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SCOTUS Denies Cert in Gun Law Challenge

The Supreme Court has denied cert — that is, refused to hear an appeal — in a case involving a New York law that tightened restrictions on conceal/carry gun permits. The appeals court upheld the gun control law and the plaintiffs had hoped that the court would take the case and overturn that decision.

The justices on Monday declined to hear a challenge to a strict New York law that makes it difficult for residents to get a license to carry a concealed handgun in public.

The court did not comment in turning away an appeal from five state residents and the Second Amendment Foundation. Their lawsuit also drew support from the National Rifle Association and 20 states.

After the Supreme Court ruled a few years ago in Heller v DC that the Second Amendment does confer an individual right to own guns, gun control advocates feared that this would doom such restrictions in the future. But as this decision suggests, that really isn’t the case. The court went out of its way to say that merely because there is a right to own guns does not mean that there can be no restrictions on that right if they can be rationally justified as furthering a clear governmental interest. They did not spell out a specific set of possible restrictions that might be found constitutional, which would have been highly unusual, but since that ruling they have not overturned any state gun control laws.

Comments

  1. gingerbaker says

    If the article is accurate when it said that the law “makes it difficult” to get a license to carry, then how is that not unconstitutional? They just said, as you point out, that restrictions must be ” rationally justified as furthering a clear governmental interest”.

    “Just making it difficult” is not a rational justification. Demanding a woman undergo mandatory vaginal probes before she can have an abortion is “just making it difficult” and we rightfully decry such an idea, and not just because it is invasive, but because it is trying to affect a prohibition through needless impediment.

    WTF is the court doing?

  2. Ben P says

    the mechanics and politics of Cert grants/denials are interesting.

    Basically, four justices have to agree to hear a case to have the supreme court take it up. The accept about 1% of the cases that come before them. (8000-9000 filed per year with usually less than 100 cases heard).

    On controversial cases there is definitely some “gaming” where judges will vote to deny cert, letting what they see as a bad ruling at the circuit court level stand rather than losing at the supreme court.

  3. says

    Yet another data-point implying that the “Constitutional right to bear arms” is pure fiction.

    “Just making it difficult” is not a rational justification. Demanding a woman undergo mandatory vaginal probes before she can have an abortion is “just making it difficult” and we rightfully decry such an idea…

    No, we “rightfully decry such an idea” because it’s an invasive procedure that has nothing to do with the medical procedure sought.

    Comparing bureaucratic rigamarole to unnecessary invasive medical procedures is just ridiculous.

  4. Ben P says

    If the article is accurate when it said that the law “makes it difficult” to get a license to carry, then how is that not unconstitutional? They just said, as you point out, that restrictions must be ” rationally justified as furthering a clear governmental interest”.

    “Just making it difficult” is not a rational justification. Demanding a woman undergo mandatory vaginal probes before she can have an abortion is “just making it difficult” and we rightfully decry such an idea, and not just because it is invasive, but because it is trying to affect a prohibition through needless impediment.

    WTF is the court doing?

    Standards of scrutiny on the 2nd amendment just aren’t established yet. The article ed cites does a poor job of explaining the law and doesn’t even name the case.

    The case is Kachalsky v Cacace. The short summary is this.

    New York State law provides that a private citizen (i.e. someone who is not law enforcement) may only obtain a concealed carry license if they establish they have “proper cause” to do so. (New york has a rather complicated licenseng scheme allowing licenses for specific places and purposes, suffice to say this particular type of license sought is a “full-carry” license, granting the right to concealed carry without restrictions).

    New York law requires that to obtain such a “full-carry” license, a person must, among other things, “demonstrate a special need for self-protection distinguishable from that of the general community.” New York case law specifically holds that “A general desire to carry a weapon for personal protection” does not qualify, nor does merely the allegation that ones “lives in a high crime area.”

    Each of the Plaintiffs applied for a generalized concealed carry license and was denied. They sued the state of new york, in Federal Court saying New York was infringing on their second amendment rights.

