Kachalsky v. Cacace, No. 11-3642 (2d Cir. 2012)
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Plaintiffs appealed from the district court's grant of summary judgment in favor of defendants. Plaintiff sought declaratory and injunctive relief under 42 U.S.C. 1983, barring New York State handgun licensing officials from requiring that applicants prove "proper cause" to obtain licenses to carry handguns for self-defense pursuant to New York Penal Law section 400.00(2)(f). They argued that application for section 400.00(2)(f) violated the Second and Fourteenth Amendments to the Constitution. Because the proper cause requirement was substantially related to New York's compelling interests in public safety and crime prevention, the court affirmed the judgment.
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11-3642 (L) Kachalsky et al. v. Cty. of Westchester et al. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2012 (Argued: August 22, 2012 Decided: November 27, 2012) Docket Nos. 11-3642 (Lead) 11-3962 (XAP) ALAN KACHALSKY, CHRISTINA NIKOLOV, JOHNNIE NANCE, ANNA MARCUCCI-NANCE, ERIC DETMER, SECOND AMENDMENT FOUNDATION, INC., Plaintiffs-Appellants-Cross-Appellees, v. COUNTY OF WESTCHESTER, Defendant-Appellee-Cross-Appellant, SUSAN CACACE, JEFFREY A. COHEN, ALBERT LORENZOR, ROBERT K. HOLDMAN, Defendants-Appellees. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 Before: KATZMANN, WESLEY, LYNCH, Circuit Judges. Plaintiffs-Appellants appeal from a September 2, 2011 Opinion and Order of the United States District Court for the Southern District of New York (Seibel, J.), granting Defendants-Appellees summary judgment. Plaintiffs seek declaratory and injunctive relief under 42 U.S.C. § 1983, barring New York State handgun licensing officials from requiring that applicants prove proper cause to obtain licenses to carry handguns for self-defense pursuant to New York Penal Law section 400.00(2)(f). They argue that application of section 400.00(2)(f) violates the Second and Fourteenth Amendments to the Constitution. Because the proper cause requirement is substantially related to New York s compelling interests in public safety and crime prevention, we affirm. AFFIRMED. ALAN GURA, Gura & Possessky, PLLC, Alexandria, VA, for Plaintiffs-Appellants-Cross-Appellees. THOMAS G. GARDINER, Sr. Assistant County Attorney (James Castro-Blanco, Chief Deputy County Attorney, on the brief), for Robert F. Meehan, County Attorney for the County of Westchester, Westchester, NY, for Defendant-AppelleeCross-Appellant. SIMON HELLER, Assistant Solicitor General (Barbara D. Underwood, Solicitor General, Richard Dearing, Deputy Solicitor General, on the brief), for Eric T. Schneiderman, Attorney General of the State of New York, New York, NY, for Defendants-Appellees. 2 1 2 WESLEY, Circuit Judge: This appeal presents a single issue: Does New York s 3 handgun licensing scheme violate the Second Amendment by 4 requiring an applicant to demonstrate proper cause to 5 obtain a license to carry a concealed handgun in public? 6 Plaintiffs Alan Kachalsky, Christina Nikolov, Johnnie 7 Nance, Anna Marcucci-Nance, and Eric Detmer (together, the 8 Plaintiffs ) all seek to carry handguns outside the home 9 for self-defense. Each applied for and was denied a full- 10 carry concealed-handgun license by one of the defendant 11 licensing officers (the State Defendants 1) for failing to 12 establish proper cause a special need for self- 13 protection pursuant to New York Penal Law section 14 400.00(2)(f). 15 Foundation ( SAF ), thereafter filed this action to contest 16 New York s proper cause requirement. 17 proper cause provision, on its face or as applied to them, 18 violates the Second Amendment as interpreted by the Supreme 19 Court in District of Columbia v. Heller, 554 U.S. 570 20 (2008). Plaintiffs, along with the Second Amendment They contend that the 21 1 The State Defendants include Susan Cacace, Jeffrey A. Cohen, Albert Lorenzo, and Robert K. Holdman. 3 1 The State Defendants moved for summary judgment. The 2 district court granted that motion and granted Defendant 3 County of Westchester summary judgment sua sponte. 4 Kachalsky v. Cacace, 817 F. Supp. 2d 235, 273-74 (S.D.N.Y. 5 2011). 6 sue on its own behalf or on behalf of its members. 7 251. 8 that the concealed carrying of handguns in public is 9 outside the core Second Amendment concern articulated in The district court found that SAF lacked standing to Id. at Addressing the merits, the district court concluded 10 Heller: self-defense in the home. 11 alternative, the district court determined that the proper 12 cause requirement would survive constitutional scrutiny even 13 if it implicated the Second Amendment. 14 the reasons that follow, we affirm.2 15 In the Id. at 266-72. For I 16 Id. at 264. A 17 18 New York s efforts in regulating the possession and use of firearms predate the Constitution. 2 By 1785, New York had Because we affirm the dismissal of Plaintiffs suit, we do not address whether SAF has standing. Where, as here, at least one plaintiff has standing, jurisdiction is secure and we can adjudicate the case whether the additional plaintiff has standing or not. See Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 263-64 (1977). We also do not address Defendant County of Westchester s contention that it is not a proper party to this case. 4 1 enacted laws regulating when and where firearms could be 2 used, as well as restricting the storage of gun powder. 3 See, e.g., Act of Apr. 22, 1785, ch. 81, 1785 Laws of N.Y. 4 152; Act of Apr. 13, 1784, ch. 28, 1784 Laws of N.Y. 627. 5 Like most other states, during the nineteenth century, New 6 York heavily regulated the carrying of concealable firearms. 7 In 1881, New York prohibited the concealed carrying of any 8 kind of fire-arms. 9 1884, New York instituted a statewide licensing requirement 1881 Laws of N.Y., ch. 676, at 412. In 10 for minors carrying weapons in public, see 1884 Laws of 11 N.Y., ch. 46, § 8, at 47, and soon after the turn of the 12 century, it expanded its licensing requirements to include 13 all persons carrying concealable pistols, see 1905 Laws of 14 N.Y., ch. 92, § 2, at 129 30. 15 Due to a rise in violent crime associated with 16 concealable firearms in the early twentieth century, New 17 York enacted the Sullivan Law in 1911, which made it 18 unlawful for any person to possess, without a license, any 19 pistol, revolver or other firearm of a size which may be 20 concealed upon the person. 21 § 1, at 443 (codifying N.Y. Penal Law § 1897, ¶ 3); see also 22 N.Y. Legislative Service, Dangerous Weapons Sullivan Bill, See 1911 Laws of N.Y., ch. 195, 5 1 1911 Ch. 195 (1911). 2 completed shortly before the law s enactment explained: The 3 increase of homicide by shooting indicates . . . the urgent 4 necessity of the proper authorities taking some measures for 5 the regulation of the indiscriminate sale and carrying of 6 firearms. 7 Jan. 30, 1911 (quoting N.Y. State Coroner s Office Report). 8 As a result, the study recommended that New York 9 10 11 12 13 14 15 16 17 A study of homicides and suicides Revolver Killings Fast Increasing, N.Y. Times, should have a law, whereby a person having a revolver in his possession, either concealed or displayed, unless for some legitimate purpose, could be punished by a severe jail sentence. . . . [A] rigid law, making it difficult to buy revolvers, would be the means of saving hundreds of lives. Id. (quoting N.Y. State Coroner s Office Report). The Sullivan Law survived constitutional attack shortly 18 after it was passed. 19 City Prisons, 154 A.D. 413, 422 (1st Dep t 1913). 20 the law was upheld, in part, on what is now the erroneous 21 belief that the Second Amendment does not apply to the 22 states, the decision provides additional background 23 regarding the law s enactment: 24 25 26 27 People ex rel. Darling v. Warden of Although There had been for many years upon the statute books a law against the carriage of concealed weapons. . . . It did not seem effective in preventing crimes of violence in this State. Of the same kind and character, but 6 1 2 3 4 5 6 7 8 9 10 11 12 13 proceeding a step further with the regulatory legislation, the Legislature has now picked out one particular kind of arm, the handy, the usual and the favorite weapon of the turbulent criminal class, and has said that in our organized communities, our cities, towns and villages where the public peace is protected by the officers of organized government, the citizen may not have that particular kind of weapon without a permit, as it had already said that he might not carry it on his person without a permit. Id. at 423 (emphasis added). In 1913, the Sullivan Law was amended to impose a 14 statewide standard for the issuance of licenses to carry 15 firearms in public. 