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New York's Not-So-Well-Regulated Right to Bear Arms
New York Law Journal
In an important decision upholding the power of the states to regulate firearms, the U.S. Court of Appeals for the Second Circuit declared that a state may, consistent with the Second Amendment, deny a license to carry a concealed weapon in public unless the applicant proves "a special need for self-protection." Kachalsky v. County of Westchester1 denied a class action brought by the Second Amendment Foundation on behalf of six qualified applicants for a gun license.
In affirming the District Court decision to deny each of them "full-carry" licenses, the court upheld a 1913 provision of the New York Penal Law that requires all applicants to demonstrate "proper cause" to carry a concealed weapon in public.2 The courts of New York have interpreted "proper cause" to mean "a special need for self-protection distinguishable from that of the general community or of persons engaged in the same profession."3 "Proper cause" to carry a concealed weapon in New York City is determined by the New York Police Department, which requires every applicant for the "full carry" license except for "peace officers," to set forth "proper cause" in a Letter of Necessity that accompanies the application.4
Kachalsky endorses the status quo in New York, which for over a century has denied concealed weapons permits to all but a select few civilians. But its endorsement of a near-ban on carrying guns in public is of national significance, because it portends a pluralistic approach to the Right to Bear Arms. While the decision in Kachalsky suits the social and political mores of New Yorkers, a comparable decision in states like Virginia or Florida would have strong public repercussions. Conversely, an interpretation of the Right to Bear Arms that suits Floridians would rankle New Yorkers, much as a recent Seventh Circuit decision has rankled Chicagoans, where perspective differ from those in the rest of the state and the circuit.5Kachalsky heralds the emergence of a "house divided," as the gun-restrictive and gun-inclusive states settle into an uneasy coexistence.
This class action, which is part of a national campaign by the Second Amendment Foundation, has already produced a schism between the Second and Seventh circuits. Kachalsky presages future challenges to New York's gun licensing regulationsnot only on where guns may be possessed, but also by whom. While the state did adopt new restrictions this month, tightening restrictions on ownership by persons who are mentally ill, banning certain weapons and increasing penalties for criminal possession, Albany needs to undertake a long-neglected effort to define and refine the qualifications and the disqualifications for a gun license, and to establish special rules of conduct for all persons licensed to carry firearms in public.
Standard of Review
The unanimous opinion written by Judge Richard Wesley reasons that New York's requirement of "proper cause," or "a special need for self-protection" conforms to the Second Amendment under the somewhat deferential, intermediate level of scrutiny; that is, the "proper cause" requirement is "substantially related to New York's compelling interests in public safety and crime prevention."6 The opinion observes that strict scrutiny is not the appropriate standard of review for regulations that govern carrying concealed weapons. In this quintessential exercise of their traditional police power, the states are not limited to regulation that is necessary, narrowly tailored, or minimally restrictive.7
This holding is expressly limited to the states' regulatory authority over the right to carry or "bear" arms outside the home: It does not apply to the more circumscribed authority over the right to "keep" arms inside the home for self-defense. The Supreme Court in District of Columbia v. Heller placed the right to defend the home at the heart of the Second Amendment, where the need for self-defense is "most acute," and the right of self-defense is "at its zenith."8 Thus, although the Supreme Court has yet to declare that regulation of guns in the home is subject to strict scrutiny, Kachalsky recognizes that the court may impose strict scrutiny on gun regulations in the home, although it has not yet said so. Kachalsky itself speaks only to carrying guns in public.