    The 2nd Circuit found that the 2nd Amendment does apply to concealed carry laws, the 2nd Circuit found that “heightened scrutiny” applies only when restrictions operate as a “substantial burden on the ability of law abiding citizens to possess a weapon for self defense” but that the “right to carry weapons in public” is “outside of the core protections of the 2nd Amendment.”

    The 2nd Circuit recited extensive legal support for the premise that carrying weapons in public is something that, even 200 years ago, was considered something different from merely possessing them, that New York has a substantial goal in protecting public safety, and restricting concealed carry licenses to those who demonstrate they have “proper cause” to obtain them, is substantially related to that interest.

    So they still apply a form of heightened scrutiny (sort of a rational basis +) but find that New York law meets it.

    I think most expected that SCOTUS would deny cert here. The defense case is reasonably good, and the Supreme COurt will probably wait until there’s a big circuit split on the issue.

  5. Ben P says

    Explaining New York law a bit more.

    All firearms require a license, and licenses are typically granted for the reason the firearm is requested. If you request a license for hunting and target shooting, the state “shall issue” one, but it specifies that the firearm can only be carried during hunting and target shooting related activities, and to and from those activities, but elsewhere it must be unloaded and in a container.

    Likewise, if you request a license for home protection, the state shall issue one, but it says the gun should be kept in the home, and if carried elsewhere must be unloaded and in a locked container.

    Likewise, a store owner might request a license for protecting himself and his store, and he’ll get one, but the license says he onyl has a right to carry the weapon inside the store premises.

  6. marcus says

    Ben P @4 Thanks for the astute analysis. I might also add that there is a very real and necessary distinction between ‘carry’ and ‘concealed carry’. Here in CO you can carry almost anywhere but to do so in a concealed manner requires a (sadly, very easy to acquire) special permit.

  7. ArtK says

    @ gingerbaker

    Do you understand the difference between the reason for a law (the “basis”) and the outcome? “Making it difficult to acquire” is an outcome, not a basis. The basis in this case is that the government of NY believes that it has an interest in public safety and believes that concealed weapons permits pose a risk thereto. SCOTUS, by denying cert has agreed that NY’s basis for the law is reasonable (i.e. meets whatever standard they apply in this kind of case — as Ben P points out, the standard applied may depend on the severity of the outcome.)

    In your alternate example, the trans-vaginal ultrasounds making abortion more difficult to obtain is the outcome of the law. The expressed basis is that embryos are precious and therefore require legal protection from being harmed. Many people believe that the actual basis is to deny women control over their own bodies. Whether the expressed basis is reasonable is the subject of many court cases and political argument.

    Making things more difficult is an acceptable outcome of many laws. We make it difficult to be licensed as a physician or lawyer in the hopes that the difficult hurdles allow only the best (or at least minimally qualifying) to get licensed. Again, the outcome of the law is difficulty in getting a license, the reason/basis is maintaining a level of quality in some professions.

  8. ArtK says

    Urg… please replace “basis” above with “justification”. It makes better sense that way.

  9. gingerbaker says

    Raging Bee:

    Yet another data-point implying that the “Constitutional right to bear arms” is pure fiction.

    “Just making it difficult” is not a rational justification. Demanding a woman undergo mandatory vaginal probes before she can have an abortion is “just making it difficult” and we rightfully decry such an idea…

    No, we “rightfully decry such an idea” because it’s an invasive procedure that has nothing to do with the medical procedure sought.

    Comparing bureaucratic rigamarole to unnecessary invasive medical procedures is just ridiculous.

    FFS, rb, you don’t even have the grace to insert an ellipsis in your quote mining of me.!

  10. Ben P says

    SCOTUS, by denying cert has agreed that NY’s basis for the law is reasonable

    Minor quibble. All the supreme court’s done here is refuse to take the case, which by default, let’s the 2nd circuit’s ruling stand.

    As I said above, SCOTUS only accepts about 1% of the cases a year. Sometimes they’ll accept cert simply because they feel the lower court is egregiously wrong, but they prefer to pick and choose cases that present good issues.

    A good example, is 9th circuit habeas cases. Some judges in the 9th circuit (Stephen Reinhardt in particular) are very anti-death penalty and will issue opinions that really have no-regard for existing law. Sometimes the Supreme COurt accepts those just to slap him down, but sometimes they just let them sit.