16 To obtain a license to carry a concealed pistol or revolver 17 the applicant was required to demonstrate good moral 18 character, and that proper cause exists for the issuance [of 19 the license]. 20 proper cause requirement remains a feature of New York s 21 statutory regime. 22 23 1913 Laws of N.Y., ch. 608, at 1627-30. Id. at 1629. One hundred years later, the B New York maintains a general prohibition on the 24 possession of firearms absent a license. 25 Law §§ 265.01-265.04, 265.20(a)(3). 26 to include pistols and revolvers; shotguns with barrels less 27 than eighteen inches in length; rifles with barrels less 28 than sixteen inches in length; any weapon made from a 7 See N.Y. Penal A firearm is defined 1 shotgun or rifle with an overall length of less than 2 twenty-six inches; and assault weapons. 3 § 265.00(3). 4 licensing provisions of the statute.3 5 N.Y. Penal Law Rifles and shotguns are not subject to the Section 400.00 of the Penal Law is the exclusive 6 statutory mechanism for the licensing of firearms in New 7 York State. 4 8 (1994) (Mem.); see N.Y. Penal Law § 265.20(a)(3). 9 are limited to those over twenty-one years of age, of good O Connor v. Scarpino, 83 N.Y.2d 919, 920 Licenses 10 moral character, without a history of crime or mental 11 illness, and concerning whom no good cause exists for the 12 denial of the license. 13 (g). 14 15 N.Y. Penal Law § 400.00(1)(a)-(d), Most licenses are limited by place or profession. Licenses shall be issued to possess a registered handgun 3 The possession of rifles and shotguns is also regulated. Subject to limited exceptions, it is unlawful to possess a rifle or shotgun in or upon a building or grounds, used for educational purposes, of any school, college or university . . . or upon a school bus. N.Y. Penal Law § 265.01(3). It is also unlawful for a person under the age of sixteen to possess a rifle or shotgun unless he or she has a hunting permit issued pursuant to the environmental conservation law. N.Y. Penal Law § 265.05; see also N.Y. Envtl. Conserv. Law § 11-0929. 4 The prohibition on carrying rifles and shotguns on school grounds, in a school building, and on a school bus also applies to those licensed to carry a firearm under section 400.00. N.Y. Penal Law §§ 265.20(3), 265.01(3). 8 1 in the home or in a place of business by a merchant or 2 storekeeper. 3 licenses shall be issued for a messenger employed by a 4 banking institution or express company to carry a concealed 5 handgun, as well as for certain state and city judges and 6 those employed by a prison or jail. 7 N.Y. Penal Law § 400.00(2)(a)-(b). And § 400.00(2)(c)-(e). This case targets the license available under section 8 400.00(2)(f). That section provides that a license shall 9 be issued to . . . have and carry [a firearm] concealed . . 10 . by any person when proper cause exists for the issuance 11 thereof. 12 license available to carry a concealed handgun without 13 regard to employment or place of possession. 14 that New York bans carrying handguns openly, applicants like 15 Plaintiffs in this case who desire to carry a handgun 16 outside the home and who do not fit within one of the 17 employment categories must demonstrate proper cause pursuant 18 to section 400.00(2)(f). 19 N.Y. Penal Law § 400.00(2)(f). This is the only Id. Given Proper cause is not defined by the Penal Law, but New 20 York State courts have defined the term to include carrying 21 a handgun for target practice, hunting, or self-defense. 22 When an applicant demonstrates proper cause to carry a 9 1 handgun for target practice or hunting, the licensing 2 officer may restrict a carry license to the purposes that 3 justified the issuance. 5 4 this regard, a sincere desire to participate in target 5 shooting and hunting . . . constitute[s] a legitimate reason 6 for the issuance of a pistol permit. 7 N.Y.S.2d 1000, 1003 (Westchester Cty. Ct. 1992) (citing 8 Davis v. Clyne, 58 A.D.2d 947, 947 (3d Dep t 1977)). 9 O Connor, 83 N.Y.2d at 921. In In re O Connor, 585 To establish proper cause to obtain a license without 10 any restrictions the full-carry license that Plaintiffs seek 11 in this case an applicant must demonstrate a special need 12 for self-protection distinguishable from that of the general 13 community or of persons engaged in the same profession. 14 Klenosky v. N.Y City Police Dep t, 75 A.D.2d 793, 793 (1st 15 Dep t 1980), aff d on op. below, 53 N.Y.2d 685 (1981). 16 There is a substantial body of law instructing licensing 17 officials on the application of this standard. 18 license for target shooting or hunting, [a] generalized 5 Unlike a A license restricted to target practice or hunting permits the licensee to carry concealed a handgun in connection with these activities. In re O Connor, 585 N.Y.S.2d 1000, 1003 (Westchester Cty. Ct. 1992). For instance, a license restricted to target practice permits the licensee to carry the weapon to and from the shooting range. Bitondo v. New York, 182 A.D.2d 948, 948 (3d Dep t 1992). 10 1 desire to carry a concealed weapon to protect one s person 2 and property does not constitute proper cause. 3 O Connor, 585 N.Y.S.2d at 1003 (citing Bernstein v. Police 4 Dep t of City of New York, 85 A.D.2d 574, 574 (1st Dep t 5 1981)). 6 a weapon is not enough. 7 (1944) (per curiam), aff g 267 A.D. 64, 66 (3d Dep t 1943); 8 see also In re O Connor, 585 N.Y.S.2d at 1003. 9 living or being employed in a high crime area[]. In re Good moral character plus a simple desire to carry Moore v. Gallup, 293 N.Y. 846 Nor is Martinek 10 v. Kerik, 294 A.D.2d 221, 221-22 (1st Dep t 2002); see also 11 Theurer v. Safir, 254 A.D.2d 89, 90 (1st Dep t 1998); Sable 12 v. McGuire, 92 A.D.2d 805, 805 (1st Dep t 1983). 13 The application process for a license is rigorous and 14 administered locally. Bach v. Pataki, 408 F.3d 75, 79 (2d 15 Cir. 2005). 16 investigation by police into the applicant s mental health 17 history, criminal history, moral character, and, in the case 18 of a carry license, representations of proper cause. 19 N.Y. Penal Law § 400.00(1)-(4). 20 investigation, police officers take applicants fingerprints 21 and conduct a series of background checks with the New York 22 State Division of Criminal Justice Services, the Federal Every application triggers a local 11 See As part of this 1 Bureau of Investigation, and the New York State Department 2 of Mental Hygiene. 3 completion of the investigation, the results are reported to 4 the licensing officer. N.Y. Penal Law § 400.00(4). Upon Id. 5 Licensing officers, often local judges,6 are vested 6 with considerable discretion in deciding whether to grant a 7 license application, particularly in determining whether 8 proper cause exists for the issuance of a carry license. 9 Vale v. Eidens, 290 A.D.2d 612, 613 (3d Dep t 2002); see 10 also Kaplan v. Bratton, 249 A.D.2d 199, 201 (1st Dep t 11 1998); Unger v. Rozzi, 206 A.D.2d 974, 974-75 (4th Dep t 12 1994); Fromson v. Nelson, 178 A.D.2d 479, 479 (2d Dep t 13 1991). 14 denial of a license in whole or in part by filing a 15 proceeding under Article 78 of New York s Civil Practice Law 16 and Rules. 17 unless it is arbitrary and capricious. 18 87 N.Y.2d 436, 439-40 (1996). An applicant may obtain judicial review of the A licensing officer s decision will be upheld 6 O Brien v. Keegan, Except in New York City, Nassau County, and Suffolk County, a licensing officer is defined as a judge or justice of a court of record having his office in the county of issuance. N.Y. Penal Law § 265.00(10). Licensing officer is defined in New York City as the police commissioner of that city ; in Nassau County as the commissioner of police of that county ; and in Suffolk County as the sheriff of that county except in the towns of Babylon, Brookhaven, Huntington, Islip and Smithtown, the commissioner of police of that county. Id. 12 1 C 2 Each individual Plaintiff applied for a full-carry 3 license under section 400.00(2)(f). Four of the five 4 Plaintiffs made no effort to comply with New York s 5 requirements for a full-carry license, that is, they did not 6 claim a special need for self-protection distinguishable 7 from that of the general community or of persons engaged in 8 the same profession. 9 Second Amendment entitles him to an unrestricted permit Plaintiff Kachalsky asserted that the 10 without further establishing proper cause. J.A. 33. He 11 noted: [W]e live in a world where sporadic random violence 12 might at any moment place one in a position where one needs 13 to defend onself or possibly others. 