November 27, 2012
Second Circuit on Second Amendment: New York's Gun Licensing Limitation for Concealed Handguns Is Constitutional
In a unanimous opinion today, a Second Circuit panel in Kachalsky v. County of Westchester upheld New York's requirement that applicants prove “proper cause” to obtain licenses to carry handguns for self-defense under New York Penal Law section 400.00(2)(f).
Affirming the district judge, the panel interpreted the Supreme Court's controversial Heller v. District of Columbia 2008 decision, as well as the subsequent McDonald v. City of Chicago opinion holding that the Second Amendment right recognized in Heller was incorporated to the states through the Fourteenth Amendment. (Recall that four Justices in McDonald ruled incorporation was through the due process clause, with Justice Thomas concurring in the result, but contending incorporation occurred through the privileges or immunities clause).
One of the issues left open by Heller and McDonald was the level of scrutiny to be applied to gun regulations. The plaintiffs, represented by Alan Gura, familiar from both Heller and McDonald, argued that strict scrutiny should apply. In rejecting strict scrutiny, the Second Circuit panel emphasized that the New York regulation at issue was not within the core interest protected by the Heller Court's interpretation of the Second Amendment - - - self-defense within the home - - - but was a limitation of concealed weapons permits to those who could demonstrate a "special need for self-protection distinguishable from that of the general community or of persons engaged in the same profession." The panel also rejected the plaintiffs' argument that the concealed carry permits were akin to prior restraint under the First Amendment. The court stated, "“We are hesitant to import substantive First Amendment principles wholesale into Second Amendment jurisprudence. Indeed, no court has done so.” (emphasis in original). Later in the opinion, the court provided an even more convincing argument:
State regulation under the Second Amendment has always been more robust than of other enumerated rights. For example, no law could prohibit felons or the mentally ill from speaking on a particular topic or exercising their religious freedom.
Recall that even the majority opinions in Heller and McDonald maintained that prohibiting felons or the mentally ill from possessing guns was consistent with the Second Amendment.
The Second Circuit decided that "intermediate scrutiny" was "appropriate in this case": "The proper cause requirement" of the New York law "passes constitutional muster if it is substantially related to the achievement of an important governmental interest."
The substantial (and indeed compelling) governmental interests were "public safety and crime prevention," as the parties seemed to agree. As to the substantial relationship, the court noted that the "legislative judgment" surrounding these issues was a century old and that the proper cause requirement was a "hallmark" of New York's handgun regulation since then. The court also noted that the law was not a ban, but a restriction to those persons who have a reason to possess a concealed handgun in public. New York did submit more current studies, and the court credited these even as it stated that the decision was clearly a policy one for the legislature. Heller did not, the court ruled, take such "policy choices off the table."
The Second Circuit's opinion is doctrinally well-reasoned, but also a deliberate engagement with the history of gun regulation. In the very beginning of its analysis, the opinion states
New York’s efforts in regulating the possession and use of firearms predate the Constitution. By 1785, New York had enacted laws regulating when and where firearms could be used, as well as restricting the storage of gun powder.
The court returns again and again to the history, in New York and elsewhere, even as it reiterates that history does not answer the question.
[image" The Knotted Gun," sculpture in NYC outside UN, via].
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