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Supreme Court declines potential major gun rights case, leaving limits intact

A New York law requires residents who want to carry a concealed handgun in public to demonstrate a need for self-protection beyond that of the general public. The Supreme Court turned aside a gun rights challenge to that law.

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A federal judge disagreed, ruling that Second Amendment rights do not extend beyond the home. The judge also ruled that the state regulation was within the Legislature’s power as a legitimate policy choice.

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A panel of the Second Circuit Court of Appeals also upheld the New York regulation. The appeals court rejected the argument that citizens enjoy a “right” to carry a handgun for self-defense.

“There is no right to engage in self-defense with a firearm until the objective circumstances justify the use of deadly force,” the court said.

In urging the high court to take up the case, Alexandria, Va., lawyer Alan Gura said New York was treating the carrying of handguns for self-defense not as a constitutional right but as an administrative privilege.

“It is difficult to imagine federal courts sustaining the denial of the right to speak, the right to worship, or the right to terminate a pregnancy whenever the government asserts that these activities contravene the public interest, and thus may not be conducted absent an extraordinary ‘proper cause,’ ” Mr. Gura wrote in his brief.

“But as this case demonstrates, the Second Amendment is still relegated to uniquely lower status in some courts,” he said.

At its most basic, the issue is whether the Second Amendment protects only the keeping and bearing of firearms within one’s home or whether it applies more generally to a citizen’s seeking to carry a handgun for self-defense.

Three other federal appeals courts are currently considering the constitutionality of similar gun regulations in Illinois, California, and Maryland.

New York Solicitor General Barbara Underwood told the court in her brief that the Second Circuit decision does not conflict with prior opinions of the US Supreme Court, federal appeals courts, or state supreme courts.

Ms. Underwood said the appeals court acknowledged that the Second Amendment applies outside the home, but the judges concluded, nonetheless, that the state restrictions on carrying firearms for protection were justified.

She said that in both of the high court’s prior gun-rights decisions, the justices “made clear that the Second Amendment permits reasonable regulation of firearms.”

Gura said many lower-court judges are enforcing narrow interpretations of the high court’s gun-rights precedents. Some, he said, have been more faithful to Justice Stephen Breyer’s dissenting opinion than to Justice Antonin Scalia’s majority opinion. He said some lower courts are eviscerating the high court’s recent Second Amendment decisions.

“The only thing worse than explicitly refusing to enforce an enumerated constitutional right would be to declare a right ‘fundamental’ while standing aside as lower courts render it worthless,” Gura wrote in his brief.

“Few outcomes could promote as much cynicism about our legal system,” he said.

The case was Kachalsky v. Cacace (12-845).


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