Concerning licensure of guns kept in defense of the home, all countervailing considerations of public safety may be "off the table," in Justice Antonin Scalia's words.9 Indeed, the Supreme Court in Heller struck down a District of Columbia requirement for trigger-locks on firearms kept in the home, despite its undisputed value for child safety and domestic violence, simply because defense against home invasion requires a weapon that is "at the ready."10
This sharp dichotomy between gun regulation inside and outside the home is consistent with the Supreme Court's oft-cited dictum in Heller, reiterated in McDonald v. Chicago: "It is important to keep in mind that Heller, while striking down a law that prohibited the possession of handguns in the home, recognized that the right to keep and bear arms is not 'a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.' We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as 'prohibitions on the possession of firearms by felons and the mentally ill,' 'laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. We repeat those assurances here."11Heller also includes an assurance that its list of presumptively valid state regulations is "non-exhaustive"12
Conflict Among Circuits
There is division among the federal circuits as to whether the assurance or presumption of validity will extend to regulation of guns possessed in all public places, rather than just "sensitive places" like schools or government buildings. The Second Circuit relies on this passage in Heller: "the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues."13 Indeed, the 19th-century Supreme Court agreed, noting that "the right of the people to keep and bear arms…is not infringed by laws prohibiting the carrying of concealed weapons."14 In response to Heller's "enshrinement" of the right to defend one's home, Kachalsky maintains that "the state's considerable authority to regulate firearms possession in public is [also] enshrined within the Second Amendment."15
On the other hand, the Seventh and Fourth circuits interpret Heller to establish some affirmative right to bear arms for self-defense in public, and thus to prohibit a complete ban. The 2012 Seventh Circuit in Moore v. Madigan stated: "Nor can we ignore the implication of the analysis that the constitutional right of armed self-defense is broader than the right to have a gun in one's home."16 The Fourth Circuit in United States v. Masciandaro noted, "If the Second Amendment right were confined to self-defense in the home, the Court would not have needed to express a reservation for 'sensitive places' outside of the home."17 New York's "proper cause" requirement does ban most otherwise qualified applicants from carrying a gun anywhere outside of their homes or businesses.
A conflict among the circuits sets the stage for the Supreme Court's definitive opinion on the right to bear arms. Thus the time is ripe for New York to revisit its regulations on who should have a gun, inside or outside their homes, as well as on how a gun carrier should conduct himself in public.
Reform of Regulations
The most remarkable feature of present-day gun licensing in New York is how little it has changed since the enactment of the Sullivan Law in 1911. New York's basic licensure qualifications carried forward, almost verbatim, the weapon provisions of the former Penal Law, added in 1963.18 Both the criteria for licensure, and the Victorian language in which it is expressed, are largely unchanged, despite great advances in the lethality of firearms, and in the popular and scientific consensus concerning the factors that produce homicides.
The basic qualifications for a gun license are phrased very broadly: In addition to the nationwide qualifications set forth in the Federal Firearms Act,19 New York license applicants are required to be age 21, free of felony or "serious offense" convictions, without psychiatric history, "of good moral character" and someone "concerning whom no good cause exists for the denial of the license."20
The licensing officer may deny an application for any "good cause,"21 or a carry license for what the officer deems "proper cause," and may restrict a carry license "to the purposes that justified the issuance."22 "Good cause" might be based on marital discord or a pending divorce action.23 Licenses are revocable by the licensing officer "at any time," and carry licenses may be monitored to ensure that the basis for issuance of the license remains."24
Under the current gun licensing regime, marijuana and alcohol abuse receive remarkably different treatment. Despite countless incidents of alcohol-induced shootings since 1963, there still is no prohibition against carrying a gun while intoxicated, or a categorical ban on issuing licenses to chronic alcoholics. Drunken driving and reckless driving are not "serious" misdemeanors that categorically disqualify an applicant, but non-reckless offenses that reflect upon "morals," such as marijuana possession, loitering for sex, or receiving stolen property are "serious."25 Perhaps the most substantial gun safety reform in recent times is legislation that authorizes a Criminal or Family court judge to suspend any gun license upon issuing a temporary order of protection for a variety of reasons, including a "substantial risk" that the gun may be used against the protected person.26 However this law generally comes into play only after a potential assailant has been arrested and stands before the court.
The licensing authority in New York has been entrusted to local officialscounty judges and local police.27 The state-mandated background investigation is extensive, if not well-guided by objective criteria. "Local police investigate applicants' mental health history, criminal history, moral character, and, in the case of a carry license, representations of proper cause. Police officers also take applicants' fingerprints, and check them against the records of the State Division of Criminal Justice Services and the FBI. Upon completion of the investigation, the police authority reports its results to the local licensing officer," who is "vested with considerable discretion" in the interpretation of all the broad licensing criteria"proper cause," "serious offense," "good moral character" and "good cause," and whose adverse decision is reviewable only as an abuse of discretion.28
The Second Circuit has observed that local regulation has significant advantages. In a decision that upheld a complete ban on licensing of non-residents, the court reasoned: "We think it self-evident that other States…cannot adequately play the part of monitor for the State of New York or provide it with a stream of behavioral information approximating what New York would gather. They do not have the incentives to do so." 29
For similar reasons, local officials may have superior means and incentive to regulate applicants than a state agency. However, a state agency may be necessary to oversee and uphold local quality standardsstandards that assure that the local licensing authorities exercise their broad discretion to award, to deny and to monitor licenses with reason, energy and vigilance. Irrational or arbitrary applications of these broad rules are a double-edged sword: They may raise Second Amendment issues, and they may compromise public safety.
