Restrictions on Weapons Carrying Gets a Step Closer to Supreme Court with Certiorari Petition in Kachalsky Case

In November 2012, the 2nd Circuit Court of Appeals upheld New York state's policy of denying permits for carrying weapons without a demonstration of "proper cause" to local officials in the case of Kachalsky v. Cacase. Today, a petition for certiorari to reconsider the case was filed with the U.S. Supreme Court. The case is sponsored by the Second Amendment Foundation with counsel of record Second Amendment superlawyer Alan Gura.

From the petition, in my possession though not yet online that I could find:

A "right" that may not be exercised absent a government official's discretionary determination that an individual has "proper cause" to exercise it, is not much of a right....

Asserting that bearing arms is too dangerous to allow as a matter of course, New York forbids responsible, law-abiding adults from carrying handguns for self-defense unless they first demonstrate a "proper cause" to do so. By definition, "proper cause" must exceed the self-defense interest citizens ordinarily hold.

It is difficult to imagine federal courts sustaining the denial of the right to speak, the right to worship, or the right to terminate a pregnancy whenever the government asserts that these activities contravene the public interest, and thus may not be conducted absent an extraordinary "proper cause"...

[The 2nd Circuit decision] defies Heller in several key respects....A clear split now exists among the federal circuit courts, and between the court below and state courts of last resort, on profoundly important and recurring issues of Second Amendment law.

[The 2nd Circuit holds] that the Second Amendment has no practical impact beyond the threshold of one's home....In contrast the Seventh Circuit has...invalidated restrictions on Second Amendment rights outside the home....the [Supreme] Court should move expeditiously to resolve these conflicts.

By applying what it called an "intermediate scrutiny" standard to the case, the 2nd Circuit decided that "substantial deference to the predictive judgments of [the legislature] is warranted" and felt New York had its "proper cause" carry permit requirements derived from "reasonable inferences based on substantial evidence."

A federal District Court in Maryland overturned similar permit requirements in that state, as I blogged in March. The Judge declared that "A citizen may not be required to offer a `good and substantial reason’ why he should be permitted to exercise his rights. The right’s existence is all the reason he needs.” That case, Woolard v. Sheridan, was also filed and fought by the Second Amendment Foundation and Alan Gura.

While there is no guarantee the Supreme Court will take up the case, they ought to, and should follow the line of reasoning in Richard Posner's 7th Circuit opinon from last month (which I blogged about) and uphold the right for law-abiding citizens to carry arms without undue government restrictions. Alan Gura, fighting the case for the plaintiff and the Second Amendment Foundation, has a very encouraging track record on winning Second Amendment victories in front of the Supremes, with victories in Heller and McDonald under his belt.

I blogged about the Kachalsky case when it was filed in July 2010. The Kachalsky docket for those who like to play along with the courts from home. My book, Gun Control on Trial.

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  • Scarcity||

    NPR was just this morning pimping NY State's "may issue" law as essentially a sensible third way between legal and illegal handguns. Douchebags.

    Can't someone less douchy do long-format news on the radio?

  • John||

    That is the funny thing. I would find NPR loathsome enough for their political views. But I could tolerate that if they were not so fucking predictable and boring.

  • nicole||

    pimping NY State's "may issue" law as essentially a sensible third way between legal and illegal handguns

    Doesn't this suggest (and I didn't hear the segment, so maybe I'm totally wrong) that they are just completely confused about what this even means? I mean, since it's carry-related, and really has nothing to do with whether handguns are legal or not. Sounds like they think it's a "may issue" just to get the permit to have one at all. I'm just assuming this, of course, based on NPR's general doucherie.

  • ||

    You must have a pistol permit in NY State in order to own or possess a handgun (technically even to touch one, I believe). This permit is essentially "shall issue", even though different counties make you do various annoying things to get one. Once you are issued a permit, the issuing judge will "restrict" it, which means he will list the things you are allowed to do with it. Common restrictions are "hunting, target shooting, hiking, camping, going to and from these activities", stuff like that. If a judge issues an "unrestricted" permit, it means you have no restrictions and can carry concealed.