14 Plaintiffs Nance and Marcucci-Nance asserted that they 15 demonstrated proper cause because they were citizens in 16 good standing in their community and gainfully employed. 17 J.A. 43-44, 48-49. 18 demonstrated proper cause because he was a federal law 19 enforcement officer with the U.S. Coast Guard.7 20 Unlike the other Plaintiffs, Plaintiff Nikolov attempted to J.A. 33-34. Plaintiff Detmer asserted that he 7 J.A. 39. Plaintiffs Nance, Marcucci-Nance, and Detmer have carry licenses limited to the purpose of target shooting. Their applications sought to amend their licenses to full-carry licenses. 13 1 show a special need for self-protection by asserting that as 2 a transgender female, she is more likely to be the victim of 3 violence. 4 asserted that being a law-abiding citizen in itself entitled 5 her to a full-carry license. J.A. 36. Like the other applicants, she also Id. 6 Plaintiffs applications were all denied for the same 7 reason: Failure to show any facts demonstrating a need for 8 self-protection distinguishable from that of the general 9 public. J.A. 34 (Kachalsky), 37 (Nikolov), 39 (Detmer), 10 43-44 (Nance), 48-49 (Marcucci-Nance). 11 that her status as a transgender female puts her at risk of 12 violence was rejected because she did not report . . . any 13 type of threat to her own safety anywhere. 14 Plaintiffs aver that they have not reapplied for full-carry 15 licenses because they believe it would be futile, and that 16 they would carry handguns in public but for fear of arrest, 17 prosecution, fine, and/or imprisonment.8 18 81, 83, 85. 8 Nikolov s contention J.A. 36. J.A. 75, 77, 79, Plaintiff Kachalsky was the only Plaintiff who appealed the denial of his full-carry license application. The Appellate Division, Second Department affirmed the denial, holding that Kachalsky failed to demonstrate proper cause for the issuance of a full carry permit. Kachalsky v. Cacace, 65 A.D.3d 1045 (2d Dep t 2009). The New York Court of Appeals dismissed Kachalsky s application for leave to appeal upon the ground that no substantial constitutional question [was] directly involved. Kachalsky v. Cacace, 14 N.Y.3d 743, 743 (2010). 14 1 2 II Invoking Heller, Plaintiffs contend that the Second 3 Amendment guarantees them a right to possess and carry 4 weapons in public to defend themselves from dangerous 5 confrontation and that New York cannot constitutionally 6 force them to demonstrate proper cause to exercise that 7 right. 8 does not burden conduct protected by the Second Amendment. 9 They share the district court s view that the Supreme Defendants counter that the proper cause requirement 10 Court s pronouncement in Heller limits the right to bear 11 arms for self-defense to the home. 12 Heller provides no categorical answer to this case. 13 And in many ways, it raises more questions than it answers. 14 In Heller, the Supreme Court concluded that the Second 15 Amendment codifies a pre-existing individual right to 16 possess and carry weapons in case of confrontation. 17 U.S. at 592. 18 down the District of Columbia s prohibition on the 19 possession of usable firearms in the home because the law 20 banned the quintessential self-defense weapon in the place 21 Americans hold most dear the home. 22 23 554 Given that interpretation, the Court struck Id. at 628-29. There was no need in Heller to further define the scope of the Second Amendment or the standard of review for laws 15 1 that burden Second Amendment rights. As the Court saw it, 2 [f]ew laws in the history of our Nation have come close to 3 the severe restriction of the District's handgun ban. 4 at 629. 5 with a complete ban on handguns in the home, the D.C. 6 statute ran roughshod over that right. 7 simply noted that the handgun ban would be unconstitutional 8 [u]nder any of the standards of scrutiny that we have 9 applied to enumerated constitutional rights. Id. Because the Second Amendment was directly at odds Thus, the Court Id. at 628. 10 Heller was never meant to clarify the entire field of 11 Second Amendment jurisprudence.9 Id. at 635. 12 9 A number of courts and academics, take the view that Heller s reluctance to announce a standard of review is a signal that courts must look solely to the text, history, and tradition of the Second Amendment to determine whether a state can limit the right without applying any sort of means-end scrutiny. See Heller v. District of Columbia, 670 F.3d 1244, 1271-74 (D.C. Cir. 2011) (Kavanaugh, J., dissenting); see also Eugene Volokh, Implementing the Right to Keep and Bear Arms for Self Defense: An Analytical Framework and a Research Agenda, 56 UCLA L. Rev. 1443, 1463 (2009); Joseph Blocher, Categoricalism and Balancing in First and Second Amendment Analysis, 84 N.Y.U. L. Rev. 375, 405 (2009). We disagree. Heller stands for the rather unremarkable proposition that where a state regulation is entirely inconsistent with the protections afforded by an enumerated right as understood through that right s text, history, and tradition it is an exercise in futility to apply means-end scrutiny. Moreover, the conclusion that the law would be unconstitutional [u]nder any of the standards of scrutiny applicable to other rights implies, if anything, that one of the conventional levels of scrutiny would be applicable to regulations alleged to infringe Second Amendment rights. 16 1 Two years after Heller, the Supreme Court held that the 2 Second Amendment s protections, whatever their limits, apply 3 fully to the states through the Fourteenth Amendment. 4 McDonald v. City of Chicago, 130 S. Ct. 3020, 3026, 3042 5 (2010). 6 that banned handguns in the home. 7 reaffirmed Heller s assurances that Second Amendment rights 8 are far from absolute and that many longstanding handgun 9 regulations are presumptively lawful. In McDonald, the Court struck down a Chicago law Id. at 3050. But it also Heller 554 U.S. at 10 627 n.26; see McDonald, 130 S. Ct. at 3047. The Court also 11 noted that the doctrine of incorporation does not imperil 12 every law regulating firearms. 13 3047. McDonald, 130 S. Ct. at 14 What we know from these decisions is that Second 15 Amendment guarantees are at their zenith within the home. 16 Heller, 554 U.S. at 628-29. 17 scope of that right beyond the home and the standards for 18 determining when and how the right can be regulated by a 19 government. 20 since Heller was decided. 21 F.3d 458, 475 (4th Cir. 2011) (Wilkinson, J., for the 22 Court). What we do not know is the This vast terra incognita has troubled courts United States v. Masciandaro, 638 Although the Supreme Court s cases applying the 17 1 Second Amendment have arisen only in connection with 2 prohibitions on the possession of firearms in the home, the 3 Court s analysis suggests, as Justice Stevens s dissent in 4 Heller and Defendants in this case before us acknowledge, 5 that the Amendment must have some application in the very 6 different context of the public possession of firearms.10 7 Our analysis proceeds on this assumption. 8 A 9 Plaintiffs contend that, as in Heller, history and 10 tradition demonstrate that there is a fundamental right to 11 carry handguns in public, and though a state may regulate 12 open or concealed carrying of handguns, it cannot ban both. 13 While Plaintiffs concede that state legislative efforts have 14 long recognized the dangers presented by both the open and 15 concealed carrying of handguns in public places, they 16 contend that states must suffer a constitutionally imposed 17 choice between two equally inadequate alternatives. 18 according to Plaintiffs, access to [New York s] only 19 available handgun carry license can[not] be qualified by 10 Thus, The plain text of the Second Amendment does not limit the right to bear arms to the home. 18 1 2 proper cause. 11 Appellants Br. at 38. To be sure, some nineteenth-century state courts 3 offered interpretations of the Second Amendment and 4 analogous state constitutional provisions that are similar 5 to Plaintiffs position. 6 Court of Alabama upheld a prohibition on the concealed 7 carrying of any species of fire arms but cautioned that 8 the state s ability to regulate firearms was not unlimited 9 and could not amount[] to a destruction of the right, or . 