2nd Amendment Thread

[de officiis]

Why Firearm Federalism Beats Firearm Localism

Michael P. O'Shea

123 Yale L.J. Online 359 - Feb. 3, 2014

Americans disagree persistently on gun policy, and the disagreement tends to follow geographic and cultural lines.1 Beginning with this premise, Joseph Blocher’s Firearm Localism seeks to articulate one way that courts might use Second Amendment doctrine to mitigate the effects of our disagreement2 and thus offer a “truce” on the gun issue.3

The project merits attention. As I have argued,4 there are two basic ways to conceive of the task of implementing the individual right to keep and bear arms in the wake of District of Columbia v. Heller.5 One can simply be called the human rights approach. It assimilates the Second Amendment to the treatment of most other constitutional liberties: courts impose basic substantive norms against national, state, and municipal governments on a uniform basis, establishing a floor for liberty beneath which regulation cannot descend. This approach underpins the Supreme Court’s decision in McDonald v. Chicago6that the Second Amendment right to keep and bear arms applies fully against state and local governments.7 I continue to believe that it is, on balance, the most appropriate way to implement the right, particularly because of the strong grounding of Heller’s self-defense-based conception of the right to arms in the nineteenth-century background of the Fourteenth Amendment.8 In the half-decade since Heller, scholars following this perspective have offered both relatively broad9 and (particularly in elite law reviews) very narrow10 views of the Second Amendment right.

The other, decentralizing approach envisions using the Constitution to promote autonomy in subnational jurisdictions by subjecting gun controls enacted by larger jurisdictions to more scrutiny than those enacted by smaller jurisdictions. There has been less scholarly discussion of this perspective.11 When Heller was decided, I published an essay exploring the arguments for the decentralizing perspective.12 I concluded: (1) because Americans are divided, nationwide gun restrictions raise special constitutional concerns,13 and (2) to the extent it is proper to allow such concerns to influence constitutional analysis, the primary locus of subnational authority to regulate guns should be the states, not municipalities.14 State firearms preemption statutes, which bar municipalities from adopting piecemeal firearms restrictions, help to preserve the integrity of state approaches to gun policy and uphold the settlement implicit in federalism.15 These statutes, I argued, are not merely consistent with a sound approach to decentralization, but rather form a crucial part of it.

Full Article: http://www.yalelawjournal.org/forum/why ... m-localism

[de officiis]

Open Carry for All: Heller and Our Nineteenth-Century Second Amendment

Jonathan Meltzer

123 Yale L. J. 1118

ABSTRACT

In the aftermath of District of Columbia v. Heller and McDonald v. City of Chicago, the most important frontier for defining the scope of the Second Amendment is the right to carry weapons outside the home. Lower courts have disagreed on the proper approach for resolving this issue, how to read the Supreme Court precedent, and the extent of the right protected by the Second Amendment. Not surprisingly, they have reached significantly different results. This Note argues that Heller and McDonald leave little doubt that courts should engage in a historical analysis when examining the right to carry. Such a historical examination—guided by the sources, methodology, and logic of Heller—yields two important conclusions: (1) the Second Amendment guarantees a right to carry outside the home, and (2) it guarantees only a right to carry openly. While much of the history examined by the Supreme Court gives little indication of early understandings of the right to carry, the one set of sources consulted by the Court that speaks unequivocally on the right to carry—antebellum state supreme court cases—suggests that only the open carry of weapons is protected. This conclusion, not yet advanced in the scholarship, differs from arguments by many advocates of gun control, which suggest that there should be no right to carry outside the home, and those suggested by many advocates of gun rights, which would allow states to choose between open and concealed carry, as long as one is guaranteed. Either of those results, while perhaps more practical for twenty-first century Americans, would be inconsistent with Heller’s approach and with the sources on which it relies. Instead, a faithful reading of Heller requires constitutionally protected open carry, and, strangely enough, a nineteenth-century conception of the right to carry weapons.

Full Article: http://www.yalelawjournal.org/note/open ... -amendment

[de officiis]

Hightower v. City of Boston, 693 F.3d 61 (1st Cir. Mass. 2012)

LYNCH, Chief Judge.
This case presents an as-applied and a purported facial attack on the Massachusetts statutory and administrative scheme for revoking licenses for the carrying of firearms. The district court entered summary judgment dismissing the claims. Hightower v. City of Boston, 822 F. Supp. 2d 38, 65-66 (D. Mass. 2011).

Stacey Hightower is a former Boston Police officer who, during many of her years of service from 1998 to 2008, had a broad Class A license which permitted her to carry and to conceal a large capacity firearm, in addition to her Boston Police Department (BPD) service gun. Shortly after her resignation from the BPD, her license was revoked because the BPD determined that she had inaccurately answered a question on her license renewal form. The question was whether she had any complaints or charges pending against her. After the revocation, she neither invoked her right to judicial review nor sought a more limited license which would have entitled her to carry her small handgun.

On the facts of this case, we hold that Hightower has standing to bring her claims, that the case is ripe, that her Second Amendment as-applied claim fails, that her purported Second Amendment facial attack also fails, and that her procedural due process claim fails, as does her equal protection claim. We affirm entry of judgment against Hightower.

Opinion Text: http://scholar.google.com/scholar_case? ... i=scholarr

[de officiis]

United States v. Rehlander, 666 F.3d 45 (1st Cir. 2012)

BOUDIN, Circuit Judge. Benjamin Small and Nathan Rehlander were each involuntarily admitted to psychiatric hospitals under Maine's "emergency procedure," Me. Rev. Stat. tit. 34-B, § 3863 (2011), and each was later convicted for possessing firearms after having been "committed to a mental institution." 18 U.S.C. § 922(g)(4) (2006). This court has previously held that a section 3863 hospitalization qualifies as a "commitment" under section 922(g)(4),1 but appellants say that District of Columbia v. Heller, 554 U.S. 570, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008), has altered the equation.

1 United States v. Chamberlain, 159 F.3d 656, 665 (1st Cir. 1998); United States v. Holt, 464 F.3d 101, 105-06 (1st Cir. 2006), cert. denied, 549 U.S. 1344, 127 S. Ct. 2031, 167 L. Ed. 2d 773 (2007). Not all circuits shared this view. Compare United States v. Giardina, 861 F.2d 1334, 1337 (5th Cir. 1988), United States v. Hansel, 474 F.2d 1120, 1122-23 (8th Cir. 1973), with United States v. Waters, 23 F.3d 29, 31-36 (2d Cir.), cert. denied, 513 U.S. 867, 115 S. Ct. 185, 130 L. Ed. 2d 119 (1994).

The background events are undisputed and quickly recounted. Maine has two procedures for involuntary psychiatric hospitalization. Section 3863 provides for temporary hospitalization following ex parte procedures--that is to say, without an adversary proceeding. The procedures include an application by a health or law enforcement officer, a certifying medical examination by a medical practitioner, and an endorsement by a judge or justice of the peace confirming that these procedures have been followed. Me. Rev. Stat. tit. 34-B, § 3863(1)-(3).

For full-scale commitments (as opposed to temporary hospitalization), Maine requires a traditional adversary proceeding, Me. Rev. Stat. tit. 34-B, § 3864, culminating in a judicial determination as to whether the subject both is mentally ill and poses a danger to himself or others, id. § 3864(6). This procedure is described in the statute as a "commitment," not "emergency hospitalization," and one consequence is that under Maine law, a section 3864 commitment causes a loss of the right to possess firearms. Me. Rev. Stat. tit. 15, § 393(1)(E).

In May 1998, Small was twice hospitalized under section 3863--at the request of his mother and an emergency mental health worker, respectively--based on suicidal tendencies and other signs of mental illness. In March 2009, the police found Small in possession of an Astra .357 revolver. In April 2009, Small was again hospitalized under section 3863 and then committed on a longer-term basis under section 3864. Small was indicted in November 2009 for violation of section 922(g)(4), based solely on his May 1998 section 3863 hospitalizations and March 2009 possession.

In March 2007, Rehlander was involuntarily hospitalized under section 3863 at the request of a crisis clinician, also based primarily on suicidal impulses. After then submitting to voluntary hospitalization for a few days, Rehlander changed his mind, and in early April 2007 he was again involuntarily hospitalized under section 3863 at the request of hospital personnel. Section 3863 hospitalizations are subject to strict time limits, so the hospital applied for longer-term involuntary commitment under section 3864.

A full-scale section 3864 proceeding followed at the end of which the Maine state court ordered Rehlander discharged, concluding that at this point Rehlander needed treatment but did not pose a risk of serious harm. In December 2008, police responding to an assault complaint found Rehlander with a 9 mm. caliber pistol. Rehlander was indicted in September 2009 for violation of section 922(g)(4), based on his March and April 2007 section 3863 hospitalizations and December 2008 possession.

Both Small and Rehlander moved to dismiss their indictments on constitutional grounds, arguing that application of section 922(g)(4) to them violated their Second Amendment right to bear arms under the Heller decision and their Fifth Amendment due process rights. After the district court denied their motions, each pled guilty to violating section 922(g)(4) but reserved--and have now exercised--their right to appeal from the denial of their motions to dismiss.

The issues before us are legal and our review is therefore de novo. United States v. Volungus, 595 F.3d 1, 4 (1st Cir. 2010). The appellants press their constitutional claims in various permutations; the most potent is that, given Heller's pronouncement of an individual constitutional right to possess arms, the ex parte procedures employed under section 3863 may justify temporary hospitalization but not a permanent deprivation of the right to bear arms--permanent given the lack of any meaningful way ever to recapture that right.

We conclude that this claim is sufficiently powerful that the doctrine of constitutional avoidance requires us to revisit our prior interpretation of section 922(g)(4); and, in doing so, we conclude that section 3863 proceedings do not qualify as a "commitment" for federal purposes. Ordinarily, panel decisions like Chamberlain are binding on subsequent panels but not where intervening Supreme Court precedent requires reconsideration. United States v. Rodriguez, 527 F.3d 221, 224-25 (1st Cir. 2008).

Chamberlain, at the time it was rendered, was a reasonable albeit not compulsory reading of section 922(g)(4). Although section 3863 did not use the word "commitment" and its procedures were effectively ex parte, it was clear from section 922's legislative history cited in the decision that Congress intended an expansive interpretation. Other circuits reached differing conclusions regarding emergency hospitalization procedures similar to section 3863, see note 1, above, but none indicated that there was a constitutional dimension to the problem.

Heller now adds a constitutional component. Although the right established in Heller is a qualified right, see note 3, below, the right to possess arms (among those not properly disqualified) is no longer something that can be withdrawn by government on a permanent and irrevocable basis without due process. Ordinarily, to work a permanent or prolonged loss of a constitutional liberty or property interest, an adjudicatory hearing, including a right to offer and test evidence if facts are in dispute, is required.2 It is evidently doubtful that a section 3863 commitment provides the necessary process for a permanent deprivation.

2 E.g., Willner v. Comm. on Character & Fitness, 373 U.S. 96, 102-03, 83 S. Ct. 1175, 10 L. Ed. 2d 224 (1963); United States v. Fla. E. Coast Ry. Co., 410 U.S. 224, 244-45, 93 S. Ct. 810, 35 L. Ed. 2d 223 (1973); Friendly, Some Kind of Hearing, 123 U. Pa. L. Rev. 1267 (1975); Nowak & Rotunda, Constitutional Law §§ 13.7 & 13.8, at 547-557 (5th ed. 1995).

Section 3863 permits three-day involuntary hospitalizations (earlier it was five days) without any adversary proceeding and with no finding by an independent judicial or even administrative officer that the subject is either mentally disturbed or dangerous. True, there must be an application to a judge and a certification by a "medical practitioner"; but the judge merely determines that the procedural steps have been taken and makes no substantive findings. And the subject is never heard by the judge, through counsel or otherwise.
This is all that is practical for an emergency hospitalization, and for this purpose, we agree with the Maine courts that it is the only process that is due. Doe v. Graham, 2009 ME 88, 977 A.2d 391, 399-400 (Me. 2009). An observer has provided facts, a medical professional has assessed mental illness and a threat to the immediate safety of the subject or others, and hospitalization is limited to a few days unless voluntarily extended by the subject or extended by a court under protective procedures.

By contrast, involuntary commitment under section 3864 is allowed only after a court holds an adversary hearing--providing counsel for the patient and an opportunity to testify and to call and cross-examine witnesses. Me. Rev. Stat. tit. 34-B, § 3864(5). The committing court must then itself determine whether there is clear and convincing evidence that the patient is mentally ill and poses a likelihood of serious harm, and whether better alternative arrangements exist. Id. § 3864(6); cf. Addington v. Texas, 441 U.S. 418, 99 S. Ct. 1804, 60 L. Ed. 2d 323 (1979).

The Supreme Court made clear in Heller that its decision did not undercut traditional restrictions on the possession of arms by those who were mentally ill.3 But nothing suggests that the Court was there addressing a permanent ex parte deprivation of its newly recognized constitutional right. And, given ordinary due process requirements that the Court has adopted in the past, it is highly doubtful that it would deem section 922(g)(4) adequate if it were read to embrace the Maine emergency hospitalization--at least absent further protective procedures or remedies.

3 Among other reservations, the Court stated that "nothing in [Heller] should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill." Heller, 554 U.S. at 626-27; accord McDonald v. City of Chicago, 130 S. Ct. 3020, 3047, 177 L. Ed. 2d 894 (2010).

This would be a different case if section 922 addressed ex parte hospitalizations and provided for a temporary suspension of the right to bear arms pending further proceedings. It could also be different if section 922 permitted one temporarily hospitalized on an emergency basis to recover, on reasonable terms, a suspended right to possess arms on a showing that he now no longer posed a risk of danger. Cf. note 4, below. In all events, right now there is no recovery procedure in Maine that would avoid the ban of section 922.
The Attorney General can grant relief from firearms disability, 18 U.S.C. § 925(c), but Congress has prohibited action on such petitions since 1992. See Logan v. United States, 552 U.S. 23, 28 n.1, 128 S. Ct. 475, 169 L. Ed. 2d 432 (2007); United States v. Booker, 570 F. Supp. 2d 161, 164 n.2 (D. Me. 2008). Congress has also allowed states to develop a "relief from disabilities program," NICS Improvement Amendments Act of 2007, Pub. L. No. 110-180, 121 Stat. 2559 (2008) (codified at 18 U.S.C. § 922 note), but Maine's program has not been approved by the Attorney General.4

4 Even if the state scheme were approved, in this case Rehlander is ineligible for relief due to a five-year waiting period running from the date of discharge from a section 3863 hospitalization. Small's later commitment under section 3864 disqualifies him from relief entirely, see Me. Rev. Stat. tit. 15, § 393(4-A), which is not necessarily a problem but was also (as noted above) not the basis for his conviction in this case.

Accordingly, as federal and Maine law stood and still stand, Small and Rehlander were permanently deprived of a right to bear arms based solely on procedures suitable for temporary hospitalization under emergency conditions. Understandably, nothing in those procedures provided an advance adversary proceeding to test whether the subject was mentally ill or dangerous, but there is also no effective post-hospitalization means to recover the right to bear arms if the subject had in fact never been mentally ill or dangerous.
The constitutional doubts raised by such a regime are sufficient that we now conclude that section 922 should not be read to encompass a temporary hospitalization attended only by the ex parte procedures of section 3863. The ordinary rule is that statutes are to be read to avoid serious constitutional doubts, if that course is possible, Jones v. United States, 529 U.S. 848, 857, 120 S. Ct. 1904, 146 L. Ed. 2d 902 (2000), and it is readily possible here. Indeed, some circuit courts had read procedures like section 3863 not to create disability even without constitutional doubts awakened by Heller. See note 1, above. And it is textually permissible to read section 922 not to be triggered by a section 3863 hospitalization.

