NY: U.S. Court Rejects Challenge to State's Concealed Gun Law
law.com ^ | 8 September, 2011 | Joel Stashenko
New Yorkers do not have a constitutional right to carry a concealed handgun in public, a federal judge ruled yesterday.
In a case brought by four New Yorkers challenging the denial of "concealed carry" gun permits by four state judges, Southern District Judge Cathy Seibel said she found persuasive the reasoning of the Illinois' Court of Appeals in People v. Marin, 795 N.E.2d 958 (2003), that the overriding purpose of gun statutes should be to prevent innocent people from being victimized by gun violence.
As such, Judge Seibel ruled, that granting licenses to carry concealed firearms is a matter of discretion to be decided by state authorities and is not a right.
The plaintiffs contended that the defendants—Westchester County Judges Susan Cacace and Jeffrey A. Cohen, Westchester Acting Supreme Court Justice Robert K. Holdman and Bronx Supreme Court Justice Albert Lorenzo—arbitrarily denied them licenses to carry concealed handguns even though they did not fall under the categories proscribed by §400.00(2)(f) of New York Penal Law, such as felony offenders, people with a history of mental illnesses and minors.
The judges, who were represented by the office of New York Attorney General Eric Schneiderman, argued that the "proper cause" provision of the state law served as a valid basis of the denial of gun permits and did not violate the U.S. Constitution's Second Amendment guarantee of the right to bear arms.
Quoting Marin, Judge Seibel said, "The underlying activity of possessing or transporting an accessible and loaded weapon is itself dangerous and undesirable, regardless of the intent of the bearer since it may lead to the endangerment of public safety." Marin also held that transporting a loaded weapon on a public street "creates a volatile situation vulnerable to spontaneous lethal aggression in the event of road rage or any other disagreement or dispute."
"For all these reasons, I hold that the state has an important government interest in promoting public safety and preventing crime," Judge Seibel said in Kachalsky. v. Cacace, 10-cv-05413.
The judge found §400.00(2)(f), which provides for the carrying of a concealed handgun, requires that applicants show an "actual and articulable" need to possess their weapons "rather than merely speculative, potential, or even specious" grounds for self-defense.
"As crafted, the statute seeks to limit the use of handguns to self-defensive purposes…rather than for some other use that has not been recognized as falling within the protections of the Second Amendment," Judge Seibel wrote. "This purpose is furthered by the statute's directive that full-carry permits 'shall be' issued where there exists proper cause, rather than directing merely that permits 'may' be issued in such instances."
In the main, the concealed handgun permit statute appears to apply to those who legitimately need protection from harm, such as shopkeepers and merchants, bankers and even judges, "who may be the targets of criminal defendants or disgruntled litigants," the judge said. But the Legislature has left it up to those who grant licenses to carry concealed handguns to decide on a case-by-case basis, a process that sometimes entails the denial of permits for various reasons, Judge Seibel noted.
"Section 400.00(2)(f) may not be perfect, but it need not be to pass constitutional muster," she wrote. "Section 400.00(2)(f)'s limitations promote the government's strong interest in public safety and crime prevention, and are substantially related to it."
Judge Seibel's ruling "is a victory for New York state law, the United States Constitution, and families across New York who are rightfully concerned about the scourge of gun violence that all too often plagues our communities," Mr. Schneiderman said in a statement yesterday.
New York City Mayor Michael Bloomberg similarly praised Judge Seibel for her ruling.
"Common-sense restrictions like the one the court upheld today do nothing to infringe on the rights of law-abiding Americans, but are essential to fighting gun crime on our streets," he said in a statement.
Mr. Bloomberg said the law is essential to both protect police officers and New Yorkers, "which can be done while respecting the Second Amendment."
Assistant Attorney General Monica Anne Connell represented the four judges.
Vincent Gelardi of Gelardi & Randazzo of Rye Brook was among the attorneys representing the plaintiffs, which included the Second Amendment Foundation, a gun-owners' rights group based in Alexandria, Va.
@|Joel Stashenko can be contacted at jstashenko@alm.com.
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I actually know the attorney for the plaintiffs. Damn good lawyer. I have had drinks with him on at least 5 occasions. Represents a lot of mob clients, but he is really good.
