Supreme Court's New Second Amendment Case

Opportunity to address nullification of the right to arms

|The Volokh Conspiracy |

For the first time in nearly a decade, the Supreme Court has voted to hear argument in a Second Amendment case. Although the schedule has not been set, oral argument in New York State Rifle & Pistol Association Inc. v. City of New York, New York could take place this Spring. The case presents the Supreme Court with the opportunity to address an eccentric and abusive New York law, and, more broadly, to begin reining in lower court nullification of the Supreme Court's precedents in District of Columbia v. Heller and McDonald v. City of Chicago.

Legal background: Since the Sullivan Act in 1911, New Yorkers must obtain a license to own a handgun. As will be detailed below, the New York Police Department's enforcement of the Sullivan Act was abusive from the very start, and has generally remained so ever since.

Under state law, there are two types of handgun licenses: "carry" licenses and "premises" licenses. N.Y. Penal Law §§ 400.00(2)(a), (f). A carry license allows an individual to 'have and carry [a] concealed' handgun 'without regard to employment or place of possession.'" But a carry license is only granted "when proper cause exists" for the issuance of the license. Id. § 400.00(2)(f).

"Proper cause" is not defined by the Penal Law, but New York State courts have defined the term to include carrying a handgun for target practice, hunting, or self-defense. When an applicant demonstrates proper cause to carry a handgun for target practice or hunting, the licensing officer may restrict a carry license "to the purposes that justified the issuance." New York State Rifle & Pistol Ass'n, Inc. v. City of New York, 883 F.3d 45, 52-53 (2d Cir. 2018) ("NYSRPA").

In New York City, unrestricted carry permits are issued to retired law enforcement, celebrities, and other favored persons. In contrast, the city's police department reluctantly and slowly issues ordinary citizens premises permits to keep handguns in their homes. A premises permit is limited to the premise specified on the license. According to New York City law, the firearm can be removed from that premise for only very limited reasons, such as to "transport her/his handgun(s) directly to and from an authorized small arms range/shooting club, unloaded, in a locked container, the ammunition to be carried separately." 38 Rev. Code N.Y. § 5-23(a)(3). Administratively, the city's police department in 2001 declared that an "authorized" shooting range is only a range located in New York City.

Case history: The New York State Rifle and Pistol Association and three individual plaintiffs brought suit. They are represented by Kirkland & Ellis, with former Solicitor General Paul Clement as counsel of record. The plaintiffs alleged that the limitations of their premises licenses violate the Second Amendment, because the plaintiffs wanted to transport their handguns for various reasons forbidden by New York City regulations.

Specifically, one plaintiff wanted to take his handgun licensed for his residence in New York City to his second home in Hancock, New York (a town in the Catskills, near the northeast corner of Pennsylvania). Other plaintiffs want to take their handguns to out-of-city firing ranges and shooting competitions.

As the plaintiffs pointed out, the police regulation prevents a resident of Staten Island from traveling to ranges in New Jersey that are closer than any range in New York City. The regulation prohibits City residents from using their handguns for hunting in any state except New York. Residents are forbidden from taking their handguns to safety training programs or target competitions outside the City.

It is possible that at some firing ranges outside the City, a person can rent a handgun. But the necessary result is inferior training and practice. People who may need to defend themselves in a sudden emergency need to practice with the gun they will actually use. Practice and training help build muscle memory so that activities such as disengaging the safety, cocking the hammer, or racking the slide can be done instantly and correctly. Practice and training with one's own handgun provide experience with the quirks of each individual gun, such as what types of ammunition are least likely to misfeed (which can vary depending on the individual's grip strength), or how to quickly clear a jam. Likewise, in target competition or hunting, as in all sports, using one's own familiar equipment is more likely to result in success than is using rental equipment.

No jurisdiction in the United States has a law like New York City's. Everywhere else, a lawful handgun owner can transport an unloaded handgun to any target range, to a second home, to lawful hunting grounds in any state where the person has a hunting license, and so on.

The Second Circuit's decision: Like most other circuits, the Second Circuit applies a "Two-Part Test" in Second Amendment cases. Part 1 asks if the case implicates the Second Amendment right as traditionally understood. For example, if a plaintiff sued because the federal Atomic Energy Act and other federal laws prevent him from buying an ICBM and nuclear warheads from North Korea, a court would hold that the plaintiff loses under Part 1. Heller says that "dangerous and unusual" weapons are not part of the Second Amendment right; history and tradition show that ICBMs and atomic bombs have not typically been possessed by individual law-abiding citizens for lawful purposes.

Similar issues arise in the First Amendment. Is wearing a black armband, silently picketing, or creating abstract art part of "the freedom of speech"? (The Supreme Court has answered "yes" for all three.)

If the case does implicate the Second Amendment right, then the court proceeds to Part Two, where heightened scrutiny must be applied to the challenged government law or action. At all stages, the burden of proof is on the government. For details on the test, as applied rigorously in some circuits, and with hostility to the Second Amendment in some others, especially the Second Circuit, see Kopel & Greenlee, The Federal Circuits' Second Amendment Doctrines, 61 St. Louis University Law Journal 193 (2017).