It is at least suggestive that section 922 used the word "commitment," and--while state nomenclature is not controlling--section 3863 refers only to admissions on an emergency basis, Me. Rev. Stat. tit. 34-B, § 3863, by contrast to "commitment" under section 3864. Further, Maine law prohibits firearm possession by those committed under section 3864 but not those admitted under section 3863. Me. Rev. Stat. tit. 15, § 393(1)(E). Thus, Maine treats its temporary hospitalization procedures as insufficient to nullify the right to possess guns.

Given the discrepant wording and the sparse procedures of section 3863, only Congress' broad purpose in section 922--to keep guns out of the hands of those who were mentally ill--trumped these considerations in Chamberlain. 159 F.3d at 660, 662-64. True, that purpose would be still be served after Heller by reading section 922 to cover Maine's ex parte hospitalization; yet due process is now a countervailing concern, supported by considerable Supreme Court precedent. And, in enacting section 922, nothing suggests that Congress had in mind temporary hospitalizations supported only by ex parte procedures.

Along with legislative purpose, the government points to our speculation in Chamberlain that some "subsequent proceedings before state tribunals may vitiate" an emergency hospitalization. Chamberlain, 159 F.3d at 665. But a close further look, focused by Heller, persuades us that there is no ready way, at least in the ordinary case, to use section 3864 procedures or any other obvious device, to nullify the asserted arms-barring effect of a mistaken section 3863 admission. Nor does section 922 invite a review of a factual mistake made in such an admission.

The government argues that Small and Rehlander's voluntary extension of their section 3863 hospitalizations--as well as Rehlander's failure to contest his emergency hospitalization in section 3864 proceedings--confirms their mental illness and waives any due process challenge. Such voluntary hospitalizations do not qualify as "commitments." 27 C.F.R. § 478.11 (2011). And, as Rehlander's experience demonstrates, a section 3864 proceeding focuses on current condition and not a prior temporary admission.5

5 As earlier noted, Rehlander prevailed in his section 3864 case; and, as also earlier noted, Small was committed under that section and violated state and federal law if he thereafter possessed a gun, but the government in this case relied only on Small's firearms possession following his 3863 hospitalizations but prior to his section 3864 commitment.

Finally, the government points to evidence that Small and Rehlander were mentally ill and dangerous both at the time of their emergency admissions and when they possessed firearms. But in section 922, Congress did not prohibit gun possession by those who were or are mentally ill and dangerous, and such a free floating prohibition would be very hard to administer, although perhaps not impossible. This is why, as with the ban on prior felons, Congress sought to piggyback on determinations made in prior judicial proceedings to establish status.

Thus, section 922(g)(4) does not bar firearms possession for those who are or were mentally ill and dangerous, but (pertinently) only for any person "who has been adjudicated as a mental defective" or "has been committed to a mental institution." As we read section 922 in light of the concerns already discussed, a temporary hospitalization under section 3863 does not constitute a "commitment" under section 922--just as it clearly does not constitute a commitment under Maine law itself.

If Rehlander is now mentally ill and dangerous, his commitment may be sought under section 3864 which, if successful, will create a presumptively valid section 922 ban; Small is already subject to such a ban as to future gun possession. See note 5 above. As for the broader problem of those hospitalized under section 3863 alone, Congress might well be able to impose a temporary ban on firearms possession or perhaps even a permanent one if procedures existed for later restoring gun rights. Since much might depend on the terms, it is unwise to say more about such matters absent a concrete case and adequate briefing.

It follows that the convictions of Small and Rehlander must be set aside. The district court cannot be faulted for following Chamberlain, but the panel is constrained to abandon that decision by Heller, which implicates the Supreme Court's earlier due process precedents. Complications may result, in relation to prior convictions of others based on Chamberlain, but this often occurs with new Supreme Court doctrine and the problems will be resolved if and as they are presented.

The judgments of conviction of Small and Rehlander are reversed.

Opinion Text: http://www.leagle.com/decision/In%20FCO ... 0REHLANDER

[de officiis]

Kachalsky v. County of Westchester, 701 F.3d 81 (2d Cir. 2012)

WESLEY, Circuit Judge:
2 This appeal presents a single issue: Does New York’s
3 handgun licensing scheme violate the Second Amendment by
4 requiring an applicant to demonstrate “proper cause” to
5 obtain a license to carry a concealed handgun in public?
6 Plaintiffs Alan Kachalsky, Christina Nikolov, Johnnie
7 Nance, Anna Marcucci-Nance, and Eric Detmer (together, the
8 “Plaintiffs”) all seek to carry handguns outside the home
9 for self-defense. Each applied for and was denied a full-
10 carry concealed-handgun license by one of the defendant
11 licensing officers (the “State Defendants”1) for failing to
12 establish “proper cause”—a special need for self-
13 protection—pursuant to New York Penal Law section
14 400.00(2)(f). Plaintiffs, along with the Second Amendment
15 Foundation (“SAF”), thereafter filed this action to contest
16 New York’s proper cause requirement. They contend that the
17 proper cause provision, on its face or as applied to them,
18 violates the Second Amendment as interpreted by the Supreme
19 Court in District of Columbia v. Heller, 554 U.S. 570
20 (2008).
21

1 The State Defendants include Susan Cacace, Jeffrey A. Cohen, Albert Lorenzo, and Robert K. Holdman.


1 The State Defendants moved for summary judgment. The
2 district court granted that motion and granted Defendant
3 County of Westchester summary judgment sua sponte.
4 Kachalsky v. Cacace, 817 F. Supp. 2d 235, 273-74 (S.D.N.Y.
5 2011). The district court found that SAF lacked standing to
6 sue on its own behalf or on behalf of its members. Id. at
7 251. Addressing the merits, the district court concluded
8 that the concealed carrying of handguns in public is
9 “outside the core Second Amendment concern articulated in
10 Heller: self-defense in the home.” Id. at 264. In the
11 alternative, the district court determined that the proper
12 cause requirement would survive constitutional scrutiny even
13 if it implicated the Second Amendment. Id. at 266-72. For
14 the reasons that follow, we affirm.2
15 I
16 A
17 New York’s efforts in regulating the possession and use
18 of firearms predate the Constitution. By 1785, New York had

2 Because we affirm the dismissal of Plaintiffs’ suit, we do not address whether SAF has standing. Where, as here, at least one plaintiff has standing, jurisdiction is secure and we can adjudicate the case whether the additional plaintiff has standing or not. See Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 263-64 (1977). We also do not address Defendant County of Westchester’s contention that it is not a proper party to this case.


1 enacted laws regulating when and where firearms could be
2 used, as well as restricting the storage of gun powder.
3 See, e.g., Act of Apr. 22, 1785, ch. 81, 1785 Laws of N.Y.
4 152; Act of Apr. 13, 1784, ch. 28, 1784 Laws of N.Y. 627.
5 Like most other states, during the nineteenth century, New
6 York heavily regulated the carrying of concealable firearms.
7 In 1881, New York prohibited the concealed carrying of “any
8 kind of fire-arms.” 1881 Laws of N.Y., ch. 676, at 412. In
9 1884, New York instituted a statewide licensing requirement
10 for minors carrying weapons in public, see 1884 Laws of
11 N.Y., ch. 46, § 8, at 47, and soon after the turn of the
12 century, it expanded its licensing requirements to include
13 all persons carrying concealable pistols, see 1905 Laws of
14 N.Y., ch. 92, § 2, at 129–30.
15 Due to a rise in violent crime associated with
16 concealable firearms in the early twentieth century, New
17 York enacted the Sullivan Law in 1911, which made it
18 unlawful for any person to possess, without a license, “any
19 pistol, revolver or other firearm of a size which may be
20 concealed upon the person.” See 1911 Laws of N.Y., ch. 195,
21 § 1, at 443 (codifying N.Y. Penal Law § 1897, ¶ 3); see also
22 N.Y. Legislative Service, Dangerous Weapons—“Sullivan Bill,”

1 1911 Ch. 195 (1911). A study of homicides and suicides
2 completed shortly before the law’s enactment explained: “The
3 increase of homicide by shooting indicates . . . the urgent
4 necessity of the proper authorities taking some measures for
5 the regulation of the indiscriminate sale and carrying of
6 firearms.” Revolver Killings Fast Increasing, N.Y. Times,
7 Jan. 30, 1911 (quoting N.Y. State Coroner’s Office Report).
8 As a result, the study recommended that New York
9 should have a law, whereby a person having a revolver in
10 his possession, either concealed or displayed, unless for
11 some legitimate purpose, could be punished by a severe
12 jail sentence. . . . [A] rigid law, making it difficult
13 to buy revolvers, would be the means of saving hundreds
14 of lives.
15
16 Id. (quoting N.Y. State Coroner’s Office Report).
17 The Sullivan Law survived constitutional attack shortly
18 after it was passed. People ex rel. Darling v. Warden of
19 City Prisons, 154 A.D. 413, 422 (1st Dep’t 1913). Although
20 the law was upheld, in part, on what is now the erroneous
21 belief that the Second Amendment does not apply to the
22 states, the decision provides additional background
23 regarding the law’s enactment:
24 There had been for many years upon the statute books
25 a law against the carriage of concealed weapons. . . . It
26 did not seem effective in preventing crimes of violence
27 in this State. Of the same kind and character, but

1 proceeding a step further with the regulatory
2 legislation, the Legislature has now picked out one
3 particular kind of arm, the handy, the usual and the
4 favorite weapon of the turbulent criminal class, and has
5 said that in our organized communities, our cities, towns
6 and villages where the public peace is protected by the
7 officers of organized government, the citizen may not
8 have that particular kind of weapon without a permit, as
9 it had already said that he might not carry it on his
10 person without a permit.
11
12 Id. at 423 (emphasis added).
13 In 1913, the Sullivan Law was amended to impose a
14 statewide standard for the issuance of licenses to carry
15 firearms in public. 1913 Laws of N.Y., ch. 608, at 1627-30.
16 To obtain a license to carry a concealed pistol or revolver
17 the applicant was required to demonstrate “good moral
18 character, and that proper cause exists for the issuance [of
19 the license].” Id. at 1629. One hundred years later, the
20 proper cause requirement remains a feature of New York’s
21 statutory regime.
22 B
23 New York maintains a general prohibition on the
24 possession of “firearms” absent a license. See N.Y. Penal
25 Law §§ 265.01-265.04, 265.20(a)(3). A “firearm” is defined
26 to include pistols and revolvers; shotguns with barrels less
27 than eighteen inches in length; rifles with barrels less
28 than sixteen inches in length; “any weapon made from a

1 shotgun or rifle” with an overall length of less than
2 twenty-six inches; and assault weapons. N.Y. Penal Law
3 § 265.00(3). Rifles and shotguns are not subject to the
4 licensing provisions of the statute.3
5 Section 400.00 of the Penal Law “is the exclusive
6 statutory mechanism for the licensing of firearms in New
7 York State.”4 O’Connor v. Scarpino, 83 N.Y.2d 919, 920
8 (1994) (Mem.); see N.Y. Penal Law § 265.20(a)(3). Licenses
9 are limited to those over twenty-one years of age, of good
10 moral character, without a history of crime or mental
11 illness, and “concerning whom no good cause exists for the
12 denial of the license.” N.Y. Penal Law § 400.00(1)(a)-(d),
13 (g).
14 Most licenses are limited by place or profession.
15 Licenses “shall be issued” to possess a registered handgun

3 The possession of rifles and shotguns is also regulated. Subject to limited exceptions, it is unlawful to possess a rifle or shotgun “in or upon a building or grounds, used for educational purposes, of any school, college or university . . . or upon a school bus.” N.Y. Penal Law § 265.01(3). It is also unlawful for a person under the age of sixteen to possess a rifle or shotgun unless he or she has a hunting permit issued pursuant to the environmental conservation law. N.Y. Penal Law § 265.05; see also N.Y. Envtl. Conserv. Law § 11-0929.

4 The prohibition on carrying rifles and shotguns on school grounds, in a school building, and on a school bus also applies to those licensed to carry a firearm under section 400.00. N.Y. Penal Law §§ 265.20(3), 265.01(3).


1 in the home or in a place of business by a merchant or
2 storekeeper. N.Y. Penal Law § 400.00(2)(a)-(b). And
3 licenses “shall be issued” for a messenger employed by a
4 banking institution or express company to carry a concealed
5 handgun, as well as for certain state and city judges and
6 those employed by a prison or jail. § 400.00(2)(c)-(e).
7 This case targets the license available under section
8 400.00(2)(f). That section provides that a license “shall
9 be issued to . . . have and carry [a firearm] concealed . .
10 . by any person when proper cause exists for the issuance
11 thereof.” N.Y. Penal Law § 400.00(2)(f). This is the only
12 license available to carry a concealed handgun “without
13 regard to employment or place of possession.” Id. Given
14 that New York bans carrying handguns openly, applicants—like
15 Plaintiffs in this case—who desire to carry a handgun
16 outside the home and who do not fit within one of the
17 employment categories must demonstrate proper cause pursuant
18 to section 400.00(2)(f).
19 “Proper cause” is not defined by the Penal Law, but New
20 York State courts have defined the term to include carrying
21 a handgun for target practice, hunting, or self-defense.
22 When an applicant demonstrates proper cause to carry a

1 handgun for target practice or hunting, the licensing
2 officer may restrict a carry license “to the purposes that
3 justified the issuance.”5 O’Connor, 83 N.Y.2d at 921. In
4 this regard, “a sincere desire to participate in target
5 shooting and hunting . . . constitute a legitimate reason
6 for the issuance of a pistol permit.” In re O’Connor, 585
7 N.Y.S.2d 1000, 1003 (Westchester Cty. Ct. 1992) (citing
8 Davis v. Clyne, 58 A.D.2d 947, 947 (3d Dep’t 1977)).
9 To establish proper cause to obtain a license without
10 any restrictions—the full-carry license that Plaintiffs seek
11 in this case—an applicant must “demonstrate a special need
12 for self-protection distinguishable from that of the general
13 community or of persons engaged in the same profession.”
14 Klenosky v. N.Y City Police Dep’t, 75 A.D.2d 793, 793 (1st
15 Dep’t 1980), aff’d on op. below, 53 N.Y.2d 685 (1981).
16 There is a substantial body of law instructing licensing
17 officials on the application of this standard. Unlike a
18 license for target shooting or hunting, “[a] generalized

5 A license restricted to target practice or hunting permits the licensee to carry concealed a handgun “in connection” with these activities. In re O’Connor, 585 N.Y.S.2d 1000, 1003 (Westchester Cty. Ct. 1992). For instance, a license restricted to target practice permits the licensee to carry the weapon to and from the shooting range. Bitondo v. New York, 182 A.D.2d 948, 948 (3d Dep’t 1992).


