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.
As always ALL the courts duck any gun case.
They always find a way, any way, to dump it.
After awhile people should notice a pattern.
The major question is - WHY?
What is it about the 2ed and related cases that makes lawyers and especially federal judges go weak in the knees, lose their backbone, and turn yellow?
Has anyone really addressed this?
The very idea that MILLER is such an important case. Imagine a Civil Rights case in which the defendant and his lawyer didn't show up but the case is still one of the most cited and important Civil Rights cases. Just try and imagine it. I'm sorry I can't do it. I can't believe anyone thinks that Miller decided anything or meant anything.
Posted by: Dan Hamilton at May 6, 2005 02:34 PM
I am always amused by Judges that can't read. The Federalist papers would be a good place for this judge to start with, if he even knows what that is.
And while the NY judge is at it, maybe he could point out where that abortion right and privacy stuff is in the Constitution. Must be written in secret code.
Judges are such pompous asses these days. They must think the public is stupid.
Posted by: bill at May 6, 2005 09:32 PM
The attack under the immunities and privileges clause of the U.S. Constitution may not be far off. The fight over rights versus privileges has been settled in law. Most historic court cases with the notable exception of Bliss v. Commonwealth (12 Ky. (2 Litt.) 90, 13 Am. Dec. 251 (1822)), have held that concealed carry is a privilege and not a right depending on the wording of that state's constitution, and the United States Constitution. To bear arms means exactly that, to unconceal or to display. The Virginian who is the plaintiff at least knows some case law history. Some people may think that concealed carry is a right enumerated by the Second Amendment, but there is little case law to support this when the right enumerated states “to keep and BEAR arms” shall not be infringed.
Posted by: Rudy DiGiacinto at May 6, 2005 10:14 PM
"Some people may think that concealed carry is a right enumerated by the Second Amendment, but there is little case law to support this when the right"
How can you have case law on the 2ed when Judges REFUSE to hear such cases???
Address the root problem. Federal Judges are scared sh1tless of 2ed amendment cases! WHY??
To argue that Judges don't hear cases because there is no case law is circler and thus meaningless.
Posted by: Dan Hamilton at May 8, 2005 08:46 AM
This case was doomed from the beginning because he sought relief under the 2nd Amendment. NY courts are routinely hostile to 2nd Amendment cases and I believe that they rule against such cases without much thought or reason and they feel safe in doing so because, to date, they have not been overrulled.
I think (I'm not a lawyer) that he might have had a slim chance of success if he had cited privacy, private property, and equal protection reasons for his case.
Posted by: Ken at May 8, 2005 08:48 AM
I have some of the NY cases that they site at my web site, OCShooters.com (Orange County NY Shooters)
It is odd that the decisions talkes about the 1944 - "target shooting is not a valid reason to own a gun" decision. That would say that self defense is a valid reason but now most Judges will not issue a license for self defense but will issue one for "Target shooting, hunting" ----------
It is odd that at this point in time NY City does not issue handgun permits under PL 400 Section (f) " have and carry concealed, without regard to employment or place of possession, by any person when proper cause exists for the issuance thereof; ..." ------------
NY City only issues licenses under "(a) have and possess in his dwelling by a householder; (b) have and possess in his place of business by a merchant or storekeeper;" and then they let you take your gun to a NY City approved range any time that you want to. This makes it a felony for anyone who has a handgun license in NY City to leave the city with the handgun for any reason. NY City states that you can go hunting with it only if it is a continous trip so you have to drive from NY City without any stops, hunt then return without eating, stopping to get gas, or for any other reason. Several cases are in the courts but the NY courts have ruled againts in both cases. (Please note that the anti-gunners say that it is OK to have a gun for "Sporting use" but not to shoot at people with however the only reason for a "premise licenses" is to shoot someone.)
The following is the letter that I got from NY City
George W. Rogero
P .0. Box 340
Washingtonville, NY 10992
Dear Mr. Rogero: ----------
Your letter to Captain Richter concerning premise handgun licenses has been referred to me for reply. In response to your first question regarding the validity of New York City premise licenses outside the City, please note that a premise license issued by the New York City Police Department is limited as to place of possession, and therefore would not be valid outside the licensed premises. There are two exceptions to this rule, however. A licensee may transport his licensed handgun unloaded, in a locked container with the ammunition carried separately while travelling to or from an authorized range or shooting club in New York City. The other exception covers New York City premise licenses with a hunting authorization. Those licensees may transport their licensed handgun to an authorized area designated by the New York State Fish and Wildlife law. Again, the handgun must be transported unloaded, in a locked container with the ammunition carried separately. -------------
Regarding your second question, the New York City Police Department only issues special validations for business carry and carry guard/security licenses issued by counties outside of the City of New York. As the New York City Police Department no longer issues target licenses, it will not validate a target license issued by another county. --------------
If you would like further information regarding this matter, you may contact either Sergeant Michael Marten or Sergeant Christopher Montagna of my staff. They can be reached at 646-610-5551.---------
Yours truly yours
Thomas M. Prasso
Posted by: George at May 8, 2005 09:10 AM
"Some people may think that concealed carry is a right enumerated by the Second Amendment, but there is little case law to support this when the right enumerated states “to keep and BEAR arms” shall not be infringed."
This is absurd to suggest a right does not exist because there is no case law to support it. Judges don't right the law or decide what our rights are. They interpret law to decide cases. You are right to suggest the 2A enumerates "the right of the people to keep and bear arms shall not be infringed."
Definition from dictionary.com
Bear: "To carry from one place to another; transport."
"To bear arms means exactly that, to unconceal or to display."
Bear arms means to transport from one place to another. If the government dictates what means a person can bear a firearm that would be an infringment on that right. If the government cannot infringe on the right to bear arms it means just that; they cannot dictate the terms of the transport nor the means. If they can dictate how a person can bear a firearm, they could say a firearm may only be transported in a explosion proof safe, or they could say firearms can only be transported on certain days of the week, or firearms can only be transported if they are completely taken apart and inoperable. If a person indeed has the right to bear arms and this right cannot be infringed then that person has the right to transport it as they please, be it unconcealed or concealed.
Posted by: Brent Tweed at November 5, 2005 10:19 PM
The 2ed Amendment is in the Bill of Rights, not the states laws!!!
Posted by: Cody Byerley at March 21, 2006 09:24 AM