By Johanna Reeves, Esq.
On November 3, 2021, the Supreme Court heard oral arguments in New York State Rifle & Pistol Assoc. v. Bruen. All eyes are on the Court, as this is the first time in more than 10 years that the justices are examining the Second Amendment protections over self-defense. This case asks the question of whether the state’s denial of petitioners’ applications for concealed-carry licenses for self-defense violated the Second Amendment.
I. Background – New York Law and the Kachalsky Case
New York law makes it a crime to possess any firearm without a license, loaded or unloaded, inside or outside the home. To obtain a license, an individual must be 21 years old or older, of good moral character, without a history of crime or mental illness, and “concerning whom no good cause exists for the denial of the license.”
In addition to the above prerequisites, licenses are limited by place or profession. Licenses to possess a registered handgun in the home or in a place of business by a merchant or storekeeper are granted on a “shall issue” standard. This is also the case for a license for a messenger employed by a banking institution or express company to carry concealed, as well as for certain state and city judges and those employed by a prison or jail.
For anyone else who wishes to carry a firearm, he or she must show “proper cause” for a license to be issued. As New York bans carrying handguns openly, individuals who desire to carry a handgun outside the home but do not fit within one of the employment categories above must demonstrate proper cause.
The New York penal code does not define what constitutes “proper cause,” but state courts have interpreted the term to include carrying a handgun for target practice, hunting, or self-defense. Proper cause for target practice or hunting can be satisfied if the applicant demonstrates “a sincere desire to participate in target shooting and hunting.” This standard is lower than proper cause for self-defense, which requires the applicant to show a “special need for self-protection distinguishable from that of the general community or of persons engaged in the same profession.” If an applicant demonstrates only proper cause to carry a handgun for target practice or hunting, the licensing officer will restrict the carry license to the purposes justifying the issuance.
All conceal carry permit applications are reviewed by licensing officers who have a considerable amount of discretion in deciding whether to grant a license application. i.e., whether the applicant has established proper cause to justify issuance of the conceal carry license. To obtain a conceal carry license without restrictions (not restricted to hunting or target shooting purposes), the standard is very high. According to cases decided over the years, a generalized desire to carry a concealed weapon to protect oneself and property is not sufficient for obtaining an unrestricted carry license, nor is good moral character plus a simple desire to carry a weapon or living or being employed in a high crime area.
“A generalized desireto carry a concealed weapon to protect oneself and property is not sufficient for obtaining an unrestricted carry license.”
In 2012, several individuals and a civil rights association challenged the New York proper cause requirement in the case Kachalsky v. County of Westchester. In that case, multiple individual plaintiffs were denied full-carry concealed handgun licenses for failing to establish proper cause (none of the plaintiffs were able to demonstrate a need for self-protection distinguishable from that of the general public). The plaintiffs sued, challenging the constitutionality of the New York proper cause requirement. The District Court ruled against the plaintiffs, concluding that the concealed carrying of handguns in public is outside the core Second Amendment concern articulated in District of Columbia v. Heller (self-defense in the home).
On appeal, the Second Circuit upheld the lower court’s decision, finding the Second Amendment protections identified in Heller to be applicable only to the home. When it comes to carrying handguns in public, however, the court found the state to have a compelling interest in public safety and crime prevention. Consequently, the Second Circuit upheld the law on the grounds that it is substantially related to New York’s public safety interests.
II. The NYSRPA Case
In 2018, the NYSRPA, a firearms advocacy organization, and two individuals, Robert Nash and Brandon Koch, joined together and filed suit challenging once again the constitutionality of New York’s proper cause standard.
Petitioner Nash, who possessed a license restricted to hunting and target shooting, requested removal of the restrictions so that he may carry a firearm for self-defense. In support of his request, Nash cited to a string of recent robberies in his neighborhood and the fact that he had completed an advanced firearm safety training course. The licensing officer denied Nash’s request in November 2016 for failure to show proper cause because he did not demonstrate a special need for self-defense that distinguished him from the general public.
Petitioner Koch obtained his carry license in 2008 and like Nash, his license was restricted to hunting and target shooting. In November 2017, Koch requested removal of the restrictions from his license, citing his extensive experience in the safe handling and operation of firearms and completion of many safety training courses. Koch’s request was denied in January 2018 for failure to show proper cause because he did not demonstrate a special need for self-defense that distinguished him from the general public.
The parties filed suit in federal district court requesting the court compel defendants (New York licensing authorities) to issue unrestricted carry licenses to Nash and Koch, or otherwise allow them to exercise their right to carry firearms outside the home. The district court dismissed the case on the grounds that Kachalsky foreclosed plaintiff’s claims, and the Second Circuit Court affirmed the dismissal. The petitioners then appealed the case to the Supreme Court (also known as filing a writ of certiorari) presenting the following question: whether the Second Amendment allows the government to prohibit ordinary law-abiding citizens from carrying handguns outside the home for self-defense.
On April 26, 2021, the Supreme Court agreed to review the case, but narrowed the question to whether New York state’s denial of Nash and Koch’s applications for concealed-carry licenses for self-defense violated the Second Amendment. Citing to history and the text of the Second Amendment, petitioners argue the Second Amendment protects the right of the individual to carry arms outside the home for self-defense. Because New York’s restrictive carry regime means that the default is to prohibit law-abiding citizens from carrying handguns for self-defense, the state law violates the Second Amendment.
New York’s regime is all the more troubling because the threshold ‘proper cause’ determination is left to the broad discretion of a licensing officer. The Second Amendment, like the rest of the Bill of Rights, protects individuals against government actors. Requiring law-abiding individuals to secure the permission of a government official under a highly discretionary standard impermissibly converts a right into a privilege. – Brief for Petitioners at 42.