10 . . require[] arms to be so borne as to render them wholly In State v. Reid, the Supreme 11 Plaintiffs argument is premised, in part, on Heller s enunciation of certain longstanding regulatory measures, including concealed carry bans, that the Court deemed presumptively lawful. Heller, 554 U.S. at 626-27; see also McDonald, 130 S. Ct. at 3047 (plurality opinion) (same). Thus, plaintiffs contend that regulations that are not similarly longstanding are not valid restrictions on Second Amendment rights. We do not view this language as a talismanic formula for determining whether a law regulating firearms is consistent with the Second Amendment. While we find it informative, it simply makes clear that the Second Amendment right is not unlimited. Moreover, even if this language provided a test for determining the validity of a handgun regulation, it is not self-evident what that test might be. The longstanding prohibitions on the possession of firearms by felons and the mentally ill were identified as presumptively lawful, Heller, 554 U.S. at 626-27 and n. 26, but these laws were not enacted until the early twentieth century, see Carlton F.W. Larson, Four Exceptions in Search of a Theory: District of Columbia v. Heller and Judicial Ipse Dixit, 60 Hastings L.J. 1371, 1374-79 (2009). New York s proper cause requirement is similarly longstanding it has been the law in New York since 1913. 1913 Laws of N.Y., ch. 608, at 1627-30. 19 1 useless for the purpose of defence. 1 Ala. 612, 1840 WL 2 229, at *2-3 (1840). 3 Georgia held that a statute prohibiting the carrying of 4 concealed pistols was unconstitutional insofar as it also 5 contains a prohibition against bearing arms openly. 6 v. State, 1 Ga. 243, 1846 WL 1167, at *11 (1846) (emphasis 7 in original).12 8 of Louisiana upheld a concealed-carry ban because [i]t 9 interfered with no man s right to carry arms . . . in full Relying on Reid, the Supreme Court of Nunn And in State v. Chandler, the Supreme Court 10 open view. 5 La. Ann. 489, 1850 WL 3838, at *1 (1850) 11 (internal quotation marks omitted).13 12 12 Nunn is cited in Justice Scalia s majority opinion in Heller as an example of state court responses to handgun regulatory efforts within the states. Heller, 554 U.S. at 629. 13 Notably, Chandler and Reid conflict with Plaintiffs position, at least in part. Plaintiffs contend that a state may choose to ban open carrying so long as concealed carrying is permitted. But both Chandler and Reid suggest that open carrying must be permitted. The Reid court explained: Under the provision of our constitution, we incline to the opinion that the Legislature cannot inhibit the citizen from bearing arms openly, because it authorizes him to bear them for the purposes of defending himself and the State, and it is only when carried openly, that they can be efficiently used for defence. 1840 WL 229, at *5; see also Chandler, 1850 WL 3838, at *1. 20 1 But this was hardly a universal view. Other states 2 read restrictions on the public carrying of weapons as 3 entirely consistent with constitutional protections of the 4 right to keep and bear arms. 5 banned the carrying of pistols and similar weapons in 6 public, both in a concealed or an open manner. 7 Ch. 96, §§ 1-2, 1881 Ark. Acts at 191-92; Act of Dec. 2, 8 1875, ch. 52, § 1, 1876 Wyo. Terr. Comp. Laws, at 352; Ch. 9 13, § 1, 1870 Tenn. Acts at 28; Act of Apr. 12, 1871, ch. At least four states once See, e.g., 10 34, § 1, 1871 Tex. Gen. Laws at 25. And the statutes in 11 Texas, Tennessee, and Arkansas withstood constitutional 12 challenges. 13 1562, at *4 (1876); English v. State, 35 Tex. 473, 1872 WL 14 7422, at *3 (1871); Andrews v. State, 50 Tenn. 165, 1871 WL 15 3579, at *11 (1871).14 See, e.g., Fife v. State, 31 Ark. 455, 1876 WL 14 These cases were decided on the basis of an interpretation of the Second Amendment that pistols and similar weapons are not arms within the meaning of the Second Amendment or its state constitutional analogue that conflicts with the Supreme Court s present reading of the Amendment. Fife, 1876 WL 1562, at *4; English, 1872 WL 7422, at *3; Andrews, 1871 WL 3579, at *11. For instance, the Texas court construed the Second Amendment as protecting only the arms of a militiaman or soldier, which include the musket and bayonet . . . holster pistols and carbine . . . [and] side arms. 1872 WL 7422, at *3. To refer to the non-military style pistols covered by the statute as necessary for a well-regulated militia was, according to the court, simply ridiculous. Id. Similarly, the Tennessee court invalidated the statute to the extent it covered revolvers adapted to the usual equipment of a solider. Andrews, 1871 WL 3579, at *11. 21 1 It seems apparent to us that unlike the situation in 2 Heller where [f]ew laws in the history of our Nation have 3 come close to D.C. s total ban on usable handguns in the 4 home, New York s restriction on firearm possession in public 5 has a number of close and longstanding cousins.15 6 554 U.S. at 629. History and tradition do not speak with 7 one voice here. What history demonstrates is that states 8 often disagreed as to the scope of the right to bear arms, 9 whether the right was embodied in a state constitution or Heller, 10 the Second Amendment. 11 90, 1822 WL 1085, at *3 (1822) (concluding that a 12 prohibition on carrying concealed weapons was 13 unconstitutional), with Aymette v. State, 21 Tenn. 154, 1840 14 WL 1554, at **4-6 (1840) (citing to Bliss but reaching the 15 opposite conclusion). 16 Compare Bliss v. Commonwealth, 12 Ky. Even if we believed that we should look solely to this 17 highly ambiguous history and tradition to determine the 18 meaning of the Amendment, we would find that the cited 19 sources do not directly address the specific question before 20 us: 21 demonstrating a special need for self-protection? Can New York limit handgun licenses to those 15 Unlike The extensive history of state regulation of handguns in public is discussed in detail in Part II.B. 22 1 the cases and statutes discussed above, New York s proper 2 cause requirement does not operate as a complete ban on the 3 possession of handguns in public. 4 licensing scheme (or any other gun regulation for that 5 matter) to the array of statutes enacted or construed over 6 one hundred years ago has its limits. Analogizing New York s 7 Plaintiffs raise a second argument with regard to how 8 we should measure the constitutional legitimacy of the New 9 York statute that takes a decidedly different tack. They 10 suggest that we apply First Amendment prior-restraint 11 analysis in lieu of means-end scrutiny to assess the proper 12 cause requirement.16 13 guaranteed by each amendment as identical in kind. 14 a right to speak and a right to bear arms. 15 the First Amendment permits everyone to speak without 16 obtaining a license, New York cannot limit the right to bear 17 arms to only some law-abiding citizens. 18 import substantive First Amendment principles wholesale into 19 Second Amendment jurisprudence. They see the nature of the rights 16 One has Thus, just as We are hesitant to Indeed, no court has done Plaintiffs also contend that New York s requirement that license applicants be of good moral character is an unconstitutional prior restraint. Because, as Plaintiffs admit, this provision was not challenged in their complaint or below, we choose not to consider it here. 23 1 so. 2 472 (D. Md. 2012); Piszczatoski v. Filko, 840 F. Supp. 2d 3 813, 835-36 (D.N.J. 2012). 4 See, e.g., Woollard v. Sheridan, 863 F. Supp. 2d 462, We recognize that analogies between the First and 5 Second Amendment were made often in Heller. 554 U.S. at 6 582, 595, 606, 635. 7 the Founding. 8 304, 314 (1825) ( The liberty of the press was to be 9 unrestrained, but he who used it was to be responsible in 10 case of its abuse; like the right to keep fire arms, which 11 does not protect him who uses them for annoyance or 12 destruction. ). 13 states power to regulate firearms, which was taken as 14 unassailably obvious, to support arguments in favor of 15 upholding limitations on First Amendment rights. 16 would be as imprudent to assume that the principles and 17 doctrines developed in connection with the First Amendment 18 apply equally to the Second, as to assume that rules 19 developed in the Second Amendment context could be 20 transferred without modification to the First. 21 that approach would be an incautious equation of the two 22 amendments and could well result in the erosion of hard-won 23 First Amendment rights. Similar analogies have been made since See, e.g., Commonwealth v. Blanding, 20 Mass. Notably, these analogies often used the But it Endorsing As discussed throughout, there are 24 1 salient differences between the state s ability to regulate 2 each of these rights. 