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New York state’s handgun licensing scheme does not violate the Second Amendment to the U.S. Constitution, the 2nd U.S. Circuit Court of Appeals has ruled. Upholding the dismissal of a suit brought by an out-of-state resident barred from being allowed to carry a handgun under the licensing scheme, the circuit also found in Bach v. Pataki, 03-9123, that the Privileges and Immunities Clause of Article IV “cannot preclude New York’s residency requirement in light of the State’s substantial interest in monitoring handgun licenses.” Judge Richard Wesley wrote the opinion for the unanimous three-judge panel. The suit was brought by David D. Bach, a Virginia resident who is licensed in that state to carry his Ruger P-85 9mm pistol. Bach wanted to bring the weapon with him during regular visits to his parents in upstate New York. Bach works as a lawyer with the Navy’s Office of the General Counsel. He also holds a Department of Defense top security clearance, is a commissioned officer in the U.S. Naval Reserve and is a veteran Navy SEAL. He claimed that he wanted to carry the weapon because during the trips to see his parents, he and his family travel through areas with extremely high crime rates. Bach reported reading about “unarmed law-abiding citizens being slain by sadistic predators despite the exceptional efforts of law enforcement.” After being informed by the New York State Police that he would not be eligible for an exemption from the rule that out-of-state residents cannot obtain permits to carry handguns, Bach filed suit in the Northern District. But his claims that the bar on nonresident permits violated the Second Amendment’s “right to keep and bear arms” and the Privileges and Immunities Clause were dismissed by Northern District Judge Norman A. Mordue. Mordue held that Bach could not allege a constitutional right to bear arms because the “Second Amendment is not a source of individual rights.” And the Privileges and Immunities Clause was not violated by the permit rule, he said, because “the factor of residence has a substantial and legitimate connection with the purposes of the permit scheme such that the disparate treatment of nonresidents is justifiable.” The 2nd Circuit panel said that New York regulates handguns primarily through Article 265 of the Penal Law, which creates a general ban on handgun possession, and Article 400 which carves out an exemption for licensed use of handguns. Judge Wesley noted that Bach had asked the 2nd Circuit to declare the right to keep and bear arms to be an individual, rather than a collective right. In doing so, he invoked dicta in a 2001 5th Circuit case ( U.S. v. Emerson, 270 F.3d 203) and a U.S. Department of Justice Office of Legal Counsel opinion. STATE’S ARGUMENT New York state countered by arguing that the Second Amendment is only a guarantee to the states of “the collective right to fortify their respective ‘well regulated’ militias.” “Although the sweep of the Second Amendment has become the focus of a national legal dialogue, we see no need to enter into that debate,” Wesley said. “Instead, we hold that the Second Amendment’s ‘right to keep and bear arms’ imposes on only federal, not state, legislative efforts.” In so holding, Wesley said the 2nd Circuit was joining five other circuits, and it was following the lead of the U.S. Supreme Court in Presser v. Illinois, 16 U.S. 2252 (1886), which he said “stands for the proposition that the right of the people to keep and bear arms, whatever else its nature, is a right only against the federal government, not against the states.” As to Bach’s argument that the handgun law discriminates against nonresidents with regard to a protected privilege under the Privileges and Immunities Clause, Wesley said the court was rejecting that challenge because “New York’s interest in monitoring gun licenses is substantial and New York’s restriction of licenses to residents and persons working primarily within the State is sufficiently related to this interested.” That monitoring interest, he said, is “in essence, an interest in continually obtaining relevant behavioral information” — licensing officers having the power to revoke licenses for “poor judgment” based, in part, on local incidents. Wesley said that the rationale for monitoring is “distinct from rationales rejected in other Privileges and Immunities Clause cases.” “Most importantly, the monitoring rationale is not an interest of merely ‘general concern,’ to which a resident/nonresident distinction would not be tailored, but, rather, actually turns on where a person spends his or her time,” he said, and the fact that there is an exception to the rule for nonresidents working in-state “is consistent with this criterion.” Judges Jon Newman and Joseph McLaughlin joined in the opinion. Kevin J. Miller and David C. Frederick of Kellogg, Huber, Hansen, Todd & Evans in Washington, D.C., represented Bach, who was of counsel for the case. Assistant Solicitor General Frank Brady, Deputy Solicitor General Daniel Smirlock, Senior Assistant Solicitor General Nancy A. Spiegel and Attorney General Eliot Spitzer represented the state.

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