The requirement in New York's handgun licensing scheme that a person have "proper cause" to get a license to carry a concealed handgun in public does not violate the U.S. Constitution's Second Amendment, the U.S. Court of Appeals for the Second Circuit ruled yesterday.
A three-judge panel rejected the appeal of four plaintiffs who sought a declaratory judgment that the requirement violated the Constitution, with the circuit finding that "the proper cause requirement is substantially related to New York's compelling interests in public safety and crime prevention."
The decision in Kachalsky v. County of Westchester, 11-3942, was made by Judges Robert Katzmann (See Profile), Richard Wesley (See Profile) and Gerard Lynch (See Profile) following oral arguments on Aug. 22. Wesley wrote the 49-page opinion upholding a 2011 grant of summary judgment to Westchester County by Southern District Judge Cathy Seibel (See Profile) (NYLJ Sept. 8, 2011).
Wesley discussed New York state's long history of regulating firearms, including the 1911 Sullivan Law, which made it unlawful for any person to possess without a license "any pistol, revolver or other firearm of a size which may be concealed upon the person."
Wesley said the application process for a license in New York is a rigorous one.
"Every application triggers a local investigation by police into the applicant's mental health history, criminal history, moral character, and, in the case of a carry license, representations of proper cause," he said, a showing that is not merely satisfied by a general desire to protect one's person or property, or by merely asserting good moral character or by stating that the applicant lives or works in a high-crime area.
As part of this investigation, fingerprints are taken and background checks are performed before the application is submitted to a licensing officer who has considerable discretion.
Challenging New York Penal Law §400.00(2)(f) was Rye Brook solo practitioner Alan Kachalsky and three others who claimed the right to carry a handgun outside the home for self-defense. Each was denied because he or she failed to establish "proper cause."
A fifth plaintiff, the Second Amendment Foundation, was dismissed from the case for lack of standing.
Kachalsky in an affirmation stated the Second Amendment's "right to keep and bear arms" entitles him to carry a handgun without showing proper cause, observing that "we live in a world where sporadic random violence might at any moment place one in a position where one needs to defend oneself or possibly others."
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Carmen
If the NY ruling doesn't violate the second amendment, it sure does violate the "equal protection clause".
What criminal has to abide by this law?
Only citizens who want to protect themselves, must apply.
I'd like to see a challenge based on the 4th.
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Christopher J Hoffman
Rest assured the fat lady has not yet sung. Would the Supreme Court dare say that the Second Amendment was codified to protect the right of indoor militias? Unlikely, even given its current makeup. Quite obviously, the use of firearms for whatever lawful purpose is primarily an outdoor activity.
The government's interest in public safety cannot reasonably extend to licensed, screened, trained individuals whose actual safety record and lack of criminal behavior should earn the envy of the modern world.
Indeed, if the crime rate of weapon permit holders could be magically superimposed on the rest of this country, we might mistakenly think we woke up in Switzerland, which has a microscopically low rate of violence and crime. Yet Swiss citizens typically store government issued machine guns and a caches of ammunition in their homes, and often transport them to and from firing ranges slung over their backs on bicycles. No one even blinks, let alone runs for cover.
Nowhere in this case, nor in any similar lower court cases denying of the right to self-defense, has any meaningful analysis of the actual public safety risk been conducted. The idea that licensed, trained individuals, screened for prohibitive factors, present a prima facia threat to public safety has been left unchallenged. In the absence of such an inquiry, the foundation of such decisions is completely hollow.
Indeed, the several credible studies in existence indicate that carry licensing schemes have a significant negative affect on crime rates, including gun crime, rape, and assault.
In the worst-cases, licensed gun-toters had no effect on crime rates one way or the other.
However counter-intuitive the notion that armed, law-abiding citizen make us safer, it must be fully examined before any strong government interest in public safety can be credibly asserted.
See http://en.wikipedia.org/wiki/Gary_Kleck http://en.wikipedia.org/wiki/John_Lott
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