Why doesn't New York like guns?

By Charles T. DeTulleo, Esquire Law Office of Charles T. DeTulleo

So you may wonder why this is about New York, not only the state but the largest city in the United States, New York City.

The easiest way to approach this topic is by looking at how the Second Amendment of the United States Constitution effects the ownership and all collateral issues of that ownership.

“USCS Const. Amend. 2, Right to bear arms.

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." (U.S. amend. 2)(Current through the ratification of the 27th Amendment on May 7, 1992).1”

Without going into a lot of history, the more recent cases involving the Unites States Supreme Court (USSC) have prompted more activity than the previous years of the court. One of the more recent cases ignited the hot topic of gun rights for citizens of the United States. In District of Columbia v. Heller, 554 U.S. 570; 128 S. Ct. 2783; 171 L. Ed. 2d 637

(2008),2 the USSC held for the appellant Heller concerning the unconstitutional denial of his second amendment right to bear arms. The District of Columbia had a law that prohibited the ownership of guns in the home of a citizen. It also mandated that a citizen could only have a gun in their home if the District approved that ownership. And then, if granted, a citizen had mandates of how the gun must be stored and not loaded in order for a citizen to lawfully possess the weapon.

The Lexis overview of the case outlines the unreasonable actions by the District of Columbia.

“Respondent, a special policeman, filed the instant action after the District refused his application to register a handgun. The Court held that the District's ban on handgun possession in the home and its prohibition against rendering any lawful firearm in the home operable for the purposes of immediate self-defense violated the Second Amendment. The Court held that the Second Amendment protected an individual’s right to possess a firearm unconnected with service in a militia and to use that firearm for traditionally lawful purposes, such as self-defense within the home. The Court determined that the Second Amendment's prefatory clause announced a purpose but did not limit or expand the scope of the operative clause. The operative clause's text and history demonstrated that it connoted an individual right to keep and bear arms, and the Court's reading of the operative clause was consistent with the announced purpose of the prefatory clause. None of the Court’s precedents foreclosed its conclusions. The Court held that the Second Amendment right was not unlimited, and it noted that its opinion should not be taken to cast doubt on certain long-standing prohibitions related to firearms.” When the Heller decision was reached in 2008, there were only approximately 96 other decisions of the USSC concerning the second amendment. You might think that during the life of our country and the USSC from July 4, 1776, it would have had more than 96 cases. Passage of over 246 years and only 96 other cases went to the court. But the milestone of the Heller decision started a litigation hurricane of challenges to the unreasonable restrictions created by some states against the legal ownership of a firearm also known as (aka) a gun.

As many in the legal profession know, just because the USSC reaches a decision that seems clear to the public and government, the decision did no more than encourage additional actions to pass more stringent laws to make it difficult, if not impossible, for a law abiding citizen to own a gun. The term unintentional consequences comes to mind when you consider that more stringent laws were passed in order to circumvent and even predict what the USSC would do in the future. Even longstanding laws were now game.

It is important to know that at the time of the Heller decision, the USSC consisted of the following justices: “Judges: Scalia3, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy4, Thomas, and Alito, JJ., joined. Stevens, J., filed a dissenting opinion, in which Souter, Ginsburg5, and Breyer, JJ., joined, post, p. 636. Breyer, J., filed a dissenting opinion, in which Stevens, Souter, and Ginsburg, JJ., joined, post, p. 681.’ (District of Columbia v. Heller, supra., p. 573, p. 2787 & p. 647).

Why is it important to know who the justices were? It is no secret that the political party of the President of the United States has the power, with consent of the U.S. Senate, to appoint vacancies to the USSC. Since it only takes a simple majority of the USSC to render a precedent opinion, any vacancy to the court could cause a totally different outcome to the decisions rendered. [See the continuing controversy of the court's decision in Dobbs v. Jackson Women's Health Org., 142 S. Ct. 2228; 213 L. Ed. 2d 545 (2022)].

