06/06/2012 102 ORDER, dated 06/06/2012, requesting supplemental briefing from the parties, FILED.[629947] [11-3642, 11-3962]
We hereby request supplemental briefing from the parties concerning the impact, if any, of the June 1, 2012 decision of this Circuit in United States v. Decastro, 10-3773. The requested briefing shall be submitted in the form of letter-briefs of no more than fifteen (15) single-spaced pages, and shall be filed no later than 5:00 p.m. on June 29, 2012. Reply briefs of no more than five (5) single-spaced pages shall be filed no later than 5:00 p.m. on July 13, 2012.
If nothing else, the level of scrutiny is an issue. In Decastro the defendant claimed 18 U.S.C. sct. 922(a)(3) (prohibiting anyone except a licensed dealer from importing a firearm into a state from another state) was unconstitutional on its face and, in combination with NYC's restrictive gun permit policy, denied him his right to own a firearm. He bought a gun in Florida by lying about his state of residence and then transported it into his home in NYC.Why are they bringing a case regarding an unlicensed firearm into the mix? Kachalsky deals with removing "good cause" and subjective licensing schemes, not the overall RKBA.
I'm sure the Court is seeking discussion about whether the city's licensing scheme impairs the the ability to acquire a firearm and how that plays into the level of scrutiny.We hold that heightened scrutiny is appropriate only as to those regulations that substantially burden the Second Amendment. Because § 922(a)(3) only minimally affects the ability to acquire a firearm, it is not subject to any form of heightened scrutiny. (We therefore need not decide the level of scrutiny applicable to laws that do impose such a burden.)
The district court declined to dismiss the indictment. Inferring from the NYPD statistics that there is a high grant rate for handgun licenses in New York City, the court rejected Decastro's argument that he was effectively forced to violate § 922(a)(3) by traveling outside the state in order to secure a handgun for self-defense. The court did not address Decastro's argument that § 922(a)(3) is unconstitutional on its face.
WHAT!?Inferring from the NYPD statistics that there is a high grant rate for handgun licenses in New York City, the court rejected Decastro's argument that he was effectively forced to violate § 922(a)(3) by traveling outside the state in order to secure a handgun for self-defense.
The facial constitutionality of § 922(a)(3) is unimpaired by the risk that some state laws governing the sale of firearms may themselves be unconstitutional.
Had Decastro opted to utilize the lawful means by which he could have acquired a handgun in New York and done so, § 922(a)(3) would have played no role in regulating that transaction. By the same token, § 922(a)(3) by its terms did not preclude Decastro from acquiring the handgun in question from the Florida dealer because all that the federal statute effected were minor limitations on the channels through which that handgun was to be shipped from Florida to New York. Even though acquisition is indeed often necessary to effectuate the Second Amendment right to keep and bear arms, any limitations on Decastro's acquisition were those occasioned by his own refusal to comply with New York State's requirements for possessing a handgun, and the federal statute, therefore, played no demonstrable role in precluding Decastro from purchasing a firearm in either state so as to exercise his Second Amendment right. For these reasons, § 922(a)(3), as applied, does not substantially burden Decastro's Second Amendment right to own a firearm in defense of his home and hearth. See District of Columbia v. Heller, 554 U.S. 570, 635, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008).
Plus when you apply for a CCW in NYS they tell you flat out "You will not get this permit, would you like to continue or would you like a premises/sportsman permit". They may also be including the denial of a CCW but granting of a lesser permit.
They most certainly do not say that in the whole STATE. There are far more counties in NY that are effectively "shall issue" than not.
Unfortunately, many of the largest population centers are a real problem but it's certainly not the entire state. In most of upstate, there is no trouble getting permits.
They most certainly do not say that in the whole STATE. There are far more counties in NY that are effectively "shall issue" than not.
Unfortunately, many of the largest population centers are a real problem but it's certainly not the entire state. In most of upstate, there is no trouble getting permits.
.357MagNYC said:Ok, I'm back. I'll try to post my complete notes from the oral arguments in the next post. First, some general thoughts [which he has yet to do - Al].
