Key Questions for New York and New Jersey Businesses Following Court's Gun Decision

​On June 23, the U.S. Supreme Court recognized a constitutional right for citizens to carry a firearm outside the home for self-defense. The opinion invalidates the licensing regimes for carry permits in California, Hawaii, Maryland, Massachusetts, New Jersey, New York and the District of Columbia.

Although New York and New Jersey each allow for licenses to carry, they were previously limited to those who could show some extraordinary need, and therefore not available to the average citizen.

In New York Rifle & Pistol Assn. v. Bruen, the Supreme Court held that such restrictions are unconstitutional and that law-abiding citizens have a right to carry a gun for self-defense purposes.

This means that, for the first time since the early and mid-20th century, respectively, residents of New York and New Jersey will be permitted to carry firearms in public.

State legislatures are already considering revised laws. But that will take time, and business owners must prepare now to address the issues to be faced by employees and customers who will seek to carry a weapon onto the business' property.

While legislation may eventually resolve some issues, others may not be answered by specific laws. Companies should carefully consider their own policies. To that end, below are the most pressing questions companies in New York and New Jersey will face in the immediate aftermath of Bruen.

Will Residents Be Permitted to Carry Firearms Right Away?

No, residents will not be permitted to begin carrying firearms right away.

Both New York and New Jersey have separate licenses and licensing procedures for owning and carrying firearms. Those with existing licenses to own a firearm must still obtain a license to carry a firearm. Bruen only invalidates the requirement that applicants must show a special need and obtain discretionary approval from a licensing official. Any remaining application requirements (i.e., background checks, letters or affidavits of good character, proficiency certifications, etc.) must still be met by an applicant. Both states have issued statements that these requirements and procedures remain in place.

In addition, the penalties for carrying an unlicensed firearm are severe and may result in the imposition of mandatory minimum sentences of at least three years in both jurisdictions.

Nearly everyone that will seek to carry a firearm in New York and New Jersey will still have to undergo the licensing process. This will likely take several months to complete, depending on the locality.

Will Residents Be Permitted to Carry Openly, Concealed or Both?

New York does not permit open carry. A New York resident seeking to carry a handgun outside of his or her home may only apply for a license to carry concealed.

New Jersey makes no distinction between open carry and concealed carry once a carry license is issued. That means that New Jersey license holders may be permitted to carry openly once they obtain a license.

Will Businesses Be Permitted to Ban Firearms from Their Establishments?

Yes, private property owners, including businesses open to the public, will have the right to ban firearms from their property. The Second Amendment prohibits only governmental restrictions on firearms. Private property owners, including businesses, may ban firearms on their property.

Businesses seeking to ban firearms on their property should post a sign indicating as such. Some states have statutory requirements for such signage, but it remains to be seen whether similar laws will be passed in New York and New Jersey.

If a business bans firearms, it should consider what measures it will take to enforce that ban and provide employees with clear instructions on how to proceed should someone bring a firearm onto the premises.

Will Employers Be Able to Prevent Employees from Bringing Firearms to Work?

Yes. In all states, employers have the right to ban firearms from the workplace. This extends to the parking lot, provided the parking lot is owned by the business.

While some states have passed laws that restrict an employer's ability to ban guns in the parking lot, it is unlikely that such a law would be passed in New York or New Jersey in the near future.

Will Companies Be Liable for Harm Caused by Armed Employees and Customers?

Possibly. Some states have statutory liability shields, but no such law exists yet in New York or New Jersey. Whether or not a business is liable for injury caused by an armed customer is going to be a matter of tort common law.

In other jurisdictions, theories imposing liability have been advanced whether businesses ban guns from the property or not. On the one hand, permitting weapons on the premises carries the obvious risk of injury to another. On the other hand, some plaintiffs' attorneys have advanced a theory that a business has liability where it has deprived a person of his or her lawful weapon and where that person is injured by another on the property. Further considerations concerning employee health and safety also need to be considered.

Businesses should undertake a careful analysis of their own policies, the risks, the current states of local tort law, federal health and safety laws, and their own personal preferences.

What Should Businesses Do Now?

The above are just a few of the issues that require careful consideration by companies and business owners operating in New York and New Jersey, and much still remains to be determined by new laws and the courts.

Businesses can go a long way to protecting themselves, their employees and their customers by considering the issues carefully and adopting clear, written policies that can guide management and employees. Such policies should address, at a minimum, the company's position on guns on the premises, procedures for reporting unsafe situations, emergency procedures and procedures for enforcing the policies.

Melissa S. Geller and Justin Joseph D'Elia are lawyers with Duane Morris in New York City. © 2022. All rights reserved. Reprinted with permission.