Constitutionality of Social Cost: Can NYC charge a higher annual fee to register a firearm than the rest of New York State

April 6th, 2011

The Second Amendment Foundation has sued Mayor Bloomberg and NYC over the $340 Firearm Annual Fee. A more interesting issue that fits nicely into my Constitutionality of Social Cost Analysis: Can a registration fee be higher in NYC (a high crime urban area) in comparison with the rest of New York State?

From the Times:

A gun-rights-advocacy group sued Mayor Michael R. Bloomberg on Tuesday, claiming that the city fee for obtaining a home-handgun permit was so excessive that it impinged on the Second Amendment.

The group, the Second Amendment Foundation, based in Bellevue, Wash., is focusing on New York’s fees because, according to the group, the city is one of the few places in the country that requires people to obtain permits to keep guns in their homes.

The city’s fee is $340, plus a $94.25 charge for a fingerprint check. The fee in most other places in the state is $10, according to the foundation. Mr. Bloomberg has long been a staunch supporter of gun control and has made efforts to reduce the traffic in guns into the city through sting operations, lawsuits against gun dealers and other antigun measures.

The city’s fee for obtaining a home gun permit has long been in place.

The suit, filed in federal court, claims that the city’s fee is so exorbitant that it “impermissibly burdens the Second Amendment right to keep and bear arms,” and the suit argues that because city residents are forced to pay more than others, the fee also violates the 14th Amendment’s equal-protection clause.

So does that high fee cover administrative costs? Not according to the Plaintiff.

The group also took issue with how the revenue collected from the fees is spent. “Not one penny of it goes to processing the application,” Mr. Gottlieb said. “It all goes to the police pension fund.”

If the Court is so inclined, they could consider First Amendment doctrines, Grossjean v. American Press Co. in particular, which consider the types of fees and taxes placed on newspapers, and other forms of expression, to decide whether these costs are administrative, or designed to inhibit the exercise of the right.

I see from a press release that the maximum fee for New York State residents (NYC residents exempted) is $10, so there are also Equal Protection Clause Issues. This raises the interesting question that I have raised (most recently in The Constitutionality of Social Cost): can Second Amendment rights mean different things, in this case in a high-crime urban area. Can burdens placed on the right to keep and bear arms differ based on local, geographic factors? This could be an interesting equal protection test.

Also, this gives the Court a chance to rule on equal protection grounds, rather than on Second Amendment grounds directly. This permits an interesting cop-out for hesitant Judges unwilling to expand Second Amendment rights.

Update: After chatting a bit with a friend, I wanted to clarify how the equal protection challenge would work.

With respect to an equal protection challenge, I don’t think the geography raises the standard of review, rather it can be used to show disparate treatment with other similarly situated plaintiffs outside the City (See my article on Village of Willowbrook v. Olech and the class of one). If the Court finds that the Second Amendment is a fundamental right, and determines similarly situated people are being treated differently, there could be a equal protection violation without ruling directly on whether the fee violates the Second Amendment by itself.