1 desire to carry a concealed weapon to protect one’s person
2 and property does not constitute ‘proper cause.’” In re
3 O’Connor, 585 N.Y.S.2d at 1003 (citing Bernstein v. Police
4 Dep’t of City of New York, 85 A.D.2d 574, 574 (1st Dep’t
5 1981)). Good moral character plus a simple desire to carry
6 a weapon is not enough. Moore v. Gallup, 293 N.Y. 846
7 (1944) (per curiam), aff’g 267 A.D. 64, 66 (3d Dep’t 1943);
8 see also In re O’Connor, 585 N.Y.S.2d at 1003. Nor is
9 living or being employed in a “high crime area[].” Martinek
10 v. Kerik, 294 A.D.2d 221, 221-22 (1st Dep’t 2002); see also
11 Theurer v. Safir, 254 A.D.2d 89, 90 (1st Dep’t 1998); Sable
12 v. McGuire, 92 A.D.2d 805, 805 (1st Dep’t 1983).
13 The application process for a license is “rigorous” and
14 administered locally. Bach v. Pataki, 408 F.3d 75, 79 (2d
15 Cir. 2005). Every application triggers a local
16 investigation by police into the applicant’s mental health
17 history, criminal history, moral character, and, in the case
18 of a carry license, representations of proper cause. See
19 N.Y. Penal Law § 400.00(1)-(4). As part of this
20 investigation, police officers take applicants’ fingerprints
21 and conduct a series of background checks with the New York
22 State Division of Criminal Justice Services, the Federal

1 Bureau of Investigation, and the New York State Department
2 of Mental Hygiene. N.Y. Penal Law § 400.00(4). Upon
3 completion of the investigation, the results are reported to
4 the licensing officer. Id.
5 Licensing officers, often local judges,6 are “vested
6 with considerable discretion” in deciding whether to grant a
7 license application, particularly in determining whether
8 proper cause exists for the issuance of a carry license.
9 Vale v. Eidens, 290 A.D.2d 612, 613 (3d Dep’t 2002); see
10 also Kaplan v. Bratton, 249 A.D.2d 199, 201 (1st Dep’t
11 1998); Unger v. Rozzi, 206 A.D.2d 974, 974-75 (4th Dep’t
12 1994); Fromson v. Nelson, 178 A.D.2d 479, 479 (2d Dep’t
13 1991). An applicant may obtain judicial review of the
14 denial of a license in whole or in part by filing a
15 proceeding under Article 78 of New York’s Civil Practice Law
16 and Rules. A licensing officer’s decision will be upheld
17 unless it is arbitrary and capricious. O’Brien v. Keegan,
18 87 N.Y.2d 436, 439-40 (1996).

6 Except in New York City, Nassau County, and Suffolk County, a “licensing officer” is defined as a “judge or justice of a court of record having his office in the county of issuance.” N.Y. Penal Law § 265.00(10). “Licensing officer” is defined in New York City as “the police commissioner of that city”; in Nassau County as “the commissioner of police of that county”; and in Suffolk County as “the sheriff of that county except in the towns of Babylon, Brookhaven, Huntington, Islip and Smithtown, the commissioner of police of that county.” Id.

1C
2 Each individual Plaintiff applied for a full-carry
3 license under section 400.00(2)(f). Four of the five
4 Plaintiffs made no effort to comply with New York’s
5 requirements for a full-carry license, that is, they did not
6 claim a special need for self-protection distinguishable
7 from that of the general community or of persons engaged in
8 the same profession. Plaintiff Kachalsky asserted that the
9 Second Amendment “entitles him to an unrestricted permit
10 without further establishing ‘proper cause.’” J.A. 33. He
11 noted: “[W]e live in a world where sporadic random violence
12 might at any moment place one in a position where one needs
13 to defend onself or possibly others.” J.A. 33-34.
14 Plaintiffs Nance and Marcucci-Nance asserted that they
15 demonstrated proper cause because they were citizens in
16 “good standing” in their community and gainfully employed.
17 J.A. 43-44, 48-49. Plaintiff Detmer asserted that he
18 demonstrated proper cause because he was a federal law
19 enforcement officer with the U.S. Coast Guard.7 J.A. 39.
20 Unlike the other Plaintiffs, Plaintiff Nikolov attempted to

7 Plaintiffs Nance, Marcucci-Nance, and Detmer have carry licenses limited to the purpose of target shooting. Their applications sought to amend their licenses to full-carry licenses.

1 show a special need for self-protection by asserting that as
2 a transgender female, she is more likely to be the victim of
3 violence. J.A. 36. Like the other applicants, she also
4 asserted that being a law-abiding citizen in itself entitled
5 her to a full-carry license. Id.
6 Plaintiffs’ applications were all denied for the same
7 reason: Failure to show any facts demonstrating a need for
8 self-protection distinguishable from that of the general
9 public. J.A. 34 (Kachalsky), 37 (Nikolov), 39 (Detmer),
10 43-44 (Nance), 48-49 (Marcucci-Nance). Nikolov’s contention
11 that her status as a transgender female puts her at risk of
12 violence was rejected because she did not “report . . . any
13 type of threat to her own safety anywhere.” J.A. 36.
14 Plaintiffs aver that they have not reapplied for full-carry
15 licenses because they believe it would be futile, and that
16 they would carry handguns in public but for fear of arrest,
17 prosecution, fine, and/or imprisonment.8 J.A. 75, 77, 79,
18 81, 83, 85.

8 Plaintiff Kachalsky was the only Plaintiff who appealed the denial of his full-carry license application. The Appellate Division, Second Department affirmed the denial, holding that Kachalsky “failed to demonstrate ‘proper cause’ for the issuance of a ‘full carry’ permit.” Kachalsky v. Cacace, 65 A.D.3d 1045 (2d Dep’t 2009). The New York Court of Appeals dismissed Kachalsky’s application for leave to appeal “upon the ground that no substantial constitutional question [was] directly involved.” Kachalsky v. Cacace, 14 N.Y.3d 743, 743 (2010).

1 II
2 Invoking Heller, Plaintiffs contend that the Second
3 Amendment guarantees them a right to possess and carry
4 weapons in public to defend themselves from dangerous
5 confrontation and that New York cannot constitutionally
6 force them to demonstrate proper cause to exercise that
7 right. Defendants counter that the proper cause requirement
8 does not burden conduct protected by the Second Amendment.
9 They share the district court’s view that the Supreme
10 Court’s pronouncement in Heller limits the right to bear
11 arms for self-defense to the home.
12 Heller provides no categorical answer to this case.
13 And in many ways, it raises more questions than it answers.
14 In Heller, the Supreme Court concluded that the Second
15 Amendment codifies a pre-existing “individual right to
16 possess and carry weapons in case of confrontation.” 554
17 U.S. at 592. Given that interpretation, the Court struck
18 down the District of Columbia’s prohibition on the
19 possession of usable firearms in the home because the law
20 banned “the quintessential self-defense weapon” in the place
21 Americans hold most dear—the home. Id. at 628-29.
22 There was no need in Heller to further define the scope
23 of the Second Amendment or the standard of review for laws

1 that burden Second Amendment rights. As the Court saw it,
2 “[f]ew laws in the history of our Nation have come close to
3 the severe restriction of the District's handgun ban.” Id.
4 at 629. Because the Second Amendment was directly at odds
5 with a complete ban on handguns in the home, the D.C.
6 statute ran roughshod over that right. Thus, the Court
7 simply noted that the handgun ban would be unconstitutional
8 “nder any of the standards of scrutiny that we have
9 applied to enumerated constitutional rights.” Id. at 628.
10 Heller was never meant “to clarify the entire field” of
11 Second Amendment jurisprudence.9 Id. at 635.
12

9 A number of courts and academics, take the view that Heller’s reluctance to announce a standard of review is a signal that courts must look solely to the text, history, and tradition of the Second Amendment to determine whether a state can limit the right without applying any sort of means-end scrutiny. See Heller v. District of Columbia, 670 F.3d 1244, 1271-74 (D.C. Cir. 2011) (Kavanaugh, J., dissenting); see also Eugene Volokh, Implementing the Right to Keep and Bear Arms for Self–Defense: An Analytical Framework and a Research Agenda, 56 UCLA L. Rev. 1443, 1463 (2009); Joseph Blocher, Categoricalism and Balancing in First and Second Amendment Analysis, 84 N.Y.U. L. Rev. 375, 405 (2009). We disagree. Heller stands for the rather unremarkable proposition that where a state regulation is entirely inconsistent with the protections afforded by an enumerated right—as understood through that right’s text, history, and tradition—it is an exercise in futility to apply means-end scrutiny. Moreover, the conclusion that the law would be unconstitutional “nder any of the standards of scrutiny” applicable to other rights implies, if anything, that one of the conventional levels of scrutiny would be applicable to regulations alleged to infringe Second Amendment rights.


1 Two years after Heller, the Supreme Court held that the
2 Second Amendment’s protections, whatever their limits, apply
3 fully to the states through the Fourteenth Amendment.
4 McDonald v. City of Chicago, 130 S. Ct. 3020, 3026, 3042
5 (2010). In McDonald, the Court struck down a Chicago law
6 that banned handguns in the home. Id. at 3050. But it also
7 reaffirmed Heller’s assurances that Second Amendment rights
8 are far from absolute and that many longstanding handgun
9 regulations are “presumptively lawful.” Heller 554 U.S. at
10 627 n.26; see McDonald, 130 S. Ct. at 3047. The Court also
11 noted that the doctrine of “incorporation does not imperil
12 every law regulating firearms.” McDonald, 130 S. Ct. at
13 3047.
14 What we know from these decisions is that Second
15 Amendment guarantees are at their zenith within the home.
16 Heller, 554 U.S. at 628-29. What we do not know is the
17 scope of that right beyond the home and the standards for
18 determining when and how the right can be regulated by a
19 government. This vast “terra incognita” has troubled courts
20 since Heller was decided. United States v. Masciandaro, 638
21 F.3d 458, 475 (4th Cir. 2011) (Wilkinson, J., for the
22 Court). Although the Supreme Court’s cases applying the

1 Second Amendment have arisen only in connection with
2 prohibitions on the possession of firearms in the home, the
3 Court’s analysis suggests, as Justice Stevens’s dissent in
4 Heller and Defendants in this case before us acknowledge,
5 that the Amendment must have some application in the very
6 different context of the public possession of firearms.10
7 Our analysis proceeds on this assumption.
8A
9 Plaintiffs contend that, as in Heller, history and
10 tradition demonstrate that there is a “fundamental right” to
11 carry handguns in public, and though a state may regulate
12 open or concealed carrying of handguns, it cannot ban both.
13 While Plaintiffs concede that state legislative efforts have
14 long recognized the dangers presented by both the open and
15 concealed carrying of handguns in public places, they
16 contend that states must suffer a constitutionally imposed
17 choice between two equally inadequate alternatives. Thus,
18 according to Plaintiffs, “access to [New York’s] only
19 available handgun carry license can[not] be qualified by

10 The plain text of the Second Amendment does not limit the right to bear arms to the home.


1 ‘proper cause.’”11 Appellants’ Br. at 38.
2 To be sure, some nineteenth-century state courts
3 offered interpretations of the Second Amendment and
4 analogous state constitutional provisions that are similar
5 to Plaintiffs’ position. In State v. Reid, the Supreme
6 Court of Alabama upheld a prohibition on the concealed
7 carrying of “any species of fire arms” but cautioned that
8 the state’s ability to regulate firearms was not unlimited
9 and could not “amount[] to a destruction of the right, or .
10 . . require[] arms to be so borne as to render them wholly

11 Plaintiffs’ argument is premised, in part, on Heller’s enunciation of certain “longstanding” regulatory measures, including concealed carry bans, that the Court deemed “presumptively lawful.” Heller, 554 U.S. at 626-27; see also McDonald, 130 S. Ct. at 3047 (plurality opinion) (same). Thus, plaintiffs contend that regulations that are not similarly “longstanding” are not valid restrictions on Second Amendment rights. We do not view this language as a talismanic formula for determining whether a law regulating firearms is consistent with the Second Amendment. While we find it informative, it simply makes clear that the Second Amendment right is not unlimited.
Moreover, even if this language provided a “test” for determining the validity of a handgun regulation, it is not self-evident what that test might be. The “longstanding” prohibitions on the possession of firearms by felons and the mentally ill were identified as “presumptively lawful,” Heller, 554 U.S. at 626-27 and n. 26, but these laws were not enacted until the early twentieth century, see Carlton F.W. Larson, Four Exceptions in Search of a Theory: District of Columbia v. Heller and Judicial Ipse Dixit, 60 Hastings L.J. 1371, 1374-79 (2009). New York’s proper cause requirement is similarly “longstanding”—it has been the law in New York since 1913. 1913 Laws of N.Y., ch. 608, at 1627-30.


1 useless for the purpose of defence.” 1 Ala. 612, 1840 WL
2 229, at *2-3 (1840). Relying on Reid, the Supreme Court of
3 Georgia held that a statute prohibiting the carrying of
4 concealed pistols was unconstitutional insofar as it also
5 “contains a prohibition against bearing arms openly.” Nunn
6 v. State, 1 Ga. 243, 1846 WL 1167, at *11 (1846) (emphasis
7 in original).12 And in State v. Chandler, the Supreme Court
8 of Louisiana upheld a concealed-carry ban because “t
9 interfered with no man’s right to carry arms . . . in full
10 open view.” 5 La. Ann. 489, 1850 WL 3838, at *1 (1850)
11 (internal quotation marks omitted).13
12

12 Nunn is cited in Justice Scalia’s majority opinion in Heller as an example of state court responses to handgun regulatory efforts within the states. Heller, 554 U.S. at 629.

13 Notably, Chandler and Reid conflict with Plaintiffs’ position, at least in part. Plaintiffs contend that a state may choose to ban open carrying so long as concealed carrying is permitted. But both Chandler and Reid suggest that open carrying must be permitted. The Reid court explained:

Under the provision of our constitution, we incline to the opinion that the Legislature cannot inhibit the citizen from bearing arms openly, because it authorizes him to bear them for the purposes of defending himself and the State, and it is only when carried openly, that they can be efficiently used for defense.

1840 WL 229, at *5; see also Chandler, 1850 WL 3838, at *1.


1 But this was hardly a universal view. Other states
2 read restrictions on the public carrying of weapons as
3 entirely consistent with constitutional protections of the
4 right to keep and bear arms. At least four states once
5 banned the carrying of pistols and similar weapons in
6 public, both in a concealed or an open manner. See, e.g.,
7 Ch. 96, §§ 1-2, 1881 Ark. Acts at 191-92; Act of Dec. 2,
8 1875, ch. 52, § 1, 1876 Wyo. Terr. Comp. Laws, at 352; Ch.
9 13, § 1, 1870 Tenn. Acts at 28; Act of Apr. 12, 1871, ch.
10 34, § 1, 1871 Tex. Gen. Laws at 25. And the statutes in
11 Texas, Tennessee, and Arkansas withstood constitutional
12 challenges. See, e.g., Fife v. State, 31 Ark. 455, 1876 WL
13 1562, at *4 (1876); English v. State, 35 Tex. 473, 1872 WL
14 7422, at *3 (1871); Andrews v. State, 50 Tenn. 165, 1871 WL
15 3579, at *11 (1871).14

14 These cases were decided on the basis of an interpretation of the Second Amendment—that pistols and similar weapons are not “arms” within the meaning of the Second Amendment or its state constitutional analogue—that conflicts with the Supreme Court’s present reading of the Amendment. Fife, 1876 WL 1562, at *4; English, 1872 WL 7422, at *3; Andrews, 1871 WL 3579, at *11. For instance, the Texas court construed the Second Amendment as protecting only the “arms of a militiaman or soldier,” which include “the musket and bayonet . . . holster pistols and carbine . . . [and] side arms.” 1872 WL 7422, at *3. To refer to the non-military style pistols covered by the statute as necessary for a “well-regulated militia” was, according to the court, “simply ridiculous.” Id. Similarly, the Tennessee court invalidated the statute to the extent it covered revolvers “adapted to the usual equipment of a solider.” Andrews, 1871 WL 3579, at *11.