    It's very judge and county specific. There are judges upstate who issue unrestricted as a matter of course. Closer to NYC, and in it, it gets a lot more restrictive, with NYC basically only issuing unrestricteds to extremely connected people.

  • sloopyinca||

    Replace the word "restrict" with "infringe" and it reads exactly the same to any reasonable person.

    Let's see if our SC is reasonable.

  • ||

    "Let's see if our SC is reasonable."

    I am now doing the dog-snort to try and get the root beer and grilled cheese sandwich out of my nose.

  • ||

    infringes 3rd person singular present; infringing present participle; infringed past tense; infringed past participle

    1. Actively break the terms of (a law, agreement, etc.)
    making an unauthorized copy would infringe copyright

    2. Act so as to limit or undermine (something); encroach on
    his legal rights were being infringed
    I wouldn't infringe on his privacy

    re·strict

    Put a limit on; keep under control

    Number 2 of the former looks a bit like the latter. Guess it depends on what the definition of "is", is.

  • sloopyinca||

    Guess it depends on what the definition of "is" "Fuck you, that's why", is.

    FIFY

  • nicole||

    Yeah, I knew there was a permit just for possession. So then is the permit the same, and it's (sort of) shall-issue, but may-issue in terms of the carry part?

  • sloopyinca||

    I repeat: replace "restrict" with "infringe".

    This ought to be a slam-dunk case.

  • nicole||

    This ought to be a slam-dunk case.

    I'm kinda more worried it will be a massive reversal and fuck all chances of carry in IL, but maybe I should be optimistic since it's Alan Gura.

  • ||

    Yes. And you must list every single handgun you own on the permit (or add-on documents) itself. To even purchase a handgun you have to put in an application at the county's pistol permit office (yes they have one just for pistol permits) and wait to receive the addendum permit. You go to the store, pick out your gun, partially or fully pay for it, submit your application, and receive the permit addendum in the mail in a few days. Then you go pick up the pistol and show the store the permit addendum and finally walk out with it.

    It's retarded.

  • nicole||

    Ah, I did not realize they were one and the same. That is pretty fucked up.

    Also, that is actually a bigger pain in the ass than getting a handgun in Chicago (not counting the training requirement, at least, but that's a one-time thing).

  • sloopyinca||

    Isn't getting a handgun in Chicago a simple matter of driving to a gun store outside of Chicago and purchasing it? I thought purchase was fine while possession required all of the hoop-jumping.

  • Tim||

    Getting a handgun in Chicago is easy and fast. Oh wait, you mean legal handguns...

  • nicole||

    sloopy, yes, that's basically the case. There is some hoop-jumping just for purchase in that IL requires you to have a FOID (firearm owners' ID), but most of the issues have to do with bringing it home.

  • ||

    At least you guys CAN legally purchase handguns, nicole.-(

  • ||

    No, it is intellectually disabled, you hurtful bastard.

  • ||

    You don't just have to apply for a permit. You have to take a safety course and the waiting period (due to high volume of people buying at present) is about 8-9 months. Then you have to pass the course and then you may take possession of the handgun you bought. It sits at the gun store not being truly yours.

    If you want any gun right away, go into that same gun store, buy a shotgun or rifle, take possession immediately, and walk out. It's fucking retarded. Presumably handguns are scary because they are more portable and easily concealed so they are restricted. Why not just make them open carry so everyone knows who has one? Fucking babies. One county up, I can practically open carry in grocery stores and malls if I wanted to. It's not technically legal to do so, but no one would care.

  • John||

    The laws are so bad and so mindlessly enforced that it is not uncommon for people who are lawfully transporting weapons on flights from and to other states but who have the misfortune of changing planes at JFK get arrested for unlawful possession of a handgun. Look it up.

  • ||

    "There are judges upstate who issue unrestricted as a matter of course."

    Does that mean the holder of such a permit may carry anywhere in the state? If so, wouldnt NYC residents flock to those judges to apply for a permit?

