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.
Interesting. Bad cases make often make for bad decisions. This would seem to be a good case upon which to challenge 2nd Amendment violations now that the 2nd Circuit is in conflict with the 5th. He's a textbook good-guy gun owner.
some day, the robed ones at the supreme court will have to face the music, and determine once and for all: "Are guns individual rights? or rights belonging to the collective, and governed therby?"
Same goes for the other bill of rights items. Perhaps all our enumerated rights, are really just for the good of the collective... including speech.
yeah that's the ticket.
Funny, I thought our country was founded on the idea that individual rights come from God and that government exists only to protect those rights, not to infringe on them. I've got their individual rights ...
Exactly what I was thinking - the two circuits are in total and complete disagreement; this opens the door for a challenge to the Supreme Court to decide it once and for all. It's even better since he's a soldier and with his security clearance he has reason to fear for his life when off duty - and New York (and 2nd Circuit) is saying "No, sorry, even though you protect us and keep us safe from terrorists, we don't trust you to have a gun to protect yourself."
They are right... it is not a source of invidual rights. The right is inherent in every person and cannot be granted or removed by the action of Congress. The 2nd Amendment like all of the Bill of Rights are reminders to Congress that certain rights were retained by the people when they granted limited powers to the central government.
However, these 2nd Court idiots then complete screw up everything following that in their decision.
new york drivers licenses, by the same rationale, are invalid in my great State of Georgia.
pull 'em over, arrest 'em, impound and sell their cars.
that'll get the point across.
This is so outrageous. It is impossible to reconcile the fact that the courts read:
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,...."
and find a right guaranteed to individuals and then read:
"the right of the people to keep and bear arms, shall not be infringed."
and find a right guaranteed only to the states.
"Are we at last brought to such a humiliating and debasing degradation, that we cannot be trusted with arms for our own defense?.... If our defense be the real object of having those arms, in whose hands can they be trusted with more propriety, or equal safety to use, as in our own hands?"
-- Patrick Henry
The Fourteenth Ammendment was adopted precisely because the Southern States were denying Blacks the right to bear arms. That is a matter of historical record, and renders this court decision invalid on its face.
They are coming for the guns. It's just a matter of time.
History and fact doesn't matter to most in government anymore.
If people would get as worked up over unconscionable wrongs in the same way they did over the Terri Schiavo affair, perhaps that could be changed.
Why isn't Congress rushing to impeach the judges who made this execrable ruling? Why aren't we all demanding they do so?
Is that so....hmmmm....
When they come, I will stand my ground.
As a country boy who grew up in New York State and is now in exile to a place that treats me better than it treats its criminals, I love your idea!!