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!!
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."
Alternate headline: Federal judge discovers state's rights
(Denny Crane: "Sometimes you can only look for answers from God and failing that... and Fox News".)
Great idea! Works for me.
I hope we are well shy of that eventuality. However, it is only through realizing that it could happen, that we can prevent it from happening politically. In thinking on these things, we are reminded even more clearly what the most significant purpose of the second amendment is.
The second amendment doesn't guarantee anything. It simply tells the government that it may not interfere with a sacred right. Finally, after reason and persuasion are done, it is our arms alone that guarantee those rights.
According to these dim-bulbs, every other one of the 1st 10 Amendments that refer to a "right of the People" does, in fact, protect individual rights against government encroachment in some way or other. However, the 2nd, applies to some mystical "collective" or to the states (which CANNOT have rights, only powers).
Oh, by the way, the "collective" rights theory of the 2nd Amendment first arose in American jurisprudence in a 1906 Kansas case (the name of which I can't recall). In other words, we have 117 years of prior case law which refers to the INDIVIDUAL RKBA, but that's of no matter no that some minor case in Kansas said otherwise. Res Judicata apparently only means something if the precedent in question agrees with your point of view, but not if it disagrees with it.
The failure to apply the 2nd Amendment to the states is outrageous. The 14th Amendment was, as mentioned in an earlier post, passed specifically to rectify the denial of RKBA rights to the then-newly freed slaves (i.e. US citizens) by Southern states. The FIRST of the BOR provisions that should have been incorporated was the 2nd's RKBA - but instead it appears that it will be the last (IF it is ever incorporated). What is really needed is a Supreme Court decision that does just this, that puts a stake in the heart of the "collective" rights theory and applies the 2nd to the states. I'm not holding my breath waiting for this to occur, and particularly not with this Supreme Court. We probably have 3 votes, maybe maybe 4, but not 5 or more.
I wish that everyone who is a gun owner would get at least one gun that doesn't require a 4473. It may be an antique (i.e. a pre-1899 gun) or a gun acquired directly from its owner (where that is legal...grrrrrrrr!). Its the only way to make sure that everything can't be cross-indexed or registered in some way, and later confiscated.
Bravo Sierra. The 14th was adopted to grant US citizenship to blacks - a right which had been denied since the Congress wrote the first Naturalization bill.
Historically the BoR was not extended to the states - Madison and Halimlton both argued thuisly, as did Chief Justice John Marshall in Barron v. City of Baltimore,
The powers they conferred on this government were to be exercised by itself, and the limitations on power, if expressed in general terms, are naturally, and we think necessarily, applicable to the government created by the instrument. They are limitations of power granted in the instrument itself, not of distinct governments framed by different persons and for different purposes.The BoR was a limitation of the federal government, not the states, as evidenced by the Preamble to the BoR,
The Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers [the federal government], that further declaratory and restrictive clauses should be added.
The second does not apply? what about the other rights?
So there is no first in NY?
But the guild doesn't like guns. They're dangerous and tend to be popular with sans culotte element.
Bravo Sierro yourself. I gave a reference with numerous citations: The Fourteenth Amendment and the Right To Keep and Bear Arms: The Intent of the Framers. You just splattered a baseless opinion.
Historically the BoR was not extended to the states
That's true, although there was always a minority opinion that held otherwise. For one thing, the rights enumerated in the BoR are not granted or created by the Constitution, but rather simply recognized by the BoR as those that intrinsically belong to all human beings, and that restrict the rightful powers of all governments. The States also recognized those rights when they ratified the BoR. But in any case, the adoption of the Fourteenth Ammendment mooted the argument.