    I have no idea how New York works, it is a foreign country to me.

  • ||

    Permits from outside of NYC work everywhere except NYC. Permits from inside NYC work everywhere.

    Localities (counties in particular) in NY State have tremendous power to set their own rules.

  • ||

    OOOOOk. Sounds like the arrangement we have here with New Orleans, a city which seems a state apart because there are so many exceptions for Orleans parish in the state constitution that it might as well have it's own constitution.

    I dont go to New Orleans. Been to NYC once and the best sight I saw was the city in my rear view mirror.

  • sloopyinca||

    If it's like California, and this is pretty standard in any state I've lived in, you have to apply in the county you reside in or own property in. On rare occasions, if you reside in a neighboring state but work in CA, you can apply for a limited permit in the county you work in if you give a compelling reason, however it is still "may issue".

  • A. Freeman||

    I live in Upstate Western New York, I am a licensee (have a pistol license) and still believe it is a foreign country TO ME.

    All licensees need to obtain a copy of the "Gun Laws of New York State" by Chamberlain and Lewis and read it from cover to cover. This compendium will run about $25 (if still in print) and was written by the ex-Superintendent of State Police (who is an attorney) and a attorney who defends firearms owners.

    Another imposition, but will help keep you out of trouble.

  • Scarcity||

    It certainly sounded like they were unclear what exactly they were talking about.

    The story was part of a multiparter about the anomolous increase in Chicago's murder rate in 2012. After yesterday's piece, someone wrote in (this being NPR I always imagine this happening on actual paper, perhaps delivered by messenger for speediness) asking why Chicago's ban on handguns didn't solve the high murder rate. (Inskeep - "Quite the loaded question." heh, heh, Steve)

    Their disjointed response was, I think, to claim that Heller created a laboratory for examining the question of the impact of more guns in Chicago in DC. Without minimal discussion, they pointed out that since the ruling Chicago's murder rate increased and DC's decreased. Hence, inconclusive!

    This 1) dodged the writer's question, which wasn't asking why the rate was increasing but why a city with such strict gun laws has such a high crime rate, and 2) pretends that the day after Heller it was suddenly a cinch to legally own a handgun in Chicago, ignoring the replacement law that is so ridiculous that it will almost certainly also be struck down.

  • nicole||

    Oh, WBEZ, you're so cute. I wonder if hanging out on Navy Pier so much rots the brain.

  • sarcasmic||

    It is difficult to imagine federal courts sustaining the denial of the right to speak, the right to worship., or the right to terminate a pregnancy whenever the government asserts that these activities contravene the public intrest, and thus may not be conducted absent an extraordinary "proper cause"...

    And allow a terrorist attack by someone who spoke out in public, worshiped the religion of hate, and had an abortion?

    Terrorist lover!

  • Fist of Etiquette||

    A "right" that may not be exercised absent a government official's discretionary determination that an individual has "proper cause" to exercise it, is not much of a right...

    "So we ask you, government officials in black robes, to determine if we can have this right."

  • LTC(ret) John||

    Stop that, I have enough irony in my diet!

  • ||

    Are you proud of that?

  • sarcasmic||

    In the Bill of Rights, all instances of the word "not" are silent.

    "shall not be infringed.... shall not be violated.... shall not be required..."

    All silent.

  • ||

    It's a liberal pronunciation.

  • sloopyinca||

    Somalia is right over there, Fist.

  • Fist of Etiquette||

    How do you know I'm not there already?

    "Somalia has 1,900 miles of coastline, a government that knows its place, and all the guns and wives you can afford to buy. Why have I never heard of this paradise before?"

  • Randian||

    Well, yeah. What's your alternative, start shooting people?

  • Redmanfms||

    Well, yeah. What's your alternative, start shooting people?

    It may very well come to that.

  • SIV||

    That case, Woolard v. Sheridan, was also filed and fought by the Second Amendment Foundation and Alan Gura, the winner of

    While there is no guarnatee the Supreme Court will take up the case, they ought to, and should follow the line of reasoning in Richard Posner's 7th Circuit opinon from last month (which I blogged about) and uphold the right for law-abiding citizens to carry arms without undue government restrictions.

