The decision, by the riders of the Second United States Circuit, to continue an injunction blocking enforcement of a city anti-graffiti law bodes ill for those seeking an attractive city. The ordinance would make it illegal for 18- to 20-year-olds to carry cans of spray paint through the streets. The appeals court panel agreed with the district judge in the case, George Daniels, that the vandals are likely to prevail on the merits once their case receives a full hearing and that enforcing the statute in the meantime would constitute a violation of their First Amendment rights.

Judge Daniels argued in his ruling granting the injunction that the city’s law is unfair to legitimate artists who might need to tote around cans of spray paint for use in entirely legal projects. The example often cited of late has been that of possible art students on their way to a class. That would constitute an unreasonable abridgment of their First Amendment rights to free artistic expression. We’d take that logic if Judge Daniels would extend it to the Second Amendment so as to protect law abiding New Yorkers who want to keep and bear arms.

The judge suggested that the courts ultimately will look askance at the statistics used by the city to argue that young adults between the ages of 18 and 20 pose a particular threat as far as graffiti is concerned. As a result, the judge essentially predicted that the law is likely to run afoul of the Fourteenth Amendment’s equal protection clause, which requires the government to have a “reasonable basis” for “discriminating” between groups.

Put it all together and you get exactly the same sort of judicial activism that popped up the last time a city graffiti control effort landed in the federal courthouse. In August 2005, Judge Jed Rakoff ruled that the city couldn’t block a graffiti demonstration held in a taxpayer-maintained public street. We noted at the time that the ruling was an affront to the idea that the taxpayers, through their elected representatives, deserve to have some say when someone proposes using public space to promote vandalism.

This time around, the courts appear willing to step even harder on the toes of the elected branches. The equal protection analysis in Judge Daniels’s ruling hinges on the judge’s own interpretation of statistics and the judge’s own weighing of the interests of a indeterminate, but probably small, contingent of “art students” versus the interest of all ordinary New Yorkers in living in a clean city. That sounds like a discussion more suited to the City Council chamber than a courtroom.