Second Circuit Rules: Carrying Firearms a "Liberty Interest"

[ChamberedRound]

From Snowflakes In Hell, a great ruling in the 2nd Circuit:

http://www.snowflakesinhell.com/2010/03/25/great-news/

Great News

The Second Circuit has ruled that a person has a clear liberty interest in carrying a firearm, and that there are due process interests within the permitting process. At issue would seem to be the claim that the permitting process couldn’t repeatedly demand proof of citizenship (you had to do it to get the permit, so what’s the need to do it repeatedly?). Also it would appear to hinge that the delays are unnecessary and don’t serve any compelling state interest.

Dave Hardy adds, “Amazing how this legal field has turned around in a year or two.” This is a big deal, because this is going to play very much against the City of New York’s entire system of licensing even ownership of firearms, and New York State is part of the Second Circuit. It might be that the courts will allow licensing of the right to own a gun, much like they’ve done with the right to marry, but with significant judicial oversight as to what’s allowed and what’s not. They will only be able to do what is needed to determine your qualification, and nothing more. They won’t be able to put in requirements intended to frustrate the ownership or carrying of firearms.

Ideally, I’d like there to be no licensing, and that’s entirely possible to achieve, but even the allowing of a relatively easy and unobtrusive licensing provision would be a major weakening of the licensing regime for the most restrictive states, to the point where I’m not sure how many jurisdictions are going to bother with them. The entire point of licensing was to frustrate people from exercising their rights. If they can no longer do that, I wouldn’t be shocked to see the requirement start to become viewed as arcane, and for it to be politically easier to remove them entirely. That’s actually been able to happen in a few states that had relatively meaningless permit requirements, namely Missouri and Nebraska. North Carolina also has such a permit, but we’ve not gotten much traction on that issue there, largely because North Carolina has been swelling with population fleeing the northeast and maintaining their voting habits from back home. But the precedent is there.

Is the Sullivan Act appealing once its primary purpose of frustrating the right is no longer served? We might find out.

My basic understanding of the ruling is that any permit processes which employ tactics specifically designed to delay, stall, frustrate, or otherwise discourage applicants from applying for a permit, or purposely make it difficult to obtain a permit absent any due process, are now no longer allowed. This could mean that "May Issue" permit processes in the 2nd Circuit could be struck down, as well as NY's Sullivan Law. Likewise for other states if other circuits rule similarly, and if they don't, then the SCotUS will have another case to consider.

IMHO, good news people.

[IronSight]

oh hell yes!


That just made my day right there.

[Yellowfin]

This is great news. We've gotta get NYS' pro 2A legal team together a lot more, though. There doesn't seem to be sufficient organization of people to act on this like there is in CA.

[billamj]

That is good news. Now we can only hope that other circuits, like the ninth maybe, come to realize that their old restrictive ways are not valid by today's new standards.

[ChamberedRound]

That is good news. Now we can only hope that other circuits, like the ninth maybe, come to realize that their old restrictive ways are not valid by today's new standards.

Or they don't, and force this issue to be brought up to the SCotUS, where they will have to make a decision which is in line with Heller and the soon-to-come McDonald decision.

Either way, it's full of win IMHO.

[rikilii]

From Snowflakes In Hell, a great ruling in the 2nd Circuit:

http://www.snowflakesinhell.com/2010/03/25/great-news/



My basic understanding of the ruling is that any permit processes which employ tactics specifically designed to delay, stall, frustrate, or otherwise discourage applicants from applying for a permit, or purposely make it difficult to obtain a permit absent any due process, are now no longer allowed. This could mean that "May Issue" permit processes in the 2nd Circuit could be struck down, as well as NY's Sullivan Law. Likewise for other states if other circuits rule similarly, and if they don't, then the SCotUS will have another case to consider.

IMHO, good news people.

I took a quick look at the opinion, and it doesn't appear to have anything to do with the viability of "May Issue" permit processes (i.e. whether the issuing authorities can exercise discretion), but rather the procedures for issuing or denying them.

[ChamberedRound]

I took a quick look at the opinion, and it doesn't appear to have anything to do with the viability of "May Issue" permit processes (i.e. whether the issuing authorities can exercise discretion), but rather the procedures for issuing or denying them.

Agreed. But, if the discretion in and of itself hampers due process, or is present in the procedures solely to discourage or frustrate those who have applied, then it could be thrown out. IMHO it could be argued that if due process (background checks, etc.) clears an applicant for approval, then the only reason for such discretion is to discourage and frustrate applicants, or to prevent anyone from applying in the first place.

Hell, even in PA where out licensing laws are pretty good, a ruling such as this in our circuit could potentially be used to strike down the BS "content and character" clause which most Sheriffs could drive a truck through if they wanted.

[LittleRedToyota]

nice find CR. thanks for posting.

reading through that decision, something really jumped out at me as absurd.

the court's view is that depriving someone of their vehicle, and, thus, potentially depriving them of their "livelihood" is worse than depriving someone of the right to carry a gun--and, thus, potentially depriving them of the ability to effectively defend their life.

basically, they ruled that the right to earn a living is more important than the right to defend continuing to actually live. rather absurd. (of course, the court did not recognize that depriving someone of the right to carry is potentially depriving them of the right to effectively defend their lives. it just never ceases to amaze me how many people live in la-la land when it comes to understanding that there are bad people out there...and one of those bad people might one day try to kill them.)

i do have to give the court some credit though. they actually admitted that they are biased in favor of the government over citizens. further, they ruled that, in spite of that bias, the government has not provided enough of an excuse for them to allow the delays. there is actually some glimmer of intellectual honesty in all that.

of course, then they also ruled that DPS can essentially make its own laws...as long as those laws aren't too "outrageous" or "shocking". i wonder why i am not allowed to speed as long as my speeding is not too "outrageous" or "shocking"?

[rikilii]

Agreed. But, if the discretion in and of itself hampers due process, or is present in the procedures solely to discourage or frustrate those who have applied, then it could be thrown out. IMHO it could be argued that if due process (background checks, etc.) clears an applicant for approval, then the only reason for such discretion is to discourage and frustrate applicants, or to prevent anyone from applying in the first place.

Hell, even in PA where out licensing laws are pretty good, a ruling such as this in our circuit could potentially be used to strike down the BS "content and character" clause which most Sheriffs could drive a truck through if they wanted.

That's possible, but I think the due process aspect of this limits it significantly. For instance, even if the standards for issuance were very strict (e.g. you need a stronger reason for carrying beyond just self-defense), and the decisions were rendered in a timely an non-arbitrary fashion, then there wouldn't really be a due process issue.