    Somebody is looking to join Lucy, selling pencils or apples in the snow-swept street.

  • sloopyinca||

    FTA (notes mine):It is difficult to imagine federal courts sustaining the denial of 1)the right to speak, 2)the right to worship, or 3)the right to terminate a pregnancy whenever the government asserts that these activities contravene the public interest, and thus may not be conducted absent an extraordinary "proper cause"...

  • sloopyinca||

    They do 1 every time they find an abortion protester guilty for holding a sign (but not blocking the way) in front of an abortion clinic

    They do 2 every time they find a person guilty of polygamy that's based in religious practice

    They do 3 every time they uphold parental consent laws.

  • LTC(ret) John||

    I think he is drawing some distinctions between; 1)time and place restriction vs you-may-never-hold-a-sign-without-permission, 2)you may worship as you please but cannot enter into a government recognized relationship that contravenes other law (that one is weaker than 1 or 3, but is any restriction a violation of right to worship if you ban some conduct - I follow Kali and I need to get to sacrificin' someone!?) vs you cannot worship, go to pray, meet or such without permission, and 3) people responsible as guardians of minors should be told of a medical procedure that minor is seeking vs no matter what age you are, you cannot get an abortion without permission.

    He is approaching it as a lawyer before an appellate body (the Nazgul).

  • SugarFree||

    Given that we can't legalize drugs until we get rid of socialized medicine and we can't open the borders until we entirely dismantle the welfare state, how can we let anyone have a gun until we make sure there is no one left that could ever use one to commit a crime?

  • nicole||

    I thought the question was "how can we let anyone have a gun until every state adopts VT-style gun laws?"

  • LTC(ret) John||

    Virgina Tech? I thought they went full gun-free-zone?

    ...
    ...

    Oh, wait, you meant Vermont. Never mind.

  • SugarFree||

    And I thought I was being snarky.

  • Almanian.||

    Snarkers gonna snark

  • LTC(ret) John||

    I was just trying to follow your lead, SF.

  • Tim||

    "We should afford to our citizens, especially our children, the same rights we afford to our deer," Blais said at the meeting in Contois Auditorium, describing how Vermont wildlife regulations restrict what types of ammunition hunters use to target wild animals during prescribed hunting seasons.


    Read more: http://www.stamfordadvocate.co.....z2HQ7W1uDj

  • Tim||

    So there should be a season for shooting our children? And maybe muzzle loaders only?

  • ||

    Um...does she want to make sure I shoot children with sufficiently lethal ammunition?

  • sloopyinca||

    She's apparently unaware of your typical means of dispatching children.

  • LarryA||

    "We should afford to our citizens, especially our children, the same rights we afford to our deer," Blais said at the meeting in Contois Auditorium, describing how Vermont wildlife regulations restrict what types of ammunition hunters use to target wild animals during prescribed hunting seasons.

    Apparently she's unaware that the restrictions on hunting ammunition insure that the animal is killed quickly, and not left wounded.

  • John||

    I think Virginia Tech gun laws are laws that only allow deranged Asian college students to have weapons.

    I am not sure it is effective, but it is one approach to the issue.

  • sloopyinca||

    I think Virginia Tech gun laws are laws that only allow deranged Asian college students to have weapons.

    So they don't let any of their female engineering students drive a car on campus?

  • Adam.||

    I was unaware that VT was so awesome, learned something today.

  • ||

    Given that we can't legalize drugs until we get rid of socialized medicine

    Portugal disagrees.-)

  • SugarFree||

    Read the dregs of the last immigration thread to see what I was mocking.

  • ||

    I guess I am dreg to some degree.-( I do have legit concerns about infectious and communicable diseases WRT immigration. I'm sorry, my friend.

  • Almanian.||

    No, fuck you, cut spending.

  • ||

    In an attempt to make everyone jealous, here is the process for buying a gun in Louisiana.