At Part 1, the Second Circuit could not decide whether the NYC ban even affected the Second Amendment right. So the court proceeded to Part 2 arguendo. The tactic is common among lower courts that are opposed to the Second Amendment. By refusing to make a decision under Part 1, the court avoids creating any precedent that a given activity or arm is part of the constitutional right. Even arguendo, the Second Circuit would only hypothesize Second Amendment rights to the extent that target shooting is necessary for practicing self-defense in the home. According to the Second Circuit, gun use or practice for non-defense purposes (e.g., target competitions, hunting) has nothing to do with the Second Amendment, even arguendo. The Second Circuit thus defied the Supreme Court's McDonald precedent, which stated that "the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home." Home defense is the most notable purpose of the Second Amendment, but not the only one.

At Part 2, the Second Circuit applied intermediate scrutiny. According to the court, prohibiting a person from taking his firearm to his second home warranted only intermediate scrutiny because he could possibly acquire a separate firearm for that second home.

As for the impairment on training, practice, and competition, intermediate scrutiny was chosen because "seven firing ranges in New York City are available to any premises license-holder." It is absurd to contend that a public indoor range in Manhattan offers training facilities comparable to the best defensive training schools elsewhere, such as Gunsite Academy in New Hampshire.

Having trivialized the harm inflicted on safety training and other legitimate gun use, the Second Circuit then looked at the government's interest. What could justify a law so extreme that not one other jurisdiction in the United States, past or present, has enacted anything like it?

The justification came entirely from an affidavit from the former Commander of the City's License Division. He opined that license holders "are just as susceptible as anyone else to stressful situations," including road rage, "crowd situations, demonstrations, [and] family disputes." Which is plainly false. The City's highly-vetted handgun owners have an exemplary record of peaceable conduct.

The affidavit also asserted that before 2001, some premises permit holders had been discovered to be transporting their guns in circumstances in which their claim to be on the way to or from a target range was implausible. Notably, the affidavit contained no data, and not one actual example of any of the above problems. The evidence-free affidavit is deconstructed in the excellent amicus brief for the Western State Sheriffs Association and other law enforcement groups. A speculative affidavit devoid of evidence was sufficient to uphold a bizarre restriction that exists nowhere else in the United States.

A century of abuse by the New York Police Department: Today's New York City government continues its long-standing practice of abusive enforcement of the state's handgun licensing law. The abuses began as soon as the legislature passed the Sullivan Act and have continued in various forms ever since.

When the Sullivan Act went into effect, NYC police commissioners took the view that citizens should not have handguns. No matter the reason a New York City applicant might give for wanting a handgun (e.g., target shooting, self-defense), the applicant would be told that the reason was not good enough. A determined applicant might make his way through the police gauntlet; even then, a person would not be allowed to possess more than one handgun. Karl T. Frederick, Pistol Law 23-26 (1964). (The book is based on a series of articles that Frederick wrote for the NRA magazine The American Rifleman in 1930-31. Frederick was a Harvard-trained corporate lawyer and an Olympic pistol shooter. To prevent the spread of laws like the Sullivan Act, Frederick wrote the model law that was adopted by the National Conference of Commissioners on Uniform State Laws–the Uniform Firearms Act. A key element of the law was no licensing or registration for gun ownership. Later, Frederick was elected NRA President. See Kopel, Background Checks for Firearms Sales and Loans: Law, History, and Policy, 53 Harvard Journal on Legislation 303 (2016).)

Eventually, the New York legislature enacted procedural reforms–such as requiring that applications to purchase a handgun must be granted or denied within six months of the application. The New York police department continued to pervert the process at every step. See, e.g.:

  • Savitch v. Lange, 114 A.D.2d 372 (2d Dept. 1985) (overturning denial of permit application in which department offered no reason for denial).
  • Federation of New York State Rifle and Pistols Clubs v. McGuire, 101 Misc.2d 104 (Sup. Ct., N.Y. Cnty. 1979) (upholding department's one-year waiting list for an appointment to submit an application for a permit).
  • Hochreich v. Codd, 68 A.D.2d 424 (1st Dept. 1979) (upholding police commissioner's decision that permitee may not buy a fourth handgun because of "insufficient need") (reversing 90 Misc.2d 455 (Sup. Ct., N.Y. Cnty. 1977)).
  • Livingston v. Codd, 93 Misc.2d 908 (Sup. Ct., N.Y. Cnty. 1978) (plaintiff had the federal "Curios and Relics" license for gun collectors; court overturned commissioner's decision that there was "no showing of need" for plaintiff to acquire more collectible guns from the federal "curios and relics" list).
  • Archibald v. Codd, 84 Misc.2d 42 (Sup. Ct., N.Y. Cnty. 1975) (after police department ignored statutory deadline, court ordered the department to decide within the coming 45 days).
  • Shapiro v. Cawley, 46 A.D.2d 633, 360 N.Y.S.2d 7 (1st Dept. 1974) (department has no authority to impose a "need" requirement for premises permits); Turner v. Codd, 85 Misc.2d 483 (Sup. Ct., N.Y. Cnty. 1975) (class action ordering department to obey Shapiro).
  • Klapper v. Codd, 78 Misc.2d 377 (Sup. Ct., N.Y. Cnty. 1974) (overturning commissioner's denial of permit on the grounds that applicant had held several jobs in the past few years).

