core sensitive‑place designations.
Open-carry bans likely safe if concealed carry remains: Frey reinforces that states may select one mode of carry to allow and prohibit the other, provided public carry is not eliminated. This will be influential where open‑carry restrictions are challenged in urbanized states that maintain concealed‑carry licensing.
Local supplemental permitting: The opinion validates layering a municipal shall‑issue permit on top of a state license—absent proof of discretion, delay, or fees that effectively chill carry—by tethering the practice to a deep tradition of stricter urban regulation.
Historical method consolidated: The Second Circuit doubles down on Antonyuk’s permission to draw from Reconstruction‑era statutes and state‑court decisions, especially when Founding‑era evidence is indeterminate. Litigants will need to grapple not only with 1791 sources but also with 1868‑era materials and post‑ratification practice.
Standing in pre-enforcement gun cases: Frey confirms that credible threat and self‑censorship to avoid prosecution suffice for standing, but plaintiffs still must show a strong likelihood of success to obtain preliminary relief.

Complex Concepts Simplified

Sensitive places: Locations where firearms may be restricted consistent with the Second Amendment, historically including schools, government buildings, polling places, and, by analogy, other crowded public forums where the risk of panic or violence is elevated.
Analogical reasoning under Bruen: Courts compare the modern law’s purpose and burden (how and why) to historical regulations. A close analogue—not an exact historical twin—suffices.
Manner-of-carry regulation: Laws that limit how one may carry (open vs. concealed). History reflects that jurisdictions could prohibit one mode so long as the other remained available for self‑defense.
Shall-issue vs. may-issue: Shall‑issue licensing is nondiscretionary—if you meet objective criteria, you get the permit. May‑issue regimes grant officials discretion (e.g., “proper cause”), which Bruen invalidated.
Municipal firearm localism: The longstanding practice of stricter urban gun regulation, reflected in 19th‑century statutes and ordinances authorizing city‑specific permits and prohibitions.
Constitutional liquidation: The idea that sustained post‑enactment practice and judicial acceptance can settle the meaning of ambiguous constitutional text, so long as it does not contradict the text or earlier settled understanding.
Pre-enforcement standing: A plaintiff need not break the law to sue; a credible threat of prosecution and self‑censorship to avoid it can establish injury.

Practical Takeaways

For governments: Build a robust historical record emphasizing why and how modern sensitive‑place and manner‑of‑carry regulations fit analogically with historic restrictions, including Reconstruction‑era statutes and state‑court decisions. Document congestion and confinement with empirical data (ridership, crowd counts).
For litigants challenging permits: Identify and evidence concrete defects (e.g., discretionary criteria, prolonged processing times, or fees) to overcome the presumptive constitutionality of shall‑issue frameworks. Facial challenges are particularly difficult; as‑applied claims with specific facts may fare better.
For transit agencies and urban regulators: Frey supports designating high‑density, confined spaces as sensitive places when supported by historical analogues and contemporary safety justifications. Clear signage and narrowly drawn geographic definitions, like New York’s delineation of Times Square, bolster notice and fit.
For courts: Frey offers a structured approach to modern‑technology gaps in the historical record, applying Bruen’s analogical method without demanding one‑to‑one Founding‑era matches.

Conclusion

Frey v. City of New York is a significant consolidation of post‑Bruen Second Amendment doctrine in the Second Circuit. It establishes that:

Times Square and public transit qualify as modern “sensitive places,” grounded in a deep historical tradition of restricting arms in crowded public fora and enclosed assemblies.
Open‑carry bans are likely constitutional where licensed concealed carry remains available, consistent with longstanding manner‑of‑carry regulation.
City‑specific, shall‑issue supplemental permits are presumptively constitutional and historically supported by a tradition of stricter urban firearms regulation.

Methodologically, the decision affirms the centrality of analogical reasoning, the relevance of Reconstruction‑era statutes and judicial decisions, and Madisonian liquidation when Founding‑era evidence is uncertain. Doctrinally, it supplies a practical blueprint for evaluating modern, urban gun regulations without freezing the law “in amber.” While the ultimate merits await full development, Frey marks a watershed for urban-sensitive‑place jurisprudence, manner‑of‑carry regulation, and municipal permitting in the Second Circuit and beyond.