    I’d bet there’ll be at least one more big 2nd amendment case within the next 4-5 years, but this one wasn’t going to be it, the ruling was too easy.

  11. gingerbaker says

    “Do you understand the difference between the reason for a law (the “basis”) and the outcome? “Making it difficult to acquire” is an outcome, not a basis. The basis in this case is that the government of NY believes that it has an interest in public safety and believes that concealed weapons permits pose a risk thereto.”

    The City of New York has been notorious over the past decades for not granting any concealed carry permits to anyone except law enforcement folks. The idea that applications were theoretically open but never fulfilled is Orwellian, whatever the so-called justification and whatever one’s definition of “making it difficult to acquire” might be.

    If NYS can posit public safety as an issue, without any need for justification, they make a mockery of the 2nd Amendment. I live in Vermont, right next door to NY. Here, you don’t need any license to own a gun, not do you need a license or permit to carry a loaded, concealed handgun in public. Our crime, and handgun-violence rates are lower than NY. Wherefore is thine justification, NY?

    This sort of permit by caprice is just like the “free speech zones” of the Bush administration.

    I can’t remember but did not one of the two recent Supreme Court cases on gun control have to do with the right to carry, not just possess, a firearm for self-defense?

  12. ArtK says

    @ gingerbaker

    You didn’t answer my question. Do you understand the difference between the justification for a law and the outcome. In your first comment you said that (paraphrasing) making it more difficult to obtain a concealed carry permit was not a rational justification. My point was that it’s not a justification at all, it’s an outcome, so your statement made absolutely no sense — or rather, it was factually true without saying anything.

    The 2nd circuit made the determination that the NY government did have sufficient justification, whether you think they do or not. SCOTUS refused to review the matter (thanks for pointing out the distinction, Ben P.)

    You’re free to disagree with NY’s justifications for the law; you’re equally free to disagree with the 2nd Circuit’s interpretation of the law, the justification for the law and the Constitution. That’s a part of the current debate on gun control. But if you want to make your point heard, don’t confuse outcomes with justifications.

    I live in Vermont, right next door to NY. Here, you don’t need any license to own a gun, not do you need a license or permit to carry a loaded, concealed handgun in public. Our crime, and handgun-violence rates are lower than NY. Wherefore is thine justification, NY?

    Citing one example of a location that has looser licensing laws and less gun violence is nothing more than an anecdote. There are tons of what scientists call “confounding factors” in the comparison. Do you live in a highly urbanized area with a large amount of poverty? When you can come back and control for all of the other factors that might influence levels of violence you might have a point. Try comparing similar areas with different gun laws, not significantly different areas that also have different gun laws.

    Counter point: California has consistent gun laws across the state, yet there are areas with higher levels of gun violence than others. That tells us right there that there are other factors that contribute to the situation. That doesn’t mean that the gun laws are useless, nor does it mean that they are effective. It just means that the kind of comparison you did is useless in telling us whether gun laws are effective or not.

  13. Ben P says

    The City of New York has been notorious over the past decades for not granting any concealed carry permits to anyone except law enforcement folks. The idea that applications were theoretically open but never fulfilled is Orwellian, whatever the so-called justification and whatever one’s definition of “making it difficult to acquire” might be.

    “Notorious” isn’t evidence.

    The 2nd circuit opinion doesn’t state so explicitly, but it seems to be these plaintiffs mounted a facial challenge. That is, they applied for permits, were denied, then filed a lawsuit arguing the statute itself violates their second amendment rights without any particular regard to what their reasons for wanting a permit or being denied were.

    Alan Gura is a good lawyer, but this was a dumb idea. My guess is that he wanted, and thought he had a chance, at a broad landmark ruling overturning any restrictive CC licensing statute.

    An as applied challenge (i.e. “I have a really good reason to want a gun, and your decision to deny me one was arbitrary and capricious) would have been a much more incremental ruling, but could also have been more successful, assuming the facts you claim.

    But I would guess it’s much harder to find a new york plaintiff than you’d expect.

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