Second Circuit Upholds Sullivan Law

Via Jacob, the decision can be found here. The decision will be appealed. In the decision they kind of dabble in the history and tradition argument, without really going into serious analysis, then you get this:

But Plaintiffs’ contention that the proper cause requirement grants licensing officials unbridled discretion is something of a red herring. Plaintiffs admit that there is an established standard for determining whether an applicant has demonstrated proper cause. The proper cause requirement has existed in New York since 1913 and is defined by binding judicial precedent as “a special need for self-protection distinguishable from that of the general community or of persons engaged in the same profession.”

Plaintiffs’ complaint is not that the proper cause requirement is standardless; rather, they simply do not like the standard—that licenses are limited to those with a special need for self-protection. This is not an argument that licensing officials have unbridled discretion in granting full-carry permits. In fact, the State Defendants’ determinations that Plaintiffs do not have a special need for self-protection are unchallenged. Rather, Plaintiffs question New York’s ability to limit handgun possession to those demonstrating a threat to their safety. This is precisely the type of argument that should be addressed by examining the purpose and impact of the law in light of the Plaintiffs’ Second Amendment right.

Plaintiffs’ attempts to equate this case with Heller or to draw analogies to First Amendment concerns come up short.

They go on to conclude the core right is a right in the home, and make analogies to privacy rights, and speak of the home as having high constitutional protections relative to public places, even going so far as to recall rulings that allow obscenity to be possessed in homes, but banned in public.

They then go the traditional route for the lower courts, which is to apply intermediate scrutiny, which of course means the statute in question survives. Can you think of any case where a gun control statute was tossed using intermediate scrutiny? I can think of Ezell, but that was heightened-almost-scrict scrutiny. It seems the courts in these cases believe that if they just rename rational basis to be intermediate scrutiny, using rational basis review somehow becomes OK, as long as you don’t call it that.

Either the lower courts are in for an epic smack down after all these carry cases play out in the lower courts, or taking this issue into the courts is going to turn out to be an epic mistake, and we’re going to end up with a Second Amendment right that is a mish-mash of the worst things the state courts have already done to it. I am sincerely hoping the former is the case.

9 thoughts on “Second Circuit Upholds Sullivan Law”

  1. Woollard v. Sheridan invalidated Maryland’s licensing statute under intermediate scrutiny. 863 F.Supp.2d 462 (D.Md. 2012).

    The court there held that the “good and substantial reason” requirement was not reasonably adapted to the government’s interest in public safety.

    But that’s just a district court, not an appellate court.

  2. “we’re going to end up with a Second Amendment right that is a mish-mash of the worst things the state courts have already done to it. I am sincerely hoping the former is the case.”

    I’m betting on this outcome, I’m afraid. In relatively free states, that means I’m largely free to get shall-issue licensing, etc. In the occupied territories, governments will issue as they choose to, or not, and connections will still matter.

    It gives courts the cover of precedent – the restrictions are “established” – and lets them do what they want to do anyway. If change is going to come, it will have to come via Louisiana’s method: specify via constitutional amendment that the Constitution means what it says.

    We see the same thing in 4th amendment jurisprudence; routinely, courts find a way to make what to any reasonable person is an illegal search legal in order to save the outcome.

  3. There is in reality no difference at all between intermediate scrutiny and rational basis. If you give them a millimeter of wiggle room, it might as well be a mile.

  4. I like page 21 of the decision…

    “Other states read restrictions on the public carrying of weapons as entirely consistent with constitutional protections of the right to keep and bear arms. At least four states once banned the carrying of pistols and similar weapons in public, both in a concealed or an open manner…
    It goes on to list Arkansas (1875), Tennessee (1871), and Texas (1871)… Man, I wonder what was going on in the 1870s in the Deep South that would require “may issue” permit schemes and disarming large swathes of the population arbitrarily?

  5. Assuming that Kagan, Sotomayor, et al., (including Eric Holder or someone similar replacing one of the Heller 5) will not be able to write an opinion that supports redefining semiautomatic firearms as “machineguns” is naive.

    They already figured out how “the people” means “the state government”, how “keep and bear arms” means “keep unloaded, disassembled, and locked up in your house, but only if it is a sporting longarm”, etc.

    I can see the game plan. ATF “determines” that “bump firing” is a “single activation of the trigger”, thus anything that can be bump fired — or is “readily restoreable” to do so (via a Slide Fire stock or something similar), is a “machinegun”. Thus ALL semiauto receivers are “machinegun receivers”.

    Doesn’t matter what the law says; ultimately, it matters what SCOTUS says it means. If Scalia, Kennedy, or Thomas (the three of the “Heller 5″ justices most likely to have the next serious health issue) has a stroke in the next four years, we’ll have a solid 5-4 antigun majority. Guaranteed.

    1. Yeah, but that makes us no worse off than we were in 2008 before Heller when we were winning fabulously in the political arena … except after the first bad decision by the Supremes we’ll be angry and motivated.

Comments are closed.