3 Words, and Constitutional Interpretation, 38 Wm. & Mary L. 4 Rev. 1311 (1997) (discussing problems with efforts to 5 associate firearms with the First Amendment s prohibition on 6 prior restraints). See generally L.A. Powe, Jr., Guns, 7 But even if we decided to apply prior-restraint 8 doctrine to Second Amendment claims, this case would be a 9 poor vehicle for its maiden voyage. To make out a 10 prior-restraint argument, Plaintiffs would have to show that 11 the proper cause requirement lacks narrow, objective, and 12 definite standards, thereby granting officials unbridled 13 discretion in making licensing determinations. 14 Cnty. v. Nationalist Movement, 505 U.S. 123, 131 (1992) 15 (quoting Shuttlesworth v. Birmingham, 394 U.S. 147, 150-51 16 (1969)). 17 requirement grants licensing officials unbridled discretion 18 is something of a red herring. 19 is an established standard for determining whether an 20 applicant has demonstrated proper cause. 21 requirement has existed in New York since 1913 and is 22 defined by binding judicial precedent as a special need for 23 self-protection distinguishable from that of the general Forsyth But Plaintiffs contention that the proper cause 25 Plaintiffs admit that there The proper cause 1 community or of persons engaged in the same profession. 2 Klenosky, 75 A.D.2d at 793; see e.g., Brando v. Sullivan, 3 290 A.D.2d 691, 693 (3d Dep t 2002); Bernstein, 85 A.D.2d at 4 574. 5 Plaintiffs complaint is not that the proper cause 6 requirement is standardless; rather, they simply do not like 7 the standard that licenses are limited to those with a 8 special need for self-protection. 9 that licensing officials have unbridled discretion in This is not an argument 10 granting full-carry permits. In fact, the State Defendants 11 determinations that Plaintiffs do not have a special need 12 for self-protection are unchallenged. 13 question New York s ability to limit handgun possession to 14 those demonstrating a threat to their safety. 15 precisely the type of argument that should be addressed by 16 examining the purpose and impact of the law in light of the 17 Plaintiffs Second Amendment right. Rather, Plaintiffs This is 18 Plaintiffs attempts to equate this case with Heller or 19 to draw analogies to First Amendment concerns come up short. 20 B 21 22 Thus, given our assumption that the Second Amendment applies to this context, the question becomes how closely to 26 1 scrutinize New York s statute to determine its 2 constitutional mettle. 3 avoided deciding the standard of review for a law burdening 4 the right to bear arms because it concluded that D.C. s 5 handgun ban was unconstitutional [u]nder any of the 6 standards of scrutiny [traditionally] applied to enumerated 7 constitutional rights. 8 did, however, rule out a rational basis review because it 9 would be redundant with the separate constitutional 10 11 Heller, as noted above, expressly Heller, 554 U.S. at 628. prohibitions on irrational laws. The Court Id. at 629 n.27. We have held that heightened scrutiny is triggered 12 only by those restrictions that (like the complete 13 prohibition on handguns struck down in Heller) operate as a 14 substantial burden on the ability of law-abiding citizens to 15 possess and use a firearm for self-defense (or for other 16 lawful purposes). 17 166 (2d Cir. 2012). 18 challenge to 18 U.S.C. § 922(a)(3), which makes it unlawful 19 for an individual to transport into his state of residence a 20 firearm acquired in another state. 21 that § 922(a)(3) did not impose a substantial burden on the 22 defendant s Second Amendment right, we left unanswered the 23 level of scrutiny applicable to laws that do impose such a United States v. Decastro, 682 F.3d 160, Decastro rejected a Second Amendment 27 Because we concluded 1 burden. Id. at 165. Here, some form of heightened 2 scrutiny would be appropriate. 3 requirement places substantial limits on the ability of law- 4 abiding citizens to possess firearms for self-defense in 5 public. 6 options for obtaining a license to carry a handgun. New York s proper cause And unlike Decastro, there are no alternative 7 We do not believe, however, that heightened scrutiny 8 must always be akin to strict scrutiny when a law burdens 9 the Second Amendment. Heller explains that the core 10 protection of the Second Amendment is the right of law- 11 abiding, responsible citizens to use arms in defense of 12 hearth and home. 13 have no occasion to decide what level of scrutiny should 14 apply to laws that burden the core Second Amendment 15 protection identified in Heller, we believe that applying 16 less than strict scrutiny when the regulation does not 17 burden the core protection of self-defense in the home 18 makes eminent sense in this context and is in line with the 19 approach taken by our sister circuits.17 Heller, 554 U.S. at 634-35. 17 Although we It is also Heller v. District of Columbia, 670 F.3d 1244, 1261 64 (D.C. Cir. 2011) (applying intermediate scrutiny to prohibition on possession of magazines with a capacity of more than ten rounds of ammunition); United States v. Booker, 644 F.3d 12, 25 (1st Cir. 2011) (applying intermediate scrutiny to 18 U.S.C. § 922(g)(9), which prohibits the possession of firearms by a person 28 1 consistent with jurisprudential experience analyzing other 2 enumerated rights. 3 Amendment claims, content-based restrictions on 4 noncommercial speech are subject to strict scrutiny, see 5 United States v. Playboy Entm t Grp., Inc., 529 U.S. 803, 6 813 (2000), while laws regulating commercial speech are 7 subject to intermediate scrutiny, see Florida Bar v. Went 8 For It, Inc., 515 U.S. 618, 624-25 (1995). 9 For instance, when analyzing First The proper cause requirement falls outside the core 10 Second Amendment protections identified in Heller. New 11 York s licensing scheme affects the ability to carry 12 handguns only in public, while the District of Columbia ban 13 applied in the home where the need for defense of self, convicted of a misdemeanor crime of domestic violence), cert. denied, 132 S. Ct. 1538 (2012); United States v. Masciandaro, 638 F.3d 458, 470 (4th Cir. 2011) (applying intermediate scrutiny to 36 C.F.R. § 2.4(b), which prohibits carrying or possessing a loaded weapon in a motor vehicle within national park areas), cert. denied, 132 S. Ct. 756 (2011); United States v. Chester, 628 F.3d 673, 683 (4th Cir. 2010) (applying intermediate scrutiny to 18 U.S.C. § 922(g)(9)); United States v. Marzzarella, 614 F.3d 85, 97 (3d Cir. 2010) (applying intermediate scrutiny to 18 U.S.C. § 922(k), which prohibits the possession of firearms with obliterated serial numbers), cert. denied 131 S. Ct. 958 (2011); United States v. Reese, 627 F.3d 792, 802 (10th Cir. 2010) (applying intermediate scrutiny to 18 U.S.C. § 922(g)(8), which prohibits the possession of firearms while subject to a domestic protection order), cert. denied, 131 S. Ct. 2476 (2011); United States v. Skoien, 614 F.3d 638, 641-42 (7th Cir. 2010) (en banc) (applying form of intermediate scrutiny to 18 U.S.C. § 922(g)(9)), cert. denied, 131 S. Ct. 1674 (2011). 29 1 family, and property is most acute. Heller, 554 U.S. at 2 628. The state s ability to 3 regulate firearms and, for that matter, conduct, is 4 qualitatively different in public than in the home. 5 reinforces this view. 6 Court stressed that banning usable handguns in the home is a 7 policy choice[] that is off the table, id. at 636, but 8 that a variety of other regulatory options remain available, 9 including categorical bans on firearm possession in certain 10 This is a critical difference. Heller In striking D.C. s handgun ban, the public locations, id. at 626-27 & n.26. 11 Treating the home as special and subject to limited 12 state regulation is not unique to firearm regulation; it 13 permeates individual rights jurisprudence. 14 Stanley v. Georgia, the Court held that in-home possession 15 of obscene materials could not be criminalized, even as it 16 assumed that public display of obscenity was unprotected. 17 394 U.S. 557, 568 (1969). 18 power to regulate obscenity[] that power simply does not 19 extend to mere possession by the individual in the privacy 20 of his own home. 21 Court emphasized that the state s efforts to regulate 22 private sexual conduct between consenting adults is 23 especially suspect when it intrudes into the home: Liberty Id. For instance, in While the States retain broad Similarly, in Lawrence v. Texas, the 30 1 protects the person from unwarranted government intrusions 2 into a dwelling or other private places. 