US Court Of Appeals Upholds NY State Handgun Restrictions

You know the District of Columbia v. Heller decision? The one that overturned D.C.’s handgun ban? Well the Second Circuit US Court of Appeals just peered into it, rooted around a little and found emanations and penumbras of just the right color and intensity such that it was able to determine that New York’s restrictive handgun laws – effectively limiting handguns to home defense only – are constitutional. “‘I’m not surprised—I’ve never seen the Second Circuit come out with a bold decision,’ (attorney and plaintiff Alan) Kachalsky said. ‘It’s a ridiculous interpretation of the Second Amendment.'” . . .

(Kachalsky) added, “Nowhere in the Second Amendment does it mention the word ‘home.’ To say that you have the right to defend yourself in your home and nowhere else is just a misrepresentation of the Second Amendment as written by the Founding Fathers.”

Kachalsky was one of four plaintiffs in the suit who were denied carry licenses, reports ctlawtribune.com. And pro-gun ace litigator Alan Gura represented the plaintiffs.  The Second Amendment Foundation wanted to weigh in as well, but was dismissed from the case for lack of standing.

The state’s stance: based on Heller, the right to a handgun doesn’t extend outside the home. So if you actually want to carry your heater out in the world, you have show you have a “proper cause.” And just wanting to protect yourself ain’t good enough.

And Judge Richard Wesley is just fine with that. He wrote that New York’s gun-rights gagging laws are worth examining since they “(place) substantial limits in the ability of law-abiding citizens to possess firearms for self-defense in public.” And that under Heller, it’s not really really clear what right exists to have a gun outside the home. But as far as he sees it, the state’s interest in promoting public safety and crime prevention trumps all that.

Surprise! This isn’t the end of the matter. The losing plaintiffs vowed to file a writ of certiorari. That means they’ll ask the Supremes (the court, not the aging Motown veterans) to hear the case. Speaking of aging, given the election results and the slim margins in the Heller and McDonald decisions, gun owners need to hope that Justices Roberts, Scalia, Kennedy Thomas and Alito stay healthy. For another four years.

comments

  1. avatar flboots says:

    I guess all the Mafia in NYC have proper cause.

    1. avatar tdiinva says:

      Of course they do. You never know when the Godfather might get pissed at you!

  2. avatar Martin Albright says:

    IIRC the question presented to the court in Heller was the petitioner’s right to have a handgun in his home. Since that was the limit of the question, that was the limit of the decision. I can’t remember if McDonald was only about a gun in the home or not, but in any case since Heller was the case that dealt with Federal jurisdiction (DC), McDonald would be more on point anyway.

    1. avatar Ralph says:

      McDonald was a home defense case also. Neither case applied to carrying in public. SCOTUS properly limited its holding to the actual cases it was adjudicating.

  3. avatar Flubnut says:

    So is there any burden of proof tied to “promoting public safety and crime prevention”? Or does only the intent matter, not any actual verifiable cause/effect?

    Here in IL, the LED tollway signs have been flashing “8xx traffic deaths this year” for at least the past week. That is substantially more than Chicago’s (record-breaking) murder rate this year. I suppose, to “promote public safety” around here, they should hurry up and ban driving.

    Logic…such a quaint concept…

    1. avatar In Memphis says:

      The electronic traffic signs here in Memphis do the same thing year round. I think statewide we are up to 7,000 roadway deaths this year.

      1. avatar In Memphis says:

        Im sorry, I have no idea where I pilled that number from.

        Tennessee Roadway Fatalities for 2012 is currently 914

    2. avatar Mr. Grimm says:

      Of course its intent that matters. [/sarcasm]

      The left tends to prefer symbols that give them the warms fuzzies to any action that might actually address the problems they claim to fight against. ‘Cuz, you know, if they actually solved a problem and the lobby related to it vanished who would keep paying for shiny new cars and fancy dinners with Congressmen?

    3. avatar Ralph says:

      So is there any burden of proof tied to “promoting public safety and crime prevention”?

      No, not under the standard applied by the court. The court held that the regulations are substantially related to a compelling governmental interest. Once that had been established, the court would not and should not second guess the legislature.

      Had SCOTUS ruled in Heller and McDonald that carrying a gun outside the home was a fundamental right, then NY’s registration scheme probably would have been struck down. But Heller and McDonald were strictly home defense cases.

      1. avatar Anon in CT says:

        True story – a family friend just got appointed to the bench in Westchester County. First thing the senior judge told her when she was sworn in: go apply for your concealed carry permit. So the judges can carry guns, so really it’s all good. And those peasants are just revolting.

        1. avatar AaronW says:

          I’m going shooting down in da Bronx later on this evening. The most pro-gun Westchester judge is on my shooting team. Good guy…

        2. avatar Ralph says:

          AaronW, I used to shoot in The Bronx when I lived there a long time ago.

          Never at a range though . . . .

      2. avatar uncommon_sense says:

        “The court held that the regulations are substantially related to a compelling governmental interest [public safety].”

