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N.Y.'s Concealed Gun Licensing Scheme Is Upheld by Circuit
New York Law Journal
The requirement in New York's handgun licensing scheme that a person have "proper cause" to get a license to carry a concealed handgun in public does not violate the U.S. Constitution's Second Amendment, the U.S. Court of Appeals for the Second Circuit ruled yesterday.
A three-judge panel rejected the appeal of four plaintiffs who sought a declaratory judgment that the requirement violated the Constitution, with the circuit finding that "the proper cause requirement is substantially related to New York's compelling interests in public safety and crime prevention."
The decision in Kachalsky v. County of Westchester, 11-3942, was made by Judges Robert Katzmann (See Profile), Richard Wesley (See Profile) and Gerard Lynch (See Profile) following oral arguments on Aug. 22. Wesley wrote the 49-page opinion upholding a 2011 grant of summary judgment to Westchester County by Southern District Judge Cathy Seibel (See Profile) (NYLJ Sept. 8, 2011).
Wesley discussed New York state's long history of regulating firearms, including the 1911 Sullivan Law, which made it unlawful for any person to possess without a license "any pistol, revolver or other firearm of a size which may be concealed upon the person."
Wesley said the application process for a license in New York is a rigorous one.
"Every application triggers a local investigation by police into the applicant's mental health history, criminal history, moral character, and, in the case of a carry license, representations of proper cause," he said, a showing that is not merely satisfied by a general desire to protect one's person or property, or by merely asserting good moral character or by stating that the applicant lives or works in a high-crime area.
As part of this investigation, fingerprints are taken and background checks are performed before the application is submitted to a licensing officer who has considerable discretion.
Challenging New York Penal Law §400.00(2)(f) was Rye Brook solo practitioner Alan Kachalsky and three others who claimed the right to carry a handgun outside the home for self-defense. Each was denied because he or she failed to establish "proper cause."
A fifth plaintiff, the Second Amendment Foundation, was dismissed from the case for lack of standing.
Kachalsky in an affirmation stated the Second Amendment's "right to keep and bear arms" entitles him to carry a handgun without showing proper cause, observing that "we live in a world where sporadic random violence might at any moment place one in a position where one needs to defend oneself or possibly others."
Fellow plaintiff Eric Detmer said he had shown proper cause because he was a federal law enforcement officer with the U.S. Coast Guard. Christina Nikolov tried to show a special need for self-protection by asserting that, as a transgender female, she was more likely to be the victim of violence.
The two remaining plaintiffs simply asserted they were citizens in good standing in their community and gainfully employed.
Before Seibel, the plaintiffs cited District of Columbia v. Heller, 554 U.S. 570 (2008), where the U.S. Supreme Court said a Washington, D.C., law banning handguns in the home violated the Second Amendment. The amendment, the court said, codifies a pre-existing "individual right to possess and carry weapons in case of confrontation."
Plaintiffs in the New York case argued that Heller stood for the principle that the Second Amendment guarantees their right to possess and carry guns in public.
Westchester County and New York state countered that Heller limits the right to bear arms to self-defense in the home.
But on the appeal from Seibel's grant of summary judgment, Wesley said that "Heller provides no categorical answer in this case."
"What we know" from decisions following Heller, he said, is that "Second Amendment guarantees are at their zenith within the home."
"What we do not know," he said, "is the scope of that right beyond the home and the standards for determining when and how the right can be regulated by a government."
Wesley said New York's statute should be subjected to "some form of heightened scrutiny" because it "places substantial limits in the ability of law-abiding citizens to possess firearms for self-defense in public."
Citing Heller, Wesley said, "We believe state regulation of the use of firearms in public was 'enshrined with[in] the scope' of the Second Amendment when it was adopted."
Having said that, Wesley concluded that intermediate scrutiny is the appropriate standard, triggering an analysis of whether the regulation furthers the compelling government interests of public safety and crime preventionas argued by the state and Westchester County.
"The only question then is whether the proper cause requirement is substantially related to these interests," Wesley said. "We conclude that it is."
Kachalsky said yesterday that the plaintiffs intend to seek a petition for a writ of certiorari to the U.S. Supreme Court.
"I'm not surprisedI've never seen the Second Circuit come out with a bold decision," Kachalsky said. "It's a ridiculous interpretation of the Second Amendment."
He 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."
Attorney General Eric Schneiderman issued a statement praising the decision, saying, "This means that our state's guns laws are protected and vigorously enforced."
Schneiderman called it a "victory" for state law, the U.S. Constitution and "families across New York who are rightly concerned about the scourge of gun violence that all too often plagues our communities."
Assistant Solicitor General Simon Heller argued for the state.
Assistant County Attorney Thomas Gardiner argued for Westchester County.
The plaintiffs were represented by Alan Gura of Gura & Possessky in Alexandria, Va.
@|Mark Hamblett can be contacted at email@example.com.