[Citation notes: "Sup. Ct., N.Y. Cnty." is the Supreme Court of New York County–the general jurisdiction trial court for Manhattan. "1st Dept." is the Appellate Division that covers Manhattan and the Bronx. "2nd Dept." is the Appellate Division for the other New York City boroughs, plus some counties to the north. My cite form here does not conform to the Bluebook.]

More recently, the Second Circuit–while upholding a broad ban on many common rifles and magazines–struck down a state law that forbade owners of lawful 10-round magazines from loading more than 7 rounds. NYSRPA, Inc. v. Cuomo, 804 F.3d 242 (2d Cir. 2015). (The case is discussed in my posts here and here). Yet a similar law remains in effect in New York City. Also, using a long gun registration system introduced in 1967, the City is currently, as under Mayor Bloomberg, confiscating long guns with an ammunition capacity of more than five rounds.

In the cert. petition stage, Mayor de Blasio's attorneys argued that the case was not worthy of Supreme Court attention because the New York City law was unique. The argument was apparently not persuasive; after all, the handgun prohibitions struck down in Heller and McDonald had existed only in D.C., Chicago, and a few Chicago suburbs. More fundamentally, the right time for courts to take action against civil rights violations is before they spread and become broadly ingrained. Getting rid of Jim Crow laws would have caused much less social disruption if the Court had not allowed such laws to fester and grow for decades.

The Court itself began to recognize the problem during the Jim Crow era. After Plessy v. Ferguson (1896) and similar cases around the turn of the century, politicians in some jurisdictions competed to enact every racist law possible. Persecuting people of color was just as politically popular as persecuting gun owners is today in New York City and some other places. After a while, bigoted politicians faced a problem: having passed so many laws, they had run out of ways to persecute. So they invented something new: statutory residential segregation. For example, a Louisville, Kentucky, ordinance said that owners of homes on a white-majority block could only sell to whites, and owners on black-majority blocks could only sell to blacks. The Supreme Court unanimously struck the law, as violating the property and contract rights of buyers and sellers, and as being outside the scope of the legitimate police power. Buchanan v. Warley, 245 U.S. 60 (1916).

The time has come to the Supreme Court to put a stop to novel infringements of the Second Amendment, and to strongly tell defiant lower courts to start following Heller and McDonald, and to stop catering to anti-rights bigotry.

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87 responses to “Supreme Court's New Second Amendment Case

  1. Sometimes you just have to appreciate the hubris of some governmental officials:

    “No gun for you”

    “Why?”

    “Because my testicles are the size of basketballs and I said so”

    Court: “You might have large balls, but you will have to take them and go home”

    Savitch v. Lange, 114 A.D.2d 372 (2d Dept. 1985) (overturning denial of permit application in which department offered no reason for denial).

    1. Only if said appreciation involves a rope and a lamppost.

  2. The only rights liberals are concerned about are those affecting the pelvic rights, namely, the right to kill fetuses and the right to have gay buttsex.

    1. Straight buttsex FTW!

      1. Did heterosexuals go crying to the Supreme Court for the “right” to practice their craft?

        1. Griswold v Connecticut springs to mind.

          1. I think he’s got you on that one AWRP.

            Me, I’m waiting for the case that makes prostitution legal, then to paraphrase Vader, the failure will be complete.

          2. I think he’s got you on that one ARWP.

            Me, I’m waiting for prostitution to become legal via a case, then to paraphrase Vader, the failure will be complete.

          3. There’s a big difference between one wanting to use a condom before putting his penis into a woman’s vagina than a man wanting to put his penis into another man’s rear end.

            1. I understand and respect the arguments about the roles of the court, the constitution, and the legislature on the question of same-sex sex, but I simply don’t understand your, or anybody else’s, objection to consensual same-sex sex as such, for those who like that sort of thing. And it appears that you have a profound objection to it. I’d appreciate an explanation of your objections.

              1. For two reasons. One, it is responsible for 75% of new HIV cases. That alone should be a good enough reason. Two, it’s disgusting and unnatural.

                1. Do you think you could expand on the second reason? Same-sex sex is not to my taste, but neither are lima beans.

            2. Did heterosexuals go crying to the Supreme Court for the “right” to practice their craft?

              There’s a big difference between one wanting to use a condom before putting his penis into a woman’s vagina than a man wanting to put his penis into another man’s rear end.

              Man, lookit those goal posts…

              1. Yes, actually, look at those goal posts move…with regard to what society deems is morally acceptable, and via the courts at that. 🙂

            3. I see you are still trying to deal, unsuccessfully, with your fear of latent homosexualitiy.

              1. I see you are still trying to deal, unsuccessfully, with your fear of latent homosexualitiy.

                Sort of like how leftists think of a penis every time they see or hear the word “gun”.

                1. I’m still laughing about them being called “goal posts”.

                  What is that, some kind of multiple simultaneous partner fantasy?

    2. Even that is subject to change, that’s why they didn’t submit constitutional amendments to guarantee the right to an abortion, or to protect marriage equality, despite all their fear mongering over Trumps SCOTUS appointments.

      They don’t want those rights, or ANY right guaranteed, they all can only be as safe as the next SCOTUS case. That’s why you have to keep electing Democrat presidents to appoint “progressive” justices. And of course THAT is the constitutional amendment they submitted in the House, to eliminate the electoral college

      1. Exactly Kevin Smith.

        Socialists use judges to control the state on a sliding scale rather than how we use them to keep government in line and protect our supreme law- the Constitution.