The next significant case came two years later, the decision in McDonald v. City of Chicago, 561 U.S. 742; 130 S. Ct. 3020; 177 L. Ed. 2d 894 (2010). Unless the reader does not watch enough news, the City of Chicago has a very high murder rate. It appears that no matter what the city does, the murder rate continues to climb. Defunding the police force did not help reduce the murders committed on a weekly basis, especially on the weekends. Rather, the rate increased partly due to the reduction in police who either retired, retired early or resigned and sought employment in other police departments. Chicago also prided itself in having the most gun laws on the books that the government proclaimed would stop the bloodshed of murders. When the murders continued to rise, the government blamed outside sources for providing guns to criminals who then used them in the streets of Chicago. In this case the court also was faced with the legal argument from Chicago that a citizen does not have a constitutional right to self defense because the States can make laws to control gun ownership and the federal government does not have that power over the states.

The Lexis overview of the case outlines the reasoning.

"The challenged ordinances effectively banned possession of handguns by private citizens. The Court held that the Second Amendment protected the right to keep and bear arms for the purpose of self-defense and that the Second Amendment was fully applicable to the states. Self-defense was a basic right and was the central component of the Second Amendment right, and the Court had recognized that the Second Amendment right applied to handguns, which were the preferred firearm to keep and use for protection of one's home

Continued on page 30

Continued from page 29 and family. A plurality of the Court found it unnecessary to disturb existing precedent that narrowly read the Fourteenth Amendment Privileges or Immunities Clause to protect only rights that owed their existence to the federal government. However, the framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms as a fundamental right necessary to the nation's system of ordered liberty. The Fourteenth Amendment was not solely an antidiscrimination rule. The plurality therefore found that the Second Amendment right to keep and bear arms was incorporated and made applicable to the states by the Due Process Clause of the Fourteenth Amendment.”

As you can see by the brief information in the overview, the majority of the USSC had added additional constitutional protections that were being challenged by a governmental defendant. More importantly, the court began to anticipate the other possible arguments that may occur in future litigation to resolve those issues before more cases were filed. I am sure my readers will see that it did not work out that way.

We finally reach the meat of this article, New York and guns. The case of N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111; 213 L. Ed. 2d 387 (2022). New York State and the City of New York have a long list of gun control laws. And the previous cases listed above had reached some of the appellate courts in the state but the appellants generally lost due to their lack of sufficient funding to proceed beyond the state system. Yes, it is expensive to litigate in our court systems.

For those who know more about gun ownership, you will understand the difficulty it is to obtain the right to carry a concealed gun by passing the process of your state to get the permit. There are many states that have a “shall issue” law that requires the licensing governmental entity to issue the license as long as the applicant is not prohibited by law. The most common prohibitions are being convicted of certain crimes. Not all crimes will prevent the issuance. It usually takes a felony or certain violent misdemeanors to result in a denial of the permit. Other states have a “may issue” law. The entity decides what will allow a citizen to qualify to carry a concealed gun. Even if the applicant has no prior criminal convictions, the entity can deny the applicant based on its own set of qualifying rules. Some of those rules are so outlandish as to make you wonder who made them up.

Many states still require that you have a reason to want to have a permit to carry a concealed gun. Even if you tell the entity that the reason that you need a gun is for “self defense” may not be satisfactory in some states. The growing “shall issue” states continue to grow and it may be one answer to the growing crime rate. In those states where the application process is reasonably done and not financially prohibitive, the crime rates are lower than those that have very strict rules. New York and New York City were, and still are, one of those tough jurisdictions.

The Lexis overview of the Bruen case outlines the decision concerning the unreasonable process to legally obtain a permit to carry a gun in New York or New York City. However, before getting the court’s decision, I am including some of the history of New York as it concerns the mere possession of guns dating to the 1900s. In the court's decision it outlines it as follows:

“New York State has regulated the public carry of handguns at least since the early 20th century. In 1905, New York made it a misdemeanor for anyone over the age of 16 to “have or carry concealed upon his person in any city or village of [New York], any pistol, revolver or other firearm without a written license issued to him by a police magistrate.” 1905 N. Y. Laws ch. 92, §2, pp. 129-130; see also 1908 N. Y. Laws ch. 93, §1, pp. 242-243 (allowing justices of the peace to issue licenses). In 1911, New York's “Sullivan Law” expanded the State's criminal prohibition to the possession of all handguns – concealed or otherwise-without a government – issued license. See 1911 N. Y. Laws ch. 195, §1, p. 443. New York later amended the Sullivan Law to clarify the licensing standard: Magistrates could “issue to [a] person a license to have and carry concealed a pistol or revolver without regard to employment or place of possessing such weapon” only if that person proved “good moral character” and “proper cause.” 1913 N. Y. Laws ch. 608, §1, p. 1629."

Today’s licensing scheme largely tracks that of the early 1900s. It is a crime in New York to possess “any firearm” without a license, whether inside or outside the home, punishable by up to four years in prison or a $5,000 fine for a felony offense, and one year in prison or a $1,000 fine for a misdemeanor. See N. Y. Penal Law Ann. §§265.01-b (West 2017), 261.01(1) (West Cum. Supp. 2022), 70.00(2)(e) and (3) (b), 80.00(1)(a) (West 2021), 70.15(1), 80.05(1). Meanwhile, possessing a loaded firearm outside one's home or place of business without a license is a felony punishable by up to 15 years in prison. §§265.03(3) (West 2017), 70.00(2)(c) and (3)(b), 80.00(1)(a).

A license applicant who wants to possess a firearm at home (or in his place of business) must convince a “licensing officer” – usually a judge or law enforcement officer-that, among other things, he is of good moral character, has no history of crime or mental illness, and that “no good cause exists for the denial of the license.” §§400.00(1)(a)-(n) (West Cum. Supp. 2022). If he wants to carry a firearm outside his home or place of business for self-defense, the applicant must obtain an unrestricted license to “have and carry” a concealed “pistol or revolver.” §400.00(2)(f ). To secure that license, the applicant must prove that “proper cause exists” to issue it. Ibid. If an applicant cannot make that showing, he can receive only a “restricted” license for public carry, which allows him to carry a firearm for a limited purpose, such as hunting, target shooting, or employment. See, e.g., In re O'Brien, 87 N. Y. 2d 436, 438-439, 663 N. E. 2d 316, 316-317, 639 N.Y.S.2d 1004 (1996); Babernitz v. Police Dept. of City of New York, 65 App. Div. 2d 320, 324, 411 N. Y. S. 2d 309, 311 (1978); In re O'Connor, 154 Misc. 2d 694, 696-698, 585 N. Y. S. 2d 1000, 1003 (Westchester Cty. 1992).

No New York statute defines “proper cause.” But New York courts have held that an applicant shows proper cause only if he can “demonstrate a special need for self-protection distinguishable from that of the general community.” E.g., In re Klenosky, 75 App. Div. 2d 793, 428 N. Y. S. 2d 256, 257 (1980). This “special need” standard is demanding. For example, living or working in an area “noted for criminal activity” does not suffice. In re Bernstein, 85 App. Div. 2d 574, 445 N. Y. S. 2d 716, 717 (1981). Rather, New York courts generally require evidence “of particular threats, attacks or other extraordinary danger to personal safety.” In re Martinek, 294 App. Div. 2d 221, 222, 743 N. Y. S. 2d 80, 81 (2002); see also In re Kaplan, 249 App. Div. 2d 199, 201, 673 N. Y. S. 2d 66, 68 (1998) (approving the New York City Police Department’s requirement of “extraordinary personal danger, documented by proof of recurrent threats to life or safety” (quoting 38 N. Y. C. R. R. §5-03(b))).”

Ironically, NY has a statute that is contained in its Civil Rights laws. NY CLS Civ R § 4.

Ҥ 4. Right to keep and bear arms

A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms cannot be infringed.”

So now you know why the court reversed the New York law concerning issuance of a carry permit. And, follow the news because the City of New York has now declared major areas of the city to be a “gun free zone” where NO guns are allowed, with or without a permit. Look for another New York case to hit the USSC this year.