1. There was a general sense in the courtroom today about how important this case is. It was the last one heard, and the judges took a break immediately beforehand. Oral arguments lasted about 90 minutes! (Each side had been allotted 10 minutes.)
2. Westchester County as a defendant was basically a non-entity. They were trying to argue that they shouldn't be a party to the case, but the judges weren't buying it. Their argument only lasted 5 minutes. The NY State AG's office was the main defendant, arguing in favor of proper cause.
3. The State essentially conceded that THE SECOND AMENDMENT APPLIES OUTSIDE THE HOME. This is huge. At the very least, the Court should hold that the right to bear arms protects a right to bear arms in public.
4. The State was arguing that the proper cause regime is constitutional because New Yorkers can carry rifles and shotguns in public. HUH? But then they admitted that you'd probably get arrested for causing public alarm if you did so in NYC. I don't know how the judges will rule on this one.
5. Alan Gura was incredible, as expected. I can't imagine anyone else I'd rather have on our side fighting for our rights.
6. As far as reading the judges, it's tough to say. Judge Wesley was asking Gura a ton of questions, but I think it's because he agrees with him. Judge Katzmann was mostly silent the whole time. Judge Lynch asked some tough questions to both parties.
So, to sum up:
--It looks like the Second Circuit will hold that the Second Amendment protects a right to bear arms in public for self-defense. What remains to be seen is whether they'll buy the State's argument that, since New Yorkers can carry rifles and shotguns in public, there's no right to carry concealed handguns.
“Sportsmen’s rights are always a national issue,” Hank Sheinkopf said.
* * *
“Having strengthening of some gun ordinances in New York says [Cuomo] is serious about the issue nationally without upsetting sportsmen’s-rights groups.”
.357MagNYC said:Just to clarify, what I did was take about 10 pages of notes where I wrote down the gist of what everyone said. Originally, I copied and posted the whole thing here, but then realized that might be a problem since I was basically misquoting everyone.
Instead, I'll try to keep posting summaries of what was said from time to time. If anyone knows how to get the transcript from a Second Circuit oral argument, please let me know. I called the court clerk today, was transferred to a voice mail, left a message, and will probably never hear back from the person I called.
Things started out on a somewhat humorous note, which makes me think the judges might be sympathetic to our cause.
Judge Wesley started out asking Alan Gura if it would be constitutionally protected to carry a handgun, just because. Not for self-defense, but just because a person liked the feel of a "Colt .45" and wanted to carry one. Gura said that would still be a protected interest, as would carrying for target practice or hunting.
Judge Lynch asked if there's a right to shoot guns in the air to celebrate Cinco de Mayo. Gura responded that states can regulate the discharging of firearms.
Judge Lynch then asked if the class of protected arms includes shoulder-mounted anti-aircraft missiles. Gura responded that those are not protected under Heller's common-use test.
Judge Lynch then asked what would happen if someone stood in the street in NYC with a rifle or shotgun, and Gura said that person would probably be arrested for disturbing the peace or something. Gura added that Heller specifically said that the Second Amendment did not allow people to carry any arm whatsoever for any purpose whatsoever.
Next, in what will probably be an essential point in the decision, Judge Lynch said something to the effect of, "So the legislature can't say no to handguns, but only allow people to carry long guns." Gura responded that Heller said that the handgun is the quintessential weapon for self-defense chosen by Americans.
Judge Katzmann then got to the core of the question, and asked why the state couldn't have a regulation stating that you need a documented threat in order to get a permit (so that individuals who can't show a recurrent threat wouldn't get licenses).
Gura replied that people are often raped or murdered without any previous threats against them. He said that the 2A protects the right to be armed and ready in case of a threat.
Judge Wesley (who admitted he's an avid hunter) then asked if the 2A would change when public preferences change. Heller says that handguns are protected because they're America's weapon of choice--does that mean handguns can't be regulated except under strict scrutiny?
Gura answered that the 2A has always meant that weapons commonly used for lawful purposes are protected.
There was then a historical discussion with Judge Wesley, where Gura said that the Bill of Rights is not technologically hind-bound to the technology available in 1778.