        Socialists states use Constitutions to act legitimate and to have some supreme authority instead of human rights or rights from God.

      2. Considering which side has had the the judges drumbeat for the past 4 decades, this seems some pretty rich projection.

        1. After a failed attempt to tame the courts that did make several high profile decisions outside the mainstream (the Warren Court in particular), the right said “if you can’t beat ’em, join ’em” and set up their own legal litigation support structure (like the NAACP legal defense fund) with the nucleus being the libertarian Institute for Justice and the Federalist Society.

          So is it still projection, when the kid that gets beat up by the bully starts taking boxing lessons and finally gets a few licks in himself?

          1. Your bullying the bully metaphor is telling. The cry that you gotta be oppressive because actually you are the oppressed and victimized one has rationalized all sorts of bad behavior over the centuries.

            Over my entire lifetime the right has been the one caterwauling about the courts and the need to get judges. The right is the ones with the clinics and incubators for judges of the appropriately narrow philosophy. The right has been the ones making the electoral argument ‘who cares what else is wrong with him, the key is the judges.’ Those are all present on the left, but less constant and more muted and mostly in legal circles.

            So the idea that the left keeps sandbagging constitutional victories to keep up the ‘but the judges’ drumbeat is ridiculous. Not that I think the right has been sandbagging, but between the two sides y’all are the ones with judges as an electoral lynchpin.

            1. Don’t take the metaphor as anything other than a way to show your accusation of projection was somewhat misguided. And even you must know that the history of the law, prior to the 1960s, was one that was naturally conservative.

              First, the legal profession wasn’t very open prior to that point (still isn’t, it’s still somewhat meritocratic). Second, legal thinking is not progressive if it respects precedent and text (something which is only recently changing). Third, the left decided to open a new front in the culture war because it couldn’t get a hearing in the elected branches on a host of issues, but mostly segregation. The left liked the results of the Warren Court, but the means admittedly made them nervous because it was counter-majoritarian, but they got over it. So to have the courts turn on the right when they could previously count on the courts to fend of the worst excesses of the left was, and still is, a shock that is only now wearing off. The last president to try to get the courts back in line was Reagan, and Iran Contra ruined the headway he was making in the process.

              Over time, everyone has come to realize that it’s easier to get 5 votes in D.C. than millions nationwide. However, the Court has no purse and no sword, so everyone is using respect for the Rule of Law as a proxy for actual culture change.

              1. The left decided to open a new front in the culture war because it couldn’t get a hearing in the elected branches on a host of issues, but mostly segregation.

                Yes, the right’s arguments about judges does have a racial tinge to it, but I didn’t think it kind to point it out.

                You keep talking about why the right is super excited about Courts (in a not very flattering manner), but not addressing my main thesis that courts are not an electoral issue for the left to nearly the extent it has been for the right for two (well, 1.5) generations, making Kevin Smith’s scenario above pretty silly as applied to the left, and marginally less so when applied to the right.

                1. As uncomfortable as it makes you, the reason the courts took prominence is because desegregation wasn’t getting anywhere in the legislatures. Yes, society wide desegregation was a multi-pronged approach, but the courts were a big part of that.

                  And yes, the Right is super excited about the courts, and it is a weakness. We shouldn’t even need a Second Amendment because the culture should support keeping and bearing arms regardless. But anytime you have to point to the constitution to defend something you believe in, you’ve already half lost the fight.

                  As to Kevin Smith’s point, there still ain’t no shortage of activist leftist judges, especially if you witness the under-enforcement of the 2nd Amendment by them. And you forget all the talk of, if Hillary had won, of not playing nice anymore in the courts. Just do an internet search, we’ve talked about it on this thread before.

                  Of course, this topic opens the right up to charges of hypocrisy, but at least we can point to text rather than penumbras, mollifying the charge.

                  1. It doesn’t make me uncomfortable – that’s the court system working as intended in the post Civil War era. Rights in a republic are by necessity anti-democratic.
                    Which is why the Republican cries of states rights and judicial suppression should make you question what that’s in service of.

                    Read Kevin Smith’s post. He’s saying that Dems win elections by leveraging the requirement to keep liberals on the court and that’s why they don’t amend the Constitution. For all that talk, according to surveys, judges is not why Dems win elections. But it is how conservatives do!

                    1. Meh. Then you and I are just disagreeing by a matter of degree. Yes, rights are undemocratic, and supposed to be. However, we have a great profusion of them now, many dubiously called “rights” but once given cannot be taken away.

                      When philosophers like Locke convinced the West, based on biblical tradition that all men are created equal (the origin of rights) he meant it in a political sense, in that only those with legitimate authority should exercise power over us. The modern formulation of rights by progressives is an extreme version of Locke, which throws out other legitimate exercises of power over us, such as culture, tribal affiliation, religion, culture, etc. which can and should be reflected in law. These majoritarian institutions are what keep a society intact and functioning.

                  2. I think most of the opposition to the RKBA among average people comes from a bad faith campaign of misinformation. The opposition to “assault weapons” is a great example.

                    1. ARWP, it’s more than that, it’s also a legacy of laws making sure only some had a right to keep and bear arms and others didn’t.

