Free Republic
Browse · Search
News/Activism
Topics · Post Article

Skip to comments.

2nd Circuit Upholds New York Handgun Limits (2nd Amendment only covers federal laws - Judge Wesley)
New York Law Journal ^ | 5-10-2005 | Mark Hamblett

Posted on 05/10/2005 10:20:58 PM PDT by Dan from Michigan

2nd Circuit Upholds New York Handgun Limits
Tuesday May 10, 2:59 am ET
Mark Hamblett, New York Law Journal

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." (Dan: What about the 14th amendment)

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.


TOPICS: Constitution/Conservatism; Front Page News; Government; News/Current Events; US: New York
KEYWORDS: 2ndcircuit; bang; banglist; elliotspitzer; gungrabbers; guns; judges; ruling; spitzer; statesrights
Navigation: use the links below to view more comments.
first previous 1-2021-4041-6061-80 ... 101-113 next last
To: Dan from Michigan

Alternate headline: Federal judge discovers state's rights


41 posted on 05/11/2005 7:51:07 AM PDT by AppyPappy (If You're Not A Part Of The Solution, There's Good Money To Be Made In Prolonging The Problem.)
[ Post Reply | Private Reply | To 1 | View Replies]

To: Dan from Michigan
Its a completely ridiculous ruling. I mean, if individuals are NOT guaranteed the RKBA by the Second Amendment via the route of application to the states via the Fourteenth Amendment - then why do courts insist the First Amendment applies to the States as well as the federal government by virtue of the same theory? This double standard in constitutional interpretation tells us all we need to know about judicial activism. And the penchant of liberal judges to elevate some rights above others in the law.

(Denny Crane: "Sometimes you can only look for answers from God and failing that... and Fox News".)
42 posted on 05/11/2005 7:56:22 AM PDT by goldstategop (In Memory Of A Dearly Beloved Friend Who Lives On In My Heart Forever)
[ Post Reply | Private Reply | To 1 | View Replies]

To: King Prout

Great idea! Works for me.


43 posted on 05/11/2005 8:02:53 AM PDT by coloradan (Hence, etc.)
[ Post Reply | Private Reply | To 8 | View Replies]

To: 11Bush
On December 16, 1773 Samuel Adams, Founding Father of the American Revolution, adjourned a town meeting in Boston by announcing: "There is nothing further this meeting can do to save the country.". --David Yarrow at championtrees.org

I hope we are well shy of that eventuality. However, it is only through realizing that it could happen, that we can prevent it from happening politically. In thinking on these things, we are reminded even more clearly what the most significant purpose of the second amendment is.

44 posted on 05/11/2005 8:21:06 AM PDT by risk
[ Post Reply | Private Reply | To 38 | View Replies]

To: goldstategop

The second amendment doesn't guarantee anything. It simply tells the government that it may not interfere with a sacred right. Finally, after reason and persuasion are done, it is our arms alone that guarantee those rights.


45 posted on 05/11/2005 8:24:01 AM PDT by risk
[ Post Reply | Private Reply | To 42 | View Replies]

To: Dan from Michigan
Absolutely incredible! Not unexpected, mind you, just incredible that a bunch of federal judges can't understand a very simple concept: That in the Constitution, rights apply to (individual) people, and powers apply to governments.

According to these dim-bulbs, every other one of the 1st 10 Amendments that refer to a "right of the People" does, in fact, protect individual rights against government encroachment in some way or other. However, the 2nd, applies to some mystical "collective" or to the states (which CANNOT have rights, only powers).

Oh, by the way, the "collective" rights theory of the 2nd Amendment first arose in American jurisprudence in a 1906 Kansas case (the name of which I can't recall). In other words, we have 117 years of prior case law which refers to the INDIVIDUAL RKBA, but that's of no matter no that some minor case in Kansas said otherwise. Res Judicata apparently only means something if the precedent in question agrees with your point of view, but not if it disagrees with it.

