Nelson Lund article on Bach v. Pataki
Prof. Nelson Lund has published an article on Bach v. Pataki.
I'm going by memory here, so I may make some mistakes, but the case involved a challenge to the NY Sullivan law in a particular context. The NY law only allows residents, and those with a principal place of business in NY, to apply for a gun permit. The challenge was under Art. IV's provision that no state may deny nonresidents the privileges and immunities of citizenship -- essentially, a State cannot discriminate (withhold privileges without a good basis for the distinction) against residents of other states. Note that in this case, even if a sheriff wanted to issue Bach a permit, had investigated him and was satisified that he was a proper permittee, the sheriff was forbidden to issue him a permit.
The Court of Appeals held there was no discrimination. It bought the NY argument that part of the permitting process is keeping tabs on permit holders, and that's harder to do if the person is from out of state. I felt it an example of "gun cases make bad law," to paraphrase the old saying about hard cases. If the state law had involved forbidding nonresidents to apply for the bar, or medical licensing, and the argument had been "we've got to be able to keep an eye on attorneys and doctors, and it's harder to do that if they live elsewhere," the law would have been bounced in a heartbeat. And note that a nonresident *can* get a permit -- so long as he or she just works in NY. So you can have two next-door neighbors in New Jersey, and one can get a permit, because they commute to NY, and the other cannot, because they work locally.
Gun cases are great places to find examples of outcome based decision making...especially in New York.
Posted by: C.A.G. at October 24, 2005 06:05 PM