Respondents, arguing that the Second Amendment does not enshrine an unqualified right to carry concealed firearms in virtually any public place, contend New York has a valid interest in protecting the public and the licensing scheme is consistent with the Constitution.
“New York’s ‘proper cause’ requirement…does not seek to inhibit handgun carrying for lawful self-defense…but rather aims to limit the violence attending handgun misuse.” – Brief for Respondents at 40.
Oral argument took place on November 3, 2021. The attorney for petitioners, Paul Clement, centered on the argument that carrying a gun outside the home for self-defense purposes is a fundamental right enjoyed by citizens in 43 other states. Because it is a constitutional right, it must not be dependent on satisfying a government official that there is a “really good” need to exercise that right, or that there is a need that distinguishes the applicant from the rest of the community. Such a requirement transforms the right into a privilege.
“When it comes to carrying handguns in public, however, the court found the state to have a compelling interest in public safety and crime prevention.”
Distinguishing New York’s law from a government’s legitimate interest in restricting weapons in sensitive places, Clement argued “[i]t is the difference between regulating constitutionally protected activity and attempting to convert a fundamental constitutional right into a privilege that can only be enjoyed by those who can demonstrate to the satisfaction of a government official that they have an atypical need for the exercise of that right. That is not how constitutional rights work.”
Justice Alito asked Clement whether the Court could perhaps approach the sensitive place question in the context of self-defense so that places where the state has taken steps to put security measures in place and obviate the need for self-defense could be viewed as sensitive places. To this, Clement responded, “I worry that if you went in that direction, then the state would say: well, you know, this part of the city, we have a lot of police officers, and so you really don’t need to exercise your own individual self-defense right there because we – we have your back.”
One of the most intriguing parts of oral argument was concerning the role of population density and the Solicitor General of New York’s admission that unrestricted licenses are much more readily available in less densely populated upstate counties than in dense metropolitan areas. Chief Justice Roberts, explaining that the Court in Heller relied on the right to defense as a basis of its reading of the Second Amendment, pointed out the paradox of New York’s policy of issuing permits in less densely populated areas.
CHIEF JUSTICE ROBERTS: “Now I would think that [the need for self-defense] arises in more populated areas. If you’re out in the woods, presumably, it’s pretty unlikely that you’re going to run into someone who’s going to rob you on the street. On the other hand, there are places in a — in a densely populated city where it’s more likely that that’s where you’re going to need a gun for self-defense and, you know, however many policemen are assigned, that, you know, there are high-crime areas. And it seems to me that what you’re saying is that’s probably the last place that someone’s going to get a permit to carry a gun. How is that –regardless of what we think of the policy of that, how is that consistent with Heller’s reasoning that the reason the Second Amendment applies a –a direct personal right is for self-defense?”
In response, General Underwood pointed to a tradition of governments to regulate “most strenuously” in densely populated places. General Underwood explained the rationale for such history, “which is that where there is dense population, there is also the deterrent of lots of people and there is the availability of law enforcement.”
Justice Alito also asked a series of questions on what an ordinary, law-abiding citizen must do to show a need to carry a firearm for self-defense.
JUSTICE ALITO: “So I want you to think about people like this, people who work late at night in Manhattan, it might be somebody who cleans offices, it might be a doorman at an apartment, it might be a nurse or an orderly, it might be somebody who washes dishes. None of these people has a criminal record. They’re all law-abiding citizens. They get off work around midnight, maybe even after midnight. They have to commute home by subway, maybe by bus. When they arrive at the subway station or the bus stop, they have to walk some distance through a high-crime area, and they apply for a license, and they say: Look, nobody has told –has said I am going to mug you next Thursday. However, there have been a lot of muggings in this area, and I am scared to death. They do not get licenses, is that right?”
In response, General Underwood acknowledged this is generally correct if there is nothing “particular” to them, to which Justice Alito asked how this is consistent with the core right to self-defense, which is protected by the Second Amendment?
MS. UNDERWOOD: “Because the core right to self-defense doesn’t –as –as this court said, doesn’t allow for all to –to be armed for all possible confrontations in all places.”
JUSTICE ALITO: “No, it doesn’t, but does it mean that there is the right to self-defense for celebrities and state judges and retired police officers but pretty much not for the kind of ordinary people who have a real, felt need to carry a gun to protect themselves?”
The majority of the justices appeared skeptical of the New York law in their questioning during oral argument. Although a decision in favor of petitioners could help chip away against the several states who have similar “may issue” licensing schemes for conceal carry, the Court’s ruling will likely be narrowly focused and may not address the broader question of whether the Constitution guarantees an individual the right to carry a firearm outside the home.
The Court will likely issue its decision by summer 2022.
***The information contained in this article is for general informational and educational purposes only and is not intended to be construed or used as legal advice or as legal opinion.
About the Author
Johanna Reeves is the founding partner of the law firm Reeves & Dola, LLP in Washington, DC (www.reevesdola.com). For more than 17 years she has dedicated her law practice to advising and representing U.S. companies on compliance matters arising under the federal firearms laws and U.S. export controls. Since 2016, Johanna has served as a member of the U.S. Department of State’s Defense Trade Advisory Group (DTAG). From 2011 through 2020, Johanna served as Executive Director for the Firearms and Ammunition Import/Export Roundtable (F.A.I.R.) Trade Group and she continues to serve in an advisory role. Johanna can be reached at jreeves@reevesdola.com or 202-715-9941.
| This article first appeared in Small Arms Review V26N3 (March 2022) |