The failure to apply the 2nd Amendment to the states is outrageous. The 14th Amendment was, as mentioned in an earlier post, passed specifically to rectify the denial of RKBA rights to the then-newly freed slaves (i.e. US citizens) by Southern states. The FIRST of the BOR provisions that should have been incorporated was the 2nd's RKBA - but instead it appears that it will be the last (IF it is ever incorporated). What is really needed is a Supreme Court decision that does just this, that puts a stake in the heart of the "collective" rights theory and applies the 2nd to the states. I'm not holding my breath waiting for this to occur, and particularly not with this Supreme Court. We probably have 3 votes, maybe maybe 4, but not 5 or more.

I wish that everyone who is a gun owner would get at least one gun that doesn't require a 4473. It may be an antique (i.e. a pre-1899 gun) or a gun acquired directly from its owner (where that is legal...grrrrrrrr!). Its the only way to make sure that everything can't be cross-indexed or registered in some way, and later confiscated.

46 posted on 05/11/2005 8:38:23 AM PDT by Ancesthntr
[ Post Reply | Private Reply | To 1 | View Replies]

To: sourcery
The Fourteenth Ammendment was adopted precisely because the Southern States were denying Blacks the right to bear arms.

Bravo Sierra. The 14th was adopted to grant US citizenship to blacks - a right which had been denied since the Congress wrote the first Naturalization bill.

Historically the BoR was not extended to the states - Madison and Halimlton both argued thuisly, as did Chief Justice John Marshall in Barron v. City of Baltimore,

The powers they conferred on this government were to be exercised by itself, and the limitations on power, if expressed in general terms, are naturally, and we think necessarily, applicable to the government created by the instrument. They are limitations of power granted in the instrument itself, not of distinct governments framed by different persons and for different purposes.
The BoR was a limitation of the federal government, not the states, as evidenced by the Preamble to the BoR,
The Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers [the federal government], that further declaratory and restrictive clauses should be added.

47 posted on 05/11/2005 8:39:32 AM PDT by 4CJ (||) OUR sins put Him on that cross. HIS love for us kept Him there.(||)
[ Post Reply | Private Reply | To 12 | View Replies]

To: Dan from Michigan

The second does not apply? what about the other rights?

So there is no first in NY?

No fourth?

No 17th?


48 posted on 05/11/2005 8:41:55 AM PDT by longtermmemmory (VOTE!)
[ Post Reply | Private Reply | To 1 | View Replies]

To: jwalsh07
I'm no connoisseur of the second amendment legal debate, but it does seem odd that the 1st Amendment applies to the states through the incorporation clause, when its very language states "Congress shall make no law," while the 2nd Amendment, which contains no such express limitation, does not. The finding that the discrimination against otherwise fully qualified non residents getting permits does not violate the privileges and immunities clause seems ludicrous.

But the guild doesn't like guns. They're dangerous and tend to be popular with sans culotte element.

49 posted on 05/11/2005 8:56:34 AM PDT by Torie (Constrain rogue state courts; repeal your state constitution)
[ Post Reply | Private Reply | To 33 | View Replies]

To: 4ConservativeJustices
Bravo Sierra. The 14th was adopted to grant US citizenship to blacks - a right which had been denied since the Congress wrote the first Naturalization bill.

Bravo Sierro yourself. I gave a reference with numerous citations: The Fourteenth Amendment and the Right To Keep and Bear Arms: The Intent of the Framers. You just splattered a baseless opinion.

Historically the BoR was not extended to the states

That's true, although there was always a minority opinion that held otherwise. For one thing, the rights enumerated in the BoR are not granted or created by the Constitution, but rather simply recognized by the BoR as those that intrinsically belong to all human beings, and that restrict the rightful powers of all governments. The States also recognized those rights when they ratified the BoR. But in any case, the adoption of the Fourteenth Ammendment mooted the argument.

50 posted on 05/11/2005 11:11:47 AM PDT by sourcery (Resistance is futile: We are the Blog)
[ Post Reply | Private Reply | To 47 | View Replies]

To: Dr.Zoidberg

Get a good bolt action rifle, some good optics and PRACTICE, PRACTICE, PRACTICE!



Agreed, except that a semi-auto battle rifle is much more useful that a sniper rifle. An army of snipers (and we all fancy ourselves such) is no more useful than a team of quarterbacks.


