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.
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)
Please die soon traitorous bastards.
Of natural causes of course.
Actually if you really want to take it further, the first nine amendments are specifically about the rights of the individual.
It is just the left that wants to carve out an anti individual, collective exception for the second amendment.
Can I join in ? I own houses in both VA an NY, and posess a VA CCW.
I also have significantly more than a TS clearance, am a member of the draft board (presidential appointment, no less), and worked in the pentagon for two years (ending in 2003).
Thanks for posting this. I've been so confused thinking that I had rights because of my Creator. Now I know that the gubmint will decide for me what I'm allowed to do and if I can defend my life against predators.
I know that there is NOTHING about New York that would induce me to go there or spend any money there. If I have a choice of products made in New York or any other foreign country, I pick one of the other foreign countries.
Same analysis as mine, selective incorporation by unoriginal whackjobs with a cause.
Is it possible that this a liberal court? Wake up, people.
just a question:
are you allowed to own handguns in New York State?
without a special licence?
I have a Rem bdl in .308 Win, Hvy bbl varmit (26"), with a 40xb trigger (adj down to abt 2 oz. I believe), and burris 6x18scope. It shoots 1/2 min accuracy. And, of course, several reloading dies.
"What I don't understand is how people can argue that every other amendment gives individual rights, BUT NOT THE 2ND." Because it is convinient for liberal statists:
Expected from a state run for and by commies.
Only a gun hating liberal could read the same word in the same context and come up with different meaning. I hope this goes to appeal.
And just where is the long awaited sequel?
Well, this certainly looks like a juicy USSC challenge.
"History and fact doesn't matter to most in government anymore."
True, and a good thing the founders put the 2nd in to ensure that can be changed when necessary.
>>This will mean the waverers will turn ....<<
Never waive your rights when you should be waving the Flag!
Join the NRA while we can still vote through the ballot box instead of the ammo box.
And if you are already a member, please put the initials in your tagline. Thank you.
About 1/2 through my life membership dues. (Easy pay life)
Well, even the enumerated rights don't really mean "what the words say."
After all, the SCOTUS ruled that "Congress shall make no law" doesn't really mean that "Congress shall make no law."
Where have you been? We all know that rights are bestowed upon us by our government, which we all serve! That way, government can do what it will, whenever it suits our masters!
What government gives, government can take away.
Great but did you notice how few of the Freepers on the banglist aren't members? I can understand Freepers on other threads but if someone is going to an "expert" at something, wouldn't you think they would support it so they could continue?
It's laughable where they complain they have to throw the mailings away while others are writing the checks.
Against whom? If you are suggesting a toe to toe running gun battle by a few patriots against government forces...I think that's suicidal. They will use the "big gun," the radio, to call in helicopters and any other supporting arms as required. Look at the current battle in western Iraq between very well armed Islamic fighters and the USMC as an example.
The bolt action rifle which maximizes range and is used for ONE SHOT at least gives a patriot a chance to escape the soon-arriving Quick Reaction Force.
Oleg Volk is a national treasure!
The NRA should give him their highest award for his RKBA artwork.
1/3 on the computer and 2/3 still in my brain.
This is an extremely interesting and important case, for IMHO, (no I'm not a lawyer, but I'm a client of one, and mrsgwmore works in the justice system ;-) this case could be the one "biggie" that makes it to SCOTUS.
We RKBA activists have been waiting a long time for a test case that the Supremes would touch, and this looks like it might be a good one. The only problem I see, at this point, is the appeal after appeal before it actually gets there (Similar to Terri Schiavo) with the outcome already preordained by the tame Judgenfuherer. Both NY and NJ are totally controlled by liberal gun grabbers, who would like nothing better than to confiscate all one's firearms, and a wrong move at this point, with a wrong decision could be disastrous.
That being said, we are back to the stinking "State's Rights BS all over again, and what trumps what. IMHO, I believe, (and what patriot and conservative doesn't) that the 2A, is totally unambiguous in it's wording, and all the BS concerning commas, "well-regulated" etc/. os simply verbiage of the time in which the amendment was first written, and still holds true today.
There has been plenty of precedent in case law for striking down nuisance lawsuits against firaarm manufacturers for injuries inflicted by criminal use of their lawfully manufactured, highly regulated product. I see no difference here, The only change is that the suit was in the Peoples Demokratik Republik of New York, with it's Politikal Kommisars Xlintoon and Schumer, we all KNOW where they stand.
Patton, allow me to join in, like you, I also am the holder of a "Far More Than TS". and although now retired, disabled, still want to join in this scrap. Let me know what I can do to help out, I'.m here 24/7...
Since I reside "somewhere in a red zone deep in a secret location in the blue state of PA, at least I still have some rights here, but those could be gone at a moment's notice. We can't ever cease our vigilance, for even one microsecond.
Again, thanks much for the pings, this was an extremely important post, and worth reading and book-marking.
Keep the Faith for Freedom!!
Excellent and cogent analysis by PzGr43 above. That is just how the statists will try to do it.
~ Blue Jays ~
If dan, tonk or you know who is representing him - I have some cash hidden away for a rainy day...
NY! what a load if malarky!
This is the same state that confiscated weapons from law abiding citizens.
They essentially said turn them in or move out of state!
Freakin tyrants. What part of "shall not be infringed" dont they understand?
Thanks for the ping!
Then I think you're more than covered.