Concealed weapons: US court upholds New York state requirement for permit

New York state’s requirement that gun owners prove they have a special need for protection in order to obtain a concealed weapons permit does not violate the Second Amendment right to keep and bear arms, a federal appeals court ruled Monday.

The three-judge panel unanimously upheld a state law requiring applicants to prove that they’d received a personal threat or had some other special need for protection before they would be granted a permit to carry a concealed firearm in public.

An appeal to the US Supreme Court is expected.

A group of gun owners backed by a major gun rights group challenged the permit requirement as a violation of their Second Amendment rights.

They contended that as law-abiding citizens they should be able to carry concealed weapons without having to prove to government officials that they had “proper cause” to do so.

The gun owners argued that the US Supreme Court established in landmark decisions handed down in 2008 and 2010 that Americans possess a fundamental right to keep and bear arms for self protection.

At issue was whether New York’s 100-year-old concealed permit requirement violated Second Amendment rights by forcing applicants to demonstrate a special and individualized need for self protection apart from simply a general desire to carry a weapon for added security.

For example, under New York law, living in a high-crime area is not enough of a threat to entitle a gun owner to be issued a concealed carry permit.

The three-judge panel of the Second US Circuit Court of Appeals ruled that the Supreme Court’s decisions established a fundamental right to possess firearms in the home – but that that right did not entitle law-abiding citizens to carry concealed weapons in public places.

“What we know from these [Supreme Court] decisions is that Second Amendment guarantees are at their zenith within the home,” Judge Richard Wesley wrote for the panel.

“What we do not know,” he said, “is the scope of that right beyond the home and the standards for determining when and how that right can be regulated by a government.”

The court went on to conclude that the requirement of proof of a special need for self protection before receiving a permit was “entirely consistent” with the right to bear arms and the state’s traditional authority to regulate handgun possession in public.

“Plaintiffs contend that their desire for self defense is all the ‘proper cause’ required by the Second Amendment to carry a firearm,” Judge Wesley wrote.

“They reason that the exercise of the right to bear arms cannot be made dependent on a need for self protection, just as the exercise of other enumerated rights cannot be made dependent on a need to exercise those rights,” he said. “This is a crude comparison and highlights Plaintiffs’ misunderstanding of the Second Amendment.”

The court noted that state regulation under the Second Amendment has always been more restrictive than other constitutional rights. Wesley said no law could bar felons or the mentally ill from speaking on a particular topic or exercising their religious freedom, but regulations have long prevented felons and the mentally ill from possessing firearms.

“Our review of the history and tradition of firearm regulation does not clearly demonstrate that limiting handgun possession in public to those who show a special need for self-protection is inconsistent with the Second Amendment,” the court said.

“Accordingly, we decline Plaintiffs’ invitation to strike down New York’s one-hundred-year-old law and call into question the state’s traditional authority to extensively regulate handgun possession in public.

The suit was brought by lawyers with the Second Amendment Foundation on behalf of five gun owners who applied for concealed handgun permits in New York and were denied. Four of the applicants offered no explanation of a “special need” for the permit. One of the applicants was a transgender female who said she was more likely to be a victim of violence.

The gun owners argued that the court should apply the same analysis as is used to weigh prior restraints to speech under the First Amendment.

“They see the nature of the rights guaranteed by each amendment as identical in kind. One has a right to speak and a right to bear arms,” the court said.

“Just as the First Amendment permits everyone to speak without obtaining a license, New York cannot limit the right to bear arms to only some law-abiding citizens,” the court said, summing up the gun owners’ position.

The judges rejected the argument.

“We are hesitant to import substantive First Amendment principles wholesale into Second Amendment jurisprudence,” Wesley wrote. “Indeed, no court has done so.”

Instead, the court drew a distinction between possessing a firearm in the home for self defense and carrying one in public for the same purpose.

“While the state’s ability to regulate firearms is circumscribed in the home, outside the home, firearm rights have always been more limited, because public safety interests often outweigh individual interests in self-defense,” Wesley wrote.

The case is Kachalsky v. Westchester (11-3642).