1 It seems apparent to us that unlike the situation in
2 Heller where “[f]ew laws in the history of our Nation have
3 come close” to D.C.’s total ban on usable handguns in the
4 home, New York’s restriction on firearm possession in public
5 has a number of close and longstanding cousins.15 Heller,
6 554 U.S. at 629. History and tradition do not speak with
7 one voice here. What history demonstrates is that states
8 often disagreed as to the scope of the right to bear arms,
9 whether the right was embodied in a state constitution or
10 the Second Amendment. Compare Bliss v. Commonwealth,
12 Ky.
11 90, 1822 WL 1085, at *3 (1822) (concluding that a
12 prohibition on carrying concealed weapons was
13 unconstitutional), with Aymette v. State, 21 Tenn. 154, 1840
14 WL 1554, at **4-6 (1840) (citing to Bliss but reaching the
15 opposite conclusion).
16 Even if we believed that we should look solely to this
17 highly ambiguous history and tradition to determine the
18 meaning of the Amendment, we would find that the cited
19 sources do not directly address the specific question before
20 us: Can New York limit handgun licenses to those
21 demonstrating a special need for self-protection? Unlike

15 The extensive history of state regulation of handguns in public is discussed in detail in Part II.B.


1 the cases and statutes discussed above, New York’s proper
2 cause requirement does not operate as a complete ban on the
3 possession of handguns in public. Analogizing New York’s
4 licensing scheme (or any other gun regulation for that
5 matter) to the array of statutes enacted or construed over
6 one hundred years ago has its limits.
7 Plaintiffs raise a second argument with regard to how
8 we should measure the constitutional legitimacy of the New
9 York statute that takes a decidedly different tack. They
10 suggest that we apply First Amendment prior-restraint
11 analysis in lieu of means-end scrutiny to assess the proper
12 cause requirement.16 They see the nature of the rights
13 guaranteed by each amendment as identical in kind. One has
14 a right to speak and a right to bear arms. Thus, just as
15 the First Amendment permits everyone to speak without
16 obtaining a license, New York cannot limit the right to bear
17 arms to only some law-abiding citizens. We are hesitant to
18 import substantive First Amendment principles wholesale into
19 Second Amendment jurisprudence. Indeed, no court has done

16 Plaintiffs also contend that NewYork’s requirement that license applicants be “of good moral character” is an unconstitutional prior restraint. Because, as Plaintiffs admit, this provision was not challenged in their complaint or below, we choose not to consider it here.


1 so. See, e.g., Woollard v. Sheridan, 863 F. Supp. 2d 462,
2 472 (D. Md. 2012); Piszczatoski v. Filko, 840 F. Supp. 2d
3 813, 835-36 (D.N.J. 2012).
4 We recognize that analogies between the First and
5 Second Amendment were made often in Heller. 554 U.S. at
6 582, 595, 606, 635. Similar analogies have been made since
7 the Founding. See, e.g., Commonwealth v. Blanding, 20 Mass.
8 304, 314 (1825) (“The liberty of the press was to be
9 unrestrained, but he who used it was to be responsible in
10 case of its abuse; like the right to keep fire arms, which
11 does not protect him who uses them for annoyance or
12 destruction.”). Notably, these analogies often used the
13 states’ power to regulate firearms, which was taken as
14 unassailably obvious, to support arguments in favor of
15 upholding limitations on First Amendment rights. But it
16 would be as imprudent to assume that the principles and
17 doctrines developed in connection with the First Amendment
18 apply equally to the Second, as to assume that rules
19 developed in the Second Amendment context could be
20 transferred without modification to the First. Endorsing
21 that approach would be an incautious equation of the two
22 amendments and could well result in the erosion of hard-won
23 First Amendment rights. As discussed throughout, there are

1 salient differences between the state’s ability to regulate
2 each of these rights. See generally L.A. Powe, Jr., Guns,
3 Words, and Constitutional Interpretation, 38 Wm. & Mary L.
4 Rev. 1311 (1997) (discussing problems with efforts to
5 associate firearms with the First Amendment’s prohibition on
6 prior restraints).
7 But even if we decided to apply prior-restraint
8 doctrine to Second Amendment claims, this case would be a
9 poor vehicle for its maiden voyage. To make out a
10 prior-restraint argument, Plaintiffs would have to show that
11 the proper cause requirement lacks “narrow, objective, and
12 definite standards,” thereby granting officials unbridled
13 discretion in making licensing determinations. Forsyth
14 Cnty. v. Nationalist Movement, 505 U.S. 123, 131 (1992)
15 (quoting Shuttlesworth v. Birmingham, 394 U.S. 147, 150-51
16 (1969)). But Plaintiffs’ contention that the proper cause
17 requirement grants licensing officials unbridled discretion
18 is something of a red herring. Plaintiffs admit that there
19 is an established standard for determining whether an
20 applicant has demonstrated proper cause. The proper cause
21 requirement has existed in New York since 1913 and is
22 defined by binding judicial precedent as “a special need for
23 self-protection distinguishable from that of the general

1 community or of persons engaged in the same profession.”
2 Klenosky, 75 A.D.2d at 793; see e.g., Brando v. Sullivan,
3 290 A.D.2d 691, 693 (3d Dep’t 2002); Bernstein, 85 A.D.2d at
4 574.
5 Plaintiffs’ complaint is not that the proper cause
6 requirement is standardless; rather, they simply do not like
7 the standard—that licenses are limited to those with a
8 special need for self-protection. This is not an argument
9 that licensing officials have unbridled discretion in
10 granting full-carry permits. In fact, the State Defendants’
11 determinations that Plaintiffs do not have a special need
12 for self-protection are unchallenged. Rather, Plaintiffs
13 question New York’s ability to limit handgun possession to
14 those demonstrating a threat to their safety. This is
15 precisely the type of argument that should be addressed by
16 examining the purpose and impact of the law in light of the
17 Plaintiffs’ Second Amendment right.
18 Plaintiffs’ attempts to equate this case with Heller or
19 to draw analogies to First Amendment concerns come up short.

[Cont'd. next post]

[de officiis]

Kachalsky v. County of Westchester, 701 F.3d 81 (2d Cir. 2012) [Cont'd.]

20 B
21 Thus, given our assumption that the Second Amendment
22 applies to this context, the question becomes how closely to

1 scrutinize New York’s statute to determine its
2 constitutional mettle. Heller, as noted above, expressly
3 avoided deciding the standard of review for a law burdening
4 the right to bear arms because it concluded that D.C.’s
5 handgun ban was unconstitutional “nder any of the
6 standards of scrutiny [traditionally] applied to enumerated
7 constitutional rights.” Heller, 554 U.S. at 628. The Court
8 did, however, rule out a rational basis review because it
9 “would be redundant with the separate constitutional
10 prohibitions on irrational laws.” Id. at 629 n.27.
11 We have held that “heightened scrutiny is triggered
12 only by those restrictions that (like the complete
13 prohibition on handguns struck down in Heller) operate as a
14 substantial burden on the ability of law-abiding citizens to
15 possess and use a firearm for self-defense (or for other
16 lawful purposes).” United States v. Decastro, 682 F.3d 160,
17 166 (2d Cir. 2012). Decastro rejected a Second Amendment
18 challenge to 18 U.S.C. § 922(a)(3), which makes it unlawful
19 for an individual to transport into his state of residence a
20 firearm acquired in another state. Because we concluded
21 that § 922(a)(3) did not impose a substantial burden on the
22 defendant’s Second Amendment right, we left unanswered “the
23 level of scrutiny applicable to laws that do impose such a

1 burden.” Id. at 165. Here, some form of heightened
2 scrutiny would be appropriate. New York’s proper cause
3 requirement places substantial limits on the ability of law-
4 abiding citizens to possess firearms for self-defense in
5 public. And unlike Decastro, there are no alternative
6 options for obtaining a license to carry a handgun.
7 We do not believe, however, that heightened scrutiny
8 must always be akin to strict scrutiny when a law burdens
9 the Second Amendment. Heller explains that the “core”
10 protection of the Second Amendment is the “right of law-
11 abiding, responsible citizens to use arms in defense of
12 hearth and home.” Heller, 554 U.S. at 634-35. Although we
13 have no occasion to decide what level of scrutiny should
14 apply to laws that burden the “core” Second Amendment
15 protection identified in Heller, we believe that applying
16 less than strict scrutiny when the regulation does not
17 burden the “core” protection of self-defense in the home
18 makes eminent sense in this context and is in line with the
19 approach taken by our sister circuits.17 It is also

17 Heller v . District of Columbia, 670 F.3d 1244, 1261–64 (D.C. Cir. 2011) (applying intermediate scrutiny to prohibition on possession of magazines with a capacity of more than ten rounds of ammunition); United States v. Booker, 644 F.3d 12, 25 (1st Cir. 2011) (applying intermediate scrutiny to 18 U.S.C. § 922(g)(9), which prohibits the possession of firearms by a person convicted of a misdemeanor crime of domestic violence), cert. denied, 132 S. Ct. 1538 (2012); United States v. Masciandaro, 638 F.3d 458, 470 (4th Cir. 2011) (applying intermediate scrutiny to 36 C.F.R. § 2.4(b), which prohibits “carrying or possessing a loaded weapon in a motor vehicle” within national park areas), cert. denied, 132 S. Ct. 756 (2011); United States v. Chester, 628 F.3d 673, 683 (4th Cir. 2010) (applying intermediate scrutiny to 18 U.S.C. § 922(g)(9)); United States v. Marzzarella, 614 F.3d 85, 97 (3d Cir. 2010) (applying intermediate scrutiny to 18 U.S.C. § 922(k), which prohibits the possession of firearms with obliterated serial numbers), cert. denied 131 S. Ct. 958 (2011); United States v. Reese, 627 F.3d 792, 802 (10th Cir. 2010) (applying intermediate scrutiny to 18 U.S.C. § 922(g)(8), which prohibits the possession of firearms while subject to a domestic protection order), cert. denied, 131 S. Ct. 2476 (2011); United States v. Skoien, 614 F.3d 638, 641-42 (7th Cir. 2010) (en banc) (applying form of intermediate scrutiny to 18 U.S.C. § 922(g)(9)), cert. denied, 131 S. Ct. 1674 (2011).


1 consistent with jurisprudential experience analyzing other
2 enumerated rights. For instance, when analyzing First
3 Amendment claims, content-based restrictions on
4 noncommercial speech are subject to strict scrutiny, see
5 United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803,
6 813 (2000), while laws regulating commercial speech are
7 subject to intermediate scrutiny, see Florida Bar v. Went
8 For It, Inc., 515 U.S. 618, 624-25 (1995).
9 The proper cause requirement falls outside the core
10 Second Amendment protections identified in Heller. New
11 York’s licensing scheme affects the ability to carry
12 handguns only in public, while the District of Columbia ban
13 applied in the home “where the need for defense of self,

1 family, and property is most acute.” Heller, 554 U.S. at
2 628. This is a critical difference. The state’s ability to
3 regulate firearms and, for that matter, conduct, is
4 qualitatively different in public than in the home. Heller
5 reinforces this view. In striking D.C.’s handgun ban, the
6 Court stressed that banning usable handguns in the home is a
7 “policy choice[]” that is “off the table,” id. at 636, but
8 that a variety of other regulatory options remain available,
9 including categorical bans on firearm possession in certain
10 public locations, id. at 626-27 & n.26.
11 Treating the home as special and subject to limited
12 state regulation is not unique to firearm regulation; it
13 permeates individual rights jurisprudence. For instance, in
14 Stanley v. Georgia, the Court held that in-home possession
15 of obscene materials could not be criminalized, even as it
16 assumed that public display of obscenity was unprotected.
17 394 U.S. 557, 568 (1969). While “the States retain broad
18 power to regulate obscenity[] that power simply does not
19 extend to mere possession by the individual in the privacy
20 of his own home.” Id. Similarly, in Lawrence v. Texas, the
21 Court emphasized that the state’s efforts to regulate
22 private sexual conduct between consenting adults is
23 especially suspect when it intrudes into the home: “Liberty

1 protects the person from unwarranted government intrusions
2 into a dwelling or other private places. In our tradition
3 the State is not omnipresent in the home.” 539 U.S. 558,
4 562 (2003); see also Kyllo v. United States, 533 U.S. 27, 37
5 (2001) (“In the home, our [Fourth Amendment] cases show
6 [that] the entire area is held safe from prying government
7 eyes.”); Griswold v. Connecticut, 381 U.S. 479, 484 (1965)
8 (discussing general right to privacy that was closely
9 connected to “the sanctity of a man’s home and the privacies
10 of life” (internal quotation marks omitted)).18
11 But while the state’s ability to regulate firearms is
12 circumscribed in the home, “outside the home, firearm rights
13 have always been more limited, because public safety
14 interests often outweigh individual interests in self-
15 defense.” Masciandaro, 638 F.3d at 470. There is a
16 longstanding tradition of states regulating firearm
17 possession and use in public because of the dangers posed to
18 public safety. See Saul Cornell & Nathan DeDino, A Well
19 Regulated Right: The Early American Origins of Gun Control,

18 That the home deserves special protection from government intrusion is also reflected in the Third Amendment, which provides: “No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.” U.S. Const. amend. III.


1 73 Fordham L. Rev. 487, 502-16 (2004). During the Founding
2 Era, for instance, many states prohibited the use of
3 firearms on certain occasions and in certain locations.
4 See, e.g., Act of April 22, 1785, ch. 81, 1785 Laws of N.Y.
5 152; Act of Nov. 16, 1821, ch. LXLIII, 1821 Tenn. Pub. Acts
6 78; Act of Jan. 30, 1847, 1846-1847 Va. Acts ch. 79, at 67;
7 Act of Dec. 24, 1774, ch. DCCIII, 1774 Pa. Stat. 410.19
8 Other states went even further. North Carolina prohibited
9 going armed at night or day “in fairs, markets, nor in the
10 presence of the King’s Justices, or other ministers, nor in
11 no part elsewhere.” See Patrick J. Charles, The Faces of
12 the Second Amendment Outside the Home: History Versus
13 Ahistorical Standards of Review, 60 Clev. St. L. Rev. 1, 31-
14 32 (2012) (citation and internal quotation marks
15 omitted). Massachusetts and Virginia enacted similar laws.

19 Regulations concerning the militia and the storage of gun powder were also common. See Act of May 8, 1792, 1792 Conn. Pub. Acts 440 (forming the state militia); Act of July 19, 1776, ch. I, 1775-1776 Mass. Acts 15 (regulating the militia of Massachusetts); Act of Apr. 3, 1778, ch. 33, 1778 Laws of N.Y. 62 (regulating the militia of New York State); Act of Mar. 20, 1780, ch. CLXVII, 1780 Pa. Laws 347 (regulating the militia of Pennsylvania); Act of Mar. 26, 1784, 1784 S.C. Acts 68 (regulating militia); see also Act of June 26, 1792, ch. X, 1792 Mass. Acts 208 (regulating storage of gun powder in Boston); Act of Apr. 13, 1784, ch. 28, 1784 Laws of N.Y. 627 (regulating storage of gun powder in New York); Act of Dec. 6, 1783, ch. CIV, 1783 Pa. Laws 161, ch. MLIX, 11 Pa. Stat. 209 (protecting the city of Philadelphia from the danger of gunpowder).

1 Id.20
2 In the nineteenth century, laws directly regulating
3 concealable weapons for public safety became commonplace and
4 far more expansive in scope than regulations during the
5 Founding Era. Most states enacted laws banning the carrying
6 of concealed weapons.21 And as Heller noted, “the majority
7 of the 19th-century courts to consider the question held
8 that prohibitions on carrying concealed weapons were lawful

20 Curiously, North Carolina referred to the “King's Justices” after the colonies had won their independence. The laws in North Carolina, Massachusetts, and Virginia track language from the 1328 Statute of Northampton, which provided that no person shall “go nor ride armed by Night nor by Day in Fairs, Markets, nor in the Presence of the Justices or other Ministers nor in no Part elsewhere.” 2 Edw. 3, c. 3 (1328) (Eng.). There is debate in the historical literature concerning whether the Statute of Northampton, and laws adopting similar language, prohibited the carrying of weapons in public generally or only when it would “terrorize” the public. See Charles, The Faces of the Second Amendment Outside the Home, 60 Clev. St. L. Rev. at 31-32.

