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.
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.
Get a good bolt action rifle, some good optics and PRACTICE, PRACTICE, PRACTICE!
Having read more of the Congressional Globe than I would have liked, I can't recall a single statement about constitutionalizing the right to bear arms as a goal of the 14th Amendment. In fact, debate over Section 1 of the amendment is pretty sparse--the general consensus is that it was meant to constitutionalize the Civil Rights Act of 1866--which had already been debated ad nauseam, and again, I don't recall much (read: anything) about the right to bear arms in there.
Am I the only one whose eyes glaze over reading this? I have an interest in this subject but I found myself unable to distill the article into a + or -.
I read what you posted earlier. It's bogus. Bad scholarship; at worst, deliberately misleading, at best, it is horribly sloppy.
First, in the entire debate over the Civil Rights Act of 1866, (which was substantial) the author points to a few isolated and stray comments, about a dozen, regarding the right to keep and bear arms, some of which are taken horribly out of context; I checked a few of his citations.
Second, his "analysis" of the 14th Amendment and the right to bear arms, which is supposedly the point of the paper (after all, it is the title) is like two paragraphs! Two! Are you kidding?
Third, the vast majority of his focus (understandably) is on the Thirteenth Amendment and the Civil Rights Act, over which there was a great deal of debate as to whether the Amendment itself guaranteed certain civil (as opposed to political) rights. SOME of the framers argued that the 13th Amendment ITSELF guaranteed civil rights, such as the right to contract, own property, etc. But this was a minority of Senators, which is why the 14th Amendment was later passed--to ensure the Constitutionality of the Civil Rights Act of 1866.
Which brings me to the text of the Act itself, here in relevant provisions:
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States; and such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding.
Note that the guarantees are specific: enforce contracts, sue, own property, etc. I suppose that one could argue that "all laws for the security of person and property" is a guarantee of the right to bear arms, but that's a pretty big stretch, given the text of the amendment itself and the debate surrounding its adoption. It seems pretty clear that it wasn't one of the rights intended to be protected by Congress itself; a few stray marks by some Congressmen aside.
Finally, you could argue that "equal" doesn't mean "equal" in the dictionary sense, but that "equal" itself implies some sort of inherent protection of the law; that the state can't take away rights from anyone without violating the law. Jacobus TenBroek makes this argument in his book, "Equal Under Law," but it's a pretty weak argument for a variety of reasons. For obvious reasons--equal means equal--not a substantive grant, but this was also decidedly not the understanding of the framers, who definitely did not want to radically upset the notion of Our Federalism.
I could probably write a book-length response to why this article is wrong, but it is summed up, rather basically, by the fact that the equal protection clause was not intended to secure absolute rights; merely freedom from discrimination, and only then in a very narrow classification of certain civil rights.
A much more comprehensive analysis on the Reconstruction amendments (and a tour de force in legal reasoning) is Raoul Berger's book, "Government by Judiciary," generously available online at the following address:
For over 140 years more than 70 justices of the Supreme Court consistently held that the first ten amendments to the Constitution applied as a limitation to the Federal Government only and not in any manner to the states, and for 70 years following the so-called adoption of the Fourteenth Amendment some 35 justices from every corner of the Nation have held that the Fourteenth Amendment did not make the first ten amendments applicable to the states. Some of those justices had helped to frame the original Constitution and the first ten amendments and had worked to secure the adoption thereof. Others had participated in the war between the states and were acquainted at firsthand with the purposes intended to be accomplished by the Fourteenth Amendment. All of them interpreted the Constitution, including the amendments, with knowledge and wisdom born of intimacy with the problems which had called forth the documents in the first place.
Justice Albert H. Ellett, Dyett v. Turner, 20 Utah 2d 403, 439 P. 2d 266 (1968)
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