3 the State is not omnipresent in the home. 4 562 (2003); see also Kyllo v. United States, 533 U.S. 27, 37 5 (2001) ( In the home, our [Fourth Amendment] cases show 6 [that] the entire area is held safe from prying government 7 eyes. ); Griswold v. Connecticut, 381 U.S. 479, 484 (1965) 8 (discussing general right to privacy that was closely 9 connected to the sanctity of a man s home and the privacies 10 11 In our tradition 539 U.S. 558, of life (internal quotation marks omitted)).18 But while the state s ability to regulate firearms is 12 circumscribed in the home, outside the home, firearm rights 13 have always been more limited, because public safety 14 interests often outweigh individual interests in self- 15 defense. 16 longstanding tradition of states regulating firearm 17 possession and use in public because of the dangers posed to 18 public safety. 19 Regulated Right: The Early American Origins of Gun Control, Masciandaro, 638 F.3d at 470. There is a See Saul Cornell & Nathan DeDino, A Well 18 That the home deserves special protection from government intrusion is also reflected in the Third Amendment, which provides: No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law. U.S. Const. amend. III. 31 1 73 Fordham L. Rev. 487, 502-16 (2004). During the Founding 2 Era, for instance, many states prohibited the use of 3 firearms on certain occasions and in certain locations. 4 See, e.g., Act of April 22, 1785, ch. 81, 1785 Laws of N.Y. 5 152; Act of Nov. 16, 1821, ch. LXLIII, 1821 Tenn. Pub. Acts 6 78; Act of Jan. 30, 1847, 1846-1847 Va. Acts ch. 79, at 67; 7 Act of Dec. 24, 1774, ch. DCCIII, 1774 Pa. Stat. 410.19 8 Other states went even further. 9 going armed at night or day in fairs, markets, nor in the 10 presence of the King s Justices, or other ministers, nor in 11 no part elsewhere. 12 the Second Amendment Outside the Home: History Versus 13 Ahistorical Standards of Review, 60 Clev. St. L. Rev. 1, 31- 14 32 (2012) (citation and internal quotation marks 15 omitted). North Carolina prohibited See Patrick J. Charles, The Faces of Massachusetts and Virginia enacted similar laws. 19 Regulations concerning the militia and the storage of gun powder were also common. See Act of May 8, 1792, 1792 Conn. Pub. Acts 440 (forming the state militia); Act of July 19, 1776, ch. I, 1775-1776 Mass. Acts 15 (regulating the militia of Massachusetts); Act of Apr. 3, 1778, ch. 33, 1778 Laws of N.Y. 62 (regulating the militia of New York State); Act of Mar. 20, 1780, ch. CLXVII, 1780 Pa. Laws 347 (regulating the militia of Pennsylvania); Act of Mar. 26, 1784, 1784 S.C. Acts 68 (regulating militia); see also Act of June 26, 1792, ch. X, 1792 Mass. Acts 208 (regulating storage of gun powder in Boston); Act of Apr. 13, 1784, ch. 28, 1784 Laws of N.Y. 627 (regulating storage of gun powder in New York); Act of Dec. 6, 1783, ch. CIV, 1783 Pa. Laws 161, ch. MLIX, 11 Pa. Stat. 209 (protecting the city of Philadelphia from the danger of gunpowder). 32 1 Id.20 2 In the nineteenth century, laws directly regulating 3 concealable weapons for public safety became commonplace and 4 far more expansive in scope than regulations during the 5 Founding Era. 6 of concealed weapons.21 7 of the 19th-century courts to consider the question held 8 that prohibitions on carrying concealed weapons were lawful Most states enacted laws banning the carrying And as Heller noted, the majority 20 Curiously, North Carolina referred to the King's Justices after the colonies had won their independence. The laws in North Carolina, Massachusetts, and Virginia track language from the 1328 Statute of Northampton, which provided that no person shall go nor ride armed by Night nor by Day in Fairs, Markets, nor in the Presence of the Justices or other Ministers nor in no Part elsewhere. 2 Edw. 3, c. 3 (1328) (Eng.). There is debate in the historical literature concerning whether the Statute of Northampton, and laws adopting similar language, prohibited the carrying of weapons in public generally or only when it would terrorize the public. See Charles, The Faces of the Second Amendment Outside the Home, 60 Clev. St. L. Rev. at 31-32. 21 See Act of Feb. 1, 1839, ch. 77, 1839 Ala. Acts at 67-68; Act of Apr. 1, 1881, ch. 96, § 1, 1881 Ark. Acts at 191; Act of Feb. 1, 1881, 1881 Colo. Sess. Laws at 74; Act of Feb. 12, 1885, ch. 3620, 1885 Fla. Laws at 61; Act of Apr. 16, 1881, 1881 Ill. Laws at 73-74; Act of Jan. 14, 1820, ch. 23, 1820 Ind. Acts at 39; 29 Ky. Gen. Stat. art. 29, § 1 (as amended through 1880); Act of Mar. 25, 1813, 1813 La. Acts at 172; 1866 Md. Laws, ch. 375, §1; Neb. Gen. Stat., ch. 58, ch. 5, § 25 (1873); Act of Mar. 5, 1879, ch. 127, 1879 N.C. Sess. Laws at 231; N.D. Pen. Code § 457 (1895); Act of Mar. 18, 1859, 1859 Ohio Laws at 56; Act of Feb. 18, 1885, 1885 Or. Laws at 33; Act of Dec. 24, 1880, no. 362, 1881 S.C. Acts at 447; S.D. Terr. Pen. Code § 457 (1883); Act of Apr. 12, 1871, ch. 34, 1871 Tex. Gen. Laws at 25-27; Act of Oct. 20, 1870, ch. 349, 1870 Va. Acts at 510; Wash. Code § 929 (1881); W. Va. Code, ch. 148, § 7 (1891); see also Cornell & DeDino, A Well Regulated Right, 73 Fordham L. Rev. at 502-16. 33 1 under the Second Amendment or state analogues. 2 U.S. at 626. 3 agreed, noting that the right of the people to keep and 4 bear arms . . . is not infringed by laws prohibiting the 5 carrying of concealed weapons. 6 U.S. 275, 281-82 (1897). 7 Heller, 554 Indeed, the nineteenth century Supreme Court Robertson v. Baldwin, 165 In some ways, these concealed-carry bans were similar 8 to New York s law because while a few states with concealed- 9 carry bans considered self-defense concerns, the exceptions 10 were extremely limited. For instance, in Ohio there was an 11 exception if the accused was, at the time of carrying [the 12 concealed weapon] engaged in a pursuit of any lawful 13 business, calling or employment, and that the circumstances 14 . . . justif[ied] a prudent man in carrying the weapon . . . 15 for the defense of his person. 16 Ohio Laws at 56-57. 17 exempted from the concealed carry ban who was on a journey 18 to any place out of his county or state. 19 1821, ch. XIII, 1821 Tenn. Pub. Acts at 15-16. 20 Virginia s concealed-carry ban was even stricter than New 21 York s statute because it explicitly rejected a self-defense 22 exception. 23 concealed-carry ban even if he was acting in self-defense 24 when using the weapon. Act of Mar. 18, 1859, 1859 Similarly, in Tennessee, a person was Act of Oct. 19, By contrast, A defendant was guilty under Virginia s 1838 Va. Acts ch. 101 at 76. 34 1 Some states went even further than prohibiting the 2 carrying of concealed weapons. As discussed above, several 3 states banned concealable weapons (subject to certain 4 exceptions) altogether whether carried openly or concealed. 5 See Part II.A. 6 weapons. 7 concealable weapons, effectively moving toward their 8 complete prohibition. 9 at 90 (protecting citizens of Georgia against the use of Other states banned the sale of concealable For instance, Georgia criminalized the sale of Act of Dec. 25, 1837, 1837 Ga. Laws 10 deadly weapons). 11 withstood constitutional challenge. 12 ch. CXXXVII, 1837-1838 Tenn. Pub. Acts 200. 13 the law, the Supreme Court of Tennessee reasoned that "[t]he 14 Legislature thought the evil great, and, to effectually 15 remove it, made the remedy strong. 16 (5 Sneed) 496, 500 (1857). 17 Tennessee enacted a similar law, which Act of Jan. 27, 1838, In upholding Day v. State, 37 Tenn. The historical prevalence of the regulation of firearms 18 in public demonstrates that while the Second Amendment s 19 core concerns are strongest inside hearth and home, states 20 have long recognized a countervailing and competing set of 21 concerns with regard to handgun ownership and use in public. 22 Understanding the scope of the constitutional right is the 35 1 first step in determining the yard stick by which we measure 2 the state regulation. 3 of Alabama v. Garrett, 531 U.S. 356, 365 (2001) ( The first 4 step in [analyzing legislation intersecting with enumerated 5 rights] is to identify with some precision the scope of the 6 constitutional right at issue. ). 7 See, e.g., Bd. Of Trustees of Univ. We believe state regulation of the use of firearms in 8 public was enshrined with[in] the scope of the Second 9 Amendment when it was adopted. Heller, 554. U.S. at 634. 10 As Plaintiffs admitted at oral argument, the state enjoys a 11 fair degree of latitude to regulate the use and possession 12 of firearms in public. 13 foreclose regulatory measures to a degree that would result 14 in handcuffing lawmakers ability to prevent armed mayhem 15 in public places. 16 quotation marks omitted). 