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December 8, 2012

Are New York’s Gun Laws Constitutional Under The Second Amendment

By Michael H. Joseph

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The Sandy Hook Elementary School tragedy put the right to keep and bare arms in the national spotlight and our New York City and White Plains criminal defense lawyers who handle criminal cases involving guns strive to stay on top of the evolving gun laws. Although the Supreme Court has recently held that the right to keep arms at one’s home is protected by the Second Amendment, the Court has not explicitly interpreted the Second Amendment right outside of the home. Commentators and courts are now divided as to the extent of the right afforded by the Amendment. One approach simply argues that the Second Amendment protects an individuals’ rights to firearm ownership, possession, and transportation and that the right cannot be infringed. The other approach argues that the right can be limited, regulated and controlled if a state demonstrates a compelling interest and the state regulation is narrowly related to that interest.

A recent case, Kachalsky v. Cacace, 817 F. Supp. 2d 235 (2011), decided by the Second Circuit Court of Appeals held that an unfettered right to keep and bare arms as provided in the Second Amendment is limited to one’s home and that outside the home the right can be limited, regulated and controlled. Specifically, the Second Circuit held that New York state could limit the issuance of gun permits to those who demonstrate suitability and a “proper cause” to carry a gun. In making this distinction the Second Circuit noted the long standing notion that one’s home is entitled to special constitutional consideration and upheld N.Y. Penal Law § 400.00 (2) (f) which requires a license to carry a handgun and a showing of a proper cause before such license shall be issued.
The plaintiffs in Kachalsky challenged New York’s law arguing that a state can not place any restriction on owning and carrying a gun when the gun is sought for self-protection. Plaintiffs argued that since the Second Amendment protects the right to bear arms for purposes of self-defense and since many violent crimes occur without warning, a license must be issued when a person “desires [a gun] for self-defense.”
The Second Circuit disagreed and distinguished between the right to carry a fire arm in public and the right to bear arms for self-defense in the home. Using this distinction, the Second Circuit did not feel compelled to follow District of Columbia v. Heller, 128 S. Ct. 2783 (2009) and McDonald v. City of Chicago, 130 S. Ct. 320 (2010). In Heller and McDonald the Supreme Court struck down gun control laws, but the laws that were held to be unconstitutional restricted the possession of firearms in the home. The gun law at issue in Kachalsky, however, was limited to requiring proper cause when the individuals sought “[a] license for a pistol or revolver … to have and carry concealed, without regard to employment or place of possession.” See N.Y. Penal Law § 400.00 (2) (f). This law did not specifically ban or regulate the keeping of a gun inside one’s home.
The Second Circuit relied upon the fact that the home has historically been treated as special in “individual rights jurisprudence.” The Second Circuit compared the distinction between possessing a gun at home and carry it in public to the distinction between possessing obscene material at home, which cannot be criminalized, and displaying obscene material in public, which can be criminalized. Likewise, the Second Circuit reasoned, outside the home firearm rights could properly be limited since public safety interests are implicated.
The Second Circuit also found authority to uphold the law in that the Supreme Court in Heller indicted that gun control laws should be subject to review based upon a scrutiny analysis. Specifically, the Supreme Court in Heller noted that “under any of the standards of scrutiny” the subject law was unconstitutional “because it completely banned handguns in the home.” This language indicated to the Second Circuit that Heller stands for the proposition that gun control laws should be subject to a scrutiny analysis which compares and relates the State’s interest in the gun control law to the Constitutional right implicated. Although the Supreme Court did not identify the level of scrutiny that would be applicable, the Second Circuit applied an intermediate level of scrutiny standard for the reason that our country’s “tradition so clearly indicates a substantial role for states regulation of the carrying of firearms in public.” The Second Circuit then found the New York statute constitutional because a substantial relationship existed between the law and the public safety interest of regulating the possession and carrying of firearms outside the home.

 
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