        And how about the even more compelling government interest of protecting individual rights — like the right to own and possess simple objects (property) of one’s choosing, or the right to be able to defend one’s life?!?!?!?

        The government meme of “safety” trumping everything grinds me to know end. Neither our Declaration of Independence nor our Constitution nor our Bill of Rights mentions the term “public safety”.

  4. avatar Dirk Diggler says:

    and since the 4th Circuit just came to a different conclusion about Maryland’s “good cause” standard, folks, we have a circuit split and the supremes may want to take this up to clarify Justice Scalia’s dicta regarding possible “limits” on the 2nd Amendment. And now that the election is over, no political worries to come down really hard

    1. avatar Armchair Command'oh says:

      The 4th Circuit case is still pending. The trial court found the “good cause” requirement unconstitutional, and Maryland appealed. Oral argument was heard in late October.

      Hopefully, we’ll get a decision before too long.

    2. avatar Ralph says:

      The only way that SCOTUS will take on another 2A case in the next decade will be if there’s a split in the Circuits. Otherwise, SCOTUS wants the legislatures to handle these kind of problems. State and local legislative bodies are actually elected, while SCOTUS Justices are appointed. Any good court defers to elected officials, except when it can’t.

    3. avatar Totenglocke says:

      Oh, I’m sure John “The Anti-Constitution SOB” Roberts will be happy to sell out our Second Amendment rights as well. If ever there was a man in need of a good tar and feathering (and then being drawn and quartered), it’s SCOTUS Justice John Roberts.

  5. avatar ST says:

    Before the Heller verdict , residents of state’s without a 2nd Amendment in their state constitution were effectively denied the RKBA. Once the verdict came out , everyone nationwide now had the right to keep and bear arms-at home.

    The trillion dollar question is whether that applies outside the home. The pro gun side argues that the 2nd Amendment applies in public just like the other ones do. After all, your right to avoid self-incrimination doesn’t end when you walk out your front door.

    The other side argues that the Government has a duty to ensure public safety which supersedes individual civil rights, and as such has the duty to regulate carry in the public domain.

    While I have the utmost faith in Alan Gura and company, the High Court will likely pick Door #2. It upsets the least number of sheeple, preserves the status quo of certain states being permissive and others being obstructionist, and the bigwigs in D.C., NYC, and Chicago won’t crap a brick. Either they’ll rule that the 2nd Amendment is secondary to public safety concerns, or that the topic of concealed carry is a state’s rights issue which is beyond the scope of Federal discussion. Bottom line, if NYC residents and others want to legally carry they’ll need a Uhaul truck and a map.

  6. avatar Dave says:

    Don’t you realize that the politicians in NYS, and especially NYC, who abridged your constitutional rights did it with your best interests in mind? Where’s your gratitude? Now go eat something healthy!

    1. avatar In Memphis says:

      “Go eat something healthy!”

      Haha. On the cold day in hell when NYC politicians turn pro gun and pro choice, my next road trip home (CT) will include a stop at a NYC resturaunt. I will get the most greasiest disghusting thing on the menu with the largest soft drink. Then I will sit out in public, perhaps at the Statue of LIBERTY and eat with my Glock 23 openly displayed.

      Thats wishful thinking.

    2. avatar WLCE says:

      you better shut up and do what youre told!
      how dare you question your appointed representatives!

  7. avatar Unknown Prosecutor says:

    I have a dream that Kagan makes the next 2A case 6-3…

  8. avatar Lance says:

    Another Supreme Court case coming?????

  9. avatar Tommy Knocker says:

    Roberts???? Do you actually think that Roberts is on the side of goodness and light? You have got to be kidding DZ ! If you believe that the Chief is a “reliable” vote on 2A, after what he did with Obamacare you must be living in an alternate universe.

    1. avatar Gs650g says:

      Please try and explain how Roberts view on obamacare translates to him siding with the other four on guns next time around?
      You’re obviously pissed he didn’t vote the way you thought he should, and I agree it was shitty to do so, but nothing in his history indicates he is about to scuttle the 2nd

      1. avatar Tommy Knocker says:

        I would say that a reasonable view of it is as follows: Roberts shocked even his colleagues in his radical change of opinion from what was expected. Hence he is not to be trusted in maintaining an opinion on 2A that is conservative or of plain understanding of the Constitution.

  10. avatar Average_Casey says:

    Where in the Constitution does it say that the rights can be denied to individuals for the purposes of public safety? IT DOESN’T. This is just more ideological bull crap that should go away. People bitch about voter ID but allow this garbage to continue, what hypocrites.

