The Firearms Policy Coalition filed Goldberger v. James, No. 7:2026cv02325 (S.D.N.Y.), on March 20, 2026, directly challenging New York Penal Law §265.01-e(2)(t) — the CCIA provision that designates Times Square a “sensitive location” and makes carrying there a felony even for licensed gun owners. Lead plaintiff Yehuda Goldberger holds valid concealed-carry licenses from both New York City and Rockland County and regularly travels through Times Square for work. Defendants include Attorney General Letitia James and Manhattan District Attorney Alvin Bragg. My read is this case has real potential to reach the Supreme Court.
A Gun-Free Zone That Anyone Can Walk Into
The complaint opens with a statement that cuts to the heart of the matter:
“The Constitution guarantees the right of the people to keep and bear arms when the people enshrined in their governing charter the right to carry weapons in case of confrontation. They did not leave the freedom to exercise that right at the mercy of very government officials whose hands they sought to bind. Instead, the right to keep and bear arms ranks among the most fundamental rights necessary to our system of ordered liberty. And the Second Amendment demands that certain policy choices are definitely off the table.”
My argument on this point is straightforward: a place that any person — including armed criminals — can freely enter cannot qualify as a genuine sensitive location under Bruen. New York labeled Times Square sensitive. It did nothing to make it actually secure. Labels are not the Second Amendment standard.
What Bruen Actually Said About Sensitive Places
In New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022), Justice Clarence Thomas, writing for a 6–3 majority, confirmed that legislative chambers, courthouses, and polling places were the historically recognized sensitive places at the founding. And the Court was explicit about Manhattan:
“There is no historical basis for New York to effectively declare the island of Manhattan a sensitive place simply because it is crowded and protected generally by the New York City Police Department.”
New York, undeterred, promptly enacted the CCIA on July 1, 2022, and did exactly the next worst thing — it declared a massive swath of central Manhattan, Times Square, a sensitive location on that same rejected reasoning. Governor Kathy Hochul called an emergency legislative session within days of the Bruen ruling to pass these restrictions, precisely as I predicted anti-gun forces would do months before the decision came down.
The Founding-Era Security Test
The Goldberger complaint articulates the historical principle that I have been arguing for years: what unified founding-era sensitive places was not a posted sign but real, government-provided security that actually worked.
The Judiciary Act of 1789 (1 Stat. 73) is the clearest proof. Congress created the federal court system and simultaneously created the United States Marshals Service — because courts needed armed protection. Founding-era polling places had sheriffs and deputies at the door. Legislative chambers had a sergeant-at-arms. All three had limited points of entry, armed officers, and the practical capacity to prevent weapons from getting in.
The complaint puts it well:
“The historical principle uniting the places that Bruen assumed were sensitive at the founding — courthouses, legislatures, and polling places — was the presence of security that actually functioned to prevent individuals from carrying firearms. No place where legislators banned firearms contemporaneous with their founding lacked such security and where they wanted to protect a location and could not provide security. Their solution was not to erect a useless paper barrier or metal sign that would never stop an armed criminal intent on violence, but rather to oblige law-abiding citizens to carry firearms for everyone’s protection.”
Times Square has none of this. No metal detectors. No limited entry points. No security cordon. The NYPD patrols the perimeter, but any criminal can walk right in. Under the Bruen test, the government bears the burden to demonstrate a historical tradition supporting its regulation. General police presence does not meet that burden.
Justice Thomas, Marbled Halls, and the Two-Tiered Republic
The complaint quotes Justice Thomas’s “marbled halls” language — first articulated in his dissent from the denial of certiorari in Peruta v. California, 582 U.S. 938 (2017), and echoed throughout Bruen:
“This makes a mockery of the Supreme Court’s holding in Bruen, which reaffirmed that personal security extends to more than just those who work in marbled halls guarded constantly by a vigilant and dedicated police force.”
That is exactly the two-tiered republic I find intolerable. Politicians and their security details live under one set of rules. Ordinary law-abiding Americans — including licensed carriers who simply need to cross through Midtown, where the Times Square zone is wide enough that a west-to-east trip often passes through it — face felony charges for exercising a constitutional right.
The complaint also cites my own Pepperdine Law Review article on Cesare Beccaria and his influence on the Founders, in support of its sensitive-places argument: the founding generation understood that disarming the law-abiding while criminals walk free is not security policy — it is victim creation.
What Comes Next
The ball is rolling in the Southern District of New York. Bruen already rejected by name the “crowded and policed” rationale for sensitive-place designations. Applying that to Times Square — crowded, policed, and nothing else — is the logical next step. We will keep you updated as Goldberger v. James develops.
This article is based on analysis by Professor Mark W. Smith, constitutional attorney and Host of the Four Boxes Diner 2nd Amendment channel. Watch the original video here. This does not constitute legal advice.