2.1 Decisions Rejecting Second Amendment Challenges To Gun Laws
| Jurisdiction | New York |
2.1 Decisions Rejecting Second Amendment Challenges
to Gun Laws
2.1.1 Heller’s Safe Harbors
As noted above, the Heller decision identifies a number of “presumptively lawful regulatory measures” that lower courts have construed as safe harbors.88 These “safe harbor” categories provide important guideposts against which to judge challenged laws, but their contours are unclear. In addition, it is unclear whether the safe harbor analysis is, standing alone, enough to remove a case from Second Amendment analysis. In the first few years after Heller, more than 80% of courts applied the Heller safe harbors.89 Many of these courts applied the safe harbor without imposing any other level of scrutiny.90 However, more recently, courts have imposed a “substantial relation” test finding historically longstanding categories of gun regulation as “presumptively lawful,” but also concluding that such presumptions can be overcome if the government does not demonstrate that, as applied, the category bears a substantial relation to an important governmental objective.91
Doctrinally, the categorical approach rests on uncertain footing. Apart from the Court’s assertion that these categories are “longstanding,” there is no test for determining whether a law is sufficiently old to be presumptively valid. The Court did not present any historical evidence to support the history and purpose of the identified longstanding categories of gun regulations.92 Very few courts have examined the doctrinal underpinnings of these categories. The Seventh Circuit is one of the few courts to do so. That court explained the safe harbors as follows:
This means that some categorical disqualifications are permissible: Congress is not limited to case-by-case exclusions of persons who have been shown to be untrustworthy with weapons, nor need these limits be established by evidence presented in court. Heller did not suggest that disqualifications would be effective only if the statute’s benefits are first established by admissible evidence. Categorical limits on the possession of firearms would not be a constitutional anomaly. Think of the First Amendment, which has long had categorical limits: obscenity, defamation, incitement to crime, and others. 93
Despite the doctrinal uncertainty of the Supreme Court’s “presumptively lawful” categories, particularly in the first few years after Heller, many courts relied on them to sustain gun laws often simply by comparing the at-issue gun regulations to one of the “safe harbor” categories.94 State and federal courts have upheld gun laws involving the possession of firearms by felons, one of the “presumptively lawful” and “longstanding” categories in Heller.95 Similarly, courts have routinely upheld laws prohibiting drug users from possessing firearms.96 And the courts have generally upheld bans on guns in “sensitive” places such as universities, airports, and parks.97
Courts have upheld gun laws under the presumptively lawful categorical analysis even where the facts of the case did not fit squarely within one of the presumptively safe harbors identified in Heller—the courts nonetheless reasoned that the circumstances were “analogous” to the regulations covered by the Heller safe harbors.98 As a result, courts have upheld as “longstanding” and categorically “presumptively valid” the following regulations, even though not mentioned in Heller:
• Possession of firearms by individuals who have been convicted of domestic violence misdemeanors and other misdemeanor crimes of violence.99
• Bans on the concealed carrying of firearms.100
• Gun shows on public property.101
• Possession of firearms by anyone “employed for” a convicted felon (such as a bodyguard).102
The decision in Piszczatoski v. Filko,103 is instructive. There, the federal district court rejected a Second Amendment challenge to New Jersey’s Handgun Permit Law which requires residents of that state to apply for a permit to carry a concealed firearm in public. The court concluded that the handgun permit law was “presumptively lawful” and stated: “To the extent that New Jersey’s Handgun Permit Law may implicate some narrow right to carry a firearm outside the home, the challenged provisions would not necessarily burden any protected conduct.”104 The court classified the law as a “ ‘longstanding’ licensing provision of the kind that Heller identified as ‘presumptively lawful.’ ”105 These “longstanding regulations” are “exceptions . . . so that the regulated conduct falls outside the scope of the Second Amendment.”106
Perhaps the most dramatic application of the “presumptively lawful” categories in Heller was undertaken by the D.C. Circuit on remand in that case. The D.C. Circuit held that the D.C. ordinance requiring the registration of firearms was presumptively legal because such regulation was “longstanding” as were the categories in the Supreme Court’s Heller decision.107 Notably, “longstanding” was defined as regulations that have been around for about a century:
[B]asic registration of handguns is deeply enough rooted in our history to support the presumption that a registration requirement is constitutional. The Court in Heller considered “prohibitions on the possession of firearms by felons” to be “longstanding” although states did not start to enact them until the early 20th century. 108
In later proceedings in Heller, on remand to the district court, the court upheld the D.C. firearms registration program, which requires residents to register all firearms with local authorities, requires mandatory firearms safety training for registered gun owners and imposes a limit of one pistol registration per month.109 After applying an intermediate level of scrutiny and considering expert and statistical evidence, the district court found that these laws were sufficiently related to the district’s goals of ensuring public safety and protecting district police.110
Given the broad construction of Heller’s presumptively lawful categories of gun regulations in the lower courts, the Supreme Court appears to have equipped state and federal courts with a framework for upholding a wide range of firearms regulations.111
2.1.2 A Further Word About Public Carry Laws
A number of commentators have argued—and some courts have agreed—that the Second Amendment right does not extend outside the home.112 But Heller itself defined the right to bear arms to include carrying for the purposes of confrontation and defense, and the majority opinion strongly suggests that the five justices signing that opinion believe the right extends outside the home in some sense, although its contours are unclear.113 Several courts have explicitly held that Second Amendment protections apply outside the home although not necessarily with the same force.114 Assuming the Second Amendment is portable to some extent, courts have to balance, on one hand, the individual’s constitutional right to carry those arms, and on the other hand, the state’s core public safety power to maintain order and keep citizens safe.
To date, five out of seven courts of appeal that have reviewed challenges to restrictions on concealed or open carry have upheld the laws in their entirety, finding public safety interests outweighed any individual right to carry arms outside the home. The decisions come from the First,115 Second,116 Third,117 Fourth,118 and Tenth Circuits.119 Unless the Supreme Court wades into the field again to clarify the scope of the Second Amendment protections outside the home, it appears that even substantially restrictive state licensing laws will survive Second Amendment challenges. Complete bans on public carry will not, however, as made clear by the Seventh Circuit’s decision striking down the Illinois ban on public carry. See, infra 2.2.1, at 44.
2.1.3 Regulation of Certain Dangerous Firearms
As noted above, laws banning “dangerous and unusual” weapons that were not “in common use” close in time to the first Constitutional Convention in 1787 may fall outside the purview of the Second Amendment.120 The Heller court made clear that such restrictions against unusually dangerous firearms are not limited to weapons extant in 1791. Rather, the Second Amendment exception for dangerous and unusual weapons applies to today’s weaponry, measured against firearms that are in common use today. Such “dangerous and unusual” weapons thus would be subject to complete bans. The lower courts, applying this specific aspect of Heller, have upheld extensive weapons regulations for short barreled weapons, assault weapons, and large capacity ammunition weapons, finding the right to possess these weapons was not protected by the Second Amendment.121
Again, doctrinally, the First Amendment provides an analytical underpinning for this analysis:
The categorical exclusion principle can also be used to exclude certain types of firearms from the amendment’s definition of arms. Machine guns, grenade launchers, and more high-powered weapons seem to be obvious candidates for categorical exclusion, given their extreme nature. Excluding such arms from the Second Amendment right is justified by using the same reasoning the Chaplinsky Court used when excluding fighting words from the ambit of the First Amendment: the value provided by the fighting words/machine gun is so slight that it will always be outweighed by “the social interest in order and morality.” 122
In addition, a number of courts have found that assault weapons and large capacity ammunition magazines are protected by the Second Amendment but that the interest in public safety trumps such protection when an intermediate level of scrutiny is applied. E.g., Fyock v. City of Sunnyvale, 25 F. Supp. 3d 1267, 1281 (N.D. Cal. 2014) (“Although Plaintiffs demonstrate that the Sunnyvale ordinance [ban on assault weapons and high capacity magazines] imposes some burden on Second Amendment rights, that burden is relatively light. The Sunnyvale law passes intermediate...
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