    1. Go into gun store.
    2. Pick out the gun you want.
    3. Produce a Louisiana Driver's License.
    4. Have a cup of coffee and shoot the shit while the background check is done. Maybe you will get to finish your coffee before it comes back but probably not. You may not even finish stirring the sugar in.
    5. Pay.
    6. Walk out of store with your new gun.

    We are an open carry, shall issue ( for concealed permits ) state.

  • ||

    ok...everyone except for those people in Vt.

    I wish we could get rid of the concealed permit.

  • Tim||

    Savages!

  • sloopyinca||

    Here is the process of buying a gun in Cali (method A):
    1. Go to gun store.
    2. Pick out gun you want.
    3. Produce CA DL.
    4. Pay (for gun as well as additional fees).
    5. Go to grocery store and purchase 10 days worth of groceries.
    6. Prepare 3 meals a day for next 10 days.
    7. Go back to store and pick up the gun you bought.*

    *If you are still alive.

    -or (method B)-

    1. Find a relative in AZ.
    2. Follow Suthenboy's process
    3. Drive gun home in trunk of your car.

  • Tim||

    "TEN DAYS? But I'm angry NOW!"

  • juris imprudent||

    Look I can't kill my wife with any of the guns I already own - I need that new one.

  • ||

    Arizona has a similar simple process. If you posses a CCW permit, you don't have to do the backgound check. You can carry concealed without the permit, but it easy to get and nice to have for this reason.

  • DaveSs||

    For a fist time buyer in Illinois, you are looking at a minimum of 60 days to get your FOID before a gun store will even let you touch a firearm.

    According to law, the state is required to process FOID applications within 30 days of cashing your payment check.

    In reality, the last 3+ years its been 60-90 days.

  • Mensan||

    Process in Florida:
    1. Go to a gun store.
    2. Pick out the gun you want.
    3. Fill out the background check form, and check out some other guns for a few minutes while you wait on the results.
    4. Pay.
    5(a). If you purchased a rifle or shotgun, leave with your new gun.
    5(b). If you purchased a pistol, and you have a CCW, leave with your new gun.
    5(c). If you traded in a pistol, leave with your new gun.
    5(d). If you purchased a pistol, but you did not trade in a pistol, and you do not have a CCW, then leave the store without your new gun.
    5(d)(1) Sit around twiddling your thumbs for 72 hours (not including weekends or holidays).
    5(d)(2). Go back to the gun store.
    5(d)(3). Pick up your new gun.
    5(d)(4). Finally leave the store with your new gun.

  • Tejicano||

    New Mexico is basically the same in all respects. The one additional thing I love about NM is that your vehicle is legally an extension of your domicile.

    This means that I can legally drive around with my registered full-auto MAC-10 (with my registered suppressor attached), loaded, either in the open or concealed (think : "tucked in a bag on the seat beside me").

    I don't know of many industrialized nations where I can do this without fear of arrest.

  • NoVAHockey||

    Gawker decided to jump on the publish-list-of-owners bandwagon and ran a list of permit names in NYC.

  • ||

    That's a short list.

  • nicole||

    This list is completely misleading. I wish Mr. Cook had researched this a little more. I used to work for the NYC Department of Investigation. We carried firearms and had arrest authorization. We were not gun loving assholes. I also see a few names of Correction Officers on here. There are numerous city agencies that carry firearms and are lumped in here. Not all are random civilians that love guns. Mr. Cook, you've exposed the names of so many city employees that carry firearms because their work can be dangerous or have been given the power to arrest. Not cool.

    Priceless.

  • LarryA||

    1. Publish a list of gun owners in an area where gun control insures that most of the list will be cops.
    2. Guess what happens the next time "seconds count."

  • OldMexican||

    According to the article, Gawker released the list on a dare from Ann Coulter.

    I mean - really?

  • juris imprudent||

    Did she jump to triple-dog dare?

  • waaminn||

    That dude over there is talking a whole lot of smack!

    www.Anon-Big.tk

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