51 posted on 05/11/2005 11:37:41 AM PDT by Atlas Sneezed (Your FRiendly FReeper Patent Attorney)
[ Post Reply | Private Reply | To 27 | View Replies]

To: sourcery
The Fourteenth Ammendment was adopted precisely because the Southern States were denying Blacks the right to bear arms.

What?!?

Having read more of the Congressional Globe than I would have liked, I can't recall a single statement about constitutionalizing the right to bear arms as a goal of the 14th Amendment. In fact, debate over Section 1 of the amendment is pretty sparse--the general consensus is that it was meant to constitutionalize the Civil Rights Act of 1866--which had already been debated ad nauseam, and again, I don't recall much (read: anything) about the right to bear arms in there.

52 posted on 05/11/2005 11:42:59 AM PDT by Publius Valerius
[ Post Reply | Private Reply | To 12 | View Replies]

To: Dan from Michigan; All
Prediction:

SCOTUS takes this or a similar case in the next several years.

We "win" when they recognize an individual right. But they will remand for the lower court to determine whether it is a "reasonable restriction" (Ashcroft's favorite words), and the lower court will find (not surprisingly) that it is, and SCOTUS will not hear that appeal.

Then, we look around after the cheering and realize that instead of spending the past decades arguing against the unlawful infringements, we spent our energy fighting the laughable Brady straw man about collective rights, and are back where we started, with the antis having held their ground (and often having gotten the NRA to compromise further.) They have kept us from fighting for repeal of 1986, 1968, and 1934, their big victories for a generation.

Winning the individual right will mean virtually nothing. Keep your eyes on the ball.
53 posted on 05/11/2005 11:46:24 AM PDT by Atlas Sneezed (Your FRiendly FReeper Patent Attorney)
[ Post Reply | Private Reply | To 1 | View Replies]

To: Dan from Michigan

Am I the only one whose eyes glaze over reading this? I have an interest in this subject but I found myself unable to distill the article into a + or -.


54 posted on 05/11/2005 11:46:42 AM PDT by CCCnative (waiting for socialism to fail in Santa Cruz as it did in Soviet Russia)
[ Post Reply | Private Reply | To 1 | View Replies]

To: Publius Valerius
See The Fourteenth Amendment and the Right To Keep and Bear Arms: The Intent of the Framers
55 posted on 05/11/2005 12:06:41 PM PDT by sourcery (Resistance is futile: We are the Blog)
[ Post Reply | Private Reply | To 52 | View Replies]

To: Beelzebubba
Bolts tend to be cheaper to purchase, easier to maintain and they don't carry that whole "EVIL BLACK GUN" stigma that frightens so many would be shooters away from the sport.

Once they get used to the whole breathe, hold, squeeze, grin circuit, they can upgrade to something more advanced.

And I'm no sniper, not by any stretch of the definition. I just know what works for me. Give me my winchester model 70 and a few boxes of 180 grain nosler partitions and I'm a happy camper.
56 posted on 05/11/2005 12:13:30 PM PDT by Dr.Zoidberg (This tagline brought to you by Islam. Islam, only the best of the 12th century for you and yours.)
[ Post Reply | Private Reply | To 51 | View Replies]

To: sourcery

I read what you posted earlier. It's bogus. Bad scholarship; at worst, deliberately misleading, at best, it is horribly sloppy.

First, in the entire debate over the Civil Rights Act of 1866, (which was substantial) the author points to a few isolated and stray comments, about a dozen, regarding the right to keep and bear arms, some of which are taken horribly out of context; I checked a few of his citations.

Second, his "analysis" of the 14th Amendment and the right to bear arms, which is supposedly the point of the paper (after all, it is the title) is like two paragraphs! Two! Are you kidding?

Third, the vast majority of his focus (understandably) is on the Thirteenth Amendment and the Civil Rights Act, over which there was a great deal of debate as to whether the Amendment itself guaranteed certain civil (as opposed to political) rights. SOME of the framers argued that the 13th Amendment ITSELF guaranteed civil rights, such as the right to contract, own property, etc. But this was a minority of Senators, which is why the 14th Amendment was later passed--to ensure the Constitutionality of the Civil Rights Act of 1866.

Which brings me to the text of the Act itself, here in relevant provisions:

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States; and such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding.

