Concealed weapons: US court upholds New York state requirement for permit

“They reason that the exercise of the right to bear arms cannot be made dependent on a need for self protection, just as the exercise of other enumerated rights cannot be made dependent on a need to exercise those rights,” he said. “This is a crude comparison and highlights Plaintiffs’ misunderstanding of the Second Amendment.”

The court noted that state regulation under the Second Amendment has always been more restrictive than other constitutional rights. Wesley said no law could bar felons or the mentally ill from speaking on a particular topic or exercising their religious freedom, but regulations have long prevented felons and the mentally ill from possessing firearms.

“Our review of the history and tradition of firearm regulation does not clearly demonstrate that limiting handgun possession in public to those who show a special need for self-protection is inconsistent with the Second Amendment,” the court said.

“Accordingly, we decline Plaintiffs’ invitation to strike down New York’s one-hundred-year-old law and call into question the state’s traditional authority to extensively regulate handgun possession in public.

The suit was brought by lawyers with the Second Amendment Foundation on behalf of five gun owners who applied for concealed handgun permits in New York and were denied. Four of the applicants offered no explanation of a “special need” for the permit. One of the applicants was a transgender female who said she was more likely to be a victim of violence.

The gun owners argued that the court should apply the same analysis as is used to weigh prior restraints to speech under the First Amendment.

“They see the nature of the rights guaranteed by each amendment as identical in kind. One has a right to speak and a right to bear arms,” the court said.

“Just as the First Amendment permits everyone to speak without obtaining a license, New York cannot limit the right to bear arms to only some law-abiding citizens,” the court said, summing up the gun owners’ position.

The judges rejected the argument.

“We are hesitant to import substantive First Amendment principles wholesale into Second Amendment jurisprudence,” Wesley wrote. “Indeed, no court has done so.”

Instead, the court drew a distinction between possessing a firearm in the home for self defense and carrying one in public for the same purpose.

“While the state’s ability to regulate firearms is circumscribed in the home, outside the home, firearm rights have always been more limited, because public safety interests often outweigh individual interests in self-defense,” Wesley wrote.

The case is Kachalsky v. Westchester (11-3642). 

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