Supreme Court

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.