Going After New York

I would characterize this as a very bold lawsuit on the part of SAF. But we will, at some point, have to go after discretionary licensing. But we are going after both the right to carry and discretionary licensing in one lawsuit. I would say this is quite a leap, but I thought Parker was when it first came out too, and we all know how that turned out (it became Heller). Same situation too. Someone’s going to do it. I’d prefer it be someone who makes a very thorough and strong case than some amateur, or worse a kook.

Hat tip to Ian Argent.

18 thoughts on “Going After New York”

  1. Actually, that’s Westchester County, not NYC. I don’t know if that’s necessarily an easier target, but it would have been pretty ballsy to go straight for NYC. (Then again, they went after Chicago.)

    But given that this is very close to NYC, maybe this is a shot across their bow.

  2. I imagine part of the issue is that NY has a may issue license system to even purchase handguns; this is another way of building off of the fundamental right established in Heller and McDonald.

    After all, if you have the right to own a handgun for protection, you can’t be denied that right just cause a couple of bureaucrats don’t think that you have a legitimate reason to purchase one.

  3. NYS does this by county, with some counties enacting a “shall issue” policy, others are “shall issue” for a permit to purchase but no CCW (e.g. Erie county where Buffalo, and my home are), and other counties are just non-issue.

    To put this in perspective, I submitted my permit application the first week of August, and I am still waiting. If my case goes like others in EC, I will have a permit that allows for hunting, target shooting and possession in my home-that’s it.

  4. I would like to thank the NRA for finding and funding all of these cases, with out them we would have nothing. :snark:

  5. There’s damn few places with discretionary permits to *own*; off the top of my head only MA and NY have such a system. And, really, that question was answered with Heller and MacDonald – you will note that Chicago’s new registration requirement is not discretionary.

    Also, Gura and the SAF seem to want to push the boundaries out as far as possible before goign back and filling in the details – which matches the evident desires of the current SCOTUS. This suit is striking while the iron is hot; I would expect to see a final decision no later than 3 years from now, and more likely on the same timeline as MacDonald (just over 2 years). Less if Westchester decides they are out of money.

    I don’t think it’s as much of a Hail Mary attempt as it appears – MacDonald’s holding says “right to keep and bear” as part of the fundamental right. Plus, they’re not challenging the “sensitive spaces” language or the government’s right to license, only stating that the sensitive spaces have to be narrowly defined and that the license must be issued to all but the most dangerous people.

  6. NY’s system requires the same permit to own or carry a handgun. Each permit will be stamped with restrictions ranging from home only, home and business, hunting and target shooting to unrestricted. The restrictions are not legally binding but if you are caught carrying outside those restrictings your issuing authority will yank your permit. Sue with people that have been denied the right to purchase a handgun and you might just win full and unrestricted CCW at the same time.

    I think its a great target for Gura, especially when combined with Palmer v DC, Sykes in CA (or am I thinking of Pena?) and the NC suit. Four different circuits all considering carry… ;-)

  7. Sebastian, might you explain why you think this suit is “very bold?” Would it be, say, bolder than a suit taking on a no-issue state such as WI or IL? Or bold because NY will fight it tooth and nail?

    I am just not sure why this is such a bold move. It seems like the reasonable next step (Palmer v DC notwithstanding).

  8. I’d probably feel safer with a discretionary issue case that involves ownership rather than carry, to get discretionary issue tossed entirely. New York would be an attractive target in that regard, but so would Massachusetts.

    But the world doesn’t exist to make me feel safer, so I don’t want to make it seem like I’m against this case. It just seems risky to me. I accept that there’s probably no good alternative, and no doubt Alan Gura is going to want to run as many cases as he can in as many circuits as he can so the Supreme Court has a variety of cases to take when it comes to that. But that also doesn’t mean some of these aren’t going to be nail biters :)

  9. They’ve all been risky, Sebastian.

    My hope is that 2AF and NRA can put the bad blood behind them (I’m not going to point fingers-it’s counter productive) and at least acknowledge that they are both on the same team.

  10. Oh, I know. And I know Alan Gura probably has good reasons for pursuing this. I don’t think he’s reckless, and he’s very thorough about putting together good cases with good plaintiffs.

    But I’m still nervous about carry cases, given the dicta about concealed weapons in Heller. Though, I’m not aware there’s open carry in New York either, so it would seem to prohibit carry entirely, except for need.

    I’ll get over it. It’s a good case. It’s not like Benson isn’t risky too.

  11. AFAIR, the only states with discretionary ownership (NY and MA) use the same permit for both ownership and carry, differing only in the fine print written down on the permit when it is issued. So I don’t know that there’s any point to only going after discretion in issuing the permit with a limit; since you’d just have to do the dance first for “keep” and then for “bear”. “Keep” can be assumed from Heller/MacDonald – esp since even Chicago’s new law is “shall-register”; the law does not appear to admit of discretion in registration. If you meet the written criteria, you must be permitted to register, and there’s no “in the opinion of…” requirement. DC is the same way – the hoops are tight, but they can’t be moved. Jump through them in the approved manner and the permits are granted mechanically.

    I am more interested in the “tactics”. SAF et al sued the county to enjoin enforcement of a state law. The state is not named as a defendant at all. Say Westchester Co rolls over and says “you’re right, we agree that we can’t enforce the “good cause” part of the NY state law”. What happens then? Also, how much can NYS participate in the case?

  12. I live in NJ. Since the Chicago ruling came out, I have been trying really hard not to get too excited about the prospect of NJ’s gun laws changing.

    Technically, we are a may issue state but part of that process is to appear before a judge and explain your need for the permit. No average, law abiding, citizen can get one. It is next to impossible unless you are very politically connected. This NY case could lay the ground work to change this, but I won’t hold my breath. It would be easier for me to move to PA.

  13. I do not believe there exists a place that is discretionary keep licensing. There may be laws on the books that say that, but the practice in those places is to issue keep licenses. Some are slow, but I challenge anyone to show me a law abiding person who now can’t possess a handgun in their home after, at worst, a wait.


  14. Depending on the MA poilce chief, you can get your license LIFTED and have to get rid of the guns for really minor issues. This is not considered a judicial taking at the current time.

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