Note that the guarantees are specific: enforce contracts, sue, own property, etc. I suppose that one could argue that "all laws for the security of person and property" is a guarantee of the right to bear arms, but that's a pretty big stretch, given the text of the amendment itself and the debate surrounding its adoption. It seems pretty clear that it wasn't one of the rights intended to be protected by Congress itself; a few stray marks by some Congressmen aside.

Finally, you could argue that "equal" doesn't mean "equal" in the dictionary sense, but that "equal" itself implies some sort of inherent protection of the law; that the state can't take away rights from anyone without violating the law. Jacobus TenBroek makes this argument in his book, "Equal Under Law," but it's a pretty weak argument for a variety of reasons. For obvious reasons--equal means equal--not a substantive grant, but this was also decidedly not the understanding of the framers, who definitely did not want to radically upset the notion of Our Federalism.

I could probably write a book-length response to why this article is wrong, but it is summed up, rather basically, by the fact that the equal protection clause was not intended to secure absolute rights; merely freedom from discrimination, and only then in a very narrow classification of certain civil rights.

A much more comprehensive analysis on the Reconstruction amendments (and a tour de force in legal reasoning) is Raoul Berger's book, "Government by Judiciary," generously available online at the following address:

http://oll.libertyfund.org/Texts/LFBooks/Berger0051/GovernmentByJudiciary/0003_Bk.html


57 posted on 05/11/2005 12:34:58 PM PDT by Publius Valerius
[ Post Reply | Private Reply | To 55 | View Replies]

To: Dr.Zoidberg
I think an M1A meets both our ideals. Accurate, effective, and uncontroversial looking.
58 posted on 05/11/2005 1:01:26 PM PDT by Atlas Sneezed (Your FRiendly FReeper Patent Attorney)
[ Post Reply | Private Reply | To 56 | View Replies]

To: Dan from Michigan
Mordue held that Bach could not allege a constitutional right to bear arms because the "Second Amendment is not a source of individual rights."...

IGNORANT OR INTENTIONALLY REVISIONIST JUDGES!

The Preamble to the Bill of Rights





Effective December 15, 1791
Articles in addition to, and Amendment of the Constitution of the United States of America, proposed by Congress, and ratified by the Legislatures of the several States, pursuant to the fifth Article of the original Constitution.

PREAMBLE
The conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution.





59 posted on 05/11/2005 1:19:18 PM PDT by vannrox (The Preamble to the Bill of Rights - without it, our Bill of Rights is meaningless!)
[ Post Reply | Private Reply | To 1 | View Replies]

To: Publius Valerius; sourcery
In fact, debate over Section 1 of the amendment is pretty sparse--the general consensus is that it was meant to constitutionalize the Civil Rights Act of 1866--which had already been debated ad nauseam, and again, I don't recall much (read: anything) about the right to bear arms in there.

Bump.

For over 140 years more than 70 justices of the Supreme Court consistently held that the first ten amendments to the Constitution applied as a limitation to the Federal Government only and not in any manner to the states, and for 70 years following the so-called adoption of the Fourteenth Amendment some 35 justices from every corner of the Nation have held that the Fourteenth Amendment did not make the first ten amendments applicable to the states. Some of those justices had helped to frame the original Constitution and the first ten amendments and had worked to secure the adoption thereof. Others had participated in the war between the states and were acquainted at firsthand with the purposes intended to be accomplished by the Fourteenth Amendment. All of them interpreted the Constitution, including the amendments, with knowledge and wisdom born of intimacy with the problems which had called forth the documents in the first place.
Justice Albert H. Ellett, Dyett v. Turner, 20 Utah 2d 403, 439 P. 2d 266 (1968)

60 posted on 05/11/2005 2:16:42 PM PDT by 4CJ (||) OUR sins put Him on that cross. HIS love for us kept Him there.(||)
[ Post Reply | Private Reply | To 52 | View Replies]


Navigation: use the links below to view more comments.
first previous 1-2021-4041-6061-80 ... 101-113 next last

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.

Free Republic
Browse · Search
News/Activism
Topics · Post Article

FreeRepublic, LLC, PO BOX 9771, FRESNO, CA 93794
FreeRepublic.com is powered by software copyright 2000-2008 John Robinson