  11. avatar Mark N. says:

    Can rights be limited outside the home? Heller says that they can–and further held that “longstanding” laws such as CCW restrictions are presumptively lawful. Kind of a sliding scale– rights are at their highest inside the home (or business), and then less so outside the home until we et to the least in specially sensitive places like government buildings, schools, jails, and so forth. So even if srict scrutiny is available for home possession, intermediate scrutiny applies outside the home, thus giving rise to consideration of the public interest. The “rule” under intermediate scrutiny is whether the regulation imposes a “substantial burden” on the exercise of the right. And in reviewing the oral arguments, one is struck by the court’s interest in determining whether the CCW restrictions were a complete ban (such as in Illinois), infering that anything less than a complete ban is constitutionally permissible. And the CCW law in NY is not such a complete ban–it merely requires that a public official exercise his discretion favorably to your request to carry concealed. The Court supported its position with the fact that concealed carry laws have been around for a long time and are therefore presumptively lawful, and that the balancing of public safety concerns and private rights concerns was properly the subject of legislative, not judicial, rule making. Under these circumstances, it concluded, the restrictins on concealed carry were not a “subsantial burden” on the right to keep and bear arms.

    The conveniently ignored the fact that NY also completely bans open carrying (with some limited exceptions). Has they done so, they would have been forced to concede that their construction would mean that the right to keep and bear arms outside the home was not a right but a discretionary license issued by the State to persons showing “good cause.”

    The real concern with this case is how this decision will influence the 9th Circuit, which has scheduled oral argument in a number of cases challenging the California “good cause” requirement for December 6. (Richards, Peruta, etc and tag along cases like Birdt). These cases also raise the issue as to what constitutes “good cause,” a determination that is subject to huge variations between different counties, anywhere from self defense to massively documented threats or exposure to crime. Interstingly, the only public policy basis for limits on CCW have been the belief that “more guns equals more crime,” a proposition for which there is no documented study or evidence.

    1. avatar Totenglocke says:

      The real concern with this case is how this decision will influence the 9th Circuit, which has scheduled oral argument in a number of cases challenging the California “good cause” requirement for December 6.

      You know, just how you can get a criminal trial moved to another location due to biased conditions where the event occurred, I think we need to allow lawsuits on State laws the same right to get a fair trial. We all know how judges in anti-gun states will rule, and we also know it’s not going to follow the Constitution.

      1. avatar Mark N. says:

        The federal court is supposed to be that unbased forum. Practically it does not work that way, since judgeships are political appointments, and the appointees are drawn from the local legal population in any given area. Maybe we need more circuit riding judges as there used to be.

  12. avatar Mr. Pierogie says:

    You want to know what ‘proper cause’ in NY means? It’s the same as ‘justifiable need’ here in NJ, which means it’s pretty much impossible to get a carry permit. The SAF has a case like this in NJ, so I expect to see the same verdict.

    And these anti-gunners have the nerve to demand a compromise….

    1. avatar Ralph says:

      “Proper cause” means being a rich white guy, a major campaign contributor or an actor.

      1. avatar JOE MATAFOME says:

        Ralph’s right on target. I was able to get permits to carry in 38 states before I applied for my home state permit. I was lucky enough to show that I had “proper cause or need” and they gave me a permit. The people I dealt with at the AG’s office were actually very nice and helpful, so I can’t complain.

    2. avatar Sanchanim says:

      Same falls under California law too. Although there are some counties which has gone shall issue for the most part. Those are rural areas only, and not major cities.
      Then again I wouldn’t expect anything less from NYC.

  13. avatar Tom RKBA says:

    This whole mixing of Federal and state rules is killing us.

    The Federal Second Amendment should be honored in Federal territory. We should be able to carry without a license when we go to the museum or the theatre in DC. We could do this for over a century, why the “sudden” change? Now we’re stuck with guns only in the home. Why aren’t we DEMANDING our right to keep and bear arms in Federal territory?

    1. avatar Hinshelworld says:

      DC is not federal territory… Certain parts, like the capitol and white house grounds are, but the rest of the city is not.

      1. avatar Tom RKBA says:

        Okay…then what is it? Which constitution rules it?

        1. avatar Hinshelworld says:

          It is neither federal nor does it fall under any state… It has it’s own laws and city government. It is like a state in many legal aspects but lacking representation in congress.

  14. avatar New York Stagehand says:

    Everybody keep in mind that the history of NYS gun laws is founded on selective disarmament. The intent of the legislature was to give Big Tim Sullivan exactly what he wanted: a way to legally disarm his opponent’s forces. This actually led to opposition party members having their “rally suit” pockets sewn shut so they couldn’t be “found with an illegal pistol” at the convenience of the NYPD at political events. While their are counties upstate that are basically shall issue, NYC is “King’s Largesse.” It has been a mess for a hundred years: http://en.wikipedia.org/wiki/Sullivan_Law

  15. avatar tjlarson2k says:

    Has there been at least one of the following in the last 24 hours in NY?

    1. Murder
    2. Rape
    3. Assault

    If you said “yes” to any of those, that’s a valid enough reason to carry judge.

  16. avatar pat says:

    Carry anyway. Better judged by twelve than carried by six.

  17. avatar AmbulanceMonkee says:

    I have a pistol permit issued in an upstate NY county. I just visited NC and carried on a non-resident permit I have from another state. I had far more restrictions on where I could carry in NC that I have in NY. Yes, it’s a pain in the ass to get a permit in NY. However, there are a number of upstate counties that issue unconditional carry permits. With those permits, the only places off limits to carry are post offices, government buildings and schools. Take it easy on NY.

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