The Second Circuit in Kachalsky v. Cacace upheld New York’s gun licensing law, including the discretionary policy for granting concealed-carry permits.
In doing so, the Court parted with Judge Kavanaugh’s dissenting view in Heller II, Judge Elrod, and “academics,” held that the traditional tiers of scrutiny to apply to the Second Amendment.
A number of courts and academics, take the view that Heller’s reluctance to announce a standard of review is a signal that courts must look solely to the text, history, and tradition of the Second Amendment to determine whether a state can limit the right without applying any sort of means-end scrutiny. See Heller v. District of Columbia, 670 F.3d 1244, 1271-74 (D.C. Cir. 2011) (Kavanaugh, J., dissenting); see also Eugene Volokh, Implementing the Right to Keep and Bear Arms for Self–Defense: An Analytical Framework and a Research Agenda, 56 UCLA L. Rev. 1443, 1463 (2009); Joseph Blocher, Categoricalism and Balancing in First and Second Amendment Analysis, 84 N.Y.U. L. Rev. 375, 405 (2009). We disagree. Heller stands for the rather unremarkable proposition that where a state regulation is entirely inconsistent with the protections afforded by an enumerated right—as understood through that right’s text, history, and tradition—it is an exercise in futility to apply means-end scrutiny. Moreover, the conclusion that the law would be unconstitutional “[u]nder any of the standards of scrutiny” applicable to other rights implies, if anything, that one of the conventional levels of scrutiny would be applicable to regulations alleged to infringe Second Amendment rights.
Good thing the Second Amendment doesn’t have an Anti-Injunction Act!
Anyway, the 2nd Circuit’s analysis concedes that the 2nd Amendment has “some application” outside the home.
What we know from these decisions is that Second 15 Amendment guarantees are at their zenith within the home. 16 Heller, 554 U.S. at 628-29. What we do not know is the 17 scope of that right beyond the home and the standards for 18 determining when and how the right can be regulated by a 19 government. This vast “terra incognita” has troubled courts 20 since Heller was decided. United States v. Masciandaro, 638 21 F.3d 458, 475 (4th Cir. 2011) (Wilkinson, J., for the 22 Court). Although the Supreme Court’s cases applying the 1 Second Amendment have arisen only in connection with 2 prohibitions on the possession of firearms in the home, the 3 Court’s analysis suggests, as Justice Stevens’s dissent in 4 Heller and Defendants in this case before us acknowledge, 5 that the Amendment must have some application in the very different context of the public possession of firearms. 10 6 7 Our analysis proceeds on this assumption.
The Court has an interesting, and frank discussion about the role that history plays in this analysis.
It seems apparent to us that unlike the situation in 2 Heller where “[f]ew laws in the history of our Nation have 3 come close” to D.C.’s total ban on usable handguns in the 4 home, New York’s restriction on firearm possession in public has a number of close and longstanding cousins. 15 5 Heller, 6 554 U.S. at 629. History and tradition do not speak with 7 one voice here. What history demonstrates is that states 8 often disagreed as to the scope of the right to bear arms, 9 whether the right was embodied in a state constitution or 10 the Second Amendment. . . .
Even if we believed that we should look solely to this 17 highly ambiguous history and tradition to determine the 18 meaning of the Amendment, we would find that the cited 19 sources do not directly address the specific question before 20 us: Can New York limit handgun licenses to those 21 demonstrating a special need for self-protection? Unlike the cases and statutes discussed above, New York’s proper 2 cause requirement does not operate as a complete ban on the 3 possession of handguns in public. Analogizing New York’s 4 licensing scheme (or any other gun regulation for that 5 matter) to the array of statutes enacted or construed over 6 one hundred years ago has its limits.
In other words, the court acknowledge that the history is “highly ambiguous,” and does not speak directly to the question before the court.
The court also has an interesting discussion of what I’ve called equality of rights–treating the amendments in a similar fashion.
Plaintiffs raise a second argument with regard to how 8 we should measure the constitutional legitimacy of the New 9 York statute that takes a decidedly different tack. They 10 suggest that we apply First Amendment prior-restraint 11 analysis in lieu of means-end scrutiny to assess the proper cause requirement. 16 12 They see the nature of the rights 13 guaranteed by each amendment as identical in kind. One has 14 a right to speak and a right to bear arms. Thus, just as 15 the First Amendment permits everyone to speak without 16 obtaining a license, New York cannot limit the right to bear 17 arms to only some law-abiding citizens. We are hesitant to 18 import substantive First Amendment principles wholesale into 19 Second Amendment jurisprudence. Indeed, no court has done so.
The court decides not to import these terms. Why? It would “Result in the erosion of hard-won First Amendment rights.” In other words, the Second Amendment is different from all other rights (see The Constitutionality of Social Cost that poses just that question):
But it 16 would be as imprudent to assume that the principles and 17 doctrines developed in connection with the First Amendment 18 apply equally to the Second, as to assume that rules 19 developed in the Second Amendment context could be 20 transferred without modification to the First. Endorsing 21 that approach would be an incautious equation of the two 22 amendments and could well result in the erosion of hard-won 23 First Amendment rights. As discussed throughout, there are 1 salient differences between the state’s ability to regulate 2 each of these rights.
