Second Circuit Upholds New York’s Ban on Guns in Times Square and the Subway

“Sensitive places” restrictions on guns—laws that prohibit everyone, including concealed-carry permit holders, from entering specific places while armed—have been a key target of gun-rights litigants since the Supreme Court upended Second Amendment doctrine in New York State Rifle & Pistol Ass’n v. Bruen. In the first two years after Bruen, many of those sensitive places challenges succeeded in front of district court judges. But once those cases reached the courts of appeals—and especially after the Court announced in United States v. Rahimi that some lower courts had been taking Bruen too far—the tide turned in favor of those restrictions.

A recent Second Circuit decision, Frey v. City of New York, is emblematic of the current approach. It relied on a robust historical tradition of banning firearms in “quintessentially crowded” public places to reject challenges to gun bans in two iconic (if not always beloved) features of our city: Times Square and the subway. 

In Bruen, the Supreme Court struck down the approach to licensing concealed-carry permit holders that New York had used for almost a century. Faced with the possibility that far more people would be carrying in public under the more lenient standard for granting permits the Second Amendment now required, New York moved quickly to identify places where nobody should carry guns—places whose nature or uses made the presence of guns a particular risk. The Concealed Carry Improvement Act generally prohibited guns from, among other places, “subway cars” and “the area commonly known as Times Square.” N.Y. Penal L. § 265.01-e(2)(n), (t).

This effort was well-grounded in Second Amendment law. Ever since District of Columbia v. Heller, the decision that first recognized an individual right to arms unconnected to militia service, the Supreme Court has made clear that it cast no doubt on laws prohibiting guns in “sensitive places like schools and government buildings.” Then, in Bruen, the Court added courthouses, legislative assemblies, and polling places to the list of places in which historical tradition supports banning guns.

Times Square, of course, is not a government building, and the subway is not a polling place. So the question the courts confronted in Frey was whether the government could justify its restriction either by analogy to any of the places the Supreme Court discussed, or by analogy to other strands of historical place-based restrictions. The plaintiffs, who also challenged New York’s open-carry law, the requirement for a City-specific carry license, and the application of the public transit ban to MetroNorth, sought a preliminary injunction. Judge Román in the Southern District concluded that the government likely would succeed in showing that its laws were consistent with history and denied the plaintiffs’ motion, and their appeal landed in front of Judges Raggi, Bianco, and Sack.

Judge Bianco wrote the opinion for a unanimous panel. He concluded that New York is likely to prevail in defending its location restrictions in light of the well-established tradition, identified in an earlier circuit decision, of “regulating firearms in public forums and quintessentially crowded places, enduring from medieval England to Reconstruction America and beyond.” Upholding restrictions in Times Square and on the subway was “straightforward” under that principle. Times Square is “our modern-day, electrified, supersized equivalent of fairs, markets, and town squares of old,” and it “serves as a civic commons where thousands gather to exercise their fundamental democratic and First Amendment rights—to speak, demonstrate, and protest.” Our subway is “the place where millions of diverse New Yorkers and visitors stand elbow to elbow as they traverse the metropolis,” and once the train doors close, “riders are sealed within the slender metal tube.”

Judge Bianco’s evocative descriptions of Times Square and the New York City subway reflect the power these two places hold in our imaginations. They were on the Justices’ minds during oral argument in Bruen, too. Justice Kagan asked whether it would be permissible for the state to ban guns on New York City subways; Justice Alito speculated about illegal guns there. Justice Barrett asked about Times Square on New Year’s Eve. The lawyer for the individuals challenging New York’s law appeared well aware of the force these examples held, saying “I suppose I could give away the subway” on behalf of his clients because they lived in Rensselaer County, not Manhattan, and suggesting that prohibiting guns from Times Square on New Year’s Eve could be a reasonable time, place, and manner restriction.

Even as the Justices have already started thinking about these questions, it seems they will not be asked to resolve them imminently. In October, the Frey plaintiffs told the district court they did not plan to appeal the Second Circuit’s decision further, and their time to petition for certiorari expired in mid-December. But if and when the issues do reach the high court, Judge Bianco’s opinion will provide a compelling road map.

Eric Tirschwell is the Executive Director of Everytown Law, the litigation arm of Everytown for Gun Safety Support Fund. Janet Carter is the Managing Director of Second Amendment Litigation at Everytown Law.  Everytown for Gun Safety filed an amicus brief in support of the government in Frey v. City of New York.

Reprinted with permission from the January 13, 2026 issue of the New York Law Journal. © 2026 ALM Global Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-256-2472 or asset-and-logo-licensing@alm.com.