17 The Second Amendment does not Masciandaro, 638 F.3d at 471 (internal Because our tradition so clearly indicates a 18 substantial role for state regulation of the carrying of 19 firearms in public, we conclude that intermediate scrutiny 20 is appropriate in this case. 21 passes constitutional muster if it is substantially related 22 to the achievement of an important governmental interest. The proper cause requirement 36 1 See, e.g., Masciandaro, 638 F.3d at 471; Skoien, 614 F.3d at 2 641-42; see also Ernst J. v. Stone, 452 F.3d 186, 200 n.10 3 (2d Cir. 2006) ( [T]he label intermediate scrutiny carries 4 different connotations depending on the area of law in which 5 it is used. ). 6 As the parties agree, New York has substantial, indeed 7 compelling, governmental interests in public safety and 8 crime prevention. 9 519 U.S. 357, 376 (1997); Schall v. Martin, 467 U.S. 253, See, e.g., Schenck v. Pro Choice Network, 10 264 (1984); Hodel v. Va. Surface Mining & Reclamation Ass n, 11 452 U.S. 264, 300 (1981); Kuck v. Danaher, 600 F.3d 159, 166 12 (2d Cir. 2010). 13 proper cause requirement is substantially related to these 14 interests. The only question then is whether the We conclude that it is. 15 In making this determination, substantial deference to 16 the predictive judgments of [the legislature] is warranted. 17 Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180, 195 (1997). 18 The Supreme Court has long granted deference to legislative 19 findings regarding matters that are beyond the competence of 20 courts. 21 2705, 2727 (2010); Turner Broad. Sys., Inc., 520 U.S. at 22 195 196; see also Walters v. National Ass n of Radiation See Holder v. Humanitarian Law Project, 130 S. Ct. 37 1 Survivors, 473 U.S. 305, 330-31 n.12 (1985). In the context 2 of firearm regulation, the legislature is far better 3 equipped than the judiciary to make sensitive public policy 4 judgments (within constitutional limits) concerning the 5 dangers in carrying firearms and the manner to combat those 6 risks. 7 (1994). 8 formulating its judgments, [New York] has drawn reasonable 9 inferences based on substantial evidence. Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 665 Thus, our role is only to assure that, in Id. at 666. 10 Unlike strict scrutiny review, we are not required to ensure 11 that the legislature s chosen means is narrowly tailored 12 or the least restrictive available means to serve the stated 13 governmental interest. 14 the fit between the challenged regulation need only be 15 substantial, not perfect. 16 To survive intermediate scrutiny, Marzzarella, 614 F.3d at 97. New York s legislative judgment concerning handgun 17 possession in public was made one-hundred years ago. In 18 1911, with the enactment of the Sullivan Law, New York 19 identified the dangers inherent in the carrying of handguns 20 in public. 21 Sullivan Bill, 1911 Ch. 195 (1911). 22 York s elected officials determined that a reasonable method N.Y. Legislative Service, Dangerous Weapons - 38 And since 1913, New 1 for combating these dangers was to limit handgun possession 2 in public to those showing proper cause for the issuance of 3 a license. 4 proper cause requirement has remained a hallmark of New 5 York s handgun regulation since then.22 1913 Laws of N.Y., ch. 608, at 1627-30. The 6 The decision to regulate handgun possession was 7 premised on the belief that it would have an appreciable 8 impact on public safety and crime prevention. 9 in the legislative record: 10 11 12 13 14 15 16 17 18 19 20 21 22 23 As explained The primary value to law enforcement of adequate statutes dealing with dangerous weapons is prevention of crimes of violence before their consummation. . . . . . . . In the absence of adequate weapons legislation, under the traditional law of criminal attempt, lawful action by the police must await the last act necessary to consummate the crime. . . . Adequate statutes governing firearms and weapons would make lawful intervention by police 22 New York s statutory scheme was the result of a careful balancing of the interests involved and not a general animus towards guns. Report of the N.Y. State Joint Legislative Comm. On Firearms & Ammunition, Doc. No. 6, at 12 (1965). The legislature explained that [s]tatutes governing firearms . . . are not desirable as ends in themselves. Id. Rather, the purpose was to prevent crimes of violence before they can happen, and at the same time preserve legitimate interests such as training for the national defense, the right of self defense, and recreational pursuits of hunting, target shooting and trophy collecting. Id. 39 1 2 3 and prevention of these fatal consequences, before any could occur. 4 Report of the N.Y. State Joint Legislative Comm. On Firearms 5 & Ammunition, Doc. No. 6, at 12-13 (1965). 6 were voiced in 1987, during a floor debate concerning 7 possible changes to the proper cause requirement. 8 Senate Debate on Senate Bill 3409, at 2471 (June 2, 1987). 9 Similar concerns See N.Y. The connection between promoting public safety and 10 regulating handgun possession in public is not just a 11 conclusion reached by New York. 12 for other states handgun regulations, as recognized by 13 various lower courts. 14 835-36; Richards v. Cty. of Yolo, 821 F. Supp. 2d 1169, 1172 15 (E.D. Cal. 2011); Peruta v. Cty. of San Diego, 758 F. Supp. 16 2d 1106, 1110 (S.D. Cal. 2010). 17 It has served as the basis Piszczatoski, 840 F. Supp. 2d 813 at Given New York s interest in regulating handgun 18 possession for public safety and crime prevention, it 19 decided not to ban handgun possession, but to limit it to 20 those individuals who have an actual reason ( proper cause ) 21 to carry the weapon. 22 the Second Amendment s protections. 23 met and a license shall be issued when a person wants to In this vein, licensing is oriented to 40 Thus, proper cause is 1 use a handgun for target practice or hunting. N.Y. Penal 2 Law § 400.00(2)(f); see, e.g., Clyne, 58 A.D.2d at 947. 3 proper cause is met and a license shall be issued when a 4 person has an actual and articulable rather than merely 5 speculative or specious need for self-defense. 6 Law § 400.00(2)(f); see, e.g., Klenosky, 75 A.D.2d at 793. 7 Moreover, the other provisions of section 400.00(2) create 8 alternative means by which applicants engaged in certain 9 employment may secure a carry license for self-defense. And N.Y. Penal As 10 explained earlier, a license shall be issued to merchants 11 and storekeepers for them to keep handguns in their place of 12 business; to messengers for banking institutions and express 13 companies; to state judges and justices; and to employees at 14 correctional facilities. 15 N.Y. Penal Law § 400.00(2)(b)-(e). Restricting handgun possession in public to those who 16 have a reason to possess the weapon for a lawful purpose is 17 substantially related to New York s interests in public 18 safety and crime prevention. 19 contend, an arbitrary licensing regime no different from 20 limiting handgun possession to every tenth citizen. 21 argument asks us to conduct a review bordering on strict 22 scrutiny to ensure that New York s regulatory choice will It is not, as Plaintiffs 41 This 1 protect public safety more than the least restrictive 2 alternative. 3 only be substantially related to the state s important 4 public safety interest. 5 the governmental objective is not required. 6 of forbidding anyone from carrying a handgun in public, New 7 York took a more moderate approach to fulfilling its 8 important objective and reasonably concluded that only 9 individuals having a bona fide reason to possess handguns But, as explained above, New York s law need A perfect fit between the means and Here, instead 10 should be allowed to introduce them into the public sphere. 11 That New York has attempted to accommodate certain 12 particularized interests in self defense does not somehow 13 render its concealed carry restrictions unrelated to the 14 furtherance of public safety. 15 To be sure, we recognize the existence of studies and 16 data challenging the relationship between handgun ownership 17 by lawful citizens and violent crime. 18 at 37-38. 19 without any warning to the victims. 20 submitted studies and data demonstrating that widespread 21 access to handguns in public increases the likelihood that 22 felonies will result in death and fundamentally alters the Plaintiffs' Reply Br. We also recognize that many violent crimes occur 42 But New York also 1 safety and character of public spaces. J.A. 453, 486-90. 2 It is the legislature s job, not ours, to weigh conflicting 3 evidence and make policy judgments. 