3.1 Case Decided Before Mcdonald V. City Of Chicago

• Jurisdiction: New York

3.1 Case Decided Before McDonald v. City of Chicago

Post-Heller challenges to New York’s criminal possession and gun licensing laws²⁰⁷ in the New York State courts have produced similar results to those in the federal courts, with the same themes emerging: namely, challenges have been unsuccessful, Heller safe harbors have been utilized; intermediate level of scrutiny has been applied, the limited nature of the Second Amendment rights have been acknowledged, and the gun licensing restrictions have been found to be reasonable restraints.

Some twenty published decisions by state courts in New York have, post-Heller, addressed Second Amendment challenges to state and municipal laws regulating the possession and use of guns. Eleven of those decisions predated the Supreme Court’s McDonald decision holding that the Second Amendment applied to state, as well as to federal legislative action. Of those eleven, five predicted that Heller would be applied only to federal action,²⁰⁸ although only one court based its decision exclusively on the limitation of Heller to federal action.²⁰⁹ In the four decisions that did not rely exclusively on the federal action limitation, the courts distinguished Heller factually and noted the limitations of the Second Amendment.²¹⁰

The analyses employed in most of the other cases (also decided pre-McDonald) in which the court did not consider Heller to be limited to federal action, likewise recognize the limited nature of Second Amendment rights under Heller and the constitutionality of reasonable gun regulation; factually distinguish Heller; and employ the safe harbors identified in Heller.²¹¹

One case did not even address the Second Amendment and disposed of the case on procedural grounds.²¹²

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Notes:

^[207] . The most recent state law is the New York Secure Ammunition and Firearms Enforcement Act of 2013 (“SAFE Act”) (L. 2013, ch. 1). Penal Code §§ 400.00(1)-(3) govern the eligibility for issuance of gun possession or sale licenses, identify the types of licenses available, and the application process. Penal Code §§ 265.01-265.04 are the criminal possession provisions, each in a different degree. In addition to the state statutes, New York City’s Administrative Code has been challenged in court, namely NYC Admin. Code § 10-131(a)(2), which addresses the issuances of licenses to carry or possess a pistol or revolver, and NYC Admin. Code § 10-312, which requires a lawful owner of a weapon to safeguard it when it is out of her...