In another key moment, Judge Wesley then said something to the effect of, "Heller makes a strong statement in favor of your view that the 2A extends beyond the home." He then asked Gura why he concedes that the state would have a legitimate interest in prohibiting concealed carry.
Gura responded that the SCOTUS is deferential to the states on that one, that states can regulate the manner of carrying, and that there's a historical notion that concealment is dangerous and sneaky.
Continuing with the discussion of concealed vs. open carry, Judge Wesley then asked why the government didn't have the same interest in banning both forms of carry, and why must the state's citizens suffer one of the two burdens to public safety (either through concealed or open carry).
Gura answered that the state's interest stops at the point where the right is completely destroyed. Citizens must enjoy the freedom in one manner or the other.
... [T]he next topic discussed were safe-storage laws, which Gura said would probably survive scrutiny.
Next, on the topic of ammo capacity limits, Judge Lynch asked if it wouldn't make sense to leave those regulations up to the legislature, rather than to judges who had no clue about guns. When Judge Lynch asked what competence the courts have to rule in these matters, Gura replied that the job of the courts is to determine if the regulations are constitutional, and referred back to common use for traditional lawful purposes with reference to ammo capacity.
There was then a discussion in which Judge Lynch said that Gura's argument isn't really that licensing authorities have unbridled discretion, but that anyone is entitled to carry because they're American. Judge Wesley then chimed in and said that Gura's argument is that NY's heightened standard of self-defense is not enough to pass constitutional muster.
Judge Wesley then talked with Gura about differences between the home and in public. Judge Wesley acknowledged that most crimes are committed with illegal guns. Gura acknowledged that the interest in self-defense is most acute in the home.
Judge Wesley then went on to ask about the analogy to the 1st Amendment, which seems problematic since the 2A has far more immediate deadly effects. Gura pointed to the part in McDonald where the Court states that the 4th, 5th, and 6th Amendment rights all have dangerous effects, since they result in the release of dangerous criminals into society.
Judge Lynch then added that, even under the 1st Amendment, all kinds of speech can cause harm, but that courts have always responded that that's the price we pay for our 1st Amendment rights. He then said something to the effect of, "maybe a few dead bodies is the price we pay for the Second Amendment."
Gura said that the states could address those concerns through time, place, and manner restrictions.
Judge Lynch then asked about laws banning guns from within 100 feet of schools, and Gura said that would amount to an all-out ban in places like NYC. Judge Lynch also mentioned restrictions on possession within 100 feet of schools, churches, abortion clinics, daycare centers, and bars. He said something to the effect of, "if you can't carry within 100 feet of an airport, and there are too many airports, then you have no right, correct?" Gura added that there's no problem with state laws banning possession of a firearm while intoxicated, and stressed that this lawsuit is not the last word on permissible restraints.
In closing, Gura said that this law applies everywhere in NYS and places a substantial burden on the 2A right, since people can't walk outside their own door with a gun without a license, which they can't have without proper cause.
Next it was the State's turn to argue. Gura got a chance to respond at the end.
.357MagNYC said:Ok, on to the NYS AG's arguments in Kachalsky.
Judge Katzmann started out the questioning, asking why people didn't have a need for self-defense wherever they are. NYS replied that Heller & McDonald limit the 2A right to the home for handguns.
Judge Kaztmann then asked about Stevens' dissent in Heller, where he suggests that Heller is just the beginning, and he contemplates the expansion of the right beyond the home.
Judge Lynch then chimed in with a great point. He asked how NYS could justify a limit to the home when the text of the 2A says "keep and bear"? The Judge said that Heller and McDonald only dealt with keep, but how could NYS justify a right to bear arms that becomes no right at all?
NYS replied that there may be a 2A right outside the home, but it doesn't cover concealable weapons.
Judge Katzmann then said it's not an answer to ban handguns so long as long guns are allowed (i.e., you can't ban handguns just because you allow long guns).
NYS replied that Heller indeed says that, but limits the right to the home. There's a difference between access to a handgun in the home, as opposed to a long gun.
Judge Katzmann then asked what would happen if he carried a long gun in NYC.
NYS replied that carrying a weapon in a dangerous way that frightens the public has traditionally been forbidden, and bans on carrying concealed and concealable weapons have been upheld in the past.
