Bach v. Pataki (2d Circuit)
Crime & Federalism reports a new Second Circuit decision on New York's gun permit system.
Appellant Bach is a Virginia resident, described by the court as a "model citizen," who would like to have a New York permit, for self-protection while visiting his parents. He is perfectly willing to apply, but the New York law says permits may only be issued to residents or persons whose principal employment is in New York.
He challenged on Second/Fourteenth Amendment grounds, and the Second Circuit dumped that on the grounds that the last Supreme Court case on it (in the 19th century) held that the Second Amendment is not incorporated into the Bill of Rights, and if that's going to be changed, it will have to be done by the Supreme Court. (For non-legal types: the Court in 1833 held that the federal Bill of Rights only restricts the federal government. The 14th Amendment, 1868, forbids states to deprive persons of the privileges and immunities of federal citizenship, or of due process. When the Court finds that a federal bill of rights liberty cannot be denied by a state without denying due process, the right is said to be "incorporated" into the 14th Amendment).
Of more novelty, he challenged it under the Privileges and Immunities Clause of Article 4 (i.e., not that of the 14th Amendment) which provides that the citizens of each state shall be accorded the P&I of citizens in the several states. (I wondered why there is no Equal Protection challenge -- this is a variant on that). After all, New York creates a permit system and then forbids residents of other states to apply unless their principal business is in NY. Plainly it's giving its own citizens a right that is not allowed to citizens of other States. The court dumps that by saying that the NY scheme is organized locally, so officials have to be able to monitor people locally.
My take: that's not a terribly good argument. After all, a nonresident can still apply IF his principal occupation is in NY (lots of residents of NJ and PA work in NY). A resident of NJ can apply if he works in NY, but not if he doesn't. The court appears to argue that a person working in NY spends a substantial amount of time there, and thus can be monitored.
The argument proves too much and too little. A person lives in NJ -- sorry, no chance to monitor him locally. Unless he works in NY (whether or not be takes a gun to work). And if "monitoring" a fellow only during work hours is sufficient ... then why can they license people who work in NJ, so long as they live in NY? As a practical matter, NY authorities are not "monitoring" anyone, in the sense of following them around, so it amounts to not much more than "if he got into trouble, we'd know about it automatically." That's improbable in the case of a nonresident who only is in their jurisdiction 9-5, M-F.
I rather suspect that if something other than firearms were involved -- say, a State law allowing only residents to apply for certain professions, or refusing to recognize out of state drivers' licenses *and* allowing only residents to apply for an in-state one, since the state has to monitor driving or professional performance -- the result would have been judicial outrage at the discrimination against non-residents.