                      Why blacks fought so hard to get the right to keep and bear arms to show they were equal to whites, only to turn around and join whites who wanted everyone disarmed (as a reason to disarm blacks in particular) is beyond my understanding.

                    2. They were persuaded by the signing bonus.

                    3. If by that you mean the government largess their were going to get for doing so, that’s as good an explanation as any.

  3. My guess is that NYC officials and Gov. Cuomo are now trying to brainstorm with their legal team what minimal changes are necessary to moot the case, knowing that if SCOTUS does reach the merits, they will almost certainly inflict a lot of collateral damage to the state’s anti-gun regulations beyond the narrow scope of regulations at issue in the case. Fortunately, SCOTUS recognizes an exception to mootness for voluntary cessation by government of the conduct at issue, but given how anti-gun NYC and Cuomo are, they will try hard to circumvent that exception.

    1. That is where the SCOTUS should decide the caselaw whether the government pulls some ploy to moot the case. It can take some effort to even get standing, so when you have standing, the government should not be allowed to side step accountability with violating the Constitution.

      Having SCOTUS caselaw that protects the 2nd Amendment at least slows the gun grabbers down a bit.

    2. I agree with you. Remember Washington DC decided with the urging of California, New York, and other states and towns not to try to take Heller two back to the supreme court because they saw what happened with the original Heller. New York City and New York State have to know they are probably gonna lose this case and they will try to do the same thing Washington DC did after they lost the original Heller decision with the Supreme Court. Washington DC said they will issue carry licenses but use the same standard New York City and New York State use, you have to show “Proper cause” and they lost Heller two on the lower court so now Washington DC is shall issue. Not only New York City but also New York State law will have to be changed in order for a New York City premise permit to be valid in the rest of the state which it currently is not. Cuomo will have an easy task changing the law because the idiot Republicans have lost control of the New York State Senate so we are now waiting for all of the new gun control laws to be passed that they been trying to get pasted for decades.

  4. Looks like we will get that right to carry while allowing governments fairly liberal regulation power…which is consistent with history and tradition. I am trying to not to say it but?I told you so!

  5. “such as what types of ammunition are least likely to misfeed (which can vary depending on the individual’s grip strength)”
    The strength of your grip can cause a FTF? I’ve literally never heard of such a thing, but I guess if I cross my eyes I can imagine that if the frame is allowed grossly more backwards movement, maybe the slide won’t cycle a round as well? Just looked it up on the interwebs and apparently this is a thing. Who knew?

    1. Yes, if you “limp wrist” a semi-auto handgun, the slide won’t cycle properly. https://www.youtube.com/watch?v=H_Uqtz2asE4

      1. This is correct. I’ve had it happen and seen it happen to others. P

    2. It’s called limp wristing. The recoil energy of firng is taken up movement of the entire pistol, rather than the slide. This causes a jam when the spent casing is only partially ejected.

    3. I have personally observed people cause failures to feed by limp wristing an otherwise deadbolt reliable handgun. An ex girlfriend of mine managed to get a Glock 19 to FTF several times, same firearm has never once FTF’d on me in over 2,000 rounds of shooting.

  6. SIG Saur Academy is in NH – not Gunsight… We get a fair number of New York residents in courses I’ve attended there (I’m a NH resident). They always borrow SIG’s guns it seems.

  7. 2nd Amendment: A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

    All NY gun control is unconstitutional.

    1. All gun control is unconstitutional. All control of any arm bearable by a single person is unconstitutional. Of course, so is all Federal Law concerning what may be published or said…..and we all know (well all of us but Tony) how well THAT gets followed.

      Government is, and almost always has been, a criminal conspiracy against the common folk. The few exceptions were doubtless caused by the madness of a few individuals, and did not last.

      Government is preferable to Anarchy, but not by much as the Government metastasizes.

      1. Government is, and almost always has been, a criminal conspiracy against the common folk.

        I’m really interested in the use of the word ‘criminal’ here, since governments are the ones making the laws.

        What are your thoughts about civil rights, the Hoover Dam, and the space program? Those are my three go-tos that attempt to span the spaces of rights, public goods, and humanist endeavors that require a larger governmental role.

        1. A roving bandit can come by and fleece the populace but once before moving on, and they can only carry so much, and kill so many, before reprisals from the weak being organized. But long ago in human history the strong figured out how to take better advantage of the weak by skimming off the top by making themselves rulers over the weak. Governments can be described as stationary bandits.

          1. Edgy anarchist take, bro. Somalia seems a counterexample to how awesome a non-governmental lifestyle can be.

            1. Somalia is a disaster because of its people. Given their genetic low IQ and propensity to violence, and Muslim beliefs, any society where they are a majority will be a disaster, whether or not there is a government.

            2. It’s weird to call Somalia anarchist when their problem is that they have too many governments all trying to kill each other for breaking their laws, including one partly democratic in Somaliland and then a bunch in the South, mostly Sharia factions of one older group vs. various government factions, and a smattering of local groups and tribes thrown in for good measure. The government has most of the non-Somaliland area under its control now, anyway.

              Before, during, and after the civil war most law has been dealt with at a local level. The lawlessness some people strain to see as “not government” is just petty government warfare.

