NY concealed gun licensing scheme upheld.
N.Y.'s Concealed Gun Licensing Scheme Is Upheld by Circuit
By Mark Hamblett Contact All Articles
New York Law Journal
November 28, 2012
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."