The U.S. Court of Appeals for the Second Circuit just struck down New York’s “vampire rule” private-property carry default in Christian v. James, Nos. 24-2847 & 25-384 (2d Cir. May 18, 2026). This is a genuine win under the Concealed Carry Improvement Act (CCIA). But the majority got the public-parks question badly wrong, and a blistering concurrence/dissent by Judge Steven J. Menashi — a former clerk to Justice Samuel A. Alito, Jr. — just gave the Supreme Court a roadmap for fixing it.
The Vampire Rule Is Dead in New York
The CCIA’s private-property provision, N.Y. Penal Law § 265.01-d, worked like this: even with a valid concealed-carry permit, you could not enter any place open to the public — grocery store, gas station, church — unless the owner posted conspicuous signage permitting guns or gave individual consent. The Second Circuit had previously estimated this provision covered over 91% of New York State’s land area. That is not a minor restriction; it is a near-total evisceration of the right to carry outside the home.
The three-judge panel, composed of Judges Bianco, Menashi, and Lee, unanimously struck down this provision. Judge Menashi explained the constitutional defect cleanly in his concurrence:
The Second Amendment presumptively guarantees a right to bear arms in public for self-defense. The New York law reverses that presumption by creating a default rule that a person may not carry a gun on private property — even property open to the public — unless the owner has conspicuous signage indicating that carrying is permitted or has otherwise given express consent.
That is exactly right. The Constitution is not a permission slip — the presumption runs in favor of liberty. New York had it backwards, and the court said so. Congratulations to Brett Christian, the Second Amendment Foundation, and the Firearms Policy Coalition.
Why the Decision Came Now — and What It Means for Wolford
The timing is no accident. Wolford v. Lopez, No. 24-1046, is pending at the Supreme Court after argument on January 20, 2026, presenting the identical vampire-rule question under Hawaii law. A decision is expected within weeks. So why didn’t the Second Circuit wait?
Part of the answer involves Judge Menashi. There is active discussion about Supreme Court vacancies, and Menashi is on the shortlist. Writing a careful, influential concurrence/dissent in a major Second Amendment case right now sends a clear signal — and this opinion demonstrates exactly why his name belongs on any serious list.
More practically, the Christian ruling hands the Justices additional analytical ammunition as they finish drafting Wolford. When I evaluate any significant ruling, I ask two questions: who wins, and how do they win. The how matters enormously for future precedent. Menashi’s language on the presumption of carrying is the kind of framing the Supreme Court may well lift directly into the Wolford majority.
Where the Majority Went Wrong on Public Parks
Here is where my frustration boils over. The two-judge majority in Christian also considered New York’s public-parks provision, N.Y. Penal Law § 265.01-e, which makes carrying in public parks a Class E felony. The majority upheld it as facially constitutional. They are wrong on two independent grounds.
First: the wrong time period. I have been arguing for years — including in my article “Attention Originalists: The Second Amendment Was Adopted in 1791, Not 1868,” published in the Harvard Journal of Law & Public Policy Per Curiam 31 (2023) — that 1791 is the correct anchor for Bruen analysis. The majority acknowledges the debate, then embraces 19th-century history anyway. That is wrong. The anti-gun movement gravitates to post-Civil War history because that is when Southern states enacted the Black Codes and Jim Crow laws to disarm freed African Americans. There are zero bans on guns in public parks in the 18th century. The shot heard round the world was fired on Lexington Green — a public park, in 1775, with armed men. Boston Common existed and nobody banned guns there.
Judge Menashi’s dissent rightly notes that the late-19th-century urban park regulations were a broader cultural deviation — those same ordinances banned swearing, Bible distribution, and music in parks, driven by a “romanticism” movement. That is a divergence from founding-era tradition, not a continuation of it.
Second: the botched facial-challenge analysis. The majority concedes a historical tradition supports gun bans in urban parks but not rural parks, then upholds the law as applied to urban parks. That is not how facial challenges work. The statute does not say “urban parks.” It says “parks.” You evaluate the law as written.
In City of Los Angeles v. Patel, 576 U.S. 409 (2015), the Supreme Court cited District of Columbia v. Heller, 554 U.S. 570 (2008), as a textbook example of a successful facial challenge. Heller acknowledged permissible gun regulations — felon bans, sensitive places, automatic weapons — yet still struck down D.C.’s handgun ban on its face because those carve-outs were not elements of the crime. The same logic applies here. A New York prosecutor charging someone under the parks provision need not prove the defendant was in an urban park. The statute says park. It falls facially.
Menashi’s Dissent as a Supreme Court Magnet
The good news is that Judge Menashi got this right, and his dissent is going to matter. He clerked for Justice Alito. His analytical rigor is well understood inside the Court. Concurrences and dissents by respected circuit judges are one of the primary signals the Justices use when selecting cases for certiorari.
The parks question will eventually reach the Supreme Court, and Menashi’s dissent in Christian v. James will be the foundational document in that cert petition. The majority’s errors on the historical time period and the facial-challenge doctrine are exactly the kind of clearly wrong reasoning that invites the Justices to step in and clean up the sensitive-places doctrine.
The vampire rule is finished in New York. The parks fight continues — and I like our odds.
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.