4 risks and benefits of handgun possession and shaping a 5 licensing scheme to maximize the competing public-policy 6 objectives, as New York did, is precisely the type of 7 discretionary judgment that officials in the legislative and 8 executive branches of state government regularly make. 9 According to Plaintiffs, however, New York s Indeed, assessing the 10 conclusions as to the risks posed by handgun possession in 11 public are totally irrelevant. 12 38. 13 specifically for self-defense, they reason that the state 14 may not limit the right on the basis that it is too 15 dangerous to exercise, nor may it limit the right to those 16 showing a special need to exercise it. 17 the enshrinement of the right to bear arms necessarily 18 takes [these] policy choices off the table. 19 (quoting Heller, 554 U.S. at 636).23 Plaintiffs Reply Br. at Because the constitutional right to bear arms is 23 In Plaintiffs view, Id. at 39 We disagree. Plaintiffs are quick to embrace the majority s view in Heller that handguns are the quintessential self-defense weapon for law abiding Americans today and extrapolate that right to public possession of a handgun. Thus, for Plaintiffs, handgun possession in public has the ring of an absolute constitutional right. This of course overlooks Heller s careful restriction of 43 1 Plaintiffs misconstrue the character and scope of the 2 Second Amendment. States have long chosen to regulate the 3 right to bear arms because of the risks posed by its 4 exercise. 5 the state may ban firearm possession in sensitive places, 6 presumably on the ground that it is too dangerous to permit 7 the possession of firearms in those locations. 8 626-27. 9 of firearms on school grounds, in a school building, or on a As Plaintiffs admit and Heller strongly suggests, 554 U.S. at In fact, New York chose to prohibit the possession 10 school bus precisely for this reason. N.Y. Penal Law § 11 265.01(3); see also N.Y. Legislative Service, Governor s 12 Bill Jacket, 1974 Ch. 1041, at 2-4 (1974). 13 Supreme Court has implicitly recognized, regulating firearms 14 because of the dangers posed by exercising the right is 15 entirely consistent with the Second Amendment. Thus, as the 16 We are also not convinced that the state may not limit 17 the right to bear arms to those showing a special need for 18 self-protection. 19 self-defense . . . is all the proper cause required . . . Plaintiffs contend that their desire for its reach to the home and is in sharp contrast with New York s view of concealed handguns one-hundred years ago as the handy, the usual and the favorite weapon of the turbulent criminal class. Darling, 154 A.D. at 423-24. It seems quite obvious to us that possession of a weapon in the home has far different implications than carrying a concealed weapon in public. 44 1 by the Second Amendment to carry a firearm. 2 Br. at 45. 3 bear arms cannot be made dependent on a need for self- 4 protection, just as the exercise of other enumerated rights 5 cannot be made dependent on a need to exercise those rights. 6 This is a crude comparison and highlights Plaintiffs 7 misunderstanding of the Second Amendment. 8 9 Plaintiffs They reason that the exercise of the right to State regulation under the Second Amendment has always been more robust than of other enumerated rights. For 10 example, no law could prohibit felons or the mentally ill 11 from speaking on a particular topic or exercising their 12 religious freedom. 13 State Crime Victims Bd., 502 U.S. 105 (1991) (invalidating a 14 state law requiring profits from books authored by criminals 15 to be distributed to crime victims). 16 prohibit speech in public schools. 17 Indep. Comty. Sch. Dist., 393 U.S. 503, 506 (1969) ( It can 18 hardly be argued that either students or teachers shed their 19 constitutional rights to freedom of speech or expression at 20 the schoolhouse gate. ). 21 Amendment. 22 bear arms by felons and the mentally ill, as well as by law- Cf. Simon & Schuster, Inc. v. New York And states cannot Tinker v. Des Moines Not so with regard to the Second Laws prohibiting the exercise of the right to 45 1 abiding citizens in certain locations including public 2 schools, are, according to Heller, presumptively lawful. 3 554 U.S. at 627 n.26. 4 Moreover, as discussed above, extensive state 5 regulation of handguns has never been considered 6 incompatible with the Second Amendment or, for that matter, 7 the common-law right to self-defense. 8 significant restrictions on how handguns are carried, 9 complete prohibitions on carrying the weapon in public, and 10 even in some instances, prohibitions on purchasing handguns. 11 In this vein, handguns have been subject to a level of state 12 regulation that is stricter than any other enumerated right. 13 This includes In light of the state s considerable 14 authority enshrined within the Second Amendment to regulate 15 firearm possession in public, requiring a showing that there 16 is an objective threat to a person s safety a special need 17 for self-protection before granting a carry license is 18 entirely consistent with the right to bear arms. 19 there is no right to engage in self-defense with a firearm 20 until the objective circumstances justify the use of deadly 21 force.24 22 (2005) (discussing duty to retreat in New York). Indeed, See, e.g., People v. Aiken, 4 N.Y.3d 324, 327-29 24 There is no question that using a handgun for selfdefense constitutes deadly physical force. See, e.g., People v. Magliato, 68 N.Y.2d 24, 29 30 (1986). 46 1 Plaintiffs counter that the need for self-defense may 2 arise at any moment without prior warning. 3 But New York determined that limiting handgun possession to 4 persons who have an articulable basis for believing they 5 will need the weapon for self-defense is in the best 6 interest of public safety and outweighs the need to have a 7 handgun for an unexpected confrontation. 8 run afoul of the Second Amendment by doing so. 9 True enough. New York did not To be sure, the enshrinement of constitutional rights 10 necessarily takes certain policy choices off the table. 11 Heller, 554 U.S. at 636. 12 reticence to invalidate the acts of [our] elected leaders. 13 Nat l Fed n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 14 2579 (2012). 15 government requires that we strike down [legislation] only 16 if the lack of constitutional authority to pass [the] act 17 in question is clearly demonstrated. 18 States v. Harris, 106 U.S. 629, 635 (1883)). 19 the history and tradition of firearm regulation does not 20 clearly demonstrate[] that limiting handgun possession in 21 public to those who show a special need for self-protection 22 is inconsistent with the Second Amendment. But there is also a general Proper respect for a coordinate branch of 47 Id. (quoting United Our review of Id. 1 Accordingly, we decline Plaintiffs invitation to strike 2 down New York s one-hundred-year-old law and call into 3 question the state s traditional authority to extensively 4 regulate handgun possession in public. 5 III 6 In view of our determination that New York s proper 7 cause requirement is constitutional under the Second 8 Amendment as applied to Plaintiffs, we also reject their 9 facial overbreadth challenge.25 Overbreadth challenges are 10 generally limited to the First Amendment context. 11 States v. Salerno, 481 U.S. 739, 745 (1987). 12 assume that overbreadth analysis may apply to Second 13 Amendment cases, it is well settled that a person to whom a 14 statute may constitutionally be applied will not be heard to 15 challenge that statute on the ground that it may conceivably 16 be applied unconstitutionally to others, in other situations 25 United But even if we We also decline to consider Plaintiffs claim under the Equal Protection Clause. It is a settled appellate rule that issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived. Tolbert v. Queens Coll., 242 F.3d 58, 75 (2d Cir. 2001). Plaintiffs made only passing references to the Equal Protection Clause in their brief, noting that [t]o the extent that [New York s proper cause requirement] implicates the Equal Protection Clause . . . the case might well be decided under some level of means-end scrutiny. Plaintiffs Br. at 15-16; 54. Thus, this claim is forfeited. 48 1 not before the Court. Broadrick v. Oklahoma, 413 U.S. 601, 2 610 (1973). 3 under our constitutional system courts are not roving 4 commissions assigned to pass judgment on the validity of the 5 Nation's laws. Id. at 610 11; see also Gonzales v. Carhart, 6 550 U.S. 124, 167 68 (2007). 7 Plaintiffs facial challenge. This principle reflect[s] the conviction that 8 9 10 Accordingly, we reject IV For the foregoing reasons, the judgment of the district court is hereby AFFIRMED. 49
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