Federal Court Upholds New York Gun Licensing Law

Posted November 28, 2012 in Criminal Law by

— Aaron Kase and Larry Bodine also contributed to this story.

A New York federal appeals court on Nov. 27 shot down an effort to establish a fundamental right to carry handguns in public, and upheld the state’s handgun licensing law.  Five residents of Westchester, N.Y., and a gun lobby lost their case, which tried to expand Second Amendment handgun rights.


Gun industry lobbies like the National Rifle Association and the Second Amendment Foundation have been suing states and cities across the country asserting that “the Second Amendment does not stop at one’s doorstep” and that there is an unlimited right to carry handguns in public. So far, they are shooting blanks.

The federal court ruled in Kachalsky v. City of Westchester that – for public safety reasons — New York State can require applicants for a concealed-carry handgun license to spell out a particular need or “proper cause” for self-protection. A simple desire to carry a concealed weapon for self-protection isn’t enough.

Public Safety vs. Home Safety

The competing arguments in the legal war are (a) the government’s right to protect public safety and prevent crime, versus (b) an individual’s Second Amendment right to protect his home with a handgun.

The federal appeals courts spelled out that the core protection in the Second Amendment is using arms to defend your home. But once you step into public, the New York law can regulate who gets to carry a handgun.

In finding the New York law to be constitutional, the court said New York’s strong tradition in regulating handgun possession in public traces back to colonial times.  The court refused to strike down the 100-year-old gun legislation that established the “proper cause” requirement. 

To read about a related case, see Federal Appeals Court Says No Gun Sales Under 21.

Lead plaintiff Alan Kachalsky simply claimed the Second Amendment entitled him to a handgun license. Two other plaintiffs asserted they were citizens in “good standing” and had jobs – and were thus entitled to get a handgun license. Another said he was in the Coast Guard. Yet another said that she was transgender female and was more likely to be the victim of violence.

The lower court tossed out the case in 2011, determining that none of the plaintiffs made any effort at all to show proper cause or demonstrated the special need for self-protection.

Joined by the Second Amendment Foundation, the plaintiffs cited two rulings by the U.S. Supreme Court: District of Columbia v. Heller which in 2008 struck down a total ban on handguns in the home, and McDonald v. City of Chicago which struck down a similar ban in Chicago in 2010.  

The plaintiffs argued unsuccessfully that the Second Amendment right to bear arms was the same as the First Amendment right to free speech. In other words: if the government can’t license the right to speak, New York cannot limit the right to carry a handgun.

“I just don’t think that the courts are going to do anything different until we get the high court saying you have the constitutional right to not only have a gun in your house, but to carry a gun outside your home. Then we will get the debate about where can you bear, and how can you bear,” said Jerold E. Levine, from the Law Offices of Jerold E. Levine, an expert in firearms law. 

Dave Workman, spokesman for the Second Amendment Foundation said, “Naturally, we’re disappointed but this is not the end of this case. Our attorney is already looking at an appeal.”

Levine also said, if the government plays favorites, “and give some people the right and some people not the right to carry guns under administrative discretion, you could have an equal protection issue.”

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