The court goes on to talk about the fact that this is a bad vehicle, but let’s pause to address this. This is the clearest statement I’ve seen by a court saying that applying First Amendment doctrine to Second Amendment would dilute the First Amendment’s power. This argument must be premised on the fact that the Second Amendment is a second-class right.
The court finds that “heightened scrutiny” is not automatically triggered here because the law in question is not a complete ban.
Here, some form of heightened 2 scrutiny would be appropriate. New York’s proper cause 3 requirement places substantial limits on the ability of law- 4 abiding citizens to possess firearms for self-defense in 5 public. And unlike Decastro, there are no alternative 6 options for obtaining a license to carry a handgun. 7
We do not believe, however, that heightened scrutiny 8 must always be akin to strict scrutiny when a law burdens 9 the Second Amendment. Heller explains that the “core” 10 protection of the Second Amendment is the “right of law- 11 abiding, responsible citizens to use arms in defense of 12 hearth and home.” Heller, 554 U.S. at 634-35. Although we 13 have no occasion to decide what level of scrutiny should 14 apply to laws that burden the “core” Second Amendment 15 protection identified in Heller, we believe that applying 16 less than strict scrutiny when the regulation does not 17 burden the “core” protection of self-defense in the home 18 makes eminent sense in this context and is in line with the approach taken by our sister circuits.
Perhaps the coolest part of this opinion, is that in the discussion of the importance of the home, it cites the Third Amendment. Kudos CA2:
That the home deserves special protection from government intrusion is also reflected in the Third Amendment, which provides: “No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.” U.S. Const. amend. III.
Because the 2nd Amendment permits “latitude,” it passes “intermediate scrutiny.”
We believe state regulation of the use of firearms in 8 public was “enshrined with[in] the scope” of the Second 9 Amendment when it was adopted. Heller, 554. U.S. at 634. 10 As Plaintiffs admitted at oral argument, “the state enjoys a 11 fair degree of latitude” to regulate the use and possession 12 of firearms in public. The Second Amendment does not 13 foreclose regulatory measures to a degree that would result 14 in “handcuffing lawmakers’ ability to prevent armed mayhem 15 in public places.” Masciandaro, 638 F.3d at 471 (internal 16 quotation marks omitted). 17
Because our tradition so clearly indicates a 18 substantial role for state regulation of the carrying of 19 firearms in public, we conclude that intermediate scrutiny 20 is appropriate in this case. The proper cause requirement 21 passes constitutional muster if it is substantially related 22 to the achievement of an important governmental interest.
Restricting handgun possession in public to those who 16 have a reason to possess the weapon for a lawful purpose is 17 substantially related to New York’s interests in public 18 safety and crime prevention. It is not, as Plaintiffs 19 contend, an arbitrary licensing regime no different from 20 limiting handgun possession to every tenth citizen. This 21 argument asks us to conduct a review bordering on strict 22 scrutiny to ensure that New York’s regulatory choice will protect public safety more than the least restrictive 2 alternative. But, as explained above, New York’s law need 3 only be substantially related to the state’s important 4 public safety interest. A perfect fit between the means and 5 the governmental objective is not required. Here, instead 6 of forbidding anyone from carrying a handgun in public, New 7 York took a more moderate approach to fulfilling its 8 important objective and reasonably concluded that only 9 individuals having a bona fide reason to possess handguns 10 should be allowed to introduce them into the public sphere. 11 That New York has attempted to accommodate certain 12 particularized interests in self defense does not somehow 13 render its concealed carry restrictions unrelated to the 14 furtherance of public safety.
The court also addressed the link between guns and danger.
To be sure, we recognize the existence of studies and 16 data challenging the relationship between handgun ownership 17 by lawful citizens and violent crime. Plaintiffs’ Reply Br. 18 at 37-38. We also recognize that many violent crimes occur 19 without any warning to the victims. But New York also 20 submitted studies and data demonstrating that widespread 21 access to handguns in public increases the likelihood that 22 felonies will result in death and fundamentally alters the safety and character of public spaces. J.A. 453, 486-90. 2 It is the legislature’s job, not ours, to weigh conflicting 3 evidence and make policy judgments. Indeed, assessing the 4 risks and benefits of handgun possession and shaping a 5 licensing scheme to maximize the competing public-policy 6 objectives, as New York did, is precisely the type of 7 discretionary judgment that officials in the legislative and 8 executive branches of state government regularly make.
And, in an epic citation contrast, the majority counters Heller with NIFB!
To be sure, “the enshrinement of constitutional rights 10 necessarily takes certain policy choices off the table.” 11 Heller, 554 U.S. at 636. But there is also a “general 12 reticence to invalidate the acts of [our] elected leaders.” 13 Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 14 2579 (2012). “‘Proper respect for a coordinate branch of 15 government’ requires that we strike down [legislation] only 16 if ‘the lack of constitutional authority to pass [the] act 17 in question is clearly demonstrated.’” Id. (quoting United 18 States v. Harris, 106 U.S. 629, 635 (1883)). Our review of 19 the history and tradition of firearm regulation does not 20 “clearly demonstrate” that limiting handgun possession in 21 public to those who show a special need for self-protection 22 is inconsistent with the Second Amendment. I
This is a really well-reasoned opinion. Let’s see what SCOTUS does with it.
P.S. The Second Circuit should stop putting line numbers in slip opinions. It is absolutely worthless in the digital age, and it makes copying from opinions very difficult.