              1. Ah. So while it looks like anarchy, it’s just that True Anarchy Has Never Been Tried.

                1. That’s not the point; real anarchy probably can’t exist. But parading Somalia to prove the point is stupid. It trivializes the suffering of some of the most vulnerable people in the last century and ascribes it to the wrong cause.

                  It’s like claiming that the USFG made HIV and infected black people with it to kill them off. Completely boneheaded response that makes it even more difficult for the afflicted to get help. If Somalia merely had a problem with the government not enforcing the laws, international action would have ended that a lot earlier than now.

            3. You wanted a reasonable philosophic reason why governments can be called thieves, I give you a Rouseau/Hobbsean/Lockean explanation for the formation of states and you call it “edgy anarchist”? Mkay.

              1. I was curious about the use of ‘criminal’ not thieves.

                The thieves bit is tiresome and philosophically more barren than objectivism. It’s rhetoric, not belief. Because it boils down to ‘government is theft inasmuch as I disagree with what it does.’ Unless you’re some anarcho-syndicalist or other edgy self-labeling type, which from previous posts you are not.

                You gave me maaybe Russeau’s noble savage silliness, but he said a properly formatted social contract could alleviate most of the flaws he saw in society.
                Hobbes was all for leaving a state of nature via government, and Locke? Get outta here – dude was all about enforced natural law!

                1. Bandit=thief. And I’m not saying I agree with the “stationary bandit” formulation, but it does exist and has a hard truth at its core, that governmental officials often extract as much from the populace to better their own lives as much as to defend the borders and build roads and so on.

                  Taxation is not the the price we pay for civilization, it’s the price we pay because we are not civilized enough (some guy said that, not me).

                  1. Fair enough. I still think of criminal as defined by the state, so a criminal government is an odd concept. Though I guess if you squint at natural law hard enough you can get natural criminal law…?

                    Not a bad quote.

            4. Somalia is a failed socialist state though, so i’m not sure what your point is.

              1. Somalia’s past is irrelevant to the discussion of it’s present modeling of the efficacy (or lack thereof) of anarchy, GabrielSyme.

                1. Somalia’s past is irrelevant to the discussion of it’s present modeling of the efficacy of anarchy

                  No, the past provides insight into what is going on in the present. Claiming that a nation’s past is irrelevant to what is going on in that same country today is deliberate obtuseness, particularly when the left loves to parrot the “But Somalia!!” line every time someone supports even the slightest reduction in first world bureaucratic states.

                  1. m_k came out with a (later revealed to be devil’s advocate) take on government always being bad. I provided modern-day Somalia as evidence that this is silly – no government vastly worse.

                    Barging in to say ‘but Somalia was socialist until like 30 years ago!’ is indeed irrelevant to that point.

                    I have seen the Somalia analogy overused by liberals, so I get your over-sensitivity, but I’m not saying ‘if you want less regulations you want Somalia!.’ I’m talking about a legit anarchist worldview.

        2. The space program was such a natural government monopoly that they had to pass laws to prevent any private enterprise from engaging in it, laws that were eventually used to harass model rocket enthusiasts who never intended to even approach “space.” Until those laws were stricken, enterprises like Musk’s and Branson’s were S outta luck.

          1. I don’t think the private sector was going to get to the moon.

            1. I don’t think the private sector was going to get to the moon.

              Maybe not as quickly as it did, but it’s begging the question to assume that it would have never happened. Robert Goddard was studying and advancing rocketry technology in his spare time outside of teaching classes before he finally had to go to the Smithsonian (along with private organizations) to sponsor his research.

              It’s an academic question anyway, because governments were eventually going to become heavily involved in developing a technology that had scientific and military applications going back several hundred years.

              Also, a lot of people don’t realize how controversial the space program ended up being by the early 70s. There was groundswell of cultural criticism on the massive amounts of money being spent by NASA and how that could be directed towards domestic programs instead. The idea that NASA’s mission has always been accepted as critical and necessary is one that emerged as a response to the overcoming the Challenger disaster.

              1. I’m not talking about capability, but of will; there was and is no market for moon shots.
                Hence my listing ‘humanist endeavors’ as one of the benefits of government efforts over the private sector.

                Yeah, it’s neither here nor there for our discussion, but study of space policy is the study of some amazing and screwed up initiatives. I’ve heard the thesis that the huge Apollo push screwed up NASA’s culture, and they kept chasing the next Apollo until just about the modern day.
                The fact that the Space Shuttle was a craptastic boondogle is one of those things enthusiasts and professionals all know, but the public has the exact opposite conventional wisdom.

  8. Excellent article. This is why I come here. Please – more of this, and less immigration propaganda.

  9. “In New York City, unrestricted carry permits are issued to retired law enforcement, celebrities, and other favored persons.”

    If you support gun control, this really is an achilles heel. You can’t have gun control for peons but not for people with connections. And this is going to look terrible in any court case.

    Cities and states that have gun control need to treat everyone equally, or they deserve what they get when their license schemes get struck down.

    1. Ah, but one law for Peasants and one for The Ruling Class is what the Progressive Left is all about. They talk a good game the other way, but that’s not how they behave, ever.

      1. Of course, the market worship on the right ends up with the same feudalism result via agency capture allowing ridiculous wealth accumulation if you’re already super rich. But the right thinks that inequality is a feature (markets as meritocracy!), regardless of how crazy it gets.