21 See Act of Feb.1, 1839, ch.77, 1839 Ala. Acts at 67-68; Act of Apr. 1, 1881, ch. 96, § 1, 1881 Ark. Acts at 191; Act of Feb. 1, 1881, 1881 Colo. Sess. Laws at 74; Act of Feb. 12, 1885, ch. 3620, 1885 Fla. Laws at 61; Act of Apr. 16, 1881, 1881 Ill. Laws at 73-74; Act of Jan. 14, 1820, ch. 23, 1820 Ind. Acts at 39; 29 Ky. Gen. Stat. art. 29, § 1 (as amended through 1880); Act of Mar. 25, 1813, 1813 La. Acts at 172; 1866 Md. Laws, ch. 375, §1; Neb. Gen. Stat., ch. 58, ch. 5, § 25 (1873); Act of Mar. 5, 1879, ch. 127, 1879 N.C. Sess. Laws at 231; N.D. Pen. Code § 457 (1895); Act of Mar. 18, 1859, 1859 Ohio Laws at 56; Act of Feb. 18, 1885, 1885 Or. Laws at 33; Act of Dec. 24, 1880, no. 362, 1881 S.C. Acts at 447; S.D. Terr. Pen. Code § 457 (1883); Act of Apr. 12, 1871, ch. 34, 1871 Tex. Gen. Laws at 25-27; Act of Oct. 20, 1870, ch. 349, 1870 Va. Acts at 510; Wash. Code § 929 (1881); W. Va. Code, ch. 148, § 7 (1891); see also Cornell & DeDino, A Well Regulated Right, 73 Fordham L. Rev. at 502-16.


1 under the Second Amendment or state analogues.” Heller, 554
2 U.S. at 626. Indeed, the nineteenth century Supreme Court
3 agreed, noting that “the right of the people to keep and
4 bear arms . . . is not infringed by laws prohibiting the
5 carrying of concealed weapons.” Robertson v. Baldwin, 165
6 U.S. 275, 281-82 (1897).
7 In some ways, these concealed-carry bans were similar
8 to New York’s law because while a few states with concealed-
9 carry bans considered self-defense concerns, the exceptions
10 were extremely limited. For instance, in Ohio there was an
11 exception if “the accused was, at the time of carrying [the
12 concealed weapon] engaged in a pursuit of any lawful
13 business, calling or employment, and that the circumstances
14 . . . justif[ied] a prudent man in carrying the weapon . . .
15 for the defense of his person.” Act of Mar. 18, 1859, 1859
16 Ohio Laws at 56-57. Similarly, in Tennessee, a person was
17 exempted from the concealed carry ban who was “on a journey
18 to any place out of his county or state.” Act of Oct. 19,
19 1821, ch. XIII, 1821 Tenn. Pub. Acts at 15-16. By contrast,
20 Virginia’s concealed-carry ban was even stricter than New
21 York’s statute because it explicitly rejected a self-defense
22 exception. A defendant was guilty under Virginia’s
23 concealed-carry ban even if he was acting in self-defense
24 when using the weapon. 1838 Va. Acts ch. 101 at 76.

1 Some states went even further than prohibiting the
2 carrying of concealed weapons. As discussed above, several
3 states banned concealable weapons (subject to certain
4 exceptions) altogether whether carried openly or concealed.
5 See Part II.A. Other states banned the sale of concealable
6 weapons. For instance, Georgia criminalized the sale of
7 concealable weapons, effectively moving toward their
8 complete prohibition. Act of Dec. 25, 1837, 1837 Ga. Laws
9 at 90 (protecting citizens of Georgia against the use of
10 deadly weapons). Tennessee enacted a similar law, which
11 withstood constitutional challenge. Act of Jan. 27, 1838,
12 ch. CXXXVII, 1837-1838 Tenn. Pub. Acts 200. In upholding
13 the law, the Supreme Court of Tennessee reasoned that "[t]he
14 Legislature thought the evil great, and, to effectually
15 remove it, made the remedy strong.” Day v. State, 37 Tenn.
16 (5 Sneed) 496, 500 (1857).
17 The historical prevalence of the regulation of firearms
18 in public demonstrates that while the Second Amendment’s
19 core concerns are strongest inside hearth and home, states
20 have long recognized a countervailing and competing set of
21 concerns with regard to handgun ownership and use in public.
22 Understanding the scope of the constitutional right is the

1 first step in determining the yard stick by which we measure
2 the state regulation. See, e.g., Bd. Of Trustees of Univ.
3 of Alabama v. Garrett, 531 U.S. 356, 365 (2001) (“The first
4 step in [analyzing legislation intersecting with enumerated
5 rights] is to identify with some precision the scope of the
6 constitutional right at issue.”).
7 We believe state regulation of the use of firearms in
8 public was “enshrined with[in] the scope” of the Second
9 Amendment when it was adopted. Heller, 554. U.S. at 634.
10 As Plaintiffs admitted at oral argument, “the state enjoys a
11 fair degree of latitude” to regulate the use and possession
12 of firearms in public. The Second Amendment does not
13 foreclose regulatory measures to a degree that would result
14 in “handcuffing lawmakers’ ability to prevent armed mayhem
15 in public places.” Masciandaro, 638 F.3d at 471 (internal
16 quotation marks omitted).
17 Because our tradition so clearly indicates a
18 substantial role for state regulation of the carrying of
19 firearms in public, we conclude that intermediate scrutiny
20 is appropriate in this case. The proper cause requirement
21 passes constitutional muster if it is substantially related
22 to the achievement of an important governmental interest.

1 See, e.g., Masciandaro, 638 F.3d at 471; Skoien, 614 F.3d at
2 641-42; see also Ernst J. v. Stone, 452 F.3d 186, 200 n.10
3 (2d Cir. 2006) (“[T]he label ‘intermediate scrutiny’ carries
4 different connotations depending on the area of law in which
5 it is used.”).
6 As the parties agree, New York has substantial, indeed
7 compelling, governmental interests in public safety and
8 crime prevention. See, e.g., Schenck v. Pro–Choice Network,
9 519 U.S. 357, 376 (1997); Schall v. Martin, 467 U.S. 253,
10 264 (1984); Hodel v. Va. Surface Mining & Reclamation Ass’n,
11 452 U.S. 264, 300 (1981); Kuck v. Danaher, 600 F.3d 159, 166
12 (2d Cir. 2010). The only question then is whether the
13 proper cause requirement is substantially related to these
14 interests. We conclude that it is.
15 In making this determination, “substantial deference to
16 the predictive judgments of [the legislature]” is warranted.
17 Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180, 195 (1997).
18 The Supreme Court has long granted deference to legislative
19 findings regarding matters that are beyond the competence of
20 courts. See Holder v. Humanitarian Law Project, 130 S. Ct.
21 2705, 2727 (2010); Turner Broad. Sys., Inc., 520 U.S. at
22 195–196; see also Walters v. National Ass’n of Radiation 37

1 Survivors, 473 U.S. 305, 330-31 n.12 (1985). In the context
2 of firearm regulation, the legislature is “far better
3 equipped than the judiciary” to make sensitive public policy
4 judgments (within constitutional limits) concerning the
5 dangers in carrying firearms and the manner to combat those
6 risks. Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 665
7 (1994). Thus, our role is only “to assure that, in
8 formulating its judgments, [New York] has drawn reasonable
9 inferences based on substantial evidence.” Id. at 666.
10 Unlike strict scrutiny review, we are not required to ensure
11 that the legislature’s chosen means is “narrowly tailored”
12 or the least restrictive available means to serve the stated
13 governmental interest. To survive intermediate scrutiny,
14 the fit between the challenged regulation need only be
15 substantial, “not perfect.” Marzzarella, 614 F.3d at 97.
16 New York’s legislative judgment concerning handgun
17 possession in public was made one-hundred years ago. In
18 1911, with the enactment of the Sullivan Law, New York
19 identified the dangers inherent in the carrying of handguns
20 in public. N.Y. Legislative Service, Dangerous Weapons -
21 “Sullivan Bill,” 1911 Ch. 195 (1911). And since 1913, New
22 York’s elected officials determined that a reasonable method

1 for combating these dangers was to limit handgun possession
2 in public to those showing proper cause for the issuance of
3 a license. 1913 Laws of N.Y., ch. 608, at 1627-30. The
4 proper cause requirement has remained a hallmark of New
5 York’s handgun regulation since then.22
6 The decision to regulate handgun possession was
7 premised on the belief that it would have an appreciable
8 impact on public safety and crime prevention. As explained
9 in the legislative record:
10 The primary value to law enforcement
11 of adequate statutes dealing with dangerous
12 weapons is prevention of crimes of violence
13 before their consummation.
14
15 ....
16
17 . . . In the absence of adequate weapons
18 legislation, under the traditional law of
19 criminal attempt, lawful action by the
20 police must await the last act necessary to
21 consummate the crime. . . . Adequate
22 statutes governing firearms and weapons
23 would make lawful intervention by police

22 New York’s statutory scheme was the result of a“careful balancing of the interests involved” and not a general animus towards guns. Report of the N.Y. State Joint Legislative Comm. On Firearms & Ammunition, Doc. No. 6, at 12 (1965). The legislature explained that “tatutes governing firearms . . . are not desirable as ends in themselves.” Id. Rather, the purpose was “to prevent crimes of violence before they can happen, and at the same time preserve legitimate interests such as training for the national defense, the right of self defense, and recreational pursuits of hunting, target shooting and trophy collecting.” Id.


1 and prevention of these fatal consequences,
2 before any could occur.
3
4 Report of the N.Y. State Joint Legislative Comm. On Firearms
5 & Ammunition, Doc. No. 6, at 12-13 (1965). Similar concerns
6 were voiced in 1987, during a floor debate concerning
7 possible changes to the proper cause requirement. See N.Y.
8 Senate Debate on Senate Bill 3409, at 2471 (June 2, 1987).
9 The connection between promoting public safety and
10 regulating handgun possession in public is not just a
11 conclusion reached by New York. It has served as the basis
12 for other states’ handgun regulations, as recognized by
13 various lower courts. Piszczatoski, 840 F. Supp. 2d 813 at
14 835-36; Richards v. Cty. of Yolo, 821 F. Supp. 2d 1169, 1172
15 (E.D. Cal. 2011); Peruta v. Cty. of San Diego, 758 F. Supp.
16 2d 1106, 1110 (S.D. Cal. 2010).
17 Given New York’s interest in regulating handgun
18 possession for public safety and crime prevention, it
19 decided not to ban handgun possession, but to limit it to
20 those individuals who have an actual reason (“proper cause”)
21 to carry the weapon. In this vein, licensing is oriented to
22 the Second Amendment’s protections. Thus, proper cause is
23 met and a license “shall be issued” when a person wants to

1 use a handgun for target practice or hunting. N.Y. Penal
2 Law § 400.00(2)(f); see, e.g., Clyne, 58 A.D.2d at 947. And
3 proper cause is met and a license “shall be issued” when a
4 person has an actual and articulable—rather than merely
5 speculative or specious—need for self-defense. N.Y. Penal
6 Law § 400.00(2)(f); see, e.g., Klenosky, 75 A.D.2d at 793.
7 Moreover, the other provisions of section 400.00(2) create
8 alternative means by which applicants engaged in certain
9 employment may secure a carry license for self-defense. As
10 explained earlier, a license “shall be issued” to merchants
11 and storekeepers for them to keep handguns in their place of
12 business; to messengers for banking institutions and express
13 companies; to state judges and justices; and to employees at
14 correctional facilities. N.Y. Penal Law § 400.00(2)(b)-(e).
15 Restricting handgun possession in public to those who
16 have a reason to possess the weapon for a lawful purpose is
17 substantially related to New York’s interests in public
18 safety and crime prevention. It is not, as Plaintiffs
19 contend, an arbitrary licensing regime no different from
20 limiting handgun possession to every tenth citizen. This
21 argument asks us to conduct a review bordering on strict
22 scrutiny to ensure that New York’s regulatory choice will

1 protect public safety more than the least restrictive
2 alternative. But, as explained above, New York’s law need
3 only be substantially related to the state’s important
4 public safety interest. A perfect fit between the means and
5 the governmental objective is not required. Here, instead
6 of forbidding anyone from carrying a handgun in public, New
7 York took a more moderate approach to fulfilling its
8 important objective and reasonably concluded that only
9 individuals having a bona fide reason to possess handguns
10 should be allowed to introduce them into the public sphere.
11 That New York has attempted to accommodate certain
12 particularized interests in self defense does not somehow
13 render its concealed carry restrictions unrelated to the
14 furtherance of public safety.
15 To be sure, we recognize the existence of studies and
16 data challenging the relationship between handgun ownership
17 by lawful citizens and violent crime. Plaintiffs' Reply Br.
18 at 37-38. We also recognize that many violent crimes occur
19 without any warning to the victims. But New York also
20 submitted studies and data demonstrating that widespread
21 access to handguns in public increases the likelihood that
22 felonies will result in death and fundamentally alters the

1 safety and character of public spaces. J.A. 453, 486-90.
2 It is the legislature’s job, not ours, to weigh conflicting
3 evidence and make policy judgments. Indeed, assessing the
4 risks and benefits of handgun possession and shaping a
5 licensing scheme to maximize the competing public-policy
6 objectives, as New York did, is precisely the type of
7 discretionary judgment that officials in the legislative and
8 executive branches of state government regularly make.
9 According to Plaintiffs, however, New York’s
10 conclusions as to the risks posed by handgun possession in
11 public are “totally irrelevant.” Plaintiffs’ Reply Br. at
12 38. Because the constitutional right to bear arms is
13 specifically for self-defense, they reason that the state
14 may not limit the right on the basis that it is too
15 dangerous to exercise, nor may it limit the right to those
16 showing a special need to exercise it. In Plaintiffs’ view,
17 the “‘enshrinement’” of the right to bear arms “‘necessarily
18 takes [these] policy choices off the table.’” Id. at 39
19 (quoting Heller, 554 U.S. at 636).23 We disagree.

23 Plaintiffs are quick to embrace the majority’s view in Heller that handguns are the “quintessential self-defense weapon” for law abiding Americans today and extrapolate that right to public possession of a handgun. Thus, for Plaintiffs, handgun possession in public has the ring of an absolute constitutional right. This of course overlooks Heller’s careful restriction of its reach to the home and is in sharp contrast with New York’s view of concealed handguns one-hundred years ago as “the handy, the usual and the favorite weapon of the turbulent criminal class.” Darling, 154 A.D. at 423-24. It seems quite obvious to us that possession of a weapon in the home has far different implications than carrying a concealed weapon in public.


1 Plaintiffs misconstrue the character and scope of the
2 Second Amendment. States have long chosen to regulate the
3 right to bear arms because of the risks posed by its
4 exercise. As Plaintiffs admit and Heller strongly suggests,
5 the state may ban firearm possession in sensitive places,
6 presumably on the ground that it is too dangerous to permit
7 the possession of firearms in those locations. 554 U.S. at
8 626-27. In fact, New York chose to prohibit the possession
9 of firearms on school grounds, in a school building, or on a
10 school bus precisely for this reason. N.Y. Penal Law §
11 265.01(3); see also N.Y. Legislative Service, Governor’s
12 Bill Jacket, 1974 Ch. 1041, at 2-4 (1974). Thus, as the
13 Supreme Court has implicitly recognized, regulating firearms
14 because of the dangers posed by exercising the right is
15 entirely consistent with the Second Amendment.
16 We are also not convinced that the state may not limit
17 the right to bear arms to those showing a “special need for
18 self-protection.” Plaintiffs contend that their “desire for
19 self-defense . . . is all the ‘proper cause’ required . . .

