The Volokh Conspiracy
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"Petitioner's Second Amendment Rights Are Not Dependent on Her Spouse's Acquisition …
of an unrestricted concealed carry pistol permit," says N.Y. appellate court.
The case arose before Bruen, when New York required a showing of special need to get a license to carry a gun for self-defense. The petitioner had argued that she needed a gun because she and her husband would often carry substantial sums of cash for business, but the New York licensing authorities responded that she "failed to explain why her stated self-defense needs were not already adequately and independently addressed by her husband's recent acquisition of an unrestricted concealed carry license."
The New York intermediate appellate court rejected that logic (Matter of DiPerna-Gillen v. Ryba, decided Thursday in an opinion by Justice Stan Prizker, joined by Presiding Justice Elizabeth Garry and Justices Michael Lynch, Molly Reynolds Fitzgerald and Eddie McShan). The court's main point was that, given the decision in Bruen, which came down while the appeal was pending, petitioner had a constitutionally protected right to carry, even without a showing of special need. But the court added:
To the extent that the Attorney General attempts, inexplicably, to justify the determination based upon petitioner's "fail[ure] to explain why her stated self-defense needs were not already adequately and independently addressed by her husband's recent acquisition of an unrestricted concealed carry license," we note that this was not a basis for the denial of this application and "judicial review of an administrative determination is limited to the grounds invoked by" respondent.
More to the point, the statutory framework contains no such required showing and, suffice it to say that petitioner's Second Amendment rights are not dependent on her spouse's acquisition of an unrestricted concealed carry pistol permit.
Here's more of the state's argument, from its brief:
[P]etitioner stated that she was seeking an unrestricted carry license to use for safety purposes when assisting her husband in his hobby of refurbishing woodworking equipment, explaining that picking up products to refurbish and delivering finished products involved traveling "usually out in no-man's land" and she and her husband "may have several thousand dollars on us …." … And petitioner further disclosed, but only when asked by respondent, that petitioner's husband had recently been issued an unrestricted carry license that he could use for these activities….
To [get an unrestricted carry license under the pre-Bruen scheme], petitioner was required to show proper cause for the significant expansion she sought for the use of her license. Yet the only evidence she submitted to make that showing was her testimony that she sought to use a firearm for safety purposes while assisting her husband with a hobby that often involved driving to unfamiliar locations with large sums of cash….
[P]etitioner failed to explain why her stated self-defense needs were not already adequately and independently addressed by her husband's recent acquisition of an unrestricted concealed carry license. As respondent's questions to petitioner suggested, petitioner's husband would now be able to bring his firearm when he and petitioner engaged in his hobby together. This fact alone refuted petitioner's claim that her participation in her husband's hobby presented "a special need for self-protection distinguishable from that of the general community or of persons engaged in the same profession."
Congratulations to Joel E. Abelove, who represents petitioner.