As matters stand, only non-issuance or suspension of a gun license receives any kind of oversight or review. Issuance of a license receives no oversight or public attention until someone is shot or some other event like a domestic violence arrest reveals a threat of harm. For lack of clear standards, and despite mandatory background investigations, gun licenses for homes and businesses may be issued to individuals with documented histories of aggressiveness, recklessness and substance abuse, so long as they have not committed a "serious offense," or done something that is considered "good cause" to deny the license. Notwithstanding the strict limitations on carrying guns, every gun that is licensed in New York is a gun that may be carried and fired on the street. Thus Albany must update the consensus embodied in PL Art. 400 on who should be permitted to have a guninside or outside the homeand on how authorized gun carriers are required to conduct themselves when they are armed.
Steven Wasserman is an attorney with the Legal Aid Society Criminal Practice and an adjunct professor at John Jay College.
1. Kachalsky v. County of Westchester, 701 F.3d 81 (2d Cir. 2012).
2. NYPL §400(2)(f).
3. Kachalsky, supra at 84 (2d Cir. 2012); Klenosky v. NYC Police Dept., 75 A.D.2d 793 (1st Dept. 1981); aff'd 53 N.Y.2d 685 (1981).
4. 38 RCNY 5-08(b)(8)(I). The vast majority of licensed gun carriers in New York are "peace officers," which include more than 100 categories of local, state and federal law enforcement employees. CPL Art 2. "Sworn officers" are subject to a separate vetting and training process, and have greater authority than civilians to employ deadly force. Unlike civilian gun carriers, peace officers are under no duty to consider retreat. PL §35.20, 35.30. Peace officers may be regarded as a successor institution to the "well regulated Militia" referred to in the Second Amendment. However this contemporary militia does not consist of citizen-soldiers identified as "the People" in the Second Amendment. Rather, they are law enforcement employees and retirees of the state, for whose actions the state is responsible and liable.
5. Moore v. Madigan, F.3d, 2012 WL 6156062 (7th Cir. 2012).
6. Kachalsky, at 94.
7. United States v. Masciandaro, 638 F.3d 458 (4th Cir. 2011).
8. Kachalsky, at 93; District of Columbia v. Heller, 554 U.S. 570 at 628, 636 (2008).
9. Heller, 554 U.S. at 636.
11. McDonald v. City of Chicago, 130 S.Ct. 3020, 3047 (2010); citing Heller at 2816.
12. Kachalsky, at 84, Heller, 554 U.S. at 626 fn 26.
13. Heller, 554 U.S. at 626.
14. Robertson v. Baldwin, 165 U.S. 275, 281-82 (1897).
15. Kachalsky, 97-98; citing Heller, 554 U.S. at 636.
16. Moore v. Madigan, 2012 WL 6156062 .(7th Cir. 2012).
17. Masciandaro, supra, 638 F. 3d at 468
18. McKinney's Practice Commentary, PL §265.00(17).
19. 18 USC 922ff.
20. NYPL §265.00(17); §400(2)(a-d, g).
21. PL §400.00(1)(g); PL §400.00(2)(f); Bando v. Sullivan, 290 A.D.2d 691-92 (3d Dept. 2002).
22. O'Connor v. Scarpino, 83 N.Y.2d 919, 921 (1994).
24. O'Brien v. Keegan, 87 N.Y.2d 436 at 439; N.Y. Penal Law §400.00(11); 1991 N.Y. Op. Atty. Gen. 72, 1991 N.Y. AG LEXIS 84.
25. PL §265.00(17).
26. NYCPL 530.14; FCA § 842-a.
27. NYPL §265.00(10).
28. N.Y. Penal Law §400.00(1-4). Bach v. Pataki, 408 F.3d 75 (2d Cir. 2005) cert. den. 546 U.S. 1174 (2005); Kaplan v. Bratton, 249 A.D.2d 199 (1st Dept. 1998) O'Brien v. Keegan, supra, 87 N.Y.2d at 439-40 (1996).
29. Bach v. Pataki, supra, 408 F.3d at 92.