1 by the Second Amendment to carry a firearm.” Plaintiffs’
2 Br. at 45. They reason that the exercise of the right to
3 bear arms cannot be made dependent on a need for self-
4 protection, just as the exercise of other enumerated rights
5 cannot be made dependent on a need to exercise those rights.
6 This is a crude comparison and highlights Plaintiffs’
7 misunderstanding of the Second Amendment.
8 State regulation under the Second Amendment has always
9 been more robust than of other enumerated rights. For
10 example, no law could prohibit felons or the mentally ill
11 from speaking on a particular topic or exercising their
12 religious freedom. Cf. Simon & Schuster, Inc. v. New York
13 State Crime Victims Bd., 502 U.S. 105 (1991) (invalidating a
14 state law requiring profits from books authored by criminals
15 to be distributed to crime victims). And states cannot
16 prohibit speech in public schools. Tinker v. Des Moines
17 Indep. Comty. Sch. Dist., 393 U.S. 503, 506 (1969) (“It can
18 hardly be argued that either students or teachers shed their
19 constitutional rights to freedom of speech or expression at
20 the schoolhouse gate.”). Not so with regard to the Second
21 Amendment. Laws prohibiting the exercise of the right to
22 bear arms by felons and the mentally ill, as well as by law-

1 abiding citizens in certain locations including public
2 schools, are, according to Heller, “presumptively lawful.”
3 554 U.S. at 627 n.26.
4 Moreover, as discussed above, extensive state
5 regulation of handguns has never been considered
6 incompatible with the Second Amendment or, for that matter,
7 the common-law right to self-defense. This includes
8 significant restrictions on how handguns are carried,
9 complete prohibitions on carrying the weapon in public, and
10 even in some instances, prohibitions on purchasing handguns.
11 In this vein, handguns have been subject to a level of state
12 regulation that is stricter than any other enumerated right.
13 In light of the state’s considerable
14 authority—enshrined within the Second Amendment—to regulate
15 firearm possession in public, requiring a showing that there
16 is an objective threat to a person’s safety—a “special need
17 for self-protection”—before granting a carry license is
18 entirely consistent with the right to bear arms. Indeed,
19 there is no right to engage in self-defense with a firearm
20 until the objective circumstances justify the use of deadly
21 force.24 See, e.g., People v. Aiken, 4 N.Y.3d 324, 327-29
22 (2005) (discussing duty to retreat in New York).

24 There is no question that using a handgun for self-defense constitutes deadly physical force. See, e.g., People v. Magliato, 68 N.Y.2d 24, 29–30 (1986).

1 Plaintiffs counter that the need for self-defense may
2 arise at any moment without prior warning. True enough.
3 But New York determined that limiting handgun possession to
4 persons who have an articulable basis for believing they
5 will need the weapon for self-defense is in the best
6 interest of public safety and outweighs the need to have a
7 handgun for an unexpected confrontation. New York did not
8 run afoul of the Second Amendment by doing so.
9 To be sure, “the enshrinement of constitutional rights
10 necessarily takes certain policy choices off the table.”
11 Heller, 554 U.S. at 636. But there is also a “general
12 reticence to invalidate the acts of [our] elected leaders.”
13 Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566,
14 2579 (2012). “‘Proper respect for a coordinate branch of
15 government’ requires that we strike down [legislation] only
16 if ‘the lack of constitutional authority to pass [the] act
17 in question is clearly demonstrated.’” Id. (quoting United
18 States v. Harris, 106 U.S. 629, 635 (1883)). Our review of
19 the history and tradition of firearm regulation does not
20 “clearly demonstrate[]” that limiting handgun possession in
21 public to those who show a special need for self-protection
22 is inconsistent with the Second Amendment. Id.

1 Accordingly, we decline Plaintiffs’ invitation to strike
2 down New York’s one-hundred-year-old law and call into
3 question the state’s traditional authority to extensively
4 regulate handgun possession in public.
5 III
6 In view of our determination that New York’s proper
7 cause requirement is constitutional under the Second
8 Amendment as applied to Plaintiffs, we also reject their
9 facial overbreadth challenge.25 Overbreadth challenges are
10 generally limited to the First Amendment context. United
11 States v. Salerno, 481 U.S. 739, 745 (1987). But even if we
12 assume that overbreadth analysis may apply to Second
13 Amendment cases, it is well settled “that a person to whom a
14 statute may constitutionally be applied will not be heard to
15 challenge that statute on the ground that it may conceivably
16 be applied unconstitutionally to others, in other situations

25 We also decline to consider Plaintiffs’ claim under the Equal Protection Clause. “It is a settled appellate rule that issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived.” Tolbert v. Queens Coll., 242 F.3d 58, 75 (2d Cir. 2001). Plaintiffs made only passing references to the Equal Protection Clause in their brief, noting that “[t]o the extent that [New York’s proper cause requirement] implicates the Equal Protection Clause . . . the case might well be decided under some level of means-end scrutiny.” Plaintiffs’ Br. at 15-16; 54. Thus, this claim is forfeited.

1 not before the Court.” Broadrick v. Oklahoma, 413 U.S. 601,
2 610 (1973). This principle “reflect the conviction that
3 under our constitutional system courts are not roving
4 commissions assigned to pass judgment on the validity of the
5 Nation's laws.” Id. at 610–11; see also Gonzales v. Carhart,
6 550 U.S. 124, 167–68 (2007). Accordingly, we reject
7 Plaintiffs’ facial challenge.
8 IV
9 For the foregoing reasons, the judgment of the district
10 court is hereby AFFIRMED.

Opinion Text: http://docs.justia.com/cases/federal/ap ... -11-27.pdf

Petition for Cert. Denied: http://www.scotusblog.com/case-files/ca ... -v-cacace/

Interview of Plaintiffs: http://onlygunsandmoney.blogspot.com/20 ... y-and.html

[de officiis]

Implementing the Right to Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda

Eugene Volokh

56 UCLA LAW REVIEW 1443 (2009)

How should state and federal constitutional rights to keep and bear arms be turned into workable constitutional doctrine? I argue that unitary tests such as “strict scrutiny,” “intermediate scrutiny,” “undue burden,” and the like don’t make sense here, just as they don’t fully describe the rules applied to most other constitutional rights.

Rather, courts should separately consider four different categories of justifications for restricting rights: (1) Scope justifications, which derive from constitutional text, original meaning, tradition, or background principles; (2) burden justifications, which rest on the claim that a particular law doesn’t impose a substantial burden on the right, and thus doesn’t unconstitutionally infringe it; (3) danger reduction justifications, which rest on the claim that some particular exercise of the right is so unusually dangerous that it might justify restricting the right; and (4) government as proprietor justifications, which rest on the government’s special role as property owner, employer, or subsidizer.

I suggest where the constitutional thresholds for determining the adequacy of these justifications might be set, and I use this framework to analyze a wide range of restrictions: “what” restrictions (such as bans on machine guns, so-called “assault weapons,” or unpersonalized handguns), “who” restrictions (such as bans on possession by felons, misdemeanants, noncitizens, or 18-to-20-year-olds), “where” restrictions (such as bans on carrying in public, in places that serve alcohol, or in parks, or bans on possessing in public housing projects), “how” restrictions (such as storage regulations), “when” restrictions (such as waiting periods), “who knows” regulations (such as licensing or registration requirements), and taxes and other expenses.

Full Text: http://constructionlitmag.com/wp-conten ... 12/2am.pdf

[de officiis]

Doe v. Wilmington Hous. Auth., No. 403, 2013 (Del. Sup. Ct. March 18, 2014)

RIDGELY, Justice:

In this certified question proceeding, we address whether lease provisions for apartments of a Delaware public housing authority that restrict when residents, their household members, and their guests may carry and possess firearms in the common areas violate the right to keep and bear arms guaranteed by Article I, Section 20 of the Delaware Constitution. We accepted two questions of state law from the United States Court of Appeals for the Third Circuit (“Third Circuit”). Pending before the Third Circuit is an appeal from a judgment of the United States District Court for the District of Delaware in Doe. v. Wilmington Housing Authority. 1 The District Court found no violation of the Second Amendment or the Delaware Constitution. The certified questions are:

1 880 F. Supp. 2d 513 (D. Del. 2012).

1. Whether, under Article I, §20 of the Delaware Constitution, a public housing agency such as the WHA may adopt a policy prohibiting its residents, household members, and guests from displaying or carrying a firearm or other weapon in a common area, except when the firearm or other weapon is being transported to or from a resident’s housing unit or is being used in self-defense.

2. Whether, under Article I, §20 of the Delaware Constitution, a public housing agency such as the WHA may require its residents, household members, and guests to have available for inspection a copy of any permit, license, or other documentation required by state, local, or federal law for the ownership, possession, or transportation of any firearm or other weapon, including a license to carry a concealed weapon, as required by Del. Code Ann. tit. 11, §1441, on request, when there is reasonable cause to believe that the law or policies have been violated. 2

2 Doe v. Wilmington Housing Auth., No. 403, 2013, 1–2 (Del. July 30, 2013).

We answer both certified questions in the negative.

Facts and Procedural History3

3 The facts are drawn from the Certification of Questions of Law submitted by the Third Circuit. See Certification of Questions of Law, Doe v. Wilmington Housing Auth., No. 12-3433 (3d Cir. May 23, 2013) [hereinafter Certification].

Appellants Jane Doe and Charles Boone (“Residents”) filed suit in the Delaware Court of Chancery against the Wilmington Housing Authority (WHA), a nonprofit agency of the State of Delaware that provides housing to low-income individuals and families, and against WHA’s Executive Director, Frederick Purnell. Jane Doe lived in the Park View, a privately owned housing facility managed by the WHA. Doe’s lease required her to follow the “House Rules.” The original version of House Rule 24, in effect when the suit was filed, stated, “Tenant is not permitted to display or use any firearms, BB guns, pellet guns, slingshots, or other weapons on the premises.” Charles Boone lived in the Southbridge Apartments, a public housing facility owned and operated by the WHA. Boone’s lease stated that residents are “not to display, use, or possess . . . any firearms, (operable or inoperable) or other dangerous instruments or deadly weapons as defined by the laws of the State of Delaware anywhere on the property of the Authority.” Residents were subject to eviction if they, their household members, or their guests violated the lease provisions and rules.

Doe and Boone alleged that the restrictions on gun use and possession violated their right to bear arms as provided in the Second Amendment to the United States Constitution and in Article I, Section 20 of the Delaware Constitution. They also alleged that the WHA firearms rules and policies were preempted by Delaware law and that the WHA exceeded its statutory authority by enacting them.

The defendants removed the case to the United States District Court for the District of Delaware on June 1, 2010. On June 28, 2010, the Supreme Court of the United States decided McDonald v. City of Chicago,4 holding that the Second Amendment applies to the states through the Due Process Clause of the Fourteenth Amendment. The defendants informed the District Court that they were reevaluating the constitutionality of the WHA firearm rules and policies in light of McDonald.

4 130 S. Ct. 3020 (2010).

On October 25, 2010, the WHA adopted a new firearms policy (the “Revised Policy”) for its public housing units, including Southbridge. The Revised Policy provides, in full:

Lease Modification (Replaces Lease Part I § DC.P.):

Ownership, possession, transportation, display, and use of firearms and weapons is governed by the Wilmington Housing Authority Firearms and Weapons Policy which is incorporated into and made a part of this lease.

Wilmington Housing Authority Firearms and Weapons Policy:

WHA recognizes the importance of protecting its residents’ health, welfare, and safety, while simultaneously protecting the rights of its residents to keep and bear arms as established by the federal and state constitutions. WHA therefore adopts the following Firearms and Weapons Policy. Residents, members of a resident’s household, and guests:

1. Shall comply with all local, state, and federal legal requirements applicable to the ownership, possession, transportation, and use of firearms or other weapons. The term “firearm” includes any weapon from which a shot, projectile or other object may be discharged by force of combustion, explosive, gas and/or mechanical means, whether operable or inoperable, loaded or unloaded, and any weapon or destructive device as defined by law.

2. Shall not discharge or use any firearm or other weapons on WHA property except when done in self-defense.

3. Shall not display or carry a firearm or other weapon in any common area, except where the firearm or other weapon is being transported to or from the resident’s unit, or is being used in self-defense.

4. Shall have available for inspection a copy of any permit, license, or other documentation required by state, local, or federal law for the ownership, possession, or transportation of any firearm or other weapon, including a license to carry a concealed weapon as required by 11 Del C. § 1441, upon request, when there is reasonable cause to believe that the law or this Policy has been violated.

5. Shall exercise reasonable care in the storage of loaded or unloaded firearms and ammunition, or other weapons.

6. Shall not allow a minor under 16 years of age to have possession of a firearm, B.B. gun, air gun, or spear gun unless under the direct supervision of an adult.

7. Shall not give or otherwise transfer to a minor under 18 years of age a firearm or ammunition for a firearm, unless the person is that child’s parent or guardian, or unless the person first receives the permission of the minor’s parent or guardian.

Violation of this Policy by any resident or member of the resident’s household shall be grounds for immediate Lease termination and eviction. In addition, a resident or member of the resident’s household who knowingly permits a guest to violate this Policy shall be subject to immediate Lease termination and eviction.5

5 Doe, 880 F. Supp. 2d at 519–20.

On December 13, 2010, the WHA replaced the Park View’s House Rule 24 with amended Rule 24, which was substantively identical to the Revised Policy.

Residents filed an amended complaint challenging only paragraph 3, the Common Area Provision, and paragraph 4, the Reasonable Cause Provision, of the Revised Policy. The parties filed cross-motions for summary judgment.

The District Court granted the summary judgment motion filed by the WHA and denied the motion filed by Residents. The District Court found no Second Amendment violation, and no appeal was taken from that ruling. The District Court applied the same analysis to the challenge under Article I, Section 20 of the Delaware Constitution (“Section 20”) and found no violation. The District Court found no legal merit to the preemption and scope-of-authority challenges. The questions on which the Third Circuit seeks guidance concern the Section 20 analysis.

In addressing the Section 20 claims, the District Court noted that “[t]here is scant judicial authority interpreting Delaware’s constitutional right to bear arms, and none is directly relevant to the issue now before this Court.”6 The District Court granted summary judgment on the Section 20 claims for the same reasons it granted summary judgment on the Second Amendment claims.7

6 Id. at 538.

7 Id. at 539.

The District Court analyzed the Second Amendment issues under recent Supreme Court decisions, including District of Columbia v. Heller,8 and McDonald.9 The District Court also examined the circuit court cases applying Heller and McDonald, including the Third Circuit’s opinion in United States v. Marzzarella.10 The District Court noted that all had adopted a form of intermediate rather than strict scrutiny to analyze laws and policies that restrict firearm possession in public spaces as opposed to in the home.11

8 554 U.S. 570 (2008).

9 See Doe, 880 F. Supp. 2d at 525–26.

10 614 F.3d 85, 97 (3d Cir. 2010), cert. denied, 131 S. Ct. 958 (2011).

11 Doe, 880 F. Supp. 2d at 533–35 (citing United States v. Masciandaro, 638 F. 3d 458, 470 (4th Cir. 2011), cert. denied, 132 S. Ct. 756; Marzzarella, 614 F. 3d at 97; United States v. Skoien, 587 F. 3d 803, 814 (7th Cir. 2009), rev’d en banc, 614 F. 3d 638 (7th Cir. 2010), cert. denied, 131 S. Ct. 1674 (2011)) ; see also Kachalsky v. Cnty. of Westchester, 701 F. 3d 81, 96–97 (2d Cir. 2012), cert. denied, 133 S. Ct. 1806 (decided after Doe and applying intermediate scrutiny to a state law restricting an individual’s ability to carry firearms in public) ; cf. Moore v. Madigan, 702 F. 3d 933, 941–42 (7th Cir. 2012) (holding that the Second Amendment protects the right to bear arms outside the home, without deciding the appropriate level of scrutiny to apply to a law that burdens that right).

