Skip to comments.2nd Circuit Upholds New York Handgun Limits (2nd Amendment only covers federal laws - Judge Wesley)
Posted on 05/10/2005 10:20:58 PM PDT by Dan from Michigan
2nd Circuit Upholds New York Handgun Limits
Tuesday May 10, 2:59 am ET
Mark Hamblett, New York Law Journal
New York state's handgun licensing scheme does not violate the Second Amendment to the U.S. Constitution, the 2nd U.S. Circuit Court of Appeals has ruled. Upholding the dismissal of a suit brought by an out-of-state resident barred from being allowed to carry a handgun under the licensing scheme, the circuit also found in Bach v. Pataki, 03-9123, that the Privileges and Immunities Clause of Article IV "cannot preclude New York's residency requirement in light of the State's substantial interest in monitoring handgun licenses."
Judge Richard Wesley wrote the opinion for the unanimous three-judge panel.
The suit was brought by David D. Bach, a Virginia resident who is licensed in that state to carry his Ruger P-85 9mm pistol. Bach wanted to bring the weapon with him during regular visits to his parents in upstate New York.
Bach works as a lawyer with the Navy's Office of the General Counsel. He also holds a Department of Defense top security clearance, is a commissioned officer in the U.S. Naval Reserve and is a veteran Navy SEAL.
He claimed that he wanted to carry the weapon because during the trips to see his parents, he and his family travel through areas with extremely high crime rates. Bach reported reading about "unarmed law-abiding citizens being slain by sadistic predators despite the exceptional efforts of law enforcement."
After being informed by the New York State Police that he would not be eligible for an exemption from the rule that out-of-state residents cannot obtain permits to carry handguns, Bach filed suit in the Northern District.
But his claims that the bar on nonresident permits violated the Second Amendment's "right to keep and bear arms" and the Privileges and Immunities Clause were dismissed by Northern District Judge Norman A. Mordue.
Mordue held that Bach could not allege a constitutional right to bear arms because the "Second Amendment is not a source of individual rights." And the Privileges and Immunities Clause was not violated by the permit rule, he said, because "the factor of residence has a substantial and legitimate connection with the purposes of the permit scheme such that the disparate treatment of nonresidents is justifiable."
The 2nd Circuit panel said that New York regulates handguns primarily through Article 265 of the Penal Law, which creates a general ban on handgun possession, and Article 400 which carves out an exemption for licensed use of handguns.
Judge Wesley noted that Bach had asked the 2nd Circuit to declare the right to keep and bear arms to be an individual, rather than a collective right. In doing so, he invoked dicta in a 2001 5th Circuit case (U.S. v. Emerson, 270 F.3d 203) and a U.S. Department of Justice Office of Legal Counsel opinion.
New York state countered by arguing that the Second Amendment is only a guarantee to the states of "the collective right to fortify their respective 'well regulated' militias."
"Although the sweep of the Second Amendment has become the focus of a national legal dialogue, we see no need to enter into that debate," Wesley said. "Instead, we hold that the Second Amendment's 'right to keep and bear arms' imposes on only federal, not state, legislative efforts." (Dan: What about the 14th amendment)
In so holding, Wesley said the 2nd Circuit was joining five other circuits, and it was following the lead of the U.S. Supreme Court in Presser v. Illinois, 16 U.S. 2252 (1886), which he said "stands for the proposition that the right of the people to keep and bear arms, whatever else its nature, is a right only against the federal government, not against the states."
As to Bach's argument that the handgun law discriminates against nonresidents with regard to a protected privilege under the Privileges and Immunities Clause, Wesley said the court was rejecting that challenge because "New York's interest in monitoring gun licenses is substantial and New York's restriction of licenses to residents and persons working primarily within the State is sufficiently related to this interested."
That monitoring interest, he said, is "in essence, an interest in continually obtaining relevant behavioral information" -- licensing officers having the power to revoke licenses for "poor judgment" based, in part, on local incidents.
Wesley said that the rationale for monitoring is "distinct from rationales rejected in other Privileges and Immunities Clause cases."
"Most importantly, the monitoring rationale is not an interest of merely 'general concern,' to which a resident/nonresident distinction would not be tailored, but, rather, actually turns on where a person spends his or her time," he said, and the fact that there is an exception to the rule for nonresidents working in-state "is consistent with this criterion."
Judges Jon Newman and Joseph McLaughlin joined in the opinion.
Kevin J. Miller and David C. Frederick of Kellogg, Huber, Hansen, Todd & Evans in Washington, D.C., represented Bach, who was of counsel for the case.
Assistant Solicitor General Frank Brady, Deputy Solicitor General Daniel Smirlock, Senior Assistant Solicitor General Nancy A. Spiegel and Attorney General Eliot Spitzer represented the state.