        1. Actually, Sarcastro, people who actually know how to think understand that inequality is an immutable condition of a diverse humanity, and that trying to alter that condition through legislation makes about as much sense as trying to repeal gravity or entropy through legislation.

          1. I don’t disagree with your statement – total equality is a pipe dream, and capitalism is awesome, when well regulated.

            But I question the required degree of inequality. Because at some point economic inequality distorts the playing field and begets more inequality. And that ends up with feudalism more surely than if it were regulated into place by Big Brother.

            1. “And that ends up with feudalism more surely than if it were regulated into place by Big Brother.”

              Feudalism was, in fact, regulated into place by Big Brother. That’s part of the defining feature of the system. A king assigns lordship to a guy who then owns/manages the land while giving fealty to the king. The closest thing we have to feudalism now is branch management in a franchise.

              What you’re talking about is manorialism, a earlier concept that developed into serfdom. However, manorialism was also regulated into place by Big Brother, in this case the Roman Empire, seeking to protect the economy by cementing society in place. Serfdom was just manorialism with the Romans replaced by local figures with feudalism on top.

              AFAIK, there is nothing akin to manorialism anywhere in the world anymore. Elements of the Soviet economy reflected it and Maoist countries had flings with it depending on how radical they were, but it isn’t a thing anymore and never developed as a result of capitalism or market economies. One of the great things about capitalism is that it forced a loosening of these social structures and enabled people who could never have been anything but a farmer ten years before become a tradesman. Capitalism broke serfdom.

              1. I agree that Capitalism was a superior system and more or less swept away old aristocracies with it’s greed-based engine of innovation and productivity. Whether you want to specify the old aristocracies as feudal or not based on their particulars is between you and your pedant’s conscience.

                The point is that extreme inequality is a consequence of insufficiently regulated capitalism, and extreme inequality is indistinguishable from the old system capitalism was superior to, with the possible exception of secularizing the divine right of kings.
                And if you don’t think the government in the name of property rights wouldn’t have a hand in maintaining the neo-feudalism, you haven’t been paying attention.

                To be clear – I am not one of those saying we are there or even that the status quo will eventually lead us there (though I do wonder about the latter). I am merely saying that the free markets the right invokes would lead us there.

                1. “extreme inequality is indistinguishable”

                  How has this been true in any capitalist country? We’ve had four centuries of stupendous growth dismantling the previous system and everything similar that I can think of is from Maoist countries that attempted to enforce communal agrarianism. I would like to know of a country in which people still do this and not out of choice. Bonus points if those people were part of a market economy.

                  Even if you look in recent times at extremely unequal societies it doesn’t support your theory. The South was ridiculously unequal; slaves owned absolutely nothing of their own. After emancipation most states enacted laws equivalent to manorialism in attempts to keep slaves impoverished and tied to the landowners, but nowhere near as certain as chattel slavery. Even from this crap system we didn’t see manorialism perpetuated.

                  1. We have not had this, but our current state of wealth inequality is unequaled since the 1920s, and our momentum continues to increase.

                    The Right wants to plumb depths of massive unregulated private sectors as yet unplumbed in the modern era, and given the trends we see at the current rate of deregulation, I am not optimistic at the outcome should they get their way. I do, however, think it’s ironic that they do so crying that it’s the other side who wants aristocracy.

                2. The point is that extreme inequality is a consequence of insufficiently regulated capitalism, and extreme inequality is indistinguishable from the old system capitalism was superior to,

                  I would disagree with both of those points. In my view, inequality qua inequality is not even an issue. To quote Jefferson badly out of context, it neither breaks my leg nor picks my pocket.

    2. And this is going to look terrible in any court case.

      Unfortunately, the First, Second, Third and Ninth Circuits have already upheld gun control for peons with their rubberstamping of may-issue laws.

      The recent First Circuit case Gould v. Morgan is ripe for appeal to the Supreme Court.

  10. Gee, if the Second Circuit gave the 8th Amendment the same level of respect it gives to the 2nd Amendment, it would be permissible to have all the Second Circuit Judges who voted to uphold this nonsense horse whipped.

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  12. Looking at this again, it appears that they could rule against NYC on purely statutory grounds.

    US code 926A

    “Notwithstanding any other provision of any law or any rule or regulation of a State or any political subdivision thereof, any person who is not otherwise prohibited by this chapter from transporting, shipping, or receiving a firearm shall be entitled to transport a firearm for any lawful purpose from any place where he may lawfully possess and carry such firearm to any other place where he may lawfully possess and carry such firearm if, during such transportation the firearm is unloaded, and neither the firearm nor any ammunition being transported is readily accessible or is directly accessible from the passenger compartment of such transporting vehicle: Provided, That in the case of a vehicle without a compartment separate from the driver’s compartment the firearm or ammunition shall be contained in a locked container other than the glove compartment or console.”

    The NYC law would appear to directly violate the bolded text. There’s a good chance the Court will rule against NYC without even invoking the 2nd amendment.

    1. The language is not super clear inside, but the subtitle is “interstate transportation,” and Congress intended for it to cover a situation where a person was driving from Vermont (with few gun laws) to Pennsylvania (with few gun laws) through New York and New Jersey. There is a good argument that 926A preempts the rule as to going to out of state ranges, but not ranges in New York outside of the 5 boroughs.