A bit later, NYS stressed that since NY allows the carrying of long guns, the 2A is still intact as a right, even if there's no right to bear concealable handguns in public.
Judge Wesley then pressed NYS on the fact that, since some citizens are allowed to carry concealed, there's an acknowledgment that some citizens have that right. NYS couldn't really answer that one.
Judge Wesley then said that the court is basically considering 2 issues: 1) Determine the parameters of the 2A right under Heller & McDonald; 2) If Gura is correct and that right extends beyond the home (here Judge Wesley acknowledged that Gura has a good argument), what standard of scrutiny would apply to regulations.
NYS replied that intermediate scrutiny would apply, and pointed to Heller's mention of presumptively lawful prohibitions on carrying in sensitive places. NYS said that unwitting members of the public risked being exposed to the dangers of firearms, and that NYS was tailoring the restriction to how strong the need for self-defense is.
Judge Lynch then responded with a great point: if less than 50% of the people eligible to bear arms have the right, then it's really not much of a right at all.
NYS responded that the other 50% can carry long guns.
Judge Lynch then went into a First Amendment analysis, and said that you don't need a particularized need under the 1A. He discussed the origins of prior restraint, where you needed a license from the king in order to open a printing press.
Then he said something that to this day gets me all choked up: something like "Freedom means you don't have to go to the king for a license."
Judge Lynch then said that Gura is just asking for the narrowest thing for the 2A right (although he suspected that Gura would not stop here, and that there would be more to come from him in the future): that you didn't need to go to the king for permission because the Constitution says we all have this right.
NYS answered that Gura concedes there are limits to the 2A, subject to an interest-balancing approach by state legislatures. NYS said that when a concealed handgun is present in a public place, the nature of that public place changes, and that it's a similar situation with open carry.
Judge Katzmann then said that concealed carry is unknown to other people, who are unaware of the weapon.
NYS answered that if NYS made more licenses available, people would know there are more guns out there. He said this would also raise public safety concerns, with accidental use, mistaken use, and someone else taking the gun from a licensed holder. Then NYS kept hammering at the notion that Gura conceded that the government's interest can justify restrictions [but the only thing Gura "conceded" was that safe-storage laws would probably survive scrutiny].
NYS had a pretty crazy argument that the current law permits the licensing official to tailor the license to the need for self-defense, and came up with the example of being allowed to carry on the Upper West Side, where there are people hanging around and threatening you, but not when you're dropping your children off at school. NYS said the state's compelling interest in public safety justifies the proper cause requirement, just like the examples that Gura conceded.
In closing, though, NYS basically conceded that the 2A right extends outside the home.
.357MagNYC said:Gura then came back with 4 quick points.
1) Gura distinguished the present case from Masciandaro, a 4th Cir. case dealing with carry in national parks. Here, NYS prohibits the ability to carry a handgun anywhere, by anyone, without proper cause.
2) Gura said that many of the old cases upholding bans on carry prohibited the carrying of pocket pistols, which were the only pistols available to Freedmen in the South, but allowed the carrying of the Army-Navy pistols that were owned by Ex-Confederate soldiers, which were larger guns like the Colt .45 that Judge Wesley mentioned earlier. But NYS doesn't allow people to carry those types of guns, either, and people can conceal carry 1911s.
3) There is no legitimate state interest in rationing a right and balancing it out of existence.
Here Judge Wesley interrupted and mentioned that constitutional rights have different applicability in the home as opposed to in public.
Gura responded that more restrictions are allowable in public, but that people have the right to protect themselves and their families in public.
4) Gura closed with saying it's a quality of life issue. Plaintiffs are reasonable people, and reasonable people would not go into a situation knowing there would be a confrontation. But the reality is, no one knows when such a confrontation may occur. The 2A right gives a person the peace of mind, that you can walk into a dark parking lot or through a bad neighborhood if you have to. It protects a sense of well being.
And that was the end of oral arguments.
I'm actually sorry to see that Gura even used the word "reasonable." The 2nd Amendment RKBA is absolute, and "reasonable" has nothing to do with being "allowed" to exercise a fundamental, absolute right.