Great graphic, but I must disagree. Recall that the revolution that led to the founding of our great country is commonly considered to have begun when British troops made an attempt to confiscate such things as gunpowder and cannons--and were met by armed resistance from the owners of these items.
Now talk about racist...the term Saturday Night Special...you know, the term that came from the expression of "guns that are only good for N*****town on a Saturday Night"? Yes, indeed, modern gun control efforts are directly descended from the effort to disarm blacks.
I'm more than half serious in proposing it, too.
I cannot but wonder what ripples would ensue if that particular stone were cast in the legislative pools of one or more shall-issue CCW States.
Chime in here, if you would please.
Of course, he's a New Yawk liberal. I used to just go livid and rant when folks like him acted like.....like.....LIBERALS! My buddy who is ever so sanguine and placid (for a retired airborne ranger) got me hooked into his favorite calming mantra: They are what they are.....
I think I'd feel better if we waited for a decisive 2nd Amendment case until we had a more conservative bench. There are too many RINO appointed justices that could swing the other way in such a crucial case and one bad ruling from the USSC could totally justify a soul lost to satan in exchange for power. The Prince of Evil is just drooling over such a prospect, I'm sure.
What about the 13th Amendment? By this idiotic logic, if a state wanted to pass a law allowing slavery, it could. And still not be in violation of the Constitution!
These judges must get their degrees off a matchbook cover.
What I don't understand is how people can argue that every other amendment gives individual rights, BUT NOT THE 2ND.
Feel like reading some real lunacy?
A deeply divided U.S. Circuit Court of Appeals for the 9th Circuit last week refused to review a controversial ruling from a three-judge panel led by Judge Stephen Reinhardt that held the Second Amendment protects only a collective -- rather than an individual -- right to keep and bear arms.
Consequently, unless the Supreme Court takes up the case, not only will the result leave standing a California ban on semiautomatic weapons, but it will also leave intact the panel's historical contortions concluding that the Second Amendment "was not adopted in order to afford rights to individuals with respect to private gun ownership or possession."
The 9th Circuit's decision not to hear the case en banc (as a whole) came over the dissent of six judges, several of whom vigorously noted the explicit conflict between the panel's collective rights view and the individual rights approach taken by the 5th Circuit in United States v. Emerson, 270 F.3d 203 (5th Cir. 2001), cert. denied, 536 U.S. 901 (2002), and supported by the current administration. Four of the dissenters, led by Judge Andrew Kleinfeld, argued that the case should be reheard in order to rectify the conflict. "Where the Constitution establishes a right of the people, no organ of the government, including the courts, can legitimately take that right away from the people," Judge Kleinfeld wrote.
These dissenters also noted that Judge Reinhardt and the other judges on his panel -- who routinely take generous approaches to other parts of the Constitution -- read the Second Amendment with absurd restrictiveness. "If we used the panel's methodology, taking each word according a right in the Bill of Rights in the narrowest possible sense, then we would limit the freedom of 'speech' protected by the First Amendment to oral declamations," Judge Kleinfeld wrote.
Even noted liberal Judge Harry Pregerson disagreed with the Reinhardt panel's insistence that the Second Amendment was designed only to protect state-regulated militias. "The panel misses the mark by interpreting the Second Amendment right to keep and bear arms as a collective right, rather than as an individual right," he wrote.
"Because the panel's decision abrogates a constitutional right, this case should have been reheard en banc."
But the strongest words of reprimand came from Judge Alex Kozinski, who fled Romania under the dictatorship of Nicolae Ceausescu. Writing from his own experience, Judge Kozinski explained that history could have been vastly different had American slaves or European Jews been able to arm themselves and fight back against the governments that oppressed them.
"The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed -- where the government refuses to stand for re-election and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees," he wrote in dissent. "However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once."
Judge Kozinski also made special note of the interpretive inconsistency of the judges on the Reinhardt panel given their usual proclivity to find individual rights when the Constitution uses the words "people" or "person." "Had they brought the same generous approach to the Second Amendment that they routinely bring to the First, Fourth and selected portions of the Fifth, they would have had no trouble finding an individual right to bear arms," he wrote.
The refusal of the 9th Circuit to rehear the case, Silveira v. Lockyer, 312 F.3d 1052 (9th Cir. 2002), clears the way for an appeal to the U.S. Supreme Court, which has not confronted the protections of Second Amendment for more than 60 years.
Simple subject, "the right...
Simple predicate, "shall not be in fringed."
"Of the people."
So simple a second grader could do it.
This judge is simply a domestic enemy of the Republic.
When they come, I'll be waiting at their house, not mine.
Wish they would hurry up and start. I'm not getting any younger.
I have every reason to believe that were they alive today, our Founding Fathers would be meeting in secret at the Green Dragon Inn to plan the second American Revolution.
"However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once."
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