      In any case, leftist court decisions have largely rendered this statute worthless. As an example, the 3rd Circuit ruled that law enforcement cant’ be expected to know the rules at every “origin” and “destination,” and therefore, it’s always justified for cops to arrest people and figure out the law later. Other courts held that it doesn’t apply to transportation by plane, meaning a person with a lawful gun in Connecticut can’t drive, with the gun locked as prescribed by 926A, to Newark Airport and fly out of there.

      The judiciary acts in bad faith, and has been doing so for decades. This article is proof of that.

      Link

      1. The title suggests that it applies to interstate travel, the text is more general. Either way the NYC statute violates it. But, yeah, that’s not going to stop the Court from upholding it if 5 members like gun control.

        With bad faith, all things judicial are possible.

        1. Exactly. I’d argue the text, as applied to intrastate travel, is outside Congress’ power to regular commerce or travel (although you could argue it’s justified under Section 5 of the 14th Amendment). But it would be a disgrace for the court to rule on statutory grounds and not address the Constitutional issue as to what level of scrutiny should be applied.

          I’m not an absolutist on any Constitutional provision, but at the very least, gun laws should be judged under strict scrutiny, not intermediate scrutiny, and certainly not the rational basis called intermediate scrutiny the 2nd Circuit used here.

        2. The first thing I though of when reading the challenged statute was actually the dormant commerce clause. Isn’t the local government here discriminating against interstate commerce? Maybe SCOTUS doesn’t even need 2A to strike this down.

  13. On 11/4/02 I sent the following letter:

    Cpt. Roy Richter
    One Police Plaza
    New York, NY 10038

    Dear Cpt. Richter:

    I have two question.
    First:
    New York City has started only issuing a PREMISES LICENSE and your web site states:
    Licensees may also transport their handguns and ammunition in SEPARATE LOCKED CONTAINERS, DIRECTLY to and from an authorized range, or hunting location. HANDGUNS MUST BE UNLOADED WHEN TRANSPORTING.
    QUESTION 1: Is the new PREMISES LICENSE valid throughout New York State so that a person with a new PREMISES LICENSE can legally travel to public ranges or private clubs or land within the rest of New York State without being arrested or having his/her guns confiscated because they do not hold a valid license?

    Second:
    NY State Penal Law Section 400 contains the following:
    6. License: validity. … A license to carry or possess a pistol or revolver, not otherwise limited as to place or time of possession, shall be effective throughout the state, except that the same shall not be valid within the city of New York unless a special permit granting validity is issued by the police commissioner of that city.

    QUESTION 2: How can someone from another county in New York State get a special permit that would allow them to carry a handgun to a range in NY City for practice or competition?

  14. Dear Mr. Rogero:

    Your letter to Captain Richter concerning premise handgun licenses has been referred to me for reply. In response to your first question regarding the validity of New York City premise licenses outside the City, please note that a premise license issued by the New York City Police Department is limited as to place of possession, and therefore would not be valid outside the licensed premises. There are two exceptions to this rule, however. A licensee may transport his licensed handgun unloaded, in a locked container with the ammunition carried separately while travelling to or from an authorized range or shooting club in New York City. The other exception covers New York City premise licenses with a hunting authorization. Those licensees may transport their licensed handgun to an authorized area designated by the New York State Fish and Wildlife law. Again, the handgun must be transported unloaded, in a locked container with the ammunition carried separately.
    Regarding your second question, the New York City Police Department only issues special validations for business carry and carry guard/security licenses issued by counties outside of the City of New York. As the New York City Police Department no longer issues target licenses, it will not validate a target license issued by another county.

  15. If you would like further information regarding this matter, you may contact either Sergeant Michael Marten or Sergeant Christopher Montagna of my staff. They can be reached at 646-610-5551.

    Yours truly yours
    Thomas M. Prasso
    Director

    From my website: http://www.ocshooters.com/news…..12.htm#nyc

  16. Whenever the Supreme Court upsets prior understandings, it’s decisions can be construed narrowly or expansively. Often it’s conservatives who have advocated narrow readings of liberal Supreme Court decisions.

    The 2nd circuit’s decision may be wrong, but it’s as legitimate a narrow reading of Heller as many conservative lower court judges’ narrow readings of past liberal decisions. Heller explicitly announced a right to possess firearms in the home. Nothing New York City has done conflicts with that. Taking a gun for travel or to a shooting range of one’s choice may be convenient. But it’s not clearly within what Heller explicitly articulated.

    The 2nd Circuit was entitled to take Heller at its word and no further.

  17. On a barely relevant tangent, I was recalling a scene from The Thin Man (1934) when the cops bust into Nick and Nora’s apartment and discover Nick’s gun:

    “You got a pistol permit?”

    “No,”

    “Ever heard of the Sullivan Act?”

    “Oh, that’s alright, we’re married.”

  18. States in general have a sorry record of respect for individual rights, as evidenced by cases dragged all the way to the supreme court forcing them to incorporate individual rights.

    States have argued and won cases of federal overreach based on the tenth amendment. The tenth doesn’t stop at states rights though, it sets a hierarchy of rights with rights of the people at the top.

    For those that say state restrictions are ok, the 10th amendment makes a pretty plain statement about rights reserved to the people:
    “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, OR to the people.”

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