The District Court followed United States v. Marzzarella, examining:

whether the challenged law imposes a burden on conduct falling within the scope of the Second Amendment’s guarantee. If it does not, our inquiry is complete. If it does, we evaluate the law under some form of means-end scrutiny. If the law passes muster under that standard, it is constitutional. If it fails, it is invalid.12

12 Doe, 880 F. Supp. 2d at 526–27 (quoting Marzzarella, 614 F.3d at 89).

Applying this analysis, the District Court first assumed that the Revised Policies fell within the Second Amendment’s scope,13 then applied intermediate scrutiny to assess the constitutionality of paragraphs 3 and 4 of the Revised Policy.14 The District Court applied intermediate scrutiny on the basis that those policies do not prohibit residents from possessing firearms in their homes, but rather regulate “the manner in which Plaintiffs may lawfully exercise their Second Amendment rights.”15 The District Court concluded that the two challenged paragraphs of the Revised Policies were reasonably related to important government interests in promoting and protecting the safety of public housing residents, guests, and employees.16 The District Court also found a reasonable fit between the Common Area Provision and the promotion of safety in shared areas of public housing complexes.17 The District Court further found a reasonable fit between the Reasonable Cause Provision and the promotion of safety because obtaining a concealed-weapon permit requires training in gun safety and is a “reasonable mechanism for assisting with enforcement of the Common Area Provision.”18 Doe and Boone did not appeal the District Court’s ruling dismissing their Second Amendment claims. Therefore, the Second Amendment analysis remains the law of the case.

13 Id. at 528–30.

14 Id. at 533.

15 Id. at 533 (citing Masciandaro, 638 F. 3d at 470–71). See also Masciandaro, 638 F. 3d at 470–71 (“[T]his longstanding out-of-the-home/in-the-home distinction bears directly on the level of scrutiny applicable. . .. [A] lesser showing is necessary with respect to laws that burden the right to keep and bear arms outside of the home. ”).

16 Doe, 880 F. Supp. 2d at 535.

17 Id. at 536.

18 Id. at 538.

The District Court dismissed the claims under the Delaware Constitution, Article I, Section 20 for the same reasons it dismissed the Second Amendment claim after applying the same analysis. Doe and Boone timely appealed the District Court’s rulings on their state constitutional claims to the Third Circuit, which thereafter certified the two questions now before us.

Discussion

The acceptance of certified questions of law under Article IV, Section 11 of the Delaware Constitution and Supreme Court Rule 41 is entirely within the discretion of this Court. 19 We review a certified question in the context in which it arises. We have the discretion to reformulate or rephrase the question of law certified. 21 Questions of law and constitutional claims are decided de novo. 22

19 Del. Const. art. IV, § 11; Del. Supr. Ct. R. 41; Randolph v. Wilmington Hous. Auth., 139 A.2d 476, 490 (Del. 1958).

20 Riblet Products Corp. v. Nagy, 683 A.2d 37, 39 (Del. 1996) (citing Rales v. Blasband, 634 A.2d 927, 931 (Del. 1993)).

21 See generally Eric C. Surette, Construction and Application of Uniform Certification of Questions of Law Act, 69 A.L.R. 6th 415, §43 (2011).

22 Sheehan v. Oblates of St. Francis de Sales, 15 A.3d 1247, 1258 (Del. 2011), reargument denied (Apr. 19, 2011); Lambrecht v. O’Neal, 3 A.3d 277, 281 (Del. 2010).

We begin by noting that the Declaration of Rights in the Delaware Constitution has not always been interpreted identically to the counterpart provisions in the federal Bill of Rights.23 As we have previously explained:

23 See, e.g., E. Lake Methodist Episcopal Church, Inc. v. Trs. of Peninsula-Delaware Annual Conference of United Methodist Church, Inc., 731 A.2d 798, 807 n.2 (Del. 1999) (“Although the controlling standards of judicial deference to religious disputes have evolved primarily from interpretations of the First Amendment to the United States Constitution, art. I, § 1 of the Delaware Constitution, enjoining ‘any magistrate . . . in any case’ from interfering with the free exercise of religious worship is of equal force.” (omission in original) (quoting Trs. of Pencader Presbyterian Church in Pencader Hundred v. Gibson, 22 A.2d 782, 790 (Del. 1941))); Bryan v. State, 571 A.2d 170, 177 (Del. 1990) (deciding the rights of an defendant to see his attorney on independent state grounds under the Delaware Constitution); Hammond v. State, 569 A.2d 81, 87 (Del. 1989) (requiring a higher standard for the preservation of evidence than Federal Constitution); see also State v. Holden, 54 A.3d 1123, 1128 n.14 (Del. Super. Ct. 2010) (noting that the Delaware Constitution provides greater criminal procedure protection than the U.S. Constitution).

The Declaration of Rights in the Delaware Constitution is not a mirror image of the federal Bill of Rights. Consequently, Delaware judges cannot faithfully discharge the responsibilities of their office by simply holding that the Declaration of Rights in Article I of the Delaware Constitution is necessarily in “lock step” with the United States Supreme Court’s construction of the federal Bill of Rights.24

24 Dorsey v. State, 761 A.2d 807, 814 (Del. 2000) (footnote omitted) (citing Claudio v. State, 585 A.2d 1278, 1289 (Del. 1991)).

To determine whether a state constitutional provision is substantively identical to an analogous provision of United States Constitution, this Court considers the list of nonexclusive factors originally articulated in the concurring opinion of Justice Handler of the New Jersey Supreme Court in Hunt v. State.25 The Hunt factors provide a framework to determine whether a state constitutional provision affords an independent basis to reach a different result than what could be obtained under federal law. The seven factors include:

25 Jones v. State, 745 A.2d 856, 864 (Del. 1999).

(1) Textual Language—A state constitution’s language may itself provide a basis for reaching a result different from that which could be obtained under federal law. Textual language can be relevant in either of two contexts. First, distinctive provisions of our State charter may recognize rights not identified in the federal constitution. . . . Second, the phrasing of a particular provision in our charter may be so significantly different from the language used to address the same subject in the federal Constitution that we can feel free to interpret our provision on an independent basis . . . .

(2) Legislative History—Whether or not the textual language of a given provision is different from that found in the federal Constitution, legislative history may reveal an intention that will support reading the provision independently of federal law . . . .

(3) Preexisting State Law—Previously established bodies of state law may also suggest distinctive state constitutional rights. State law is often responsive to concerns long before they are addressed by constitutional claims. Such preexisting law can help to define the scope of the constitutional right later established.

(4) Structural Differences—Differences in structure between the federal and state constitutions might also provide a basis for rejecting the constraints of federal doctrine at the state level. The United States Constitution is a grant of enumerated powers to the federal government. Our State Constitution, on the other hand, serves only to limit the sovereign power which inheres directly in the people and indirectly in their elected representatives. Hence, the explicit affirmation of fundamental rights in our Constitution can be seen as a guarantee of those rights and not as a restriction upon them.

(5) Matters of Particular State Interest or Local Concern—A state constitution may also be employed to address matters of peculiar state interest or local concern. When particular questions are local in character and do not appear to require a uniform national policy, they are ripe for decision under state law. Moreover, some matters are uniquely appropriate for independent state action . . . .

(6) State Traditions—A state’s history and traditions may also provide a basis for the independent application of its constitution . . . .

(7) Public Attitudes—Distinctive attitudes of a state’s citizenry may also furnish grounds to expand constitutional rights under state charters. While we have never cited this criterion in our decisions, courts in other jurisdictions have pointed to public attitudes as a relevant factor in their deliberations. 26

26 Id. at 864–65 (omissions in original) (quoting State v. Hunt, 450 A.2d 952, 962 (N.J. 1982) (Handler, J., concurring)).

“The[se] enumerated criteria, which are synthesized from a burgeoning body of authority, are essentially illustrative, rather than exhaustive.”27 But those criteria do “share a common thread—that distinctive and identifiable attributes of a state government, its laws and its people justify recourse to the state constitution as an independent source for recognizing and protecting individual rights.”28

27 Id. at 865 (quoting Hunt, 450 A.2d at 967).

28 Id. (quoting Hunt, 450 A.2d at 967).

This case concerns the right to keep and bear arms under Article I, Section 20 of the Delaware Constitution. Although Section 20 was not enacted until 1987, Delaware has a long history, dating back to the Revolution, of allowing responsible citizens to lawfully carry and use firearms in our state. The parties agree, as does this Court, that Delaware is an “open carry” state. Like the citizens of our sister states at the founding, Delaware citizens understood that the “right of self-preservation” permitted a citizen to “repe[l] force by force” when “the intervention of society in his behalf, may be too late to prevent an injury.”29 An individual’s right to bear arms was “understood to be an individual right protecting against both public and private violence.”30 The right to keep and bear arms was also understood to exist for membership in the militia and for hunting.31

29 Heller, 554 U.S. at 595 (alteration in original) (quoting 1 Blackstone’s Commentaries 145–46 n.42 (1803)).

30 Id. at 594.

31 Id. at 598–99.

In 1791, Delaware delegates to the state constitutional convention were unable to agree on the specific language that would codify in our Declaration of Rights the right to keep and bear arms in Delaware.32 After several attempts, the effort was abandoned.33 Concerns over groups of armed men stood in the way of an agreement even though there was an apparent consensus among the delegates on an individual’s right to bear arms in self-defense.34

32 See Dan M. Peterson & Stephen P. Halbrook, A Revolution in Second Amendment Law, Del. Law., Winter 2011/2012, at 12, 15.

33 Id.

34 Id.

Not until almost 200 years later did the Delaware General Assembly agree on the language to be used. Article I, Section 20 provides: “A person has the right to keep and bear arms for the defense of self, family, home and State, and for hunting and recreational use.”35 The General Assembly’s stated purpose in enacting the constitutional amendment was to “explicitly protect[] the traditional right to keep and bear arms, ” which it defined in the text of the amendment.36 By including the right to keep and bear arms in the Delaware Constitution, the General Assembly has recognized this right as fundamental.37

35 Del. Const. art. I, § 20.

36 H.B. 30, 134th Gen. Assembly (Del. 1987), passed Jan. 20, 1987.

37 A fundamental right has been defined as a right that is guaranteed either explicitly or implicitly by the constitution. San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 33–34 (1973).

Contentions of the Parties

Residents argue that we should answer both questions in the negative. The WHA argues for an affirmative answer to both. Residents contend that Article I, Section 20 is not a mirror image of the Second Amendment, that the protections it provides are not limited to the home, and that the WHA Revised Policy cannot withstand strict scrutiny, intermediate scrutiny, or the Hamdan test that we utilized in Griffin v. State.38 WHA replies that: (1) the rights protected by Section 20 are coextensive with those protected by the Second Amendment because hunting and recreational use are not in issue, (2) intermediate scrutiny applies, (3) as a landlord WHA may adopt reasonable policies for the protection of residents, and (4) its Revised Policy is narrowly tailored to advance the compelling interest in assuring the safety of its tenants.

38 Griffin v. State, 47 A.3d 487, 489–90 (Del. 2012). Residents also have argued before the federal courts and this Court that under state law the WHA is preempted from adopting the Revised Policy based upon Delaware statutes that prohibit county and municipal governments from enacting laws, regulations, or ordinances governing firearms. See 9 Del. C. § 330(c); 22 Del. C. § 111. The Third Circuit expressly stated in its certification that these preemption and scope-of-authority challenges “do not form part of this certification request.” Certification at 5 n.1. So we do not reach those challenges.


Article I, Section 20 of the Delaware Constitution Is an Independent Source for Recognizing and Protecting the Right to Keep and Bear Arms

This Court has previously addressed the application of Article I, Section 20 of the Delaware Constitution on four occasions. In Short v. State, we held that 11 Del. C. § 1448, which prohibits felons from possessing a deadly weapon, does not violate Section 20.39 In Smith v. State, we held that Section 20, when enacted, did not alter the then-existing law pertaining to the crime of carrying a concealed deadly weapon without a license and the statutory privilege to carry a concealed deadly weapon with a license.40 In Dickerson v. State, we affirmed a conviction for carrying a concealed weapon without a license outside of the home.41 And most recently in Griffin v. State, we considered an as-applied challenge to a conviction for carrying a concealed deadly weapon without a license in the home.42 In Griffin, we explained that although the right to bear arms “is not absolute,” “Griffin’s constitutional right to bear arms authorized his carrying a concealed knife in his home.”43 That did not end the inquiry, because after the police arrived “the balance between [Griffin’s] interest in carrying a concealed weapon in his home and the State’s interest in public safety shifted in favor of the State.”44

39 Short v. State, 586 A.2d 1203, 1991 WL 12101, at *1 (Del. 1991).

40 Smith v. State, 882 A.2d 762, 2005 WL 2149410, *3 (Del. 2005).

41 Dickerson v. State, 975 A.2d 791, 795–96 (Del. 2009).

42 Griffin, 47 A.3d at 489–90.

43 Id. at 488, 491.

44 Id. at 491.

In all of these cases but one, no federal Second Amendment jurisprudence was cited.45 Although both Section 20 and the Second Amendment share a similar historical context that informs our analysis,46 the interpretation of Section 20 is not dependent upon federal interpretations of the Second Amendment. The text of Section 20, enacted in 1987, and the Second Amendment, effective beginning in 1791, is not the same. On its face, the Delaware provision is intentionally broader than the Second Amendment and protects the right to bear arms outside the home, including for hunting and recreation. Section 20 specifically provides for the defense of self and family in addition to the home. Accordingly, our interpretation of Section 20 is not constrained by the federal precedent relied upon by the WHA, which explains that at the core of the Second Amendment is the right of law- abiding, responsible citizens to use arms in defense of “hearth and home.”47 We agree with Residents that Article I, Section 20 is not a mirror image of the Second Amendment and that the scope of the protections it provides are not limited to the home.

45 In Short v. State, a reference was included to United States v. Johnson, 497 F.2d 548 (4th Cir. 1974).

46 Hence, our reference to the historical context recited in Heller v. District of Columbia, 554 U.S. at 594–600.

47 Heller, 554 U.S. at 635. We recognize as the Third Circuit has explained that “Second Amendment doctrine remains in its nascency.” Marzzarella, 614 F.3d at 101. And like the District Court, we decline to determine whether Second Amendment rights extend outside of the home. Doe, 880 F. Supp. 2d at 529–30. We further acknowledge that there are federal courts which have. See Peruta v. Cnty. of San Diego, --- F.3d ----, 2014 WL 555862, at *23–24 (9th Cir. Feb. 13, 2014) (holding that broad limits on both open and concealed carry of loaded guns impermissibly infringes on the Second Amendment right to bear arms); Moore, 702 F.3d at 936 (holding that the “right to bear arms thus implies a right to carry a loaded gun outside the home”).

Our conclusion that the interpretation of Article I, Section 20 is a source, independent from the Second Amendment, for recognizing and protecting individual rights, is supported by the Hunt factors. The distinctive language of Section 20 and the legislative history demonstrates the General Assembly’s intent to provide a right to keep and bear arms independent of the federal right. Moreover, public attitudes, as reflected in the laws passed by the General Assembly, and Delaware’s long tradition of allowing responsible, law-abiding citizens to keep and bear arms outside of the home, favor recognizing an independent right under the Delaware Constitution. Two Hunt factors—the structural differences in constitutional provisions and matters of particular state interest—do not require that Section 20 be interpreted coextensively with the Second Amendment. In summary, Article I, Section 20 of the Delaware Constitution is an independent source for recognizing and protecting the right to keep and bear arms.

Intermediate Scrutiny Applies

In Griffin v. State, this Court applied the three-part analysis adopted from the Wisconsin Supreme Court’s decision in State v. Hamdan, in deciding whether an individual has a right to carry a concealed deadly weapon in the home. 48 We held that:

48 Griffin, 47 A.3d at 487 (citing State v. Hamdan, 665 N.W.2d 785 (Wis. 2003)).

First, the court must compare the strength of the state’s interest in public safety with the individual’s interest in carrying a concealed weapon. Second, if the individual interest outweighs the state interest, the court must determine, “whether an individual could have exercised the right in a reasonable, alternative manner that did not violate the statute. ” Third, the individual must be carrying the concealed weapon for a lawful purpose. 49

49 Id. at 490–91 (footnote omitted) (quoting Hamdan, 665 N.W.2d at 808).

Our analysis employed heightened scrutiny in the context of a prosecution for carrying a concealed deadly weapon.

Where government action infringes a fundamental right, Delaware courts will apply a heightened scrutiny analysis.50 The parties have not argued otherwise here. Where heightened scrutiny applies, the State has the burden of showing that the state action is constitutional.51 Here, the parties differ on the appropriate heightened scrutiny analysis, Residents argue for strict scrutiny and the WHA argues for intermediate scrutiny. Both sides also argue that under strict scrutiny, intermediate scrutiny, or the Hamdan test, the result is in their favor. For the reasons which follow, we conclude that intermediate scrutiny is the proper level of constitutional review.

50 See Jones v. Milford Sch. Dist., 2010 WL 1838961, at *3 n. 17 (Del. Ch. Apr. 29, 2010) (“If the state action, however, creates a suspect classification or infringes upon a fundamental right, the state must prove the constitutionality of its conduct under either intermediate or strict scrutiny judicial review. ”).

51 Id.

“A governmental action survives strict scrutiny only where the state demonstrates that the test is narrowly tailored to advance a compelling government interest. ”52 “trict scrutiny is a tool to determine whether there is a cost-benefit justification for governmental action that burdens interests for which the Constitution demands unusually high protection.”53 In contrast, intermediate scrutiny requires more than a rational basis for the action, but less than strict scrutiny.54 Intermediate scrutiny seeks to balance potential burdens on fundamental rights against the valid interests of government.55 To survive intermediate scrutiny, governmental action must “serve important governmental objectives and [must be] substantially related to [the] achievement of those objectives.”56 The governmental action cannot burden the right more than is reasonably necessary to ensure that the asserted governmental objective is met.57

52 Turnbull v. Fink, 668 A.2d 1370, 1379 (Del. 1995).

53 Stephen A. Siegel, The Origin of the Compelling State Interest Test and Strict Scrutiny, 48 Am. J. Legal Hist. 355, 394 (2006) (emphasis added).

54 Turnbull, 668 A.2d at 1379.

55 See Kathleen M. Sullivan, The Justices of Rules and Standards, 106 Harv. L. Rev. 22, 61 (1992) (explaining that intermediate scrutiny involves the balancing and comparison of “rights or structural provisions, modes of infringement, and government interests” in a way where “[t]he outcome . . . is not foreordained”).

56 Turnbull, 668 A.2d at 1379 (first alteration in original) (quoting Orr v. Orr, 440 U.S. 268, 279 (1979)).

57 Marzzarella, 614 F.3d at 98 (citing U. S. v. O’Brien, 391 U.S. 367, 377 (1968)); see also Eugene Volokh, Implementing the Right to Keep and Bear Arms for Self-Defense: An Analytical Framework and A Research Agenda, 56 UCLA L. Rev. 1443, 1470 (2009) (explaining that “intermediate scrutiny allows restrictions that serve merely important and not compelling government interests” and “restrictions that are merely substantially related to the government interest rather than narrowly tailored to it”).

Although the right to bear arms under the Delaware Declaration of Rights is a fundamental right, we have already held that it is not absolute.58 The General Assembly that enacted Article I, Section 20 left in place a series of statutes affecting the right to keep and bear arms in Delaware.59 Our prior cases so recognized and found no legislative intent (for example) to invalidate laws prohibiting felons from possessing deadly weapons or prohibiting (with certain exceptions) the carrying of a concealed deadly weapon outside the home without a license.60 The General Assembly’s careful and nuanced approach supports an intermediate scrutiny analysis that allows a court to consider public safety and other important governmental interests. Accordingly, we agree with the WHA that paragraphs 3 and 4 of the Revised Policy should be subject to intermediate scrutiny.

58 Griffin, 47 A.3d at 488.

59 See, e.g., 11 Del. C. § 1444 (prohibiting the possession of “a bomb, bombshell, firearm silencer, sawed-off shotgun, machine gun or any other firearm or weapon which is adaptable for use as a machine gun”); id. § 1446A (prohibiting the possession of undetectable knives); id. § 1448 (prohibiting the possession and purchase of deadly weapons by persons prohibited); id. § 1459 (prohibiting the possession of a weapon with an obliterated serial number).

60 E.g., Smith, 2005 WL 2149410, *3; Short, 1991 WL 12101, at *1.

Under Intermediate Scrutiny the Common Area Provision Is Overbroad

It is undisputed that Residents are subject to eviction under the WHA lease provision and rules if they, their household members, or their guests violate the Common Area Provision that restricts the possession of firearms in the common areas of the WHA properties where the Residents and their household members live. That restriction infringes the fundamental right of responsible, law-abiding citizens to keep and bear arms for the defense of self, family, and home. WHA therefore has the burden to demonstrate that its governmental action passes intermediate scrutiny.

To satisfy its burden, WHA argues that it has an important governmental interest in protecting the health, welfare, and safety of all WHA residents, staff, and guests who enter onto WHA property. WHA argues that an accidental discharge of a firearm may have serious fatal consequences and that dangers inhere in the increased presence of firearms. But these same concerns would also apply to the area within any apartment—interior locations where the WHA concedes it cannot restrict the possession of firearms for self-defense. The Revised Policy does more than proscribe the unsafe use of a firearm. It also prohibits possession in the public housing common areas except where the firearm is being transported to or from an apartment. In this context, WHA must show more than a general safety concern and it has not done so.

In Griffin v. State we explained that an individual’s interest in the right to keep and bear arms is strongest when “the weapon is in one’s home or business and is being used for security.”61 Residents have a possessory interest in both their apartments and the common areas. And although Residents cannot exclude other residents or the public from the common areas, their need for security in those areas is just as high for purposes of Section 20 as it would be inside their apartment or business. The common areas are effectively part of the residences. The laundry rooms and TV rooms are similar to those typically found in private residences; and the Residents, their families, and their guests will occupy them as part of their living space.

With the Common Area Provision in force under penalty of eviction, reasonable, law-abiding adults become disarmed and unable to repel an intruder by force in any common living areas when the intervention of society on their behalf may be too late to prevent an injury. Even active and retired police officers who are residents, household members, or guests are disarmed by the Common Area Provision. They are restricted in possessing firearms in the public housing common areas of the apartment buildings despite their exemption by the General Assembly from concealed-carry license requirements.62

61 Griffin, 47 A.3d at 491.

62 Delaware law places special trust in active and retired police officers to carry concealed weapons. Active police and peace officers are exempted from the concealed-carry license requirements and may carry a firearm while on or off duty. 11 Del. C. § 1441(g). Further, retired police officers may be specially licensed to carry a concealed weapon following their retirement. Id. § 1441(h). Delaware has also implemented the federal Law Enforcement Officers Safety Act, allowing qualified active and retired officers to carry concealed weapons
within or outside of their home jurisdiction. Id. § 1441A.

Nor is the Common Area Provision sustainable under intermediate scrutiny because the WHA owns the property and is a landlord. WHA contends that it is acting as a landlord and not as a sovereign. We recognize that where the government is a proprietor or employer, it has a legitimate interest in controlling unsafe or disruptive behavior on its property. But WHA has conceded that after McDonald, as a landlord it may not adopt a total ban of firearms. Thus, occupying the status of government landlord, alone and without more, does not control. How the property is used must also be considered. Public housing is “a home as well as a government building.”63 The WHA is different from other public agencies in that it essentially replicates for low-income families services similar to those provided by a private landlord. The individual’s need for defense of self, family, and home in an apartment building is the same whether the property is owned privately or by the government.

63 Volokh, supra, at 1533.

Unlike a state office building, courthouse, school, college, or university, the services provided by the WHA in the common areas are not the services typically provided to the public on government property. They are limited to supplying adequate housing for low-income families and individuals and to maintaining the grounds and buildings for the residents. Some regulation of possessing firearms on WHA property could pass intermediate scrutiny, for example prohibiting possession in offices where state employees work and state business is being done. Here, however, the restrictions of the Common Area Provision are overbroad and burden the right to bear arms more than is reasonably necessary. Indeed, the Common Area Provision severely burdens the right by functionally disallowing armed self-defense in areas that Residents, their families, and guests may occupy as part of their living space. Section 20 of the Delaware Constitution precludes the WHA from adopting such a policy.

Accordingly, we answer the first certified question in the negative.64

64 Nor would the Common Area Provision withstand the scrutiny under the Hamdan analysis we applied in Griffin. The Residents have a possessory interest as tenants in the common areas where they live and their own apartments. Thus, the need for “security” in each is acute for purposes of Article I, Section 20. Further, there is no realistic alternative way that the Residents and their guests can exercise their right to bear arms in the common areas with the ban in place. It is also undisputed that Residents are not attempting to exercise their right to bear arms for an unlawful purpose. As a result, the Common Area Provision would likewise fail under a Hamdan analysis.

The Reasonable Cause Provision Is Overbroad

The record before us shows that the Revised Policy was adopted by the WHA during the litigation before the District Court and after the United States Supreme Court decision in McDonald v. City of Chicago. The WHA “suspended, reviewed, and replaced” its original policies banning all firearms on its property pursuant to “the HUD-mandated procedure for doing so . . . in view of the Supreme Court’s holding in McDonald.”65 The Reasonable Cause Provision of the Revised Policy requires the production upon request by a resident, household member, or guest of

a copy of any permit, license, or other documentation required by state, local, or federal law for the ownership, possession, or transportation of any firearm or other weapon, including a license to carry a concealed weapon as required by 11 Del C. § 1441, upon request, when there is reasonable cause to believe that the law or this Policy has been violated.66

65 Doe, 880 F. Supp. 2d at 524.

66 Id. at 520 (emphasis added).

By it terms, the Reasonable Cause Provision exists, as least in part, to enforce compliance with the Common Area Provision, which we have found to be overbroad and unconstitutional.

Where a statute, regulation, or state action faces a constitutional challenge, “a Court may preserve its valid portions if the offending language can lawfully be severed.”67 But where it is evident that the remaining provisions would not have been enacted without the unconstitutional provision, a court should invalidate the entire provision.68 The Reasonable Cause Provision was enacted, together with the Common Area Provision, by the WHA in response to McDonald. Because the unconstitutional Common Area Provision is not severable as a matter of Delaware law, the Reasonable Cause Provision which enforces it is unconstitutional and overbroad as well. For that reason, we answer the second certified question in the negative.

67 Farmers for Fairness v. Kent Cnty., 940 A.2d 947, 962 (Del. Ch. 2008) (quoting Newark Landlord Ass’n v. City of Newark, 2003 WL 22724663, at *1 (Del. Ch. Nov. 17, 2003)).

68 Cf. id. (“The standard for severability has been articulated in the following two part test: i) ‘Is the unobjectionable part, standing alone, capable of enforcement?’ and ii) ‘Did the legislature intend the [un]objectionable part to stand alone in case the other part should fall?’” (alternation in original) (quoting Newark Landlord Ass’n, 2003 WL 22724663, at *1)).

Conclusion

We answer both certified questions in the negative. The Clerk is directed to transmit this opinion to the Third Circuit.

Opinion Text: http://courts.delaware.gov/opinions/dow ... ?ID=202890

[de officiis]

What Will it Take? Terrorism, Mass Murder, Gang Violence, and Suicides: The American Way, or Do We Strive for a Better Way?

Katherine L. Record and Lawrence O. Gostin

47 U. Mich. J.L. Reform 555 (Spring 2014)

The belief that access to firearms makes us safe, rather than exacerbates these mortality rates, is entirely fallacious. More than 30,000 Americans die by firearm each year. Homicide accounts for approximately one-third of these deaths, with the remainder involving suicides and accidental gun discharges. 8 As of April 2013, gun violence killed approximately as many Americans in the preceding four months as have died fighting in Iraq in the past decade. 9

Given these grim statistics, it would be reasonable to expect swift legislative action. Personal security is a foundational human value, and living in a nation plagued by the highest gun death rate in the world should trigger public and political outrage. Polled in the aftermath of the Newtown tragedy, nearly ninety percent of the public favored universal background checks. 10 Even in the libertarian "Live Free or Die" state of New Hampshire, nearly fifty percent of the public favored stricter gun control laws. 11

Nevertheless, the country is in a state of political impasse. Despite public demand for reform, federal legislators have been unable to enact laws that would protect, at least in part, the public from gun violence. During the same week that the Boston bombers were at large, the U.S. Senate voted down a bill that would have applied background check requirements to all firearm sales. President Obama expressed his dismay at the political unaccountability: "How can something have 90 percent support and yet not happen[?] ... Who are we here to represent? ... All in all, this was a pretty shameful day for Washington." 12

Politicians, and even the public, misperceive the level of rigor in gun control laws at the federal and state level, which are riddled with loopholes. Proposed federal legislation would not violate the Second Amendment since the Supreme Court explicitly stated that the right to bear arms is not absolute and will always be subject to reasonable restrictions. 13 The truth is that state and federal legislators could significantly tighten gun control laws without infringing on a constitutional right but repeatedly fail to do so. When proposed reforms are viewed cumulatively, they would almost certainly prevent many firearm injuries and deaths - even if no reform can wholly eliminate gun violence.

Part I of this Article contrasts public perception of the status quo of gun control laws with those actually in place, demonstrating that most Americans believe firearms are more heavily regulated than they are. Part II turns to non-legislative attempts at improving gun control, including litigation against manufacturers and political fundraising groups aiming to counter the NRA's influence on politicians. Part III lays out the possibility for creating a better system of firearm regulation without violating the Second Amendment.

Full Article: http://prospectusmjlr.files.wordpress.c ... -final.pdf

[de officiis]

THE TOOLS OF POLITICAL DISSENT: A FIRST AMENDMENT GUIDE TO GUN REGISTRIES

Thomas E. Kadri

112 Mich. L. Rev. First Impressions 124 (April 2014)

On December 23, 2012, a newspaper in upstate New York published a provocative map.[1] On it appeared the names and addresses of thousands of gun owners in nearby counties, all precisely pinpointed for the world to browse. The source of this information: publicly available data drawn from the state's gun registry. Legislators were quick to respond. Within a month, a new law offered gun owners the chance to permanently remove their identities from the registry with a simple call to their county clerk.

The map raised interesting questions about broadcasting personal information, but a more fundamental question remains: Are these gun registries even constitutional? The mass "exposure" of gun owners-used as a form of public shaming-is particularly troubling because it would have been impossible without the government's registration requirement. The map confirmed a fear held by many opponents of registries: compilation of personal information could lead to reprisals, either by the media or through the state itself. This, they claim, implicates their Second Amendment rights.

In states that insist on registration, opponents have had to mold constitutional arguments to challenge registries in the courts. One such argument grows from the First Amendment. Gun ownership, like speech, is a tool of political dissent.[2] Both guns and speech empower individuals to resist governmental oppression, at least in theory. Yet both become blunt tools if the government imposes registration requirements that numb the right. So, the argument goes, these tools of political dissent must remain unregistered if they are to provide the robust protection against tyranny that the Framers sought.

This Essay argues that the First Amendment can be a powerful analogue in Second Amendment challenges to gun registries. Part I explores the notion of guns as a tool of political dissent through the lens of history. Part II examines three First Amendment cases that could shape the analogue to challenge gun registries. Finally, Part III uses these three decisions to sketch out a blueprint that legislators and litigants can use to analyze gun registries.